O'Casek v. Children's Home and Aid Society of Illinois

Docket No. 105050.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

MARJORIE O’CASEK, Special Administrator of the Estate of Carla

Thompson, Deceased, Appellee, v. CHILDREN’S HOME AND AID

SOCIETY OF ILLINOIS (OSF St. Joseph Medical Center et al.,

Appellants).

Opinion filed June 19, 2008.

JUSTICE FITZGERALD delivered the judgment of the court,

with opinion.

Justices Freeman, Kilbride, and Burke concurred in the judgment

and opinion.

Justice Karmeier dissented, with opinion, joined by Chief Justice

Thomas and Justice Garman.

OPINION

Defendants, OSF Healthcare Systems (OSF), Richard D. Castillo,

M.D., and Susan G. Emmerson, M.D., appeal from a judgment of the

appellate court reversing the dismissal of plaintiff’s medical

malpractice action. At issue is whether plaintiff, Marjorie O’Casek,

special administrator of the estate of Carla Thompson, deceased, was

entitled to a 90-day extension in which to file a certificate of merit, in

support of her malpractice action, as required by section 2–622 of the

Code of Civil Procedure (735 ILCS 5/2–622 (West 2002)).

Resolution of this issue turns on whether Public Act 90–579

reenacted that version of section 2–622 which this court held

unconstitutional, on severability principles, in Best v. Taylor Machine

Works, 179 Ill. 2d 367 (1997). The appellate court held that,

according to Public Act 94–677, that version of section 2–622

“disappeared with Best and was never reenacted.” 374 Ill. App. 3d

507, 513. Accordingly, plaintiff was entitled to a 90-day extension

and her complaint should be allowed to proceed. 374 Ill. App. 3d at

515.

For the reasons that follow, we affirm the judgment of the

appellate court.

BACKGROUND

History of Section 2–622

Before 1995, section 2–622 of the Code of Civil Procedure

(commonly known as the Healing Art Malpractice Act) stated in

relevant part, as follows:

“§2–622. Healing art malpractice. (a) In any action,

whether in tort, contract or otherwise, in which the plaintiff

seeks damages for injuries or death by reason of medical,

hospital, or other healing art malpractice, the plaintiff’s

attorney or the plaintiff, if the plaintiff is proceeding pro se,

shall file an affidavit, attached to the original and all copies of

the complaint, declaring one of the following:

1. That the affiant has consulted and reviewed the facts of

the case with a health professional who the affiant reasonably

believes: (i) is knowledgeable in the relevant issues involved

in the particular action; (ii) practices or has practiced within

the last 6 years or teaches or has taught within the last 6 years

in the same area of health care or medicine that is at issue in

the particular action; and (iii) is qualified by experience or

demonstrated competence in the subject of the case; that the

reviewing health professional has determined in a written

report, after a review of the medical record and other relevant

material involved in the particular action that there is a

reasonable and meritorious cause for the filing of such action;

and that the affiant has concluded on the basis of the

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reviewing health professional’s review and consultation that

there is a reasonable and meritorious cause for filing of such

action. If the affidavit is filed as to a defendant who is a

physician licensed to treat human ailments without the use of

drugs or medicines and without operative surgery, a dentist,

a podiatrist, or a psychologist, the written report must be from

a health professional licensed in the same profession, with the

same class of license, as the defendant. For affidavits filed as

to all other defendants, the written report must be from a

physician licensed to practice medicine in all its branches. In

either event, the affidavit must identify the profession of the

reviewing health professional. A copy of the written report,

clearly identifying the plaintiff and the reasons for the

reviewing health professional’s determination that a

reasonable and meritorious cause for the filing of the action

exists, must be attached to the affidavit, but information

which would identify the reviewing health professional may

be deleted from the copy so attached.

2. That the affiant was unable to obtain a consultation

required by paragraph 1 because a statue of limitations would

impair the action and the consultation required could not be

obtained before the expiration of the statute of limitations. If

an affidavit is executed pursuant to this paragraph, the

certificate and written report required by paragraph 1 shall be

filed within 90 days after the filing of the complaint. The

defendant shall be excused from answering or otherwise

pleading until 30 days after being served with a certificate

required by paragraph 1.” 735 ILCS 5/2–622 (West 1994).

Under this version of section 2–622, upon the filing of an appropriate

affidavit, a medical malpractice plaintiff was entitled to a 90-day

extension to file the required certificate of merit, irrespective of

whether the plaintiff had previously voluntarily dismissed his or her

cause of action. Cargill v. Czelatdko, 353 Ill. App. 3d 654, 657

(2004); Neuman v. Burstein, 230 Ill. App. 3d 33, 37-38 (1992).

The Civil Justice Reform Amendments of 1995 (Pub. Act 89–7,

eff. March 9, 1995) amended section 2–622 in two respects. First, the

language in section 2–622(a)(1) permitting the identity of the

reviewing health professional to be deleted from the report was

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stricken from the statute and the following language was added: “The

report shall include the name and the address of the health

professional.” Second, and relevant to this appeal, section

2–622(a)(2) was amended to add another requirement to the attorney

affidavit, namely, that the “plaintiff has not previously voluntarily

dismissed an action based upon the same or substantially the same

acts, omissions, or occurrences.” Thus, under Public Act 89–7, a

plaintiff was precluded from obtaining a 90-day extension to file a

certificate of merit if the plaintiff previously voluntarily dismissed the

same or substantially the same cause of action.

On December 18, 1997, this court held Public Act 89–7 void in

its entirety. Best, 179 Ill. 2d at 467. The amendments made to section

2–622 were not among the core provisions held substantively

unconstitutional, but were nonetheless deemed invalid because the

core provisions could not be severed from the balance of the act. Best,

179 Ill. 2d at 467. We noted that the General Assembly was “free to

reenact whatever provisions it deems desirable or appropriate.” Best,

179 Ill. 2d at 471. With our decision in Best, section 2–622 reverted

to the pre-1995 version, quoted above.

On February 4, 1998, less than two months after our decision in

Best, the General Assembly passed Public Act 90–579. Effective May

1, 1998, Public Act 90–579 amended section 2–622(a)(1) by adding

naprapaths to the list of covered health professionals. Notably,

however, Public Act 90–579 did not add naprapaths to the pre-1995

version of section 2–622 that was in effect after Best. Rather, it added

naprapaths to the 1995 version struck down in Best. Public Act

90–579 stated:

“The Code of Civil Procedure is amended by changing

Section 2–622 as follows:

(735 ILCS 5/2–622) (from Ch. 110, par. 2–622)

§2–622. Healing art malpractice.

(a) In any action, whether in tort, contract or otherwise, in

which the plaintiff seeks damages for injuries or death by

reason of medical, hospital, or other healing art malpractice,

the plaintiff’s attorney or the plaintiff, if the plaintiff is

proceeding pro se, shall file an affidavit, attached to the

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original and all the copies of the complaint, declaring one of

the following:

1. That the affiant has consulted and reviewed the

facts of the case with a health professional who the affiant

reasonably believes: (i) is knowledgeable in the relevant

issues involved in the particular action; (ii) practices or

has practiced within the last 6 years or teaches or has

taught within the last 6 years in the same area of health

care or medicine that is at issue in the particular action;

and (iii) is qualified by experience or demonstrated

competence in the subject of the case; that the reviewing

health professional has determined in a written report,

after a review of the medical record and other relevant

material involved in the particular action that there is a

reasonable and meritorious cause for filing of such action;

and that the affiant has concluded on the basis of the

reviewing health professional’s review and consultation

that there is a reasonable and meritorious cause for filing

such action. If the affidavit is filed as to a defendant who

is a physician licensed to treat human ailments without the

use of drugs or medicines and without operative surgery,

a dentist, a podiatrist, or a psychologist, or a naprapath,

the written report must be from a health professional

licensed in the same profession, with the same class of

license, as the defendant. For affidavits filed as to all

other defendants, the written report must be from a

physician licensed to practice medicine in all its branches.

In either event, the affidavit must identify the profession

of the reviewing health professional. A copy of the written

report, clearly identifying the plaintiff and the reasons for

the reviewing health professional’s determination that a

reasonable and meritorious cause for the filing of the

action exists, must be attached to the affidavit. The report

shall include the name and the address of the health

professional.

