DeLuna v. St. Elizabeth's Hosp.

• Decision Date: 13 June 1989
• Docket Number: 1-87-0831,Nos. 1-86-2995,s. 1-86-2995
• Parties: , 132 Ill.Dec. 925 Guadalupe DeLUNA, Individually and as Special Administrator of the Estate of Alicia DeLuna, Deceased, Plaintiff-Appellant, v. ST. ELIZABETH'S HOSPITAL and Michael Treister, M.D., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 847

540 N.E.2d 847

184 Ill.App.3d 802, 132 Ill.Dec. 925

Guadalupe DeLUNA, Individually and as Special Administrator of the Estate of Alicia DeLuna, Deceased Plaintiff-Appellant, v. ST. ELIZABETH'S HOSPITAL and Michael Treister, M.D. Defendants-Appellees.

Nos. 1-86-2995, 1-87-0831.

Appellate Court of Illinois First District, Second Division.

June 13, 1989.

Barbara J. Clinite, Chicago, for plaintiff-appellant.

David L. Cwik, Pretzel & Stouffer, Chartered, Chicago (Robert Marc Chemers, Michael A. Clarke, of counsel), for defendant-appellee, St. Elizabeth's Hosp.

French, Rogers, Kezelis & Kominiarek, P.C., Chicago (Gary I. Blackman, of counsel), for appellee, Michael Treister, M.D.

Justice SCARIANO delivered the opinion of the court:

Section 2-622(a)(1) (Ill.Rev.Stat.1985, ch. 110, par. 2-622(a)(1)) provides that in any action for medical malpractice the plaintiff or his attorney must attach to the complaint an affidavit stating that he has consulted with a health professional in whose "determination" there is a "reasonable and meritorious cause" for the filing of the action. In addition, the plaintiff must also attach the written report of the health professional indicating the basis for his determination. Section 2-622(a)(2) (Ill.Rev.Stat.1985, ch. 110, par. 2-622(a)(2)) allows for a 90-day extension for the filing of the affidavit if the statute of limitations is near expiration, and Section 2-622(a)(3) (Ill.Rev.Stat.1985, ch. 110, par. 2-622(a)(3)) provides that if the plaintiff is having difficulty obtaining necessary medical records he is given 90 days upon receipt of the medical records in which to file the affidavit. Section 2-622(g) (Ill.Rev.Stat.1985, ch. 110, par. 2-622(g)) provides that "failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619".

Plaintiff brought an action for damages for professional and hospital negligence against the defendants but failed to attach to his complaint the written declarations required by the provisions of the statute set forth above. The trial court granted the defendant hospital's motion to dismiss plaintiff's complaint for failure to comply with section 2-622, specifying that such dismissal was without prejudice to refiling. Plaintiff filed his notice of appeal, but the appeal was stayed awaiting the result in McCastle v. Sheinkop, then pending in the Illinois Supreme Court. The trial court later granted with prejudice defendant Dr. Treister's motion to dismiss plaintiff's complaint for failure to conform with the provisions of section 2-622. Plaintiff filed a notice of appeal from this order as well. After the supreme court decided McCastle without having to reach the constitutional issues which had been presented therein (McCastle v. Sheinkop (1988), 121 Ill.2d 188, 117 Ill.Dec. 132, 520 N.E.2d 293), the stay of the instant appeal was vacated.

Plaintiff raises the following issues on appeal: (1) whether section 2-622 unconstitutionally delegates judicial authority to health professionals, and invades the power of courts to hear and determine cases, in violation of the separation of powers mandated by article II, and section 1 of article VI of the Illinois Constitution; (2) whether section 2-622 unconstitutionally deprives victims of medical malpractice of access to courts and recovery of damages for injuries without an opportunity to be heard, in violation of the due process clause of article I, section 2 of the Illinois Constitution and the Fourteenth Amendment to the United States Constitution; (3) whether section 2-622 deprives victims of medical malpractice of the equal protection of the laws guaranteed in article I, section 2 of the Illinois Constitution and the Fourteenth Amendment to the United States Constitution; (4) whether section 2-622 unconstitutionally restricts free and open access to the courts for the vindication of rights by victims of medical malpractice, in violation of article I, section 12 of the Illinois Constitution and the First Amendment to the United States Constitution; (5) whether section 2-622 is void for vagueness in delegating unguided authority in terms so vague and uncertain as to provide no standard for the exercise of that authority by a health professional; (6) whether the circuit court erred in the application of section 2-622; (7) whether the circuit court erred in entering an order dismissing the complaint against defendant Treister with prejudice; and (8) whether this court has jurisdiction to entertain an appeal from an express interlocutory dismissal order which was made expressly without prejudice and subject to refiling.

