Moyer v. Southern Illinois Hosp. Service, 5-00-0413.

• Decision Date: 07 February 2002
• Docket Number: No. 5-00-0413.,5-00-0413.
• Parties: Thomas MOYER, Plaintiff-Appellant, v. SOUTHERN ILLINOIS HOSPITAL SERVICE CORPORATION, d/b/a Memorial Hospital of Carbondale, and Sandra Smith, R.N., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

764 N.E.2d 155

327 Ill. App.3d 889

261 Ill.Dec. 864

Thomas MOYER, Plaintiff-Appellant, v. SOUTHERN ILLINOIS HOSPITAL SERVICE CORPORATION, d/b/a Memorial Hospital of Carbondale, and Sandra Smith, R.N., Defendants-Appellees.

No. 5-00-0413.

Appellate Court of Illinois, Fifth District.

February 7, 2002.

John Womick, Womick Law Firm, Chtd., Carbondale, for appellant.

Kara L. Jones, John C. Ryan, Michael F. Dahlen, Feirich/Mager/Green/Ryan, Carbondale, for appellees.

Presiding Justice MAAG delivered the opinion of the court:

Thomas Moyer (plaintiff) filed a medical malpractice complaint against Southern Illinois Hospital Service Corp., doing business as Memorial Hospital of Carbondale (Hospital), and Sandra Smith, a registered nurse (collectively, defendants). Plaintiff filed the complaint on May 25, 1999, alleging that Smith, a Hospital employee, had been negligent in providing care to him. The Hospital was sued under a respondeat superior theory for Smith's alleged negligence. After various motions were filed, the circuit court dismissed plaintiff's amended complaint without prejudice on April 4, 2000, finding that the physician's deposition transcript that was attached to plaintiff's complaint did not satisfy section 2-622(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-622(a) (West 1996)), which requires a plaintiff to file a "written report." Plaintiff then filed a first amended complaint. Defendants filed a motion to strike and dismiss plaintiff's first amended complaint. On May 23, 2000, the circuit court entered an order denying defