CAMERON STOELTING, Plаintiff-Appellant, v. STEVEN J. BETZELOS, Defendant-Appellee.
Docket No. 2-12-0651
Appellate Court of Illinois, Second District
January 14, 2013
2013 IL App (2d) 120651
Decision Under Review: Appeal from the Circuit Court of McHenry County, No. 11-LA-207; the Hon. Michael T. Caldwell, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the cоnvenience of the reader.)
The dismissal of plaintiff’s dental malpractice complaint with prejudice due to her counsel’s failure to comply with section 2-622 of the Code of Civil Procedure by filing an attorney’s affidavit within the 90 days of filing the complaint was reversed, since the trial court incorrectly believed it had no discretion to allow plaintiff additional time to file the affidavit, and the cause was remanded for a determination of whether good cause was established for not complying with the statute.
Judgment Reversed and remanded.
Dwight C. Adams, of Dwight C. Adams & Associates, of Rolling Meadows, for appellant.
Robert P. Hoban III, of James M. Hoffman & Associates, of Park Ridge, for appellee.
Panel
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett conсurred in the judgment and opinion.
OPINION
¶ 1 At issue in this appeal is whether the medical malpractice complaint that plaintiff, Cameron Stoelting, filed against defendant, Steven J. Betzelos, was properly dismissed with prejudice when plaintiff’s attorney failed to file an attorney affidavit as required by sectiоn 2-622 of the Code of Civil Procedure (Code) (
¶ 2 On June 1, 2011, plaintiff filed hеr medical malpractice complaint, alleging that defendant, a dentist, committed various acts and omissions that constituted medical malpractice. Specifically, plaintiff alleged that defendant misdiagnosed plaintiff’s condition, broke an endodontic file in plaintiff’s first molar, failed to evaluate a postoperative radiograph, failed to timely refer plaintiff to a specialist when such a referral was needed, failed to appropriately treat plaintiff’s condition, and failed to obtain proper informed consent. Plaintiff alleged that, as а proximate result of these acts and omissions, she suffered economic and noneconomic damages. Attached to plaintiff’s complaint was the report of Dr. James S. Wasilewski, a dentist who attested that defendant was negligent in treating plaintiff. Although plaintiff’s complaint is signed by plaintiff’s attоrney, her attorney did not file with plaintiff’s complaint an attorney affidavit as required by section 2-622 of the Code.
¶ 3 On November 16, 2011, defendant moved to dismiss plaintiff’s medical malpractice
¶ 4 In answer to defendant’s motion to dismiss, plaintiff claimed that she attempted in good faith to comply with the requirements of section 2-622 of the Code, that her attorney’s signature on the complaint satisfied the attorney affidavit requirement of section 2-622, and that, if an attorney signature on the complaint was not sufficient, then the court should allow her to file an attorney affidavit. No attorney affidavit was attached to plaintiff’s answer.
¶ 5 Defendant filed a reply, stating that plaintiff’s counsel’s mere signature on the medical malpractice complaint was not sufficient to meet the attorney affidavit requirement of section 2-622 of the Code. Moreover, defendant asserted that, even if it were, the attorney affidavit requirement still was not satisfied, as neither the complaint nor the doctor’s report contained the information that needеd to be contained in an attorney affidavit. Because plaintiff failed to establish good cause for why she did not file an attorney affidavit along with her complaint and the doctor’s report, defendant reiterated, plaintiff’s complaint should be dismissed with prejudice.
¶ 6 Plaintiff did not appear at the hearing on the motion to dismiss, and the trial court granted the motion to dismiss with prejudice. Plaintiff moved to reconsider, arguing that her counsel could not appear at the hearing on the motion to dismiss because counsel was in another courtroom attending to another matter. Attaсhed to her motion to reconsider was an attorney affidavit.
¶ 7 At the hearing on the motion to reconsider, a new attorney appeared for plaintiff. This attorney urged the court to vacate the dismissal with prejudice and allow plaintiff to file an attorney affidavit or dismiss the complаint without prejudice so that plaintiff could refile the complaint within one year (see
¶ 8 The trial court denied the motion to reconsider. In doing so, the court stated:
“[T]he provisions of this statute tend to be somewhat harsh. But the fact of the matter is this statute requires, A, that the affidavit and the report be filed with the complaint, or, B, within a 90-day period following the filing of the complaint.
The report was filed but the affidavit wasn’t. And if you look at the statute, it requires the filing of both. This isn’t a situation where counsеl simply forgot it. One of the problems with the response is he responded to the substance of the motion by saying I already signed the complaint. I don’t have to sign it again. And my ruling *** in that respect was that that was the wrong stance or wrong position to take.
And the 90-day period has expired. And under the *** under the stаtute, I don’t have the authority to grant additional extensions, which is exactly what you’re asking me to do.”
¶ 9 Later, after counsel further urged the court to dismiss the complaint without prejudice, the court ruled:
“But as I see the statute, I have no discretion. I have to apply this law, and this is what the law says. *** And you didn’t follоw the law. This is not a discretionary ruling with me.”
¶ 10 This timely appeal followed.
¶ 11 Ordinarily, this court reviews de novo the dismissal of a complaint under section 2-619 of the Code. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008). Where, as here, the issue is whether a dismissal with prejudice is appropriate, this court generally considers whether the trial court abused its discretion. Razor Capital v. Antaal, 2012 IL App (2d) 110904, ¶ 8. In this case, however, the trial court dismissed with prejudice because it believed that, in light of plaintiff’s failure to file an attorney affidavit within 90 days after filing her complaint, dismissal with prejudice was required by section 2-622 of the Code. Issues of statutory interpretation are reviewed de novo. Deutsche Bank National Trust Co. v. Gryc, 2012 IL App (2d) 111015, ¶ 10. Accordingly, we determine that a de novo standard of review applies here. See Knight, 404 Ill. App. 3d at 215-16.
