First District Appellate Opinion which may make Cook County judges wary to dismiss on the basis of Section 2-622.
On July 16, 2018, the First District Illinois Appellate Court issued a ruling in Lee v. Berkshire Nursing & Rehab Center, LLC, et al., which reversed the dismissal of a medical malpractice case as to two defendants, a hospital and physician. Circuit Judge Ehrlich had entered an order dismissing the defendants with prejudice on the grounds that the plaintiff did not comply with Section 2-622 of the Illinois Code of Civil Procedure.
At the time the plaintiff filed the Complaint, Plaintiff’s counsel was unable to obtain the requisite physician’s report under Section 2-622 before expiration of the statute of limitations. So counsel filed an attorney’s affidavit to that effect, which automatically extended the plaintiff’s time to file a physician’s report by 90 days. The Plaintiff did not file a physician’s report and attorney affidavit within the 90 days. The day after 90 days expired, the defendants moved to dismiss based on the failure to provide a physician’s report as required by Section 2-622. Rather than responding to the motion, the plaintiff filed a motion seeking an extension of time to file a 2-622 report, which attributed the delay to administrative snafus. At a hearing a few days later, the circuit court granted the defendants’ motion to dismiss with prejudice. Thirty days later, the plaintiff filed a motion to reconsider, which was accompanied by the required attorney affidavit and physician’s report. Nevertheless, the circuit court denied the plaintiff’s motion to reconsider.
Section 2-622(a)(1) requires every plaintiff alleging medical, hospital, or other healing art malpractice to attach to his or her complaint an affidavit stating that the affiant has consulted with a healthcare professional in whose opinion there is a “reasonable and meritorious cause” for filing the complaint. 735 ILCS 5/2-622(a)(1). Additionally, the plaintiff must attach a written report of the healthcare professional, attesting to the basis of this determination. Section 2-622(a)(2) allows for a 90-day extension for compliance with section 2-622(a)(1) if the affiant avers that he or she could not obtain the report before filing suit because of the pending expiration of the statute of limitation. 735 ILCS 5/2-622(a)(2).
In reviewing this dismissal, the Appellate Court reinforced that Section 2-622 is not a substantive defense which may be employed to bar plaintiffs who fail to meet its terms, but only imposes the obligation of demonstrating meritoriousness of the pending lawsuit. From the record, the Court inferred that the sole reason for dismissal with prejudice was failure to comply with the initial, statutory 90-day extension. The Court observed, however, that although Judge Ehrlich had dismissed claims against these defendants with prejudice without providing an additional extension, he had allowed plaintiff multiple extensions to file 2-622 reports against other physician defendants.
The Appellate Court concluded that, based upon these facts and the underlying purpose of Section 2-622 “to deter frivolous or nonmeritorious medical negligence claims,” it was an abuse of discretion for Judge Ehrlich to dismiss the plaintiff’s claims against the defendants in question, with prejudice. It emphasized that the 90-day extension allowed under Section 2-622 is not a time limitation meant to cut off all available relief if the plaintiff does not comply, and it emphasized the circuit court’s disparate treatment of the plaintiff’s request to obtain extensions for 2-622 reports regarding claims against other defendants. The Appellate Court observed that in cases upholding the dismissal of claims with prejudice for failure to comply with Section 2-622, appellate courts have been confronted with scenarios where the dismissal occurred after the plaintiffs have been provided “numerous opportunities” to comply with Section 2-622, but had failed to do so (some of which occurred after the complaints had already been dismissed). The Appellate Court emphasized that, unlike those cases, this case had been dismissed with prejudice only days after the statutory extension expired.
The Appellate Court stated its view that the case should have been dismissed without prejudice, to allow the plaintiff the opportunity to refile the case after a 2-622 report and affidavit had been secured.
This case reinforces the proposition added that a party’s failure to comply with Section 2-622 does not automatically require a dismissal with prejudice; rather, the court has discretion to grant a plaintiff additional time to comply with Section 2-622’s requirements. Furthermore, it suggests that plaintiffs should be provided with numerous opportunities to comply with Section 2-622 before a dismissal with prejudice is entered. Otherwise, the dismissal should be without prejudice.
For copies of Lee v. Bershire Nursing & Rehab Center, LLC, et al., 2018 IL App (1st) 171344, please e-mail Millie Koppean at Millie.Koppean@arandpartners.com.