Batten v. Retz

• Decision Date: 27 April 1989
• Docket Number: No. 3-88-0472,3-88-0472
• Citation: 182 Ill.App.3d 425,538 N.E.2d 179
• Parties: , 130 Ill.Dec. 968 Robert E. BATTEN, Individually and as Executor of the Estate of Margaret Batten, Deceased, Plaintiff-Appellant, v. R.D. RETZ, M.D., M. Ebalo, M.D., Y. Rhee, M.D., Quad-City Radiologists, Ltd., a Professional Corporation, and Illini Hospital District, a Municipal Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 179

538 N.E.2d 179

182 Ill.App.3d 425, 130 Ill.Dec. 968

Robert E. BATTEN, Individually and as Executor of the Estate

of Margaret Batten, Deceased, Plaintiff-Appellant, v. R.D. RETZ, M.D., M. Ebalo, M.D., Y. Rhee, M.D., Quad-City

Radiologists, Ltd., a Professional Corporation,

and Illini Hospital District, a

Municipal Corporation,

Defendants-Appellees.

No. 3-88-0472.

Appellate Court of Illinois,

Third District.

April 27, 1989.

Paul R. O'Malley, Thomas D. Nissen (argued), Paul R. O'Malley, Ltd., Chicago, for Robert E. Batten.

Roger Clayton, Nicholas J. Bertschy, Heyl, Royster, Voelker & Allen, Peoria, for R.D. Retz, M.D., John V. Patton (argued), Bozeman, Neighbour, Patton & Noe, Moline, for Y. Rhee, M.D., Quad-City Radiologists, Ltd.

Murvel Pretorius, Jr., Donna Wamack Cruz, Quinn, Johnston, Henderson & Pretorius, Chartered, Peoria, for M. Ebalo, M.D.

Peter C. Fieweger (argued), Katz, McAndrews, Durkee, Balch & Lefstein, P.C., Rock Island, for Illini Hospital Dist.

Justice BARRY delivered the opinion of the court.

On October 26, 1987, plaintiff Robert E. Batten brought a complaint in two counts against defendant doctors Retz, Ebalo and Rhee and defendant radiologist and hospital corporations complaining of medical malpractice that allegedly resulted in the untimely death of Margaret Batten on October 26, 1985. On motion of the defendants, the circuit court of Rock Island County dismissed the complaint with prejudice for failure to comply with section 2-622 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-622). The court subsequently denied plaintiff's post-judgment motion to reconsider and vacate its order of dismissal and for leave to amend. Plaintiff appeals from both dispositions. We affirm.

Attached to plaintiff's original complaint is an affidavit of counsel pursuant to section 2-622(a)(2) stating that written medical reports and an attorney's certificate as required by section 2-622(a)(1) would not be available before expiration of the statute of limitations. On January 26, 1988, 92 days after the complaint was filed, plaintiff's attorney filed an affidavit pursuant to section 2-622(a)(1) stating that he had consulted with "a physician who has experience, knowledge and training in the area of management and diagnosis of liver disease" and a registered nurse, both of whom had reviewed the medical record for Margaret Batten and indicated that a reasonable cause of action exists. The affidavit further stated that counsel was relying on the doctrine of res ipsa loquitur. Attached to the affidavit were two "certificates" from an unidentified board-certified internist with a subspecialty in hepatology and an unidentified registered nurse "with experience in postoperative management of patients who have undergone cholecystectomies."

Defendants moved to dismiss the cause of action on grounds that: 1) counsel's affidavit did not state that he had consulted with a health professional in the same specialties as Dr. Retz, a specialist in general surgery, and defendant radiologists; 2) counsel's affidavit failed to state that he had consulted with a physician licensed to practice medicine in all its branches as required by section 2-622(a)(1); 3) plaintiff had failed to provide written reports of reviewing health professionals within 90 days as required by section 2-622(a)(2); 4) separate certificates and reports were not filed as to each named defendant as required by section 2-622(b); 5) plaintiff's counsel had not stated his intent to rely upon res ipsa loquitur upon filing the complaint; and 6) no reviewing health professional had stated that negligence had occurred in the course of medical treatment as required by section 2-622(c).

On February 26, 1988, plaintiff moved to amend his complaint. Attached to the proposed first amended complaint are an affidavit of counsel and four "certificates" from an unidentified "medical physician licensed to practice medicine in all of its branches." Counsel's affidavit concludes with a statement that he is relying on both res ipsa loquitur and specific negligence. The four "certificates" allege that the physician reviewed the medical records of Margaret Batten; that the records indicate that a reasonable and meritorious cause of action exists against each of the named defendants; that defendants "failed to order appropriate diagnostic tests and timely consult with a gastroenterologist prior to surgical intervention," "failed to recommend and perform appropriate diagnostic tests to rule out common bile duct obstructions," and "failed to follow standard practices and procedures in the plaintiff's decedent's postoperative management of her T-tube drain;" and that defendants' various departures from acceptable medical care caused or contributed to Margaret Batten's untimely death.

On March 8, the circuit court granted defendant Illini Hospital's motion to dismiss with prejudice on grounds that plaintiff had failed to file a timely certificate and written report of a reviewing physician licensed to practice medicine in all its branches, and that the nurse's certificate filed on the 92nd day after filing the complaint was insufficient under section 2-622(a)(1). In the exercise of its discretion, the court denied plaintiff's motion to amend the complaint against the hospital on grounds that the proposed physician's certificate was untimely and no evidence of good cause for the late filing had been shown.

The court similarly granted motions to dismiss with prejudice filed by the remaining defendants. Grounds stated are that the affidavit and certificate filed on January 26, 1988 were legally insufficient and that plaintiff's proposed amendment failed to meet the requirements of section 2-622 of the Code of Civil Procedure.

In this appeal, plaintiff argues that his two-day delay in filing documentation pursuant to section 2-622(a)(2) should have been excused as a mere technicality. (See e.g., McCastle v. Sheinkop (1987), 121 Ill.2d 188, 117 Ill.Dec. 132, 520 N.E.2d 293; and Walter v. Hill (3rd Dist.1987), 156 Ill.App.3d 708, 109 Ill.Dec. 143, 509 N.E.2d 804; and Bassett v. Wang (1st Dist.1988), 169 Ill.App.3d 663, 120 Ill.Dec. 109, 523 N.E.2d 1020; see also Ushman v. Sterling Drugs, Inc. (4th Dist.1988), 166 Ill.App.3d 726, 118 Ill.Dec. 245, 521 N.E.2d 313.) Plaintiff also contends that the circuit court abused its discretion in denying plaintiff leave to file an amended complaint with an affidavit of counsel and four certificates.

The case before us is distinguishable from those cited by plaintiff in support of his "mere technicality" argument. In each of the cases cited, the trial judge did not exercise any discretion but dismissed the complaints with prejudice on the understanding that such dismissal was mandated by the Act. Here, the trial judge was aware that he had discretion to dismiss with or without...