DeLuna v. St. Elizabeth's Hosp.

• Citation: 167 Ill.Dec. 1009,147 Ill.2d 57,588 N.E.2d 1139
• Decision Date: 20 February 1992
• Docket Number: Nos. 68937,68952,s. 68937
• Parties: , 167 Ill.Dec. 1009, 60 USLW 2551 Guadalupe DeLUNA, Indiv. and as Special Adm'r of the Estate of Alicia DeLuna, Deceased, Appellee, v. ST. ELIZABETH'S HOSPITAL et al., Appellants.
• Court: Supreme Court of Illinois

Page 1139

588 N.E.2d 1139

147 Ill.2d 57, 167 Ill.Dec. 1009, 60

USLW 2551

Guadalupe DeLUNA, Indiv. and as Special Adm'r of the Estate of Alicia DeLuna, Deceased, Appellee, v. ST. ELIZABETH'S HOSPITAL et al., Appellants.

Nos. 68937, 68952.

Supreme Court of Illinois.

Feb. 20, 1992.

Rehearing Denied March 30, 1992.

Wildman, Harrold, Allen & Dixon, Chicago (Ruth E. VanDemark and Lisa S. Simmons, of counsel), for appellant Michael Treister.

Calvin Sawyier and Michael V. Hasten, Winston & Strawn, and John B. Simon, Russ M. Strobel and Elizabeth R. Bacon Ehlers, Jenner & Block, Chicago, and Saul J. Morse and Barbara Ballin Collins, Morse, Giganti & Appleton, Springfield, amicus curiae for Illinois State Medical Soc.

Marvin Kamensky, Michael G. Erens and Samuel J. Betar III, Kamensky & Rubinstein, Lincolnwood, amicus curiae for Associated Physicians Ins. Co.

Marie A. Bufalino and Mark D. Deaton, Illinois Hosp. Ass'n, Naperville, for amicus curiae Ill. Hospital Assoc.

Stanley J. Davidson, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, amicus curiae for Metropolitan Chicago Healthcare Council.

Barbara J. Clinite, Chicago, for appellee and pro se as amicus curiae.

Michael W. Rathsack, Chicago (Eloy Burciaga, of counsel), for appellee.

Robert Marc Chemers, Pretzel & Stouffer, Chartered, Chicago, for St. Elizabeth's Hosp.

Chief Justice MILLER delivered the opinion of the court:

The present appeals concern the constitutionality of section 2-622 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-622). Under that provision, an attorney representing a plaintiff in a healing art malpractice action, or the plaintiff himself, if proceeding pro se, must attach to the complaint both an affidavit declaring that the attorney or pro se plaintiff has consulted with a health professional who believes that there is merit to the action, and the report of the professional stating the basis for that determination. Submission of those documents may in certain instances be postponed until after commencement of the action. Failure to file the required documents will result in dismissal of the action. In the present case, the circuit court dismissed the plaintiff's actions against the defendants, St. Elizabeth's Hospital and Dr. Michael Treister, when the plaintiff failed to submit the affidavits and reports required by section 2-622. The plaintiff appealed from the dismissal orders, challenging the constitutionality of the statute. The appellate court declared the provision unconstitutional. (184 Ill.App.3d 802, 132 Ill.Dec. 925, 540 N.E.2d 847.) We allowed the defendants' separate petitions for leave to appeal (107 Ill.2d Rules 315, 317).

The plaintiff filed a six-count complaint in the circuit court of Cook County on April 16, 1986. Counts I through III were brought against St. Elizabeth's Hospital, and counts IV through VI were brought against Dr. Michael Treister. The plaintiff sought recovery from each of the defendants under the Wrongful Death Act (Ill.Rev.Stat.1985, ch. 70, pars. 1, 2), the Survival Act (Ill.Rev.Stat.1985, ch. 110 1/2, par. 27-6), and the family expense act (Ill.Rev.Stat.1985, ch. 40, par. 1015). In his complaint, the plaintiff alleged that his wife, Alicia DeLuna, was admitted to St. Elizabeth's Hospital for treatment of her lumbar spine and that on April 7, 1986, she underwent a laminectomy, performed by Dr. Treister. The complaint further alleged that during the course of the operation the decedent's common iliac artery was severed and that she died the following day as a result of massive internal bleeding.

The plaintiff failed to file the certificates and reports required by section 2-622, and different trial judges subsequently granted the defendants' separate motions to dismiss the plaintiff's action for his failure to comply with the statute. The dismissal of the plaintiff's action against Dr. Treister was made with prejudice, while the dismissal with respect to St. Elizabeth's Hospital was made without prejudice. Both orders, however, contained language permitting an immediate appeal pursuant to Supreme Court Rule 304(a) (107 Ill.2d R. 304(a)).

