Cramsey v. Knoblock, 4-89-0363

Citation191 Ill.App.3d 756,547 N.E.2d 1358,138 Ill.Dec. 737
Decision Date14 December 1989
Docket NumberNo. 4-89-0363,4-89-0363
Parties, 138 Ill.Dec. 737 Robert J. CRAMSEY, individually and as Independent Administrator of the Estate of Barbara J. Cramsey, deceased, Catherine M. Baker, and John J. Cramsey II, Plaintiffs-Appellants, v. Ruth Hattie KNOBLOCK, Defendant (Kent W. Barber, M.D., and the Quincy Clinic, Defendants-Appellees).
CourtUnited States Appellate Court of Illinois

Rehearing Denied Jan. 17, 1990.

J. Patrick Wheeler, Canton, Mo., Goehl & Schuering, Quincy, for plaintiffs-appellants.

Lee Humphrey, Susan M. Hickman, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Springfield, for Kent W. Barber, M.D.

Heyl, Royster, Voelker & Allen, Peoria (Karen L. Kendall, Frederick P. Velde, Adrian E. Harless, of counsel), for Quincy Clinic.

Justice SPITZ delivered the opinion of the court:

This is an appeal by plaintiffs from an order of the circuit court of Adams County dismissing the medical malpractice portions of the complaint. On October 1, 1986, the plaintiffs, Catherine M. Baker, Robert J. Cramsey II, and Robert J. Cramsey, individually and as independent administrators of the estate of Barbara J. Cramsey, deceased, filed a four-count complaint against Ruth Hattie Knoblock seeking to recover damages resulting from the wrongful death of Barbara Cramsey ensuing from an automobile collision allegedly proximately caused by the negligence of Knoblock. Knoblock is not a party to this appeal. On March 31, 1988, an amended complaint was filed by which the plaintiffs added two counts each against defendants Kent W. Barber, M.D., and the Quincy Clinic, a partnership, for the wrongful death of decedent and loss of society to the individual plaintiffs.

Counts V through VIII of the amended complaint alleged that after Barbara Cramsey suffered a head injury in the collision of April 6, 1985, she became a patient of Barber and the Quincy Clinic. The counts further allege Barber, an orthopedic surgeon, failed to have a "CT" scan (computerized tomography) performed on Barbara Cramsey even though she complained of nausea, headaches, weight gain, and visual problems and failed to perform other tests to determine if a tumor existed, failed to recognize and treat the tumor, and failed to associate himself with a physician qualified to recognize and treat the tumor. These counts further allege that in December 1985, it was determined Barbara Cramsey had a tumor, from which she died on February 4, 1986.

After defendants filed a motion to dismiss the amended complaint, plaintiffs filed a second-amended complaint June 28, 1988. Counts V through VIII of the second-amended complaint are essentially the same as those counts in the first-amended complaint, with the exception that plaintiffs further alleged plaintiff administrator of the estate first became aware the defendants failed to provide proper medical care on September 1, 1987, when Dr. John Scott, a member of the Quincy Clinic, stated during his deposition that a CT scan may have been required under the circumstances. The amended complaint also alleged that plaintiffs had not acquired hospital records of decedent until after April 1, 1986. These further allegations were added only to count V against Barber.

On July 20, 1988, the clinic filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1987, ch. 110, par. 2-619) on the grounds that the action by plaintiffs was barred by the statute of limitations since it was filed more than two years after the date plaintiffs knew or should have known, through the exercise of reasonable diligence, of the existence of the decedent's injury. As an additional ground, the clinic urged plaintiffs failed to comply with section 2-622 of the Code (Ill.Rev.Stat.1987, ch. 110, par. 2-622). On August 27, 1988, Barber filed a section 2-615 motion (Ill.Rev.Stat.1987, ch. 110, par. 2-615) to dismiss the counts against him alleging failure to comply with section 2-622. In addition, Barber filed a section 2-619 motion based on the statute of limitations.

On November 21, 1988, plaintiffs were granted leave to file a third-amended complaint. In the third-amended complaint, each of counts V through VIII contained a paragraph concerning the allegation of when plaintiffs became aware of the alleged failure to provide proper medical care. In addition, this third-amended complaint added a count against each of the defendants, counts IX and X. In these new counts, plaintiffs alleged the defendants named wilfully and fraudulently concealed the cause of action in that Barber's medical reports failed to state any connection between the trauma caused by the collision and the brain tumor and Scott also failed to so state a causal connection in the death certificate even though the causal connection was known. Plaintiffs alleged they knew they had a cause of action against defendants on September 1, 1987, and commenced the action on or about March 31, 1988, within five years of the discovery thereof. On December 2, 1988, plaintiffs moved to amend count X of the third-amended complaint. Of significance is the alleged allegation that Barber was a partner and agent of the clinic. On December 20, 1988, the motion to amend count X was granted.

Defendants renewed their motions to dismiss, adding the additional contention that the five-year statute of limitations for fraudulent concealment of a cause of action was not applicable to the case at bar. On February 23, 1989, plaintiff administrator filed an affidavit in which he states he talked to Scott within 8 weeks of his wife's death and at that time Scott did not discuss Barber's treatment of decedent, or the failure to perform a CT scan or other tests. Nor did Scott opine at that time that such additional tests should have been performed.

On February 24, 1989, the trial court entered an order granting the motions to dismiss as to Barber and Quincy Clinic because the actions are barred by the statute of limitations. An additional reason for the dismissal of counts IX and X was a failure to state a cause of action, since there were no allegations of misrepresentation made with intent to deceive or that plaintiffs detrimentally relied on such misrepresentations. In addition, the trial court stated that because the certifying health professional who signed the certificate filed pursuant to section 2-622 was a practitioner of a different specialty than Barber, counts V through X should be dismissed for this reason as well. The trial court also found there is no just reason to delay enforcement or appeal.

On March 23, 1989, plaintiffs filed a motion to reconsider the order dismissing counts V through X. The trial court denied the motion to reconsider on April 7, 1989, and on April 28, 1989, plaintiffs filed a notice of appeal.

The first issue to consider is whether the trial court erred in dismissing the third-amended complaint for failure to obtain a proper health-care professional's certification. Plaintiffs argue that when a physician is a named defendant in a lawsuit, any licensed physician is legally qualified to evaluate the treatment and a specialist in a field is not statutorily required since they are neither statutorily regulated or defined under section 11 or the Medical Practice Act of 1987. (Ill.Rev.Stat.1987, ch. 111, par. 4400-11) Section 2-622(a)(1) of the Code states:

"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 is knowledgeable in the relevant issues involved in the particular action and who practices in the same specialty as the defendant if the defendant is a specialist; 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. 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."

Other reviewing courts have interpreted this section to mean that if defendant is a physician, all that is required is affiant be a physician even though defendant holds himself out as a specialist. (Relaford v. Kyaw (1988), 173 Ill.App.3d 1034, 123 Ill.Dec. 553, 527 N.E.2d 1328 (thoracic surgeon as to radiologist); Hagood v. O'Conner (1988), 165 Ill.App.3d 367, 116 Ill.Dec. 476, 519 N.E.2d 66 (specialty of certifying physician not disclosed).) As plaintiffs point out, the first district has declared the...

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