On April 16, 1986, plaintiff filed his complaint for medical malpractice, in counts I through III of which he alleged that decedent Alicia DeLuna underwent surgery as a patient of defendant hospital; that hospital employees were negligent in that they lacerated the common iliac artery during surgery; failed to properly monitor vital signs; failed to recognize the signs of massive internal bleeding and failed to promptly respond thereto. Count I was brought under the Wrongful Death Act, Ill.Rev.Stat.1985 ch. 70, pars. 1, 2, count II under the Survival Act, Ill.Rev.Stat.1985 ch. 110 1/2, par. 27-6, and count III under the Family Expense Act, Ill.Rev.Stat.1985 ch. 40, par. 1015.

Counts IV through VI alleged that defendant Treister performed a lumbar laminectomy upon plaintiff's decedent, during which he negligently lacerated the common iliac artery, and that he failed to promptly recognize the signs of massive internal bleeding, to identify the laceration and to promptly respond with treatment. Count IV was brought under the Wrongful Death Act, count V under the Survival Act, and count VI under the Family Expense Act.

In all counts, plaintiff alleged that the negligent acts and omissions of the defendants were the proximate cause of the death of Alicia DeLuna. In the discharge summary contained in the records of defendant hospital for plaintiff's decedent, Dr. Treister reported the "iatrogenic laceration of the common iliac artery" and his conclusion that the proximate cause of death was coagulopathy which resulted from bleeding from surgical laceration. A copy of the discharge summary was filed with plaintiff's memoranda in opposition to defendants' motions to dismiss.

I.

Plaintiff contends that section 2-622 unconstitutionally delegates judicial authority to health professionals and invades the power of courts to hear and determine cases, and, more specifically, that it delegates the function of reviewing the facts of a case and determining whether a claim has merit, in violation of article II and section 1 of article VI of the Illinois Constitution. The requirements of the statute, plaintiff reasons, preclude a court from making its own determination on the merits, and as such violate the separation of powers mandated by the Illinois Constitution.

Defendants respond that section 2-622 does not encroach on powers properly belonging to the judicial branch, nor does it vest in the medical profession "judicial power" properly reserved for the supreme court and its subordinate courts. They further point out that it is well settled under Illinois law that "a strong presumption of constitutionality attaches to any legislative enactment and that the burden rests upon the challenger to demonstrate its invalidity." (People v. Joseph (1986), 113 Ill.2d 36, 99 Ill.Dec. 120, 495 N.E.2d 501.) Moreover, defendants note, it is equally well recognized that the wisdom of the legislation itself is not an issue to be addressed in assessing the constitutionality of a legislative enactment. People v. J.S. (1984), 103 Ill.2d 395, 83 Ill.Dec. 156, 469 N.E.2d 1090.

The affidavit requirement as set forth in section 2-622, defendants assert, does not confer judicial power on a non-judicial body; rather, they urge, the statute merely requires plaintiff or his attorney to file an affidavit attached to the complaint declaring that the case was reviewed by a knowledgeable health professional who has determined in a written report that there is a reasonable and meritorious cause for filing the action. The health professional, they add, is asked only to render an advisory opinion as to whether there exists a factual basis for the filing of a suit. Defendants argue that these opinions have no evidentiary weight, are not binding as to either party, and do not in any way impinge on the judiciary's role of applying the law and rendering a final judgment on the merits of the case.

Defendants cite Bloom v. Guth (1987), 164 Ill.App.3d 475, 115 Ill.Dec. 468, 517 N.E.2d 1154, app. denied (1988) 121 Ill.2d 567, 122 Ill.Dec. 434, 526 N.E.2d 827, in which the Illinois Appellate Court for the Second District upheld the constitutionality of section 2-622 against a charge that it violated the separation of powers provision of our State Constitution, the court declaring that the statute does not involve the interpretation of law, and does not infringe upon the judicial function of applying the law, as it requires only a determination of fact by an expert in the medical field. We note that Bloom has been followed by the Fourth District in Alford v. Phipps (1988), 169 Ill.App.3d 845, 119 Ill.Dec. 807, 523 N.E.2d 563, and by the Third District in Sakovich v. Dodt (1988), 174 Ill.App.3d 649, 124 Ill.Dec. 438, 529 N.E.2d 258.

We respectfully disagree with the Bloom court; consequently, we decline to follow its holding in that case. Article II, section 1 of the Illinois Constitution provides that:

"The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another."

Article VI, section 1 of the Illinois Constitution vests the judicial power in one supreme court and certain subordinate courts, and such grant is an exclusive one which exhausts the whole power. (People v. Cox (1980), 82 Ill.2d 268, 274, 45 Ill.Dec....