AYON EX REL. AYON v. Balanoff

Decision Date18 November 1999
Docket NumberNo. 1-99-0563.,1-99-0563.
Citation721 N.E.2d 719,308 Ill. App.3d 900,242 Ill.Dec. 440
PartiesNicholas AYON, a Minor, by Nicolas AYON and Leticia Ayon Dearmas, his Father and Mother and Next Friends, Plaintiffs-Appellants, v. Robert BALANOFF, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Donald L. Johnson, Chicago, for Appellants.

Robert J. Pavich, Melanie K. Fairman, Monico Pavich & Spevack, Chicago, for Appellee.

Justice SOUTH delivered the opinion of the court:

This case is an appeal from an order granting defendant's motion to dismiss the plaintiffs' complaint for failure to state a claim for legal malpractice. Plaintiffs contend that the trial court erred in dismissing their legal malpractice complaint because they failed to comply with section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1994)). Plaintiffs argue that compliance with section 2-622 is not required in a legal malpractice action, even if it is based upon a medical malpractice claim.

The issue we are being asked to address is whether section 2-622 applies to legal malpractice cases based upon medical malpractice claims. This question has never been directly addressed by the courts.

Section 2-622 of the Code of Civil Procedure states in pertinent part:

"(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 * * * shall file an affidavit, attached to the original and all copies of the complaint, declaring * * *:
1. That the affiant has consulted and reviewed the facts of the case with a health professional * * * 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 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 * * *.
* * *
(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619." 735 ILCS 5/2-622 (West 1994).

The legislature may properly impose requirements governing matters of procedure and the presentation of legal claims, and section 2-622 merely requires a litigant to submit certification declaring a meritorious basis for a medical malpractice claim. DeLuna v. St. Elizabeth's Hospital, 147 Ill.2d 57, 66-67, 167 Ill.Dec. 1009, 588 N.E.2d 1139 (1992). Whether a medical malpractice action should be dismissed "with prejudice" by reason of the plaintiff's failure to comply with the affidavit and report requirements of section 2-622 is a matter committed to the sound discretion of the trial court. McCastle v. Sheinkop, 121 Ill.2d 188, 192-94, 117 Ill.Dec. 132, 520 N.E.2d 293 (1987). In reviewing such a dismissal, we apply an abuse of discretion standard. Mueller v. North Suburban Clinic, Ltd., 299 Ill.App.3d 568, 572, 233 Ill.Dec. 603, 701 N.E.2d 246 (1998). However, in the instant case, the threshold question is whether the plaintiffs are required to comply with the provisions of section 2-622, which is a matter of statutory construction. Statutory construction is a question of law, and, therefore, our review is de novo. Lucas v. Lakin, 175 Ill.2d 166, 171, 221 Ill.Dec. 834, 676 N.E.2d 637 (1997).

The statute requiring a medical malpractice plaintiff's attorney to file an affidavit stating that he or she has consulted with a qualified health professional is designed to reduce the number of frivolous lawsuits that are filed and to eliminate such actions at an early stage. Cuthbertson v. Axelrod, 282 Ill.App.3d 1027, 218 Ill.Dec. 458, 669 N.E.2d 601 (1996).

Plaintiffs rely upon Jackson v. Michael Reese Hospital & Medical Center, 294 Ill.App.3d 1, 228 Ill.Dec. 333, 689 N.E.2d 205 (1997), in support of their position that a certificate of merit is not required for a legal malpractice claim arising from a medical malpractice action. In that case, the plaintiffs originally filed a medical malpractice action but later voluntarily dismissed it against all defendants. An amended complaint was filed later alleging negligent spoliation of evidence against Michael Reese Hospital, based upon its loss or destruction of certain X-rays taken of plaintiff's child which caused plaintiffs to be unable to prove their original medical malpractice claim. The first complaint was dismissed, and the trial court granted leave to file an amended complaint, which asserted a claim under the X-Ray Retention Act (210 ILCS 90/0.01 et seq. (West 1994)). That complaint was later dismissed. In the second amended complaint, plaintiffs alleged a cause of action for spoliation of evidence. Defendant filed a motion to dismiss for failure to attach a certificate of merit under section 2-622, which the court granted.

The appellate court concluded that the statute in question does not apply to claims for the spoliation of evidence. It stated:

"We will not expand the scope of section 2-622 by requiring compliance with statutory certification under section 2-622 in a cause of action for spoliation of evidence. * * * We do not interpret the statute as mandating a certificate of merit in a spoliation of evidence claim arising from a medical malpractice action. It is the function of the legislature, not the judiciary, to broaden the scope of this
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3 cases
  • Awalt v. Marketti
    • United States
    • U.S. District Court — Northern District of Illinois
    • April 9, 2012
    ...law have repeatedly held that Section 2-622 applies to claims for medical malpractice only. See id.; see also Ayon v. Balanoff 721 N.E.2d 719, 722 (Ill. App. Ct. 1999) (holding that the statute does not extend beyond claims for medical malpractice); Gragg v. Calandra, 696 N.E.2d 1282, 1286 ......
  • People v. Roman
    • United States
    • United States Appellate Court of Illinois
    • July 5, 2001
  • Parham v. Rockford Mem'l Hosp. & Rockford Health Sys.
    • United States
    • United States Appellate Court of Illinois
    • March 13, 2015
    ...Department of Children & Family Services, 2015 IL App (1st) 130414, ¶ 31 (whether a claim is moot is reviewed de novo); Ayon v. Balanoff,308 Ill. App. 3d 900, 903 (1999) (whether the plaintiff was required to comply with section 2-622 of the Code was reviewed de novo). In reviewing the appr......

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