¶ 12 In addressing whether the statute required the trial court to dismiss plaintiff’s complaint with prejudice, we begin by examining the statute itself. Sections 2-622(а)(1) and (a)(2) of the Code provide that, when a plaintiff files a medical malpractice complaint, the plaintiff shall attach to the complaint either (1) a doctor’s report and an attorney affidavit supporting and attesting to the merit of the plaintiff’s claims or (2) an attorney affidavit that explains that the plaintiff has not yet consulted with a doctor who would support the plaintiff’s claims but that the plaintiff is filing the complaint without the necessary affidavit and report so that the plaintiff’s claims are not barred by the applicable statute of limitations.
¶ 14 Here, at the hearing on plaintiff’s motion to reconsider, the trial court found that it had to dismiss plaintiff’s complaint with prejudice because plaintiff did not file an attorney affidavit within 90 days and, according to the court, it could not grant plaintiff additional time to file the affidavit becаuse section 2-622 of the Code specifically prohibited the court from doing so. The plain language of section 2-622(a)(2), which contains the 90-day extension provision, says nothing about whether the court can grant a plaintiff additional time to file the necessary documents. Rather, as we noted in Knight, 404 Ill. App. 3d at 216, that language comes from a version of the statute that has been declared unconstitutional. Id.; see also
¶ 15 Under the version of the statute in effect when plaintiff here filed her complaint, noncompliance with the statute did not require a court to dismiss a complaint with prejudice. Knight, 404 Ill. App. 3d at 217. Rather, if a plaintiff failed to comply within the initial 90-day period, the court could grant the plaintiff additional time to file the necessary report and attorney affidavit. Id. The decision whether to grant that additional time would be within the trial court’s discretion and would not be disturbed by a reviewing court absent a manifest abuse of discretion. Id. Accordingly, the court here was incorrect when it found that it was without discretion to grant plaintiff additional time to file the attorney affidavit.
¶ 16 Thus, the question this court faces is what remedy, if any, to give plaintiff. We find guidance on this question in Knight. There, this court was faced with either deciding sua sponte whether the plaintiff had good cause for not filing the doctor’s report within the initial 90-day period or remanding the cause for the trial court to decide that issue. Id. We determined that remanding the cause for the trial court to make that decision was the best course of action, because, as a court of review, this court does not make factual findings and whether a plaintiff had good cause not to comply with section 2-622 is heavily dependent on the facts. Id. at 217-18. In doing so, we did not express any opinion on the merits. Id. at 218. Thus, in line with Knight, here, without expressing any view on the merits of plaintiff’s good-cause claim, we reverse the dismissal of plaintiff’s complaint and remand this cause
¶ 17 In taking this position, we realize that, unlike in Knight, plaintiff here filed the doctor’s report but failed to file the attorney affidavit within 90 days after she filed her complaint. We do not believe that this fact mandates a different outcome, as section 2-622(a)(2) of the Code requires the filing of both an attorney affidavit and a doctor’s report within 90 days after the complaint is filed. Thus, by extension, additional time may be granted, for good cause shown, to file the attorney affidavit as well as the doctor’s report. Moreover, the fact that plaintiff addressed her reasons for not filing her attorney affidavit only after the initial 90-day period had expired does not, standing alone, warrant dismissing plaintiff’s complaint with prejudice. The statute does not mention anything about an extension, let alone when a request for an extension must be made, and requests outside the 90-day period are not unheard of. We note that in Knight, for instance, the plaintiff waited to request an extension until after the 90 days had expired. See, e.g., id. at 215.
¶ 18 Finally, we are aware of the fact that an analogy could be drawn between the facts presented here and those cases where the reviewing courts affirmed dismissals with prejudice of medical malрractice complaints when the plaintiffs filed invalid affidavits. Illustrative of this point is Ingold v. Irwin, 302 Ill. App. 3d 378 (1998). There, the plaintiff filed an attorney affidavit that indicated that her attorney had spoken with the doctor who prepared the doctor’s report attesting to the merit of the plaintiff’s medical malpractiсe claims. Id. at 380. In actuality, the plaintiff’s attorney had never directly communicated with the doctor. Id. at 381. The defendant moved to dismiss the plaintiff’s complaint on this basis, among others, and the trial court granted the motion with prejudice. Id. at 381-82. On appeal, the appellate court determined that an “invаlid [attorney] affidavit is sufficient grounds, standing alone, on which the trial court could have dismissed this action with prejudice.” Id. at 388.
¶ 19 Likening Ingold to the facts presented here would put the cart before the horse. That is, before a court can conclude that a falsified or nonexistent attorney affidavit is a sufficiеnt basis upon which to dismiss a medical malpractice complaint with prejudice, the court must accurately apply the law regarding the granting of additional time to comply with the requirements of section 2-622. Given that the trial court here was under the mistaken impression that it could not grant plаintiff additional time to file the attorney affidavit, an issue not present in Ingold, we believe that this case is unlike Ingold and cases similar to it.
¶ 20 For these reasons, the judgment of the circuit court of McHenry County is reversed, and we remand this cause for further proceedings.
¶ 21 Reversed and remanded.