McAlister v. Schick

• Decision Date: 20 February 1992
• Docket Number: No. 71157,71157
• Citation: 147 Ill.2d 84,588 N.E.2d 1151,167 Ill.Dec. 1021
• Parties: , 167 Ill.Dec. 1021 James W. McALISTER, Appellant, v. Larry SCHICK, M.D., et al., Appellees.
• Court: Illinois Supreme Court

Page 1151

588 N.E.2d 1151

147 Ill.2d 84, 167 Ill.Dec. 1021

James W. McALISTER, Appellant, v. Larry SCHICK, M.D., et al., Appellees.

No. 71157.

Supreme Court of Illinois.

Feb. 20, 1992.

William T. Cacciatore, Rockford, for appellant.

Lawrence R. Kream, Kostantacos, Traum, Reuterfors & McWilliams, P.C., Rockford, William L. Barr, Jr. and Brigid M. McGrath, Bell, Boyd and Lloyd, Chicago, for appellees.

Saul J. Morse and Robert J. Kane, Morse, Giganti & Appleton, Springfield, and James R. Thompson and Calvin Sawyier, Winston & Strawn, Chicago, for amicus curiae Illinois State Medical Society.

Justice THOMAS J. MORAN delivered the opinion of the court:

Plaintiff, James W. McAlister, filed a four-count complaint in the circuit court of Winnebago County against defendants, Larry Schick, M.D., and Rockford Anesthesiologists Associated, alleging medical malpractice. Counts I and III were brought against Larry Schick, M.D., and counts II and IV were brought against Rockford Anesthesiologists Associated.

In his complaint, plaintiff stated that he was admitted to the Swedish American Hospital for treatment of a small bowel obstruction, and that he subsequently underwent exploratory laparotomy, omental biopsy, lysis of adhesions and small bowel resection. Plaintiff alleged that defendant Dr. Schick, a member of defendant Rockford Anesthesiologists Associated, failed to inform him of the risks involved in the surgery, and failed to properly insert and monitor a right internal jugular venous catheter. Consequently, plaintiff allegedly received unspecified injuries and suffers from a right pneumothorax.

The court dismissed the complaint with prejudice for failure to comply with requirements of section 2-622 of the Code of Civil Procedure (the Code) (Ill.Rev.Stat.1987, ch. 110, par. 2-622). The appellate court affirmed the dismissal. (203 Ill.App.3d 1105 (unpublished order under Supreme Court Rule 23).) Plaintiff's petition for leave to appeal to this court was allowed (134 Ill.2d R. 315(a)).

The sole issue presented for review is whether section 2-622 of the Code is unconstitutional. This provision 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).) To conform with section 2-622, the plaintiff's attorney or the plaintiff, if proceeding pro se, must attach to the complaint an affidavit certifying that he has consulted and reviewed the facts of the case with a health professional, who has determined in an attached report that there is "a reasonable and meritorious cause" for filing the action. (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a)(1).) If the applicable statute of limitations is near expiration or if there is a delay in receiving medical records, an extension of time is available. (Ill.Rev.Stat.1987, ch. 110, pars. 2-622(a)(2), (a)(3).) Failure to file the required certificate "shall be grounds for dismissal under Section 2-619." Ill.Rev.Stat.1987, ch. 110, par. 2-622(g).

Plaintiff attached to his medical malpractice complaint, filed on June 15, 1989, an affidavit stating that he had been unable to obtain a consultation with a health professional, and could not obtain one before the expiration of the statute of limitations. Section 2-622(a)(2) of the Code "allows for a 90-day extension for the filing of the affidavits if the statute of limitations is near expiration." (McCastle v. Sheinkop (1987), 121 Ill.2d 188, 190, 117 Ill.Dec. 132, 520 N.E.2d 293.) Plaintiff subsequently requested, and defendants agreed, to extend the required filing date an additional three months, until December 15, 1989. On December 22, 1989, when plaintiff had not submitted the mandatory affidavit and report defendants moved to dismiss. The plaintiff then filed a written response to the motion, arguing that section 2-622 was unconstitutional. At the hearing on the motion, plaintiff also argued that the delay was excusable because of the holidays and an illness in the family of plaintiff's attorney. The trial court granted defendants' motion and dismissed the cause with prejudice. It is established that a court has discretion to dismiss a case governed by section 2-622 with or without prejudice. McCastle, 121 Ill.2d at 194, 117 Ill.Dec. 132, 520 N.E.2d 293.

Plaintiff appealed, arguing that section 2-622 is unconstitutional because it violates section 1 of article II and section 1 of article VI of the Illinois Constitution (Ill. Const.1970, art. II, § 1; art. VI, § 1) regarding separation of powers. As authority, plaintiff cited the holding of the Appellate Court, First District, in DeLuna v. St. Elizabeth's Hospital (1989), 184 Ill.App.3d 802, 132 Ill.Dec. 925, 540 N.E.2d 847.

