Crull v. Sriratana

• Decision Date: 23 March 2009
• Docket Number: No. 4-06-0952.,4-06-0952.
• Parties: Dan CRULL, Special Administrator of the Estate of Novalene Crull, Deceased, Plaintiff-Appellant, v. Pramern SRIRATANA, M.D.; Mid-Illinois Hematology & Oncology Associates, Ltd., an Illinois Corporation; Kenneth N. Jordan, D.O.; and Madison Street Clinic, P.C., an Illinois Professional Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

904 N.E.2d 1183

388 Ill. App. 3d 1036

Dan CRULL, Special Administrator of the Estate of Novalene Crull, Deceased, Plaintiff-Appellant, v. Pramern SRIRATANA, M.D.; Mid-Illinois Hematology & Oncology Associates, Ltd., an Illinois Corporation; Kenneth N. Jordan, D.O.; and Madison Street Clinic, P.C., an Illinois Professional Corporation, Defendants-Appellees.

No. 4-06-0952.

Appellate Court of Illinois, Fourth District.

March 23, 2009.

Justice STEIGMANN delivered the opinion of the court:

In December 2004, plaintiff, Dan Crull, as special administrator of the estate of Novalene Crull, filed a medical-malpractice complaint against defendants, Pramern Sriratana, M.D.; Mid-Illinois Hematology & Oncology Associates, Ltd.; Kenneth N. Jordan, D.O.; and Madison Street Clinic, P.C.

In October 2006, the trial court dismissed plaintiff's complaint with prejudice, upon learning that the reviewing health-care professional's report, which was required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2004)), had been written by a person not licensed to practice medicine.

Plaintiff appealed, arguing that the trial court erred by (1) ordering him to reveal the identity of the author of the section 2-622 report and (2) dismissing the case with prejudice. In October 2007, this court disagreed with plaintiff's arguments and affirmed. Crull v. Sriratana, 376 Ill.App.3d 803, 316 Ill.Dec. 31, 878 N.E.2d 753 (2007).

Plaintiff filed a petition for leave to appeal with the Supreme Court of Illinois. In September 2008, that court denied plaintiff's petition but also entered a nonprecedential supervisory order that reads as follows:

"In the exercise of this court's supervisory authority, the Appellate Court, Fourth District, is directed to vacate its opinion in Crull v. Sriratana, 376 Ill. App.3d 803 [316 Ill.Dec. 31, 878 N.E.2d 753] (2007). The appellate court is directed to reconsider its judgment in light of O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill.2d 421[, 323 Ill.Dec. 2, 892 N.E.2d 994] (2008), to determine whether a different result is warranted." Crull v. Sriratana, 229 Ill.2d 619, 328 Ill.Dec. 66, 903 N.E.2d 726 (2008).

In accordance with the supreme court's directive, we vacate our earlier opinion in this case. After reconsidering this case in light of the supreme court's decision in O'Casek, we determine that a different result is not warranted. Accordingly, we affirm.

I. BACKGROUND

When plaintiff filed his December 2004 medical-malpractice complaint, he failed to attach a report of a reviewing health-care professional and, instead, invoked the automatic statutory 90-day extension under section 2-622(a)(2) of the Code (735 ILCS 5/2-622(a)(2) (West 2004)). However, plaintiff did not file a report of any reviewing health-care professional before the automatic 90-day stay expired on March 17, 2005. The statute of limitations expired on December 19, 2004.

In early March 2005, Sriratana, a specialist in hematology and oncology, and his corporation prematurely filed a motion to dismiss plaintiff's complaint based on plaintiff's failure to file a section 2-622 report from a qualified reviewing health-care professional. On March 21, 2005, Jordan, a specialist in orthopedics and muscular osteopathic medicine, and his corporation filed a motion to dismiss, alleging that plaintiff failed to comply with section 2-622, in that he failed to submit an attorney affidavit, health-care professional's report, or a motion for an extension of time to file the report within the 90-day period.

The next day, the trial court held a hearing on defendants' motions to dismiss. At the start of the hearing, plaintiff's counsel, Guy Geleerd, moved for leave to file three identical section 2-622 affidavits and health-care professional's reports instanter and tendered the affidavits and reports he sought to submit. Each of Geleerd's affidavits stated that he had consulted and reviewed the facts of this case with a health-care professional whom he believed (1) to be knowledgeable in the relevant issues involved in this cause of action, (2) had practiced within the last six years in the same area of health care or medicine at issue in this cause of action, and (3) was qualified by experience and demonstrated competence in the subject of this case. Each affidavit also stated that a copy of the health-care professional's report was attached, clearly identifying the reasons for the professional's determination that a reasonable and meritorious cause for filing of this cause of action existed.