2. That the plaintiff has not previously voluntarily

dismissed an action based upon the same or substantially

the same acts, omissions, or occurrences and that the

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affiant was unable to obtain a consultation required by

paragraph 1 because a statute of limitations would impair

the action and the consultation required could not be

obtained before the expiration of the statute of limitations.

If an affidavit is executed pursuant to this paragraph, the

certificate and written report required by paragraph 1 shall

be filed within 90 days after the filing of the complaint.

The defendant shall be excused from answering or

otherwise pleading until 30 days after being served with

a certificate required by paragraph 1.

***

(i) This amendatory Act of 1997 does not apply to or

affect any actions pending at the time of its effective date,

but applies to cases filed on or after its effective date.”

(Strikeouts and italics in original.) Pub. Act 90–579, eff.

May 1, 1998.

During the next several years, no further amendments to section

2–622 were adopted, and no published opinion from the appellate

court or this court directly addressed the effect of Public Act 90–579

on section 2–622. But see Giegoldt v. Condell Medical Center, 328

Ill. App. 3d 907, 912 (2002) (where the Second District implicitly

recognized that Public Act 90–579 reenacted the 1995 version of

section 2–622). In 2004, however, the Fourth District entertained an

interlocutory appeal, pursuant to Rule 308(a) (155 Ill. 2d R. 308(a)),

which expressly asked: “Did P.A. 90–579 resurrect the amendments

to [s]ection 2–622 of the Code of Civil Procedure (inserted by P.A.

89–7) which had been found unconstitutional by the Illinois Supreme

Court’s decision in Best v. Taylor Machine Works”? Cargill v.

Czelatdko, 353 Ill. App. 3d 654, 655 (2004). The appellate court

answered in the affirmative. Cargill, 353 Ill. App. 3d at 661.

In Cargill, the appellate court noted that the legislature is

presumed to act with knowledge of the prevailing case law. Cargill,

353 Ill. App. 3d at 658. Accordingly, the appellate court presumed

that the legislature was aware of the Best ruling and its impact on

Public Act 89–7. Cargill, 353 Ill. App. 3d at 658. The appellate court

held that when the legislature passed Public Act 90–579, with the

same language as in Public Act 89–7, the legislature intended it to

have the same effect and was simply following the supreme court’s

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pronouncement in Best that desirable provisions could be reenacted.

Cargill, 353 Ill. App. 3d at 660. The appellate court rejected the

plaintiff’s argument that Public Act 90–579 was defective because the

operative language was not italicized. Cargill, 353 Ill. App. 3d at

660-61. The court explained that section 5 of the Statute on Statutes

(5 ILCS 70/5 (West 2002)), on which the plaintiff relied, “does not

require italics for new matters to be valid.” Cargill, 353 Ill. App. 3d

at 660. The appellate court concluded that, “in looking at the plain

language of the statute, if a physician’s report is not attached to the

complaint, the plaintiff must attach an affidavit indicating he ‘has not

previously voluntarily dismissed an action based upon the same or

substantially the same acts.’ ” Cargill, 353 Ill. App. 3d at 661,

quoting 735 ILCS 5/2–622(a)(2) (West 2002). The appellate court

further held that in a refiled healing art malpractice case the circuit

court has no discretion to waive the affidavit requirement, and that

failure to comply mandates dismissal of the complaint with prejudice.

Cargill, 353 Ill. App. 3d at 662.

Approximately seven months following the Cargill opinion, the

General Assembly passed Public Act 94–677. Effective August 25,

2005, Public Act 94–677 made various changes to Illinois law with

the stated purpose of addressing the “health care crisis” and

instituting “reforms to the civil justice system” and to “the current

medical malpractice situation.” Pub. Act 94–677, art. 1, §101, eff.

August 25, 2005. Relevant to this appeal, section 330 of Public Act

94–677 amended the Code of Civil Procedure by “reenacting and

changing” section 2–622. Pub. Act 94–677, art. 3, §330, eff. August

25, 2005. Unlike Public Act 90–579, which used the 1995 version of

section 2–622, Public Act 94–677 used the pre-1995 version of

section 2–622, with the exception that it also incorporated the

naprapath amendment contained in Public Act 90–579. For clarity,

we set forth below the pertinent provisions of Public Act 94–677:

“The Code of Civil Procedure is amended by reenacting

and changing Sections 2–622 and 8–2501, by changing

Section 8–1901, and by adding Sections 2–1704.5 and

2–1706.5 as follows:

(735 ILCS 5/2–622) (from Ch. 110, par. 2–622)

(Text of Section WITHOUT the changes made by P.A.

89–7, which has been held unconstitutional)

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Sec. 2–622. Healing art malpractice.

(a) In any action, whether in tort, contract or otherwise, in

which the plaintiff seeks damages for injuries or death by

reason of medical, hospital, or other healing art malpractice,

the plaintiff’s attorney or the plaintiff, if the plaintiff is

proceeding pro se, shall file an affidavit, attached to the

original and all copies of the complaint, declaring one of the

following:

1. That the affiant has consulted and reviewed the

facts of the case with a health professional who the affiant

reasonably believes: (i) is knowledgeable in the relevant

issues involved in the particular action; (ii) practices or

has practiced within the last 5 6 years or teaches or has

taught within the last 5 6 years in the same area of health

care or medicine that is at issue in the particular action;

and (iii) meets the expert witness standards set forth in

paragraphs (a) through (d) of Section 8–2501; is

qualified by experience or demonstrated competence in

the subject of the case; that the reviewing health

professional has determined in a written report, after a

review of the medical record and other relevant material

involved in the particular action that there is a reasonable

and meritorious cause for the filing of such action; and

that the affiant has concluded on the basis of the

reviewing health professional’s review and consultation

that there is a reasonable and meritorious cause for filing

of such action. A single written report must be filed to

cover each defendant in the action. As to defendants who

are individuals, the If the affidavit is filed as to a

defendant who is a physician licensed to treat human

ailments without the use of drugs or medicines and

without operative surgery, a dentist, a podiatrist, a

psychologist, or a naprapath, The written report must be

from a health professional licensed in the same

profession, with the same class of license, as the

defendant. For written reports affidavits filed as to all

other defendants, who are not individuals, the written

report must be from a physician licensed to practice

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medicine in all its branches who is qualified by experience

with the standard of care, methods, procedures and

treatments relevant to the allegations at issue in the case.

In either event, the written report affidavit must identify

the profession of the reviewing health professional. A

copy of the written report, clearly identifying the plaintiff

and the reasons for the reviewing health professional’s

determination that a reasonable and meritorious cause for

the filing of the action exists, including the reviewing

health care professional’s name, address, current license

number, and state of licensure, must be attached to the

affidavit, but information which would identify the

reviewing health professional may be deleted from the

copy so attached. Information regarding the preparation

of a written report by the reviewing health professional

shall not be used to discriminate against that professional

in the issuance of medical liability insurance or in the

setting of that professional’s medical liability insurance

premium. No professional organization may discriminate

against a reviewing health professional on the basis that

the reviewing health professional has prepared a written

report.

2. That the affiant was unable to obtain a consultation

required by paragraph 1 because a statute of limitations

would impair the action and the consultation required

could not be obtained before the expiration of the statute

of limitations. If an affidavit is executed pursuant to this

paragraph, the affidavit certificate and written report

required by paragraph 1 shall be filed within 90 days after

the filing of the complaint. No additional 90-day

extensions pursuant to this paragraph shall be granted,

except where there has been a withdrawal of the

plaintiff’s counsel. The defendant shall be excused from

answering or otherwise pleading until 30 days after being

served with an affidavit and a report a certificate required

by paragraph 1.

***

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(j) The changes to this Section made by this amendatory

Act of the 94th General Assembly apply to causes of action

accruing on or after its effective date.” (Strikeouts and italics

in original.) Pub. Act 94–677, eff. August 25, 2005.

The effect of Public Acts 90–579 and 94–677 on section 2–622

is the subject of the present dispute, to which we now turn.1

The Present Dispute

On August 30, 2002, plaintiff filed an amended complaint at law

in the Cook County circuit court alleging medical malpractice by

defendants in connection with a tonsillectomy performed on

decedent, Carla Thompson, on August 29, 2000.2 Attached to the

amended complaint was an affidavit provided by plaintiff’s attorney

stating that he had been unable to obtain a consultation with a health

professional before the expiration of the statute of limitations, and

that the required certificate and report would be filed within 90 days.

Plaintiff failed to do so, and defendant Emmerson filed a section

2–619 motion to dismiss (735 ILCS 5/2–619 (West 2002). Plaintiff

responded with a motion to voluntarily dismiss the complaint (735

ILCS 5/2–1009 (West 2002)). The trial court granted plaintiff’s

motion without prejudice.

One year later, on February 23, 2004, plaintiff refiled her cause of

action. Although the refiled action was brought in Cook County, the

cause was later transferred, on OSF’s motion, to McLean County.

Attached to the refiled complaint was an affidavit from plaintiff’s

counsel stating that he had been unable to obtain a consultation with

1

On November 13, 2007, the circuit court of Cook County, in case No.

2006 L 12109, declared a portion of Public Act 94–677 unconstitutional

and the act invalid in its entirety. That ruling has been appealed directly to

this court pursuant to Supreme Court Rule 302 (210 Ill. 2d R. 302(a)(1))

and is currently pending. Lebron v. Gottlieb Memorial Hospital, Nos.

105741, 105745 cons.

2

The amended complaint, as well as the refiled complaint, included a

negligence count against the Children’s Home and Aid Society, which

owned and operated the residential facility where the decedent resided.

This entity is not a party to this appeal.

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a health professional and that the required certificate and report would

be filed within 90 days. Within the 90 days, plaintiff’s attorney filed

a certificate of merit with a physician’s report.

Defendants OSF and Castillo filed a section 2–619 motion to

dismiss arguing, in relevant part, that plaintiff had failed to satisfy the

requirements of section 2–622. Relying on the appellate court’s

opinion in Cargill, defendants maintained that where, as here, a

certificate of merit is not attached to the complaint, the plaintiff’s

attorney must file an affidavit stating, in pertinent part, that plaintiff

“ ‘has not previously voluntarily dismissed an action based upon the

same or substantially the same acts.’ ” Cargill, 353 Ill. App. 3d at

661, quoting 735 ILCS 5/2–622(a)(2) (West 2002). Defendants

argued that in light of the earlier voluntary dismissal of plaintiff’s

complaint, plaintiff could not satisfy the affidavit requirements of

section 2–622 and plaintiff’s cause of action should be dismissed.

Defendant Emmerson filed a similar dismissal motion. In response,

plaintiff argued that the affidavit requirement on which defendants

relied violates the equal protection clause of the federal and state

constitutions by imposing an excessive restriction on medical

malpractice plaintiffs’ access to the judicial system, without a

compelling state interest. See U.S. Const., amend. XIV, §1; Ill. Const.

1970, art. I, §2. The trial court rejected plaintiff’s equal protection

argument and granted defendants’ dismissal motions.

Plaintiff filed a motion for reconsideration, arguing for the first

time that Public Act 90–579 was passed in violation of the three-

readings clause of the Illinois Constitution (Ill. Const. 1970, art. IV,

§8(d)). Plaintiff further argued, for the first time, that section 2–622

violates due process (U.S. Const., amend. XIV, §1; Ill. Const. 1970,

art. I, §2) and constitutes impermissible special legislation (Ill. Const.

1970, art. IV, §13). Plaintiff also reasserted her equal protection

challenge. Defendant Emmerson filed a motion to strike plaintiff’s

reconsideration motion, arguing that plaintiff improperly raised new

legal theories. See Coles-Moultrie Electric Cooperative v. City of

Sullivan, 304 Ill. App. 3d 153, 166 (1999).

While the foregoing motions were pending, Public Act 94–677

became law. A month later, plaintiff sought leave to supplement her

reconsideration motion. In her supplement, plaintiff argued that

Public Act 94–677 clearly establishes that the General Assembly did

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not intend Public Act 90–579 to make substantive changes to section

2–622, other than to add naprapaths to the list of health professionals.

According to plaintiff, the holding in Cargill–that Public Act 90–579

reenacted the 1995 version of section 2–622–was made in error, and

that under the pre-1995 version of section 2–622, she was entitled to

obtain a 90-day extension to file a certificate of merit,

notwithstanding her prior voluntary dismissal. Defendants objected

to plaintiff’s supplement, arguing that plaintiff was improperly raising

new issues, the circuit court was bound by Cargill, and plaintiff’s

supplement should be stricken.

The circuit court denied plaintiff’s motion for reconsideration.

The record does not disclose the basis for the court’s ruling.

Plaintiff appealed the dismissal of her complaint and the denial of

her reconsideration motion. The Fourth District, with dissent,

reversed. 374 Ill. App. 3d 507. The majority held that, according to

Public Act 94–677, the 1995 version of section 2–622 “disappeared

with Best and was never reenacted.” 374 Ill. App. 3d at 513. The

majority focused on the parenthetical language that appears in Public

Act 94–677, prior to the text of the amendment. 374 Ill. App. 3d at

512. This language states: “(Text of Section WITHOUT the changes

made by P.A. 89–7, which has been held unconstitutional).”

(Emphasis in original.) Pub. Act 94–677, §330, eff. August 25, 2005.

The majority viewed this language as an explicit rejection of the 1995

version of section 2–622. 374 Ill. App. 3d at 512. The majority also

concluded that the legislature’s use of the pre-1995 version of section

2–622 as a template for the amendments made by Public Act 94–677

should be construed as a continuation of an old law and not as a new

enactment. 374 Ill. App. 3d at 513. The majority concluded that “[t]he

legislature recognized Public Act 90–579 for its naprapath

amendment, but not, in contradiction to Cargill’s assessment of

Public Act 90–579’s effect, for any reenactment of the civil-reform

language.” (Emphasis in original.) 374 Ill. App. 3d at 513. Because

the pre-1995 version of section 2–622 allowed a 90-day extension to

file the required certificate and physician’s report, without regard to

whether the plaintiff had previously taken a voluntary dismissal, the

appellate court reversed the dismissal of plaintiff’s complaint and

remanded the matter to the trial court. 374 Ill. App. 3d at 515.

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Justice Knecht, in dissent, maintained that the circuit court

properly relied on the precedent established in Cargill, which was

correctly decided, and that the majority’s approach was flawed. “The

majority proposes to reverse that careful adherence to precedent by

deferring to a later legislative enactment that attempts to say that is

not what the law was because that is not what we wanted it to be. The

legislature does not interpret its enactments–the courts do.” 374 Ill.

App. 3d at 515 (Knecht, J., dissenting).

Defendants filed a petition for rehearing and an application for a

certificate of importance. See Ill. Const. 1970, art. VI, §4(c); 155 Ill.

2d R. 316. The appellate court denied the rehearing petition, but

granted the application for a certificate of importance. The certificate

states that it is granted “to review the issue of whether Public Act

90–579 resurrected the civil-reform version of section 2–622 of the

Code of Civil Procedure.” Under Rule 316, however, “the whole case

comes before us and not just a particular issue.” People v. Crawford

Distributing Co., 78 Ill. 2d 70, 73 (1979).

ANALYSIS

The purpose of a section 2–619 motion is to dispose of issues of

law and easily proved issues of fact early in the litigation. Van Meter

v. Darien Park District, 207 Ill. 2d 359, 367 (2003). Here, the basis

for defendants’ dismissal motions was the plaintiff’s alleged failure

to comply with the affidavit and certificate requirements of section

2–622. Throughout this litigation section 2–622(g) has provided that

the failure to file a certificate required by section 2–622 shall be

grounds for dismissal under section 2–619. See, e.g., 735 ILCS

5/2–622(g) (West 2002).

On appeal from a section 2–619 motion, the reviewing court

“must consider whether the existence of a genuine issue of material

fact should have precluded the dismissal or, absent such an issue of

fact, whether dismissal is proper as a matter of law.” Kedzie & 103rd

Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993). A

court’s disposition of a section 2–619 motion is reviewed de novo.

Van Meter, 207 Ill. 2d at 368.

Whether dismissal was proper in this case turns on an issue of

statutory construction. Before we reach this issue, however, we must

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consider two preliminary matters defendants raise: (1) whether

plaintiff forfeited review of the statutory construction issue, as well

as other issues first raised in plaintiff’s reconsideration motion and

supplement; and (2) whether principles of stare decisis precluded the

appellate court from reexamining its earlier decision in Cargill.