On the plaintiff's appeal from the dismissal orders, the appellate court declared section 2-622 unconstitutional. (184 Ill.App.3d 802, 132 Ill.Dec. 925, 540 N.E.2d 847.) The appellate court believed that the requirements of the statute infringed on the power of the judiciary and constituted an invalid delegation of judicial power. Declining to follow several earlier decisions of the appellate court upholding the validity of section 2-622, the court reasoned that a litigant seeking to pursue a medical malpractice action was improperly put to the burden of having the action approved in advance by a health professional. In the appellate court's view, the statute "impermissibly confers upon health professionals a judicial role." (184 Ill.App.3d at 807, 132 Ill.Dec. 925, 540 N.E.2d 847.) Dr. Treister and St. Elizabeth's Hospital separately filed petitions for leave to appeal pursuant to Supreme Court Rules 315 and 317 (107 Ill.2d Rules 315, 317). We allowed both appeals and consolidated the matters for purposes of oral argument and disposition. The following organizations and individual were granted leave to submit briefs as amici curiae: the Illinois State Medical Society, the Associated Physicians Insurance Company, the Illinois Hospital Association, the Metropolitan Chicago Healthcare Council, and Barbara J. Clinite. 107 Ill.2d R. 345.

Section 2-622 is applicable to "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." (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a).) The plaintiff's attorney or the plaintiff himself, if proceeding pro se, must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion there is "reasonable and meritorious cause" for the filing of the action. The health professional's written report indicating the grounds for that determination must also be submitted. (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a)(1).) The plaintiff chooses his own health professional from among those qualified within the terms of the statute. (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a)(1) (as amended by Pub.Act 86-646, § 1, eff. Sept. 1, 1989).) If the applicable statute of limitations is near expiration, the action may be commenced without filing the required certificate and report, and the required documents may then be submitted within 90 days thereafter. (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a)(2).) A similar extension of time is available if there is difficulty in obtaining necessary medical records. (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a)(3).) In cases involving multiple defendants, a separate certificate and report must be filed with respect to each defendant. (Ill.Rev.Stat.1987, ch. 110, par. 2-622(b).) Failure to file the documents required by section 2-622 "shall be grounds for dismissal under Section 2-619." (Ill.Rev.Stat.1987, ch. 110, par. 2-622(g).) Section 2-622 governs actions filed on or after its effective date, August 15, 1985. Ill.Rev.Stat.1987, ch. 110, par. 2-622(h).

Section 2-622 is designed to reduce the number of frivolous suits that are filed and to eliminate such actions at an early stage, before the expenses of litigation have mounted. (See Lyon v. Hasbro Industries, Inc. (1987), 156 Ill.App.3d 649, 655, 109 Ill.Dec. 41, 509 N.E.2d 702.) The provision was part of the medical malpractice reform legislation enacted by the General Assembly in 1985 in response to what was perceived to be a crisis in the area of medical malpractice. (Bernier v. Burris (1986), 113 Ill.2d 219, 229, 100 Ill.Dec. 585, 497 N.E.2d 763.) The constitutionality of a number of other provisions contained in the same legislative vehicle, Public Act 84-7, was previously considered by this court in Bernier v. Burris (1986), 113 Ill.2d 219, 100 Ill.Dec. 585, 497 N.E.2d 763. Section 2-622, however, was not among the statutory provisions at issue in Bernier, the plaintiff in that case deemed section 2-622 a more effective means of screening out frivolous suits than certain other provisions that were challenged there. Bernier, 113 Ill.2d at 252, 100 Ill.Dec. 585, 497 N.E.2d 763.

The plaintiff contends in the present appeal that section 2-622 is unconstitutional because it violates the separation of powers principle, deprives litigants of access to the courts, denies equal protection and due process, and is invalid special legislation. The appellate court considered only the plaintiff's first challenge to the statute and found the provision invalid on that ground. In light of that result, the appellate court did not rule on the plaintiff's remaining challenges to the validity of the legislation. Other districts of the appellate court, however, have affirmed the constitutionality of section 2-622, rejecting many of the same arguments made by the plaintiff here. (Sakovich v. Dodt (3d Dist.1988), 174 Ill.App.3d 649, 124 Ill.Dec. 438, 529 N.E.2d 258; Alford v. Phipps (4th Dist.1988), 169 Ill.App.3d 845, 119 Ill.Dec. 807, 523 N.E.2d 563; Bloom v. Guth (2d Dist.1987), 164 Ill.App.3d 475, 115 Ill.Dec. 468, 517 N.E.2d 1154.) The constitutionality of section 2-622 was also before this court in McCastle v. Sheinkop (1987), 121 Ill.2d 188, 117 Ill.Dec. 132, 520 N.E.2d 293, but the appeal was resolved on a different ground.

Similar statutory provisions concerning medical malpractice actions have been upheld against constitutional challenges in other States. (See Adams v. Roses (1986), 183 Cal.App.3d 498, 506, 228 Cal.Rptr. 339, 344 (rejecting, under rational basis test, equal protection challenge to statute requiring that plaintiff's attorney file, on or before date of service of process, certificate containing declaration that attorney has consulted with medical...