The health-care professional's reports, dated March 18, 2005, stated that the author was a "physician licensed to practice medicine in all of its branches, residency trained and board certified in [the] specialty of internal medicine/nephrology." The report was not signed and did not reveal the reviewing health-care professional's name and address.

The trial court recognized that the health-care reports were not signed. When the court asked Geleerd why the health-care reports did not reveal the author's identity, Geleerd responded that "Illinois law does not require that we tender signed [section] 2-622 reports along with our [section] 2-622 affidavit." Sriratana's counsel objected, and the following colloquy between the court and Geleerd occurred:

"THE COURT: Well, aside from what the law requires, give me the name of your expert.

MR. GELEERD: I don't want to do that.

THE COURT: Well, you may regret that. I want to know from you, as an officer of this court, that you have got somebody. I want to know who he is, and I want to know why his name is not on here.

MR. GELEERD: I have two experts. One is a board[-]certified internal medicine and nephrologist [expert]; and one is a board[-] certified internal medicine and infectious disease expert. And until the Cargill [v. Czelatdko, 353 Ill.App.3d 654, 288 Ill.Dec. 963, 818 N.E.2d 898 (2004),] decision is reviewed by either an [a]ppellate [c]ourt or the [s]upreme [c]ourt, it is our understanding that the Best v. Taylor[ Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997),] decision overrides the previously stricken [section] 2-622 that requires the plaintiff to identify his or her expert.

THE COURT: You are conceding that Cargill requires identification?

MR. GELEERD: Oh, yes. No question about that.

THE COURT: Do you have any authority other than Cargill that speaks to the issue that would excuse you from identifying the expert?

MR. GELEERD: There is a Rule 23 order [(166 Ill 2d. R. 23)] that was issued by the First District Appellate Court that we have been trying to get a copy of, that we have been unable to get a copy of. But there is a Rule 23 order by the First District Appellate Court that did not follow Cargill. And now we are kind of waiting.

THE COURT: Cargill is out of what District?

MR. GELEERD: Cargill is out of I believe it is the Fifth District, Your Honor.

MR. GUNN: I believe it is the Fourth, Your Honor.

THE COURT: Fourth District, that might be correct.

* * *

THE COURT: I am going to give you an opportunity, Mr. Geleerd, for you to state who it is that your experts are today. Give me their names and their physical locations.

MR. GELEERD: Can I do that in camera?

THE COURT: No.

MR. GELEERD: Can I do that outside the presence of the defense counsel?

THE COURT: No.

MR. GELEERD: I feel I am in a very * * *

THE COURT: I am not going to order you to. I am going to give you the opportunity to provide some assurance to the court by identification of these people that you actually have them.

MR. GELEERD: Oh, I will be more than happy to state on the record.

THE COURT: I am not interested in that. There is a test here. I will know if you have got them if you give me their names and addresses. And then they are deposed at a particular point in time, and they will say yes, I was on board with Mr. Geleerd on March 22, 2005; or, yes, this man had talked to me, but I didn't really know what was going on. No, you know, whatever. I want to be assured. I want the [a]ppellate [c]ourt to be assured that you have someone on board right now that has seen this opinion letter to you and has said, Mr. Geleerd, I will sign that.

Let me ask this question. Have these experts signed these opinion letters already?

MR. GELEERD: One has not. The board[-] certified internist with the specialty in infectious disease has not. And the board[-] certified internal medicine [physician] with the specialty in nephrology has reviewed the records. And he is the one who gave me a draft of the letter that I attached to the [section] 2-622. The actual [section] 2-622 is what I sent down to him on March 18, which I have not received a copy of them.

THE COURT: As you sit there now, there is not in your possession a signed opinion letter by anyone. Would that be true or not true?

MR. GELEERD: No, that is not true. I do have a signed opinion letter of a consultant who is an internal[-]medicine physician. However, I am happy to disclose to this [c]ourt the names of the two experts that I would put on the stand in front of the jury. I just would ask not to do that in front of defense counsel, unless this [c]ourt is ordering me to do so, then, I would be happy to do so. But both of the individuals who I will disclose at this point in time will come on board as experts for the plaintiff to testify in this case.

THE COURT: Well, you represent the plaintiff. I am going to let you decide what it is that you have to do. I am not going to order you to. If you are going to be sued for malpractice, this will be a call that you made that subjected yourself to liability. I am not saying how I am going to rule. But I want the record clear that you have an opportunity today to give the identification of these two experts. You are either going to do that, or you are not going to do that. And that is your call. And you live with your decision."

Geleerd then asked for an...