Forfeiture

Defendants argue that, with the exception of her equal protection

argument, plaintiff forfeited consideration of the issues raised in her

reconsideration motion and supplement by failing to raise such issues

earlier. See Gardner v. Navistar International Transportation Corp.,

213 Ill. App. 3d 242, 248 (1991) (stating that litigants should not be

permitted to stand mute, lose a motion, and then gather new material

to show the court erred in its ruling). The appellate court rejected

defendants’ forfeiture argument, citing the “court’s duty to maintain

a sound body of precedent,” as well as the oft-cited proposition that

forfeiture is a limitation on the parties and not the court. 374 Ill. App.

3d at 514. For the following reasons, we also reject defendants’

forfeiture argument.

The lead argument in plaintiff’s supplement to her reconsideration

motion concerned the effect of Public Act 94–677 on section 2–622.

Plaintiff could not have raised this argument in response to

defendants’ dismissal motions or in her initial reconsideration motion

because Public Act 94–677 had not yet been enacted. While

plaintiff’s reconsideration motion was pending, the General Assembly

passed Public Act 94–677 and, within a month of its effective date,

plaintiff sought leave to supplement her reconsideration motion.

Because plaintiff raised this argument at the first opportunity to do so,

we decline defendant’s invitation to find this issue forfeited based on

a claim of untimeliness.

Plaintiff also raised new issues on reconsideration that were

independent of Public Act 94–677. Plaintiff argued that the legislative

history of Public Act 90–579 demonstrated that the legislature did not

intend to reenact the 1995 version of section 2–622. Plaintiff also

raised new constitutional challenges to the statute. To the extent

plaintiff forfeited consideration of these issues by failing to raise them

sooner, we will overlook any forfeiture in the interest of maintaining

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a sound and uniform body of precedent. Hux v. Raben, 38 Ill. 2d 223,

225 (1967); accord Village of Lake Villa v. Stokovich, 211 Ill. 2d 106,

121 (2004). As discussed below, the law within the Fourth District

regarding the various amendments to section 2–622 is confused and

the potential exists for conflict among the appellate districts.

We note that while this case was being briefed in this court,

another panel of the Fourth District “overruled” the appellate court

judgment now under review. Crull v. Sriratana, 376 Ill. App. 3d 803

(2007). Crull states:

“[W]e need to clarify this court’s position regarding our

earlier decision in Cargill, upon which we rely here, and

which the O’Casek court concluded was incorrectly decided.

We disagree with that conclusion and adhere both to Cargill’s

result and analysis. To the extent that O’Casek is inconsistent

with Cargill or this case, O’Casek is hereby overruled.” Crull,

376 Ill. App. 3d at 817.

But see Crull, 376 Ill. App. 3d at 819 (Myerscough, J., specially

concurring in part and dissenting in part) (stating that the majority’s

disagreement with O’Casek “is at best inappropriate and mere dicta”).

Additionally, the First District, in Beauchamp v. Zimmerman, 359

Ill. App. 3d 143 (2005), has given a favorable nod to the Cargill

opinion. Beauchamp states:

“[T]here has been some confusion regarding the effect of

Public Act 90–579. Some have argued that Public Act 90–579

was intended only to extend the requirements of section

2–622 to those who practice the healing art of ‘naprapathy,’

rather than to reenact the pre-Best [i.e., 1995] version of

section 2–622; however, that argument was squarely rejected

by this court in Cargill, 353 Ill. App. 3d at 658, 818 N.E. 2d

at 903. Thus, the provisions of section 2–622 limiting the

statute of limitations exception to plaintiffs who have not

already voluntarily dismissed the same or substantially the

same claim, as well as the portion requiring that the

consulting physician’s name and address be indicated on the

report, apply with full force here.” Beauchamp, 359 Ill. App.

3d at 148 n.1.

-15-

See also Giegoldt, 328 Ill. App. 3d at 912 (where the Second District

implicitly recognized that Public Act 90–579 reenacted the 1995

version of section 2–622).

Our decision to overlook any forfeiture in this case is made with

the recognition that the new issues plaintiff raised were all issues of

law which involved no problem of proofs, and that defendants were

not deprived of an opportunity to present argument on these issues in

the circuit court. See Hux, 38 Ill. 2d at 225.

Stare Decisis

Defendants also argue that this court should reverse the appellate

court judgment in order to affirm principles of stare decisis.

Defendants maintain that adherence to precedent is required unless it

can be shown that “serious detriment is likely to arise that will

prejudice the public interest.” People v. Worden, 299 Ill. App. 3d 836,

838 (1998). According to defendants, “the majority’s overturning of

its own Cargill decision does not advance the public interest. Instead,

the decision does a disservice to all of the lower courts, courts of

review and litigants that relied on the Cargill decision over the course

of the last few years.”

“The doctrine of stare decisis is the means by which courts ensure

that the law will not merely change erratically, but will develop in a

principled and intelligible fashion.” Chicago Bar Ass’n v. Illinois

State Board of Elections, 161 Ill. 2d 502, 510 (1994). Where a court

of review reexamines an issue already ruled upon and arrives at an

inapposite decision, the straight path of stare decisis is affected, as

well as the reliance interests of litigants, the bench, and the bar. These

concerns, however, provide an insufficient basis on which to reverse

the appellate court in the present case.

“ ‘[S]tare decisis requires courts to follow the decisions of higher

courts, but does not bind courts to follow decisions of equal or

inferior courts.’ ” Gillen v. State Farm Mutual Automobile Insurance

Co., 215 Ill. 2d 381, 392 n.2 (2005), quoting Schiffner v. Motorola,

Inc., 297 Ill. App. 3d 1099, 1102 (1998). Thus, the opinion of one

district, division, or panel of the appellate court is not binding on

other districts, divisions, or panels. Gillen, 215 Ill. 2d at 392 n.2. The

appellate court here was not bound by the earlier Cargill opinion and

-16-

could part company with that decision without offending the doctrine

of stare decisis. Whether the appellate court correctly concluded that

the adoption of Public Act 94–677, which was not in existence when

Cargill was decided, justifies a different result is an issue distinct

from whether the appellate court was required to follow Cargill. On

the latter issue, we find no error. Accordingly, we turn to the

substantive issue before this court–whether Public Act 90–579

reenacted the 1995 version of section 2–622 that was struck down in

Best.

Statutory Construction

Issues of statutory construction present questions of law that we

review de novo. In re Donald A.G., 221 Ill. 2d 234, 246 (2006). As in

all cases of statutory construction, our primary objective is to

ascertain and give effect to the intent of the legislature. Donald A.G.,

221 Ill. 2d at 246.

Defendants maintain that the appellate court erred in relying on

Public Act 94–677 to ascertain the intent of the General Assembly

when it adopted Public Act 90–579 seven years earlier. Defendants

assert that the appellate court’s judgment creates instability in the law

because any enactment would be subject to the vagaries of a later

legislative body. Defendants also argue, in line with the dissenting

justice, that the appellate court opinion effectively permits the

legislature to both enact statutes and interpret them, running afoul of

the separation of powers clause of the Illinois Constitution (Ill. Const.

1970, art. II, §1). Finally, defendants argue that the appellate court

opinion effectively holds that Public Act 94–677 changed the law

enacted seven years earlier, stripping defendants of a “vested

defense,” in violation of their due process rights (Ill. Const. 1970, art.

I, §2).

Plaintiff counters that the appellate court appropriately considered

Public Act 94–677 in discerning the legislature’s intent when it

passed Public Act 90–579. Plaintiff maintains that Public Act 90–579

is ambiguous and a court may, therefore, consider subsequent

amendments, as well as legislative history, to determine legislative

intent. Finally, plaintiff argues that this court’s opinion in U.S. Bank

National Ass’n v. Clark, 216 Ill. 2d 334 (2005), which postdates

-17-

Cargill, supports the conclusion that Public Act 90–579 did not

reenact the 1995 version of section 2–622.

We begin our analysis by noting a fundamental rule of statutory

construction: “Statutes are to be construed as they were intended to

be construed when they were passed.” People v. Boreman, 401 Ill.

566, 572 (1948). Thus, the legislative intent that controls the

construction of a public act is the intent of the legislature which

passed the subject act, and not the intent of the legislature which

amends the act. Boreman, 401 Ill. at 572.