Plaintiff noted the similarity of DeLuna to the case at bar. In DeLuna the plaintiff brought an action for medical and hospital negligence against the defendants, but failed to attach an affidavit of merit and written report by a health professional, as required by section 2-622(a)(1) (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a)(1)). Retracing the reasoning in DeLuna, plaintiff contended that section 2-622 sets up a prerequisite to filing a malpractice suit which usurps the judiciary's power to hear and decide medical negligence cases. Plaintiff argued that, as the constitution empowers the judicial branch alone to adjudicate and apply principles of law, section 2-622 directly violates the constitutional concepts of separation of powers and reservation of judicial power.

The Appellate Court, Second District, rejected plaintiff's contention, noting that, in Bloom v. Guth (1987), 164 Ill.App.3d 475, 115 Ill.Dec. 468, 517 N.E.2d 1154, it had upheld the constitutionality of section 2-622 against an almost identical argument. The court pointed out that its holding in Bloom was followed by the Third District in Sakovich v. Dodt (1988), 174 Ill.App.3d 649, 652, 124 Ill.Dec. 438, 529 N.E.2d 258, and the Fourth District in Alford v. Phipps (1988), 169 Ill.App.3d 845, 851, 119 Ill.Dec. 807, 523 N.E.2d 563. Thus, the court rejected the First District's reasoning in DeLuna, and affirmed the judgment of the circuit court. We accepted plaintiff's appeal in order to resolve the dispute within the appellate court as to the constitutionality of section 2-622. For the reasons set out below, we hold that section 2-622 is constitutional, and accordingly affirm the judgment of the appellate court. We point out that, concurrent with the announcement of our opinion in this cause, we are reversing the judgment of the Appellate Court, First District, in DeLuna v. St. Elizabeth's Hospital (1992), 147 Ill.2d 57, 167 Ill.Dec. 1009, 588 N.E.2d 1139.

We note at the outset the strong presumption that legislative enactments are constitutional. (Bernier v. Burris (1986), 113 Ill.2d 219, 227, 100 Ill.Dec. 585, 497 N.E.2d 763.) Courts have a duty to sustain legislation whenever possible and to resolve all doubts in favor of constitutional validity. Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 148, 105 N.E.2d 713.

Plaintiff contends that limiting access to the courts to only those plaintiffs who have secured an affidavit of merit and written report by a health professional singles out medical malpractice plaintiffs from all other personal injury plaintiffs. In so doing, plaintiff argues, the legislature has, in effect, created a special class of plaintiffs, and imposed on them a burden greater than on any other class, in violation of the due process clauses and the equal protection clauses of the Illinois and United States Constitutions.

In reviewing the constitutionality of section 2-622, we reject plaintiff's equal protection and due process claims, as such claims have been similarly rejected by our appellate court. (Bloom v. Guth (1987), 164 Ill.App.3d 475, 115 Ill.Dec. 468, 517 N.E.2d 1154; Sakovich v. Dodt (1988), 174 Ill.App.3d 649, 124 Ill.Dec. 438, 529 N.E.2d 258; Alford v. Phipps (1988), 169 Ill.App.3d 845, 119 Ill.Dec. 807, 523 N.E.2d 563.) The authorities cited applied the rational basis standard, as set out in Bernier, to test the constitutionality of medical malpractice legislation under guarantees of due process and equal protection. The standard is whether the provisions bear a rational relationship to a legitimate governmental interest. (Bernier, 113 Ill.2d at 228, 100 Ill.Dec. 585, 497 N.E.2d 763.) The courts found section 2-622 to be rationally related to a legitimate purpose of the legislature--that of eliminating frivolous lawsuits at the pleading stage.

Thus, we concentrate on a determination of whether, as plaintiff alleges, section 2-622 usurps the judicial power, violating the separation of powers provisions of article II, section 1, and article VI, section 1, of the Illinois Constitution (Ill. Const.1970, art. II, § 1; art. VI, § 1). Article II, section 1, of the Illinois Constitution of 1970 states that "[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." (Ill. Const.1970, art. II, § 1.) This court has historically regarded the doctrine of separation of powers as meaning that " 'the whole power of two or more of the branches of government shall not be lodged in the same hands.' " (Strukoff v. Strukoff (1979), 76 Ill.2d 53, 58, 27 Ill.Dec. 762, 389 N.E.2d 1170, quoting In re Estate of Barker (1976), 63 Ill.2d 113, 119, 345 N.E.2d 484.) Article VI, section 1, declares that "[t]he judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts." (Ill. Const.1970, art. VI, § 1.) "Judicial power is not defined in the Constitution, but all such power is granted exclusively to the courts." Strukoff, 76 Ill.2d at 57-58, 27 Ill.Dec. 762, 389 N.E.2d 1170, citing People v. Jackson (1977), 69 Ill.2d 252, 256, 13 Ill.Dec. 667, 371 N.E.2d 602.

Because judicial power is reserved...