holding that it was error for the trial court to refuse to permit plaintiff to amend his complaint to include a new affidavit and report complying with section 2-622 where there was no indication that the plaintiffs failure to file the report earlier in the litigation was in bad faith
How later courts described this case
- holding that it was error for the trial court to refuse to permit plaintiff to amend his complaint to include a new affidavit and report complying with section 2-622 where there was no indication that the plaintiffs failure to file the report earlier in the litigation was in bad faith
- under Illinois statute, report “must be from a health professional licensed in the same profession, with the same class of license, as the defendant,” but concluding that plaintiff should have been permitted to file amended report when initial report was defective because it was authored by physician specializing in physical medicine and rehabilitation, rather than physical therapy assistant
- noting that there is no difference between amending an existing report and submitting a new report in lieu of an old one
- nothing in section 2-622 necessitates a difference “between amending an existing report and substituting a report by a new author”
Written by the judges who cited it.
The opinion
JUSTICE WRIGHT, specially concurring:
I concur in the majority’s decision that the trial court abused its discretion in this case by dismissing plaintiff’s complaint with prejudice. I specially concur because the record clearly shows that plaintiff was aware of the statutory deadlines enacted by our lawmakers, attempted to comply with those deadlines by requesting a 90-day extension of time to provide a health care report, and showed good cause for requesting leave to amend in order to correct a defect in the health care report attached to the pleadings.
Here, plaintiff, Donald B. Cookson, filed a complaint alleging medical negligence and attached an affidavit seeking a 90-day extension of time, as authorized by statute, to file the required health care professional report. Plaintiffs counsel set forth appropriate reasons in the affidavit for not attaching the required health care professional report to the original complaint. Then, within the 90-day deadline, plaintiff filed a health care professional report from Jeffrey Kornreich, M.D., a board-certified physician in physical medicine and rehabilitation. Subsequently, defendants challenged the qualifications of Dr. Kornreich to prepare the health care report and requested a dismissal with prejudice. In response, plaintiffs sought to amend their complaint by attaching another attorney affidavit together with a reviewing health care report from Jim Modglin, a physical therapy assistant.
Demonstrating good cause, plaintiff advised the court that he believed that the original health care professional report satisfied section 2 — 622. However, due to an amendment to the statute shortly before filing the complaint, the report no longer satisfied the requirements of section 2 — 622. Once plaintiffs counsel realized that the medical doctor was not an appropriately qualified health care professional for purposes of the section 2 — 622 certification in this case, plaintiff acted swiftly.
Plaintiff promptly obtained a second health care professional report prepared by a physical therapy assistant, filed a motion for leave to amend, and did so prior to the trial court conducting a hearing on defendant’s motion to dismiss. In my opinion, the amendment would have cured the defect defendants raised in relation to plaintiffs original health care professional report and should have related back to the date of the original complaint. See 735 ILCS 5/2 — 616(b) (West 2006). Nonetheless, the court dismissed the matter with prejudice.
I would note that in keeping with the spirit of our supreme court rules, good faith should be rewarded, not discouraged. Supreme Court Rule 183 would allow a party showing good cause, such as the plaintiff in this case, to request an extension of time for filing any pleading which is required by the rules to be done within a limited time period. 134 Ill. 2d R. 183.
As recognized by the majority, the purpose of a reviewing health care report is to insure plaintiffs have a good-faith basis to require a named defendant to be subject to the court process. Defendants have not questioned the good-faith basis for this litigation. However, defendants successfully truncated the litigation by relying on finite deadlines set forth by section 2 — 622. In my view, this defeats the purpose of the legislation and punishes a plaintiff who has acted with abundant good faith.
I agree with the majority that dismissal with prejudice constituted an abuse of discretion in this case based on the good-faith conduct of plaintiff.
For these reasons, I specially concur.