Discerning legislative intent can be a thorny task, made even more

problematic when we attempt to discern prior legislative intent based

on the actions of a different legislature. As former Chief Justice Clark

observed:

“It is difficult enough, at times, to figure out what one

legislature ‘intended’ by a particular statute or provision.

After all, our General Assembly is not an actual person who

feels, reasons, intends, and acts as a unit. Instead it is a

collective entity, made up of 118 flesh-and-blood individuals

who, in the privacy of their own minds, may mean by any

particular provision anything or nothing. The collective nature

of a legislative body impels us to seek ‘intent’ in the objective

words of its statutes, as informed by our own judgment and

common sense, rather than in the inevitably subjective

thoughts of individual members.

This task is complicated enough. We complicate it still

further when we seek to infer what one legislature intended

from the subsequent action of a later legislature, composed of

different members and perhaps working towards different

purposes.” People v. Hicks, 119 Ill. 2d 29, 39 (1987) (Clark,

C.J., dissenting, joined by Simon, J.).

See also Roth v. Yackley, 77 Ill. 2d 423, 428 (1979) (“it is logically

difficult to perceive how the declaration and the amendments by the

80th General Assembly can be simply a clarification of the intent of

the 77th General Assembly which originally enacted the statute seven

years earlier since only a fraction of the individuals who comprised

the General Assembly were the same at both times”). Thus, courts

-18-

must proceed cautiously when examining future legislative

enactments for evidence of past legislative intent.

In the present case, the appellate court examined Public Act

94–677, passed by the 94th General Assembly, to determine the intent

of the 90th General Assembly when it passed Public Act 90–579

seven years earlier. The appellate court first focused on the following

parenthetical language that appears in Public Act 94–677 prior to the

text of the amendment: “(Text of Section WITHOUT the changes

made by P.A. 89–7, which has been held unconstitutional).”

(Emphasis in original.) Pub. Act 94–677, §330, eff. August 25, 2005.

The appellate court read this language as an explicit rejection by the

General Assembly of the 1995 version of section 2–622. 374 Ill. App.

3d at 512.

Defendants maintain, however, that this language was added not

by the legislature, but by the Legislative Reference Bureau, as part of

its statutory duties, after Public Act 94–677 was adopted. Defendants

argue the language is merely shown for reference and is not a part of

the act. See 25 ILCS 135/0.01 et seq. (West 2004) (establishing the

Bureau and defining its duties); Legislative Reference Bureau, Illinois

Bill Drafting Manual §25–50, at 101–02, §70–30, at 206-07 (January

2007) (discussing parenthetical references). Defendants argue in the

alternative that, even if the legislature added this language, it is akin

to a preamble or title, which is not dispositive of legislative intent.

See Atkins v. Deere & Co., 177 Ill. 2d 222, 228 (1997).

We will assume, arguendo, that the parenthetical language, if not

added by the legislature, was at least before the legislature when it

adopted Public Act 94–677. That said, we agree with defendants that

the parenthetical language does not evince legislative intent. Rather,

this language is informational, i.e., the text of the amendment that

follows the parenthetical language is, in fact, the text of section 2–622

without the changes made by Public Act 89–7, which was held

unconstitutional. To the extent this language could be read as some

evidence of legislative intent, at most, it speaks to the intent of the

94th General Assembly when it adopted Public Act 94–677 and not

the intent of the 90th General Assembly when it adopted Public Act

90–579.

The appellate court’s determination that Public Act 90–579 did

not reenact the 1995 version of section 2–622 was also based on its

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conclusion that Public Act 94–677 “continued” the pre-1995 version

of section 2–622, recognizing Public Act 90–579 only for its

naprapath amendment. 374 Ill. App. 3d at 513. While we agree that

Public Act 94–677 appears to recognize Public Act 90–579 only for

its naprapath amendment, we are reluctant to conclude that Public Act

94–677 merely continued the pre-1995 version of section 2–622. We

note that section 330 of Public Act 94–677 plainly states: “The Code

of Civil Procedure is amended by reenacting and changing Section[ ]

2–622 ***.” (Emphasis added.) Pub. Act 94–677, art. 3, §330, eff.

August 25, 2005. “Reenact” means “to enact (as a law) again.”

Webster’s Third New International Dictionary 1907 (1993). “To

reenact” does not mean “to continue.” Thus, any conclusion about the

legislature’s intent based on a purported continuation of the pre-1995

law is not on firm ground.

The difficulty encountered above, in discerning the intent of the

90th General Assembly based on the actions of the 94th General

Assembly, is precisely the situation about which Justice Clark

warned. Hicks, 119 Ill. 2d at 39 (Clark, C.J., dissenting, joined by

Simon, J.). Thus, we return to the rule of statutory construction with

which we began our analysis: “Statutes are to be construed as they

were intended to be construed when they were passed.” Boreman, 401

Ill. at 572.

Public Act 90–579 was passed seven weeks after this court’s

decision in Best. We presume that the legislature was aware of the

Best decision, including this court’s pronouncement that it was free

to reenact whatever provisions in Public Act 89–7 it deemed desirable

or appropriate. See People v. De La Paz, 204 Ill. 2d 426, 433 (2003)

(legislature is presumed to act with knowledge of the prevailing case

law). Application of this presumption lends support to the inference

that the legislature did just that–reenacted a provision of Public Act

89–7 it deemed desirable. As plaintiff argues, however, new matter

in an amendatory act is indicated by italics or underscoring. In this

regard, the General Assembly Operations Act expressly states:

“In the case of an amendatory Act, the changes made by the

amendatory Act shall be indicated in the session laws in the

following manner: (i) all new matter shall be underscored;

and (ii) all matter deleted by the amendatory Act shall be

shown crossed with a line.” 25 ILCS 10/10(f) (West 2004).

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In addition, the Statute on Statutes provides:

“In construing an amendatory Act printed in any volume

of the session laws published after January 1, 1969, matter

printed in italics shall be construed as new matter added by

the amendatory Act, and matter shown crossed with a line

shall be construed as matter deleted from the law by the

amendatory Act.” 5 ILCS 70/5 (West 2004).

Similarly, the Illinois House and Senate rules currently provide, as

they did when Public Act 90–579 was adopted, that in any bill that

amends a statute “[a]ll new matter shall be underscored” and “[a]ll

matter that is to be omitted or superseded shall be shown crossed with

a line.” 95th Ill. Gen. Assem. House R. 37(e), Senate R. 5–1(e); 90th

Ill. Gen. Assem. House R. 37(e), Senate R. 5–1(e).3

Because the Illinois Constitution requires that a “bill expressly

amending a law shall set forth completely the sections amended” (Ill.

Const. 1970, art. IV, §8(d)), the requirement of italics or underscoring

to highlight new matter plays an important role in discerning

legislative intent. Here, the only words highlighted in Public Act

90–579 are the words adding naprapaths to the list of health

professionals, lending support to the inference that this was the only

change the legislature intended. Pub. Act 90–579, eff. May 1, 1998.

To resolve these competing inferences regarding the intent of the

legislature, we will go outside the language of Public Act 90–579 and

examine its legislative history. Defendants argue that the language of

Public Act 90–579 is unambiguous and resort to extrinsic aids, like

legislative history, is inappropriate. We agree that “[w]hen the

drafters’ intent can be ascertained from the statutory language, it must

be given effect without resort to other aids for construction.” Illinois

Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). Here we cannot

discern the drafters’ intent from the language of Public Act 90–579,

however plain it may be. As the appellate court explained: “The

question is not whether the civil-reform version of section 2–622, if

validly resurrected, plainly prohibits a 90-day extension where a

3

We note that italics and underscoring are used interchangeably. See

generally The Bluebook: A Uniform System of Citation 23 (18th ed. 2005)

(discussing typeface conventions).

-21-

plaintiff has previously voluntarily dismissed. The question is

whether Public Act 90–579 did in fact resurrect the civil-reform

version of section 2–622.” (Emphasis in original.) 374 Ill. App. 3d at

514-15.

Public Act 90–579 began its life as Senate Bill 120. On January

29, 1998, approximately six weeks after Best was decided, Senator

Robert Madigan addressed Senate Bill 120:

“Senator Madigan: *** The Conference Committee

Report No. 1 to Senate Bill 120 puts naprapaths or the

practice of naprapathy in line with other medical professions

when it comes to [a] malpractice suit by stating that an

affidavit against a naprapath in a malpractice suit has to be

completed by another naprapath. That’s simply all that it

does. I–I am aware of no opposition to this bill and would ask

favorable consideration of Conference Committee Report No.

1 to Senate Bill 120.” 90th Ill. Gen. Assem., Senate

Proceedings, January 29, 1998, at 46 (statements of Senator

Madigan).

The Senate immediately thereafter took a vote, unanimously adopting

the Conference Committee Report. Senate Bill 120 was declared

passed. 90th Ill. Gen. Assem., Senate Proceedings, January 29, 1998,

at 46. Less than a week later, Representative Daniel Burke spoke on

Senate Bill 120 to his colleagues in the House:

“Burke: *** Senate Bill 120, having passed out of the

Senate and just considered in our committee, Executive

Committee, yesterday, has to do with the practice of

Naprapathy in the state, and, in particular, when a malpractice

action is brought against any naprapath in the state, currently,

only a medical doctor would be asked to testify in that action.

We are asking that the statute be amended to suggest and

include naprapaths as the professional that would testify in

malpractice actions ***.” 90th Ill. Gen. Assem., House

Proceedings, February 4, 1998, at 10 (statements of

Representative Burke).

The House of Representatives thereafter took a vote, unanimously

adopting the Conference Committee Report. Senate Bill 120 was

-22-

declared passed. 90th Ill. Gen. Assem., House Proceedings, February

4, 1998, at 11.

The legislative history is devoid of any discussion of Best or the

Civil Justice Reform Amendments that it struck. In addition, the

legislative history affirmatively demonstrates that the General

Assembly’s intent, when it adopted Public Act 90–579, was simply

to add naprapaths to the coverage of section 2–622. This is consistent

with the fact that only the naprapath language was highlighted.

Although, in giving the amendment context, the legislature used the

1995 version of section 2–622, we regard this as a legislative

oversight. Accordingly, we hold that Public Act 90–579 did not

reenact the version of section 2–622 that this court held invalid in

Best. To the extent that Cargill, Crull, and other cases hold otherwise,

they are hereby overruled.

Our holding is consistent with this court’s opinion in U.S. Bank

National Ass’n v. Clark, 216 Ill. 2d 334 (2005). There we considered,

inter alia, whether the legislature intended to reenact certain

limitations on lender charges in section 4.1a of the Interest Act (815

ILCS 205/4.1a (West 2002)), which had been implicitly repealed in

1981, when the legislature amended that section in 1991. See Pub.

Act 87–496, eff. January 1, 1992. The 1991 amendment added two

provisions, but otherwise left unchanged the text of the statute that

had been implicitly repealed. The defendants argued that if the

relevant portion of section 4.1a was implicitly repealed in 1981, then

the amendment of that section in 1991 constituted its “readoption.”

U.S. Bank, 216 Ill. 2d at 353. We rejected this argument:

“Our Statute on Statutes provides that ‘the provisions of

any statute, so far as they are the same as those of any prior

statute, shall be construed as a continuation of such prior

provisions, and not as a new enactment.’ 5 ILCS 70/2 (West

2004). While this general rule is not limited to cases of

implicit repeal, it is relevant to our analysis in that context.

Specifically addressing the requirements for reenacting an

implicitly repealed statute, this court explained in Lily Lake

Road Defenders v. County of McHenry, 156 Ill. 2d 1, 8

(1993), that the legislature ‘must expressly reenact a statute

which has been repealed by implication to render it valid and

enforceable again.’ (Emphasis added.)

-23-

Here, the [relevant] portion of section 4.1a *** was not

changed by the 1991 amendment. The text of Public Act

87–496 clearly designated the amendment as consisting of the

addition of subparts (e) and (f), highlighting those provisions

while merely reprinting, unchanged, the remaining,

preexisting text. See Pub. Act 87–496, eff. January 1, 1992

(amending Ill. Rev. Stat. 1989, ch. 17, par. 6406). Nothing in

the text or structure of the amendatory act reveals any

legislative ‘express’ intent to ‘reenact’ the ceiling on lender

charges in section 4.1a. Indeed, our Statute on Statutes

specifically precludes that conclusion. See 5 ILCS 70/2 (West

2004); Lily Lake, 156 Ill. 2d at 7.” U.S. Bank, 216 Ill. 2d at

354.

In U.S. Bank we also rejected the defendants’ argument that the

legislature, when it adopted the 1991 amendment, was attempting to

overcome the implicit repeal of section 4.1a’s limitation provisions

that was recognized in Currie v. Diamond Mortgage Corp. of Illinois,

859 F.2d 1538 (7th Cir. 1988). U.S. Bank, 216 Ill. 2d at 356. In

rejecting this argument, we considered, among other things, the

legislative history of the 1991 amendment, finding that it was wholly

devoid of any discussion of cases or rulings considering the issue of

implicit repeal. U.S. Bank, 216 Ill. 2d at 356. We held that in the

absence of any indication in either the language of the statute or its

legislative history, we could not conclude that the legislature

reenacted the implicitly repealed portion of section 4.1a by its 1991

amendment, thus rendering the lender charge limitation in section

4.1a enforceable and valid again. U.S. Bank, 216 Ill. 2d at 356.

We recognize that U.S. Bank involved the implicit repeal of a

statute, whereas the present case involves the express invalidation of

a public act by this court. Accordingly, the rule we applied in U.S.

Bank–that the legislature must expressly reenact a statute which has

been repealed by implication to render it valid and enforceable

again–is inapplicable here. We also recognize, however, that our task

in U.S. Bank was, at bottom, the same task we face today–discerning

legislative intent in connection with a claimed reenactment–and the

indicia of such intent that we examined in U.S. Bank are equally

applicable to the case at bar. Thus, notwithstanding the difference

between the two cases, favorable comparisons may be drawn.

-24-

Here, as in U.S. Bank, the amendment (Public Act 90–579), which

defendants claim reenacted the invalid statute (the 1995 version of

section 2–622), highlighted a minor amendment (the addition of the

naprapath language) while merely reprinting, unchanged, the balance

of the text. As we observed in U.S. Bank, nothing in the “text or

structure” of the amendment indicates an intent to reenact the invalid

statute. U.S. Bank, 216 Ill. 2d at 354. Further, like U.S. Bank, the

legislative history of the public act at issue contains no discussion of

the opinion (Best) that rendered the underlying statute (Public Act

89–7) invalid. Finally, as in U.S. Bank, we will not construe the mere

iteration of a prior law as a new enactment. See 5 ILCS 70/2 (West

2004); 735 ILCS 5/1–102 (West 2004). Thus, the conclusion we

reach here is necessarily the same conclusion we reached in U.S.

Bank: the legislature did not intent a reenactment.

Based on the foregoing, we agree with plaintiff that her medical

malpractice complaint is governed by the pre-1995 version of section

2–622, as amended with the addition of the naprapath language found

in Public Act 90–579. That version contains no limitation on

obtaining a 90-day extension to file a certificate of merit in a refiled

action. See 735 ILCS 5/2–622 (West 1994); Cargill, 353 Ill. App. 3d

at 657; Neuman, 230 Ill. App. 3d at 37-38. No dispute exists that

plaintiff filed her certificate of merit within 90 days of her refiled

complaint. Therefore, we affirm the judgment of the appellate court

reversing the circuit court’s dismissal of plaintiff’s complaint.

Separation of Powers and Due Process

Defendants argue that affirmance of the appellate court judgment

would effect a violation of our state constitution. Specifically,

defendants argue that the appellate court opinion permits the

legislature to both enact statutes and interpret them, running afoul of

the separation of powers clause (Ill. Const. 1970, art. II, §1). In

addition, defendants argue that the appellate court opinion effectively

holds that Public Act 94–677 changed the law enacted seven years

earlier, stripping defendants of a “vested defense,” in violation of

their due process rights (Ill. Const. 1970, art. I, §2).

Although we affirm the appellate court judgment, as discussed

above, we do not adopt the reasoning of the appellate court. The

-25-

appellate court’s determination of whether Public Act 90–579

reenacted the 1995 version of section 2–622 was based upon an

examination of Public Act 94–677. Our determination of this issue,

however, ultimately rests on our examination of Public Act 90–579.

Accordingly, the constitutional provisions defendants cite are not

implicated by our holding, and we find it unnecessary to consider

defendants’ constitutional arguments further.

