Cargill v. Czelatdko

Citation353 Ill. App.3d 654,288 Ill.Dec. 963,818 N.E.2d 898
Decision Date12 November 2004
Docket NumberNo. 4-04-0278.,4-04-0278.
PartiesMark CARGILL and Rebecca Renee Cargill, Plaintiffs-Appellees, v. Thomas CZELATDKO; E. David Jones; and Sarah Bush Lincoln Health Center, Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Kevin M. Miller, Laura A. Petersen, Quinn, Johnston, Henderson & Pretorius, Peoria, for Thomas Czelatdko.

Michael J. Meyer, Effingham, for Mark Cargill.

Justice TURNER delivered the opinion of the court:

In July 2003, plaintiffs, Mark Cargill and Rebecca Renee Cargill, refiled a complaint against defendants, Thomas Czelatdko, E. David Jones, and Sarah Bush Lincoln Health Center, alleging healing art malpractice. In September 2003, defendants filed a motion to dismiss, which the trial court denied. In March 2004, the court granted defendants' motion to certify the following questions for interlocutory review pursuant to Supreme Court Rule 308(a) (155 Ill.2d R. 308(a)):

"1. 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, 179 Ill.2d 367 [228 Ill.Dec. 636, 689 N.E.2d 1057 (1997)]?
2. If the response to the first question listed above is in the affirmative, then in a refiled healing art malpractice case does the [c]ircuit [c]ourt have discretion pursuant to [s]ection 2-622(a)(2) to `waive' the requirement found at 735 ILCS 5/2-622(a)(2) that a plaintiff's attorney certify that he `has not previously voluntarily dismissed an action based on the same or substantially the same acts, omissions, or occurrences?'
3. Assuming an answer in the affirmative to question [N]o. 1 above, and assuming that the [c]ircuit [c]ourt does not have discretion to waive this certification requirement mandated by [s]ection 2-622(a)(2), does the [p]laintiff's attorney's failure to provide the certification mandate dismissal of an action with prejudice under [s]ection 2-622(g)?"

We answer yes to the first and third questions, no to the second question, and remand this case for further proceedings.

I. BACKGROUND

In March 2000, plaintiff Mark Cargill became a patient of defendants at the Sarah Bush Lincoln Health Center in Mattoon, Illinois. In March 2002, plaintiff filed a healing art malpractice action in Coles County case No. 02-L-29. Plaintiffs' attorney attached to the complaint an affidavit, indicating no physician's certificate was filed to support the complaint as required by section 2-622 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-622 (West 2002)) as counsel was unable to procure a certificate before the statute of limitations would otherwise impair the action. After a 90-day extension, plaintiffs moved to voluntarily dismiss the action. In July 2002, the trial court granted the dismissal motion.

In July 2003, plaintiffs refiled their complaint in case No. 03-L-44, alleging healing art malpractice. Plaintiffs' counsel again filed an affidavit, stating he had been unable to obtain a consultation as required by section 2-622 of the Procedure Code because such a consultation could not be obtained before the expiration date of the statute of limitations.

In September 2003, defendants filed a motion to dismiss pursuant to section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2002)), claiming section 2-622 does not allow for the filing of an action without a physician's certificate of merit to be followed by a voluntary dismissal and the subsequent refiling of the action without a certificate.

In December 2003, the trial court denied defendants' motion to dismiss. Thereafter, defendants filed an answer to plaintiffs' complaint. In March 2004, the court granted defendants' motion to certify questions for interlocutory appeal pursuant to Rule 308(a) (155 Ill.2d R. 308(a)). This appeal followed.

II. ANALYSIS
A. Standard of Review

This appeal requires us to interpret section 2-622 of the Procedure Code. Statutory construction is a matter of law, and appellate review is de novo. People v. Slover, 323 Ill.App.3d 620, 623, 257 Ill.Dec. 359, 753 N.E.2d 554, 557 (2001)

. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. People v. Latona, 184 Ill.2d 260, 269, 234 Ill.Dec. 801, 703 N.E.2d 901, 906 (1998). The words of a statute are to be given their plain and commonly understood meanings. Krohe v. City of Bloomington, 329 Ill.App.3d 1133, 1135-36, 264 Ill.Dec. 49, 769 N.E.2d 551, 553 (2002). When the language of a statute is clear and unambiguous, it will be given effect without resort to the other tools of statutory construction. Segers v. Industrial Comm'n, 191 Ill.2d 421, 431, 247 Ill.Dec. 433, 732 N.E.2d 488, 494 (2000).

B. Section 2-622 of the Procedure Code

Prior to 1995, section 2-622(a) provided, in part, as follows:

"In any action * * * 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 one of the following:
1. That the affiant has consulted and reviewed the facts of the case with a health professional who * * * 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 * * *. * * * 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 statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations." 735 ILCS 5/2-622(a)(1), (a)(2) (West 1994).

Prior to 1995, section 2-622 did not include a restriction on a plaintiff's right to voluntarily dismiss an action and refile the suit if the plaintiff was unable to obtain the required consultation at the time of filing. Further, the name and address of the reviewing health professional was not required in the written report.

With the Civil Justice Reform Amendments of 1995, the General Assembly amended section 2-622 through the enactment of Public Act 89-7(Act) (Pub. Act 89-7, § 15, eff. March 9, 1995 (1995 Ill. Laws 284, 291) (amending 735 ILCS 5/2-622 (West 1994))). Following the 1995 amendment, section 2-622 provided, in pertinent part, as follows:

"1. That the affiant has consulted and reviewed the facts of the case with a health professional who * * * 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 * * *. * * * 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 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." (Emphasis added.) 735 ILCS 5/2-622(a)(1), (a)(2) (West 1996).

In 1997, the Illinois Supreme Court issued its opinion in Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). In that case, the court found certain "core provisions" of Public Act 89-7 were unconstitutional and "inseparable" from the remainder of the Act. Best, 179 Ill.2d at 467, 228 Ill.Dec. 636, 689 N.E.2d at 1104. Thus, the whole Act was declared void in its entirety. Best, 179 Ill.2d at 467, 228 Ill.Dec. 636, 689 N.E.2d at 1104. The court emphasized that "all of the remaining provisions of Public Act 89-7, which were not challenged in the instant cases, are deemed invalid in this case solely on grounds of severability. As such, the General Assembly is free to reenact whatever provisions it deems desirable or appropriate." Best, 179 Ill.2d at 471, 228 Ill.Dec. 636, 689 N.E.2d at 1106. In February 1998, the General Assembly passed Public Act 90-579 (Pub. Act 90-579, § 5, eff. May 1, 1998 (1998 Ill. Laws 48, 48) (amending 735 ILCS 5/2-622 (West 1996))). In May 1998, Governor Ryan signed Public Act 90-579 into law. Along with adding a subsection setting forth the effective date of the amendment, Public Act 90-579 added the emphasized language:

"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[,] * * * 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." (Emphasis added.) Pub. Act 90-579, § 5, eff. May 1, 1998 (1998 Ill. Laws at 49).

Public Act 90-579 also contained the same language requiring the name and address of the health professional and the affidavit requirement that a plaintiff had not previously voluntarily dismissed an action based on the same or substantially the same acts. That language remains in the statute. See 735 ILCS 5/2-622 (West 2002).

C. Certified Question No. 1

In the trial court and now on appeal, plaintiffs...

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