O'Casek v. Children's Home and Aid Soc.

• Decision Date: 19 June 2008
• Docket Number: No. 105050.,105050.
• Citation: 229 Ill.2d 421,892 N.E.2d 994
• Parties: Marjorie O'CASEK, Special Adm'r of the Estate of Carla Thompson, Deceased, Appellee, v. CHILDREN'S HOME AND AID SOCIETY OF ILLINOIS (OSF St. Joseph Medical Center et al., Appellants).
• Court: Illinois Supreme Court

892 N.E.2d 994

229 Ill.2d 421

Marjorie O'CASEK, Special Adm'r of the Estate of Carla Thompson, Deceased, Appellee, v. CHILDREN'S HOME AND AID SOCIETY OF ILLINOIS (OSF St. Joseph Medical Center et al., Appellants).

No. 105050.

Supreme Court of Illinois.

June 19, 2008.

Nancy G. Lischer, of Hinshaw & Culbertson LLP, Chicago (Paul C. Estes, of counsel), for appellants OSF Healthcare Systems and Richard Castillo.

Christopher L. Nyweide, Ryan D. Gammelgard and Barbara G. Taft, of Livingston, Barger, Brandt & Schroeder, Bloomington, for appellant Susan G. Emmerson.

Nicola S. Tancredi, Oakbrook Terrace, for appellee.

OPINION

Justice FITZGERALD delivered the judgment of the court, with opinion:

Defendants, OSF Healthcare Systems (OSF), Richard D. Castillo, M.D., and Susan G. Emmerson, M.D., appeal from a judgment of the appellate court reversing the dismissal of plaintiff's medical malpractice action. At issue is whether plaintiff, Marjorie O'Casek, special administrator of the estate of Carla Thompson, deceased, was entitled to a 90-day extension in which to file a certificate of merit, in support of her malpractice action, as required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2002)). Resolution of this issue turns on whether Public Act 90-579 reenacted that version of section 2-622 which this court held unconstitutional, on severability principles, in Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). The appellate court held that, according to Public Act 94-677, that version of section 2-622 "disappeared with Best and was never reenacted." 374 Ill.App.3d 507, 513, 314 Ill.Dec. 240, 874 N.E.2d 150. Accordingly, plaintiff was entitled to a 90-day extension and her complaint should be allowed to proceed. 374 Ill.App.3d at 515, 314 Ill. Dec. 240, 874 N.E.2d 150.

For the reasons that follow, we affirm the judgment of the appellate court.

BACKGROUND

History of Section 2-622

Before 1995, section 2-622 of the Code of Civil Procedure (commonly known as the Healing Art Malpractice Act) stated in relevant part, as follows:

"§ 2-622. Healing art malpractice. (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 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: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; 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.

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. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1." 735 ILCS 5/2-622 (West 1994).

Under this version of section 2-622, upon the filing of an appropriate affidavit, a medical malpractice plaintiff was entitled to a 90-day extension to file the required certificate of merit, irrespective of whether the plaintiff had previously voluntarily dismissed his or her cause of action. Cargill v. Czelatdko, 353 Ill.App.3d 654, 657, 288 Ill.Dec. 963, 818 N.E.2d 898 (2004); Neuman v. Burstein, 230 Ill.App.3d 33, 37-38, 172 Ill.Dec. 298, 595 N.E.2d 659 (1992).

The Civil Justice Reform Amendments of 1995 (Pub. Act 89-7, eff. March 9, 1995) amended section 2-622 in two respects. First, the language in section 2-622(a)(1) permitting the identity of the reviewing health professional to be deleted from the report was stricken from the statute and the following language was added: "The report shall include the name and the address of the health professional." Second, and relevant to this appeal, section 2-622(a)(2) was amended to add another requirement to the attorney affidavit, namely, that the "plaintiff has not previously voluntarily dismissed an action based upon the same or substantially the same acts, omissions, or occurrences." Thus, under Public Act 89-7, a plaintiff was precluded from obtaining a 90-day extension to file a certificate of merit if the plaintiff previously voluntarily dismissed the same or substantially the same cause of action.

On December 18, 1997, this court held Public Act 89-7 void in its entirety. Best, 179 Ill.2d at 467, 228 Ill.Dec. 636, 689 N.E.2d 1057. The amendments made to section 2-622 were not among the core provisions held substantively unconstitutional, but were nonetheless deemed invalid because the core provisions could not be severed from the balance of the act. Best, 179 Ill.2d at 467, 228 Ill.Dec. 636, 689 N.E.2d 1057. We noted that the General Assembly was "free to reenact whatever provisions it deems desirable or appropriate." Best, 179 Ill.2d at 471, 228 Ill.Dec. 636, 689 N.E.2d 1057. With our decision in Best, section 2-622 reverted to the pre-1995 version, quoted above.

On February 4, 1998, less than two months after our decision in Best, the General Assembly passed Public Act 90-579. Effective May 1, 1998, Public Act 90-579 amended section 2-622(a)(1) by adding naprapaths to the list of covered health professionals. Notably, however, Public Act 90-579 did not add naprapaths to the pre-1995 version of section 2-622 that was in effect after Best. Rather, it added naprapaths to the 1995 version struck down in Best. Public Act 90-579 stated:

"The Code of Civil Procedure is amended by changing Section 2-622 as follows:

(735 ILCS 5/2-622) (from Ch. 110, par. 2-622)

§ 2-622. Healing art malpractice.

(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 or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all the 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: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; 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 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 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, 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. 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. The report shall include the name and the address of the health professional.

2. That the plaintiff has not...