CONCLUSION

For the reasons discussed, we affirm the judgment of the appellate

court reversing the dismissal of plaintiff’s complaint.

Affirmed.

JUSTICE KARMEIER, dissenting:

Contrary to the majority, I would hold that the circuit court

properly dismissed plaintiff’s medical malpractice action with

prejudice based on her failure to comply with the provisions of

section 2–622 of the Code of Civil Procedure (735 ILCS 5/2–622

(West 2004)). As the majority’s opinion explains, plaintiff had

previously taken a voluntary dismissal of her complaint. When she

refiled the action in February of 2004, she failed to attach to her

complaint the affidavit required by section 2–622(a)(1) of the Code

(735 ILCS 5/2–622(a)(1) (West 2004)) declaring that she had

consulted with a health professional who believed that she had

reasonable and meritorious cause for filing the action. Section

2–622(g) of the Code (735 ILCS 5/2–622(g) (West 2004)) expressly

provides that the failure to include such a certificate “shall be grounds

for dismissal under Section 2–619” of the Code (735 ILCS 5/2–619

(West 2004)). When defendants moved to dismiss under section

2–619 based on the absence of the requisite certification, the court

therefore had no discretion regarding how to proceed. Dismissal was

mandatory. See Hull v. Southern Illinois Hospital Services, 356 Ill.

App. 3d 300, 305 (2005).

Plaintiff believed that she could avoid this result by including an

affidavit from her lawyer indicating that he had been unable to obtain

a consultation with a health professional before expiration of the

-26-

statute of limitations and indicating that the required certificate and

report would be filed within 90 days. That approach was untenable.

Although section 2–622(a)(2) of the Code (735 ILCS 5/2–622(a)(2)

(West 2004)) authorizes the use of such an affidavit to defer

compliance with the certification requirement of section 2–622(a)(1),

the statute expressly limits use of the affidavit option to situations

where the plaintiff had not previously taken a voluntary dismissal of

an action based on the same or substantially the same acts, omissions

or occurrences underlying the current action. Because plaintiff had

previously taken such a voluntary dismissal, this option was not

available to her.

Faced with this predicament, plaintiff argued that the “no previous

dismissal” limitation set forth in section 2–622(a)(2) should be read

out of the statute. In her view, the legislature never intended to adopt

that portion of the law and it should not be given any legal effect.

Instead, she urged reliance of the version of the statute as it existed

prior to the Civil Justice Reform Amendments of 1995 (Pub. Act

89–7, eff. March 9, 1995) invalidated by this court’s decision in Best

v. Taylor Machine Works, 179 Ill. 2d 367 (1997). Under that earlier

version, the affidavit option to defer compliance with the certification

requirement was not limited to situations where there had been no

prior voluntary dismissal. Plaintiff’s complaint would therefore not

have been subject to dismissal on that basis.

Arguments similar to plaintiff’s have been considered and

rejected by the appellate court. See Cargill v. Czelatdko, 353 Ill. App.

3d 654 (2004); accord Crull v. Sriratana, 376 Ill. App. 3d 803 (2007)

(applying different provision of 2–622 but specifically endorsing

Cargill’s result and analysis); see also Beauchamp v. Zimmerman,

359 Ill. App. 3d 143, 148 n.1 (2005) (following Cargill); Giegoldt v.

Condell Medical Center, 328 Ill. App. 3d 907, 912 (2002) (assuming,

without deciding, that the version of the statute at issue in this case,

rather than the version in effect before the Civil Justice Reform

Amendments of 1995, applied to render plaintiff’s complaint

insufficient as a matter of law).

-27-

The decision by the appellate court in this case was the first to

reach a contrary conclusion.4 While the majority agrees with that

result, I do not believe it can be squared with fundamental principles

of statutory construction. It is axiomatic that in interpreting a statute,

the primary rule of construction, to which all other rules are

subordinate, is to ascertain and give effect to the true intent and

meaning of the legislature. In re Application for Judgment & Sale of

Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 168

(1995). The best evidence of that intent is, of course, the language of

the statute itself. U.S. Bank National Ass’n v. Clark, 216 Ill. 2d 334,

346 (2005). When the language is unambiguous, the statute must be

applied as written without resorting to other aids of construction.

People v. Bywater, 223 Ill. 2d 477, 481 (2006).

4

4

The majority is correct that stare decisis did not bar the appellate court

from departing from past precedent. In reaching that conclusion, however,

they fail to distinguish between vertical and horizontal stare decisis. The

doctrine of vertical stare decisis requires inferior tribunals to follow the

decisions of superior ones. The doctrine of horizontal stare decisis pertains

to a court’s responsibility to follow its own precedent or the precedent of

coequal courts. A. Solomon, A Simple Prescription for Texas’s Ailing

Court System: Stronger Stare Decisis, 37 St. Mary’s L.J. 417, 424-25

(2006). It is this latter form of stare decisis which is at issue here. Unlike

vertical stare decisis, which has been viewed, historically, as an obligation,

horizontal stare decisis has been regarded as a matter of sound policy. See

W. Consovoy, The Rehnquist Court and the End of Constitutional Stare

Decisis: Casey, Dickerson and the Consequences of Pragmatic

Adjudication, 2002 Utah L. Rev. 53, 58. This approach is reflected in those

decisions of our court which have held that stare decisis is not an

inexorable command. It is, instead, a recognition of the principle that our

system of justice works best when the law does not change erratically, but

rather develops in a principled, intelligible fashion. See, e.g., People v.

Colon, 225 Ill. 2d 125, 145-46 (2007); Iseberg v. Gross, 227 Ill. 2d 78, 94-

95 (2007). There is no question under Illinois law that courts may depart

from their own precedent or the precedent established by a coequal court

when they believe they have good cause or a compelling reason for doing

so, e.g., where they believe the existing decisions are unworkable or badly

reasoned. People v. Sharpe, 216 Ill. 2d 481, 520 (2005).

-28-

In this case the legislation enacted by the General Assembly

clearly and unambiguously limited the use of the affidavit option in

2–622(a)(2) of the Code (735 ILCS 5/2–622(a)(2) (West 2004)) to

situations where the plaintiff “ha[d] not previously voluntarily

dismissed an action based upon the same or substantially the same

acts, omissions, or occurrences.” This provision could not be more

straightforward. We have no authority to depart from the law’s plain

meaning (see Solich v. George & Anna Portes Cancer Prevention

Center of Chicago, Inc., 158 Ill. 2d 76, 83 (1994)), nor may we alter

the statute’s language in “a way that constitutes a change in the plain

meaning of the words actually adopted by the legislature” (U.S. Bank

National Ass’n v. Clark, 216 Ill. 2d at 346).

The majority’s opinion stands in direct conflict with these

principles. It likewise violates the rule that, whenever possible, a

court should construe a statute to give effect to each paragraph,

sentence, clause, and word. See People v. Maggette, 195 Ill. 2d 336,

350 (2001). Under this rule, a court is required to construe a statute,

if possible, so that no term is rendered superfluous or meaningless.

See Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 187

(2007). Rather than give meaning to the full text of the statute at issue

in this case, however, the majority holds that critical portions of it

have no effect whatever.

The “no previous dismissal” limitation which is set forth in

section 2–622(a)(2) and which was the predicate for the circuit

court’s dismissal of plaintiff’s complaint was neither novel nor

controversial. As the majority recounts, it was originally enacted five

years before the events giving rise to this litigation as part of Civil

Justice Reform Amendments of 1995 (Pub. Act 89–7, eff. March 9,

1995) . Although the provision was temporarily rendered void by this

court’s decision in Best v. Taylor Machine Works, 179 Ill. 2d 367

(1997), that action was unrelated to the merits of section 2–622(a)(2)

itself. It was, instead, a byproduct of the court’s determination that

invalidation of the core provisions of the Civil Justice Reform

Amendments of 1995 (Pub. Act 89–7, eff. March 9, 1995) rendered

the remainder of that statute invalid as well. See Best, 179 Ill. 2d at

467.

Nothing in Best precluded the General Assembly from reenacting

the noncore provisions of the Civil Justice Reform Amendments of

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1995 (Pub. Act 89–7, eff. March 9, 1995) . To the contrary, we held

there that because the remaining provisions of the statute were not

challenged and were deemed invalid based solely on severability

principles, the General Assembly was “free to reenact whatever

provisions it deem[ed] desirable or appropriate.” Best, 179 Ill. 2d at

471. With respect to section 2–622(a)(2), that is precisely what the

General Assembly did. Less than two months after Best was decided,

the legislature passed Public Act 90–579. That legislation restored

section 2–622(a)(2) to precisely the same state it had been in before

the Best decision, including its “no previous dismissal” limitation.

The “no previous dismissal limitation” was therefore in full force and

effect at the time Carla Thompson had the tonsillectomy which led to

her death and Marjorie O’Casek brought this action as special

administrator of Thompson’s estate.

Contrary to the majority, I do not believe that inclusion of the “no

previous dismissal” limitation in Public Act 90–579 can be dismissed

as mere “legislative oversight.” The “legislative oversight’ theory

presumes that the General Assembly somehow failed to realize that

Best affected the prior version of the law. Under Illinois law,

however, we must presume the opposite, namely, that in amending

the statute, the General Assembly was fully aware of judicial

decisions interpreting the statute and that it acted with this

knowledge. Morris v. William L. Dawson Nursing Center, Inc., 187

Ill. 2d 494, 499 (1999).

In the case of Best, this presumption is no mere legal fiction.

Many of our decisions are little known by anyone besides the litigants

and their lawyers. Such was not the case with Best. At the time it was

decided, Best was highly publicized and vigorously debated. It was

perhaps one of the most well-known decisions issued by this court in

the 1990s. The reality is that no conscientious legislator in Illinois

could possibly have been unfamiliar with it or its effects on the

General Assembly’s tort reform initiatives, of which the “no previous

dismissal” limitation was a part.

The remarks of Senator Madigan and Representative Burke

scarcely suffice to overcome this presumption. Although their

statements regarding Public Act 90–579 deal with the addition of

naprapaths to the list of health-care professionals covered by section

2–622(a)(1) of the Code (735 ILCS 5/2–622(a)(1) (West 2004)), that

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may be because the addition of naprapaths was the only genuinely

new aspect of the legislation. The “no previous dismissal” limitation

was simply a reenactment of a provision which had previously been

debated and adopted. Given that the time allotted for floor debate is

limited and considering that the Best decision did not call into

question the substantive merits of that provision, Madigan and Burke

may simply have believed that elaboration on that aspect of the

legislation was unnecessary.

I note, moreover, that Senator Madigan and Representative Burke

are but 2 of the 177 members of the General Assembly. We have no

basis for assuming that they were the only legislators familiar with the

contents of Public Act 90–579, nor can we impute their personal

views to the legislature as a whole. Here, as in most instances of this

kind, no claim can be made that their assessment of the law was

shared by the majority of their colleagues or even any of their

colleagues. That is why floor debates are such an unreliable and

unhelpful guide to ascertaining legislative intent and cannot, by

themselves, affirmatively establish the intent of the legislature. See

People v. R.L., 158 Ill. 2d 432, 442 (1994). In any case, whatever

Senator Madigan and Representative Burke may have had in mind

when they stood on the floor of their respective chambers and

addressed their colleagues about Public Act 90–579, their views

cannot supercede or undo the statute that was ultimately adopted by

the General Assembly. Hadley v. Illinois Department of Corrections,

224 Ill. 2d 365, 382 (2007). Indeed, because the language of the

statute is clear and unambiguous, we should not even be referring to

the floor debates or any other extrinsic aids of construction. Our

obligation is to apply the law as written. Alvarez v. Pappas, No.

104922, slip op. at 9-10 (April 17, 2008).

Contrary to the majority, I do not believe that precedent governing

implicit repeal of statutes by the General Assembly is relevant to the

issue before us in this case. The challenge presented by those cases is

how to reconcile legislative action taken by the General Assembly

which appears to be inconsistent. That dilemma is not before us here.

To the contrary, the changes to section 2–622(a)(2) of the Code which

would result from applying the plain language of Public Act 90–579

are entirely consistent with the prior amendments to the statute

included in the Civil Justice Reform Amendments of 1995 (Pub. Act

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89–7, eff. March 9, 1995). Rather than implicit repeal, this case

involves explicit reenactment of a law under circumstances we

specifically sanctioned.

The fact that the “no previous dismissal” limitation was not

underscored or italicized in Public Act 90–579 is of no consequence.

Section 5 of the Statute on Statutes does state that

“[i]n construing an amendatory Act printed in any volume

of the session laws published after January 1, 1969, matter

printed in italics shall be construed as new matter added by

the amendatory Act, and matter shown crossed with a line

shall be construed as matter deleted from the law by the

amendatory Act.” 5 ILCS 70/5 (West 2004).

As the appellate court correctly noted in Cargill v. Czelatdko, 353 Ill.

App. 3d at 660-61, however, nothing in this provision makes the use

of italics a prerequisite to the validity of new matter added by an

amendment. The statute simply means that when items are italicized,

such items shall be construed as adding new matter to the law.

The Illinois House and Senate have enacted rules which go

beyond this statutory requirement by specifying that in any bill

amending a statute, “[a]ll new matter shall be underscored” and “[a]ll

matter that is to be omitted or superseded shall be shown crossed with

a line.” 95th Ill. Gen. Assem. House R. 37(e); Senate R. 5–1(e); 90th

Ill. Gen. Assem. House R. 37(3); Senate R. 5–1(e). Compliance with

these rules is, in the first instance, a matter for the General Assembly

to judge. There is no evidence that the General Assembly found the

bill which culminated in Public Act 90–579 (S.B. 120) to be

problematic, and we can infer none. The Speaker of the House and

the President of the Senate certified that the procedural requirements

for passage of the bill had been satisfied. Under the enrolled-bill

doctrine, the bill is therefore conclusively presumed to have met all

procedural requirements for passage. Friends of the Parks v. Chicago

Park District, 203 Ill. 2d 312, 329 (2003).

Nor can we find any deficiency in Public Act 90–579 under this

state’s constitution. Article IV, section 8(d), of the Illinois

Constitution of 1970 (Ill. Const. 1970, art. IV, §8(d)) requires only

that “[a] bill expressly amending a law shall set forth completely the

sections amended.” That requirement was met here. There is no

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dispute that the complete text of the law, as amended, was printed in

the bill considered and adopted by the legislature.

One may speculate as to what the General Assembly was thinking

when it proceeded as it did with Public Act 90–579. It is well

established, however, that we cannot ignore the plain language of a

statute based on conjecture. Petersen v. Wallach, 198 Ill. 2d 439, 447

(2002). Under the clear terms of the statute as ultimately enacted here,

plaintiff’s refiled cause of action was fatally defective. The circuit

court therefore acted properly when it granted defendants’ motion to

dismiss.

I do not see how we can countenance any other conclusion.

Section 2–622(a)(2) of the Code (735 ILCS 5/2–622(a)(2) (West

2004)), as amended by Public Act 90–579, was considered by 118

members of the House and 59 members of the Senate and approved

by the Governor. The majority’s opinion ultimately stands on the

proposition that these branches of government and their constituent

officers did not realize what they were doing when they enacted

Public 90–579. Pundits may assume that the other branches of

government are inattentive to their duties, but we, as the highest court

of this state, may not.

When we refuse to give effect to the plain language of a statute on

the conjecture that its passage must have been accidental or

inadvertent, we invite courts to disregard legislative enactments

whose purposes they do not understand or whose wisdom they

question. This is not only presumptuous, it puts courts in the position

of super legislators, undermining basic principles of separation of

powers.

I close by observing that the events culminating in the death of

plaintiff’s decedent took place in August of 2000. When plaintiff filed

her complaint two years later, she failed to obtain the certificate of

merit required by section 2–622 of the Code of Civil Procedure.

When plaintiff attempted to refile her complaint two years after that,

she still failed to obtain the requisite certificate.

The reason for plaintiff’s ongoing difficulties in complying with

the law is unknown. The delay may be justified. It may, on the other

hand, simply be a function of some underlying problem with the

merits of plaintiff’s cause of action. In any event, without further

explanation, no claim can be made that application of the law, as

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written, would be in any way unfair under the particular facts of this

case.

For the foregoing reasons, I respectfully dissent.

CHIEF JUSTICE THOMAS and JUSTICE GARMAN join in this

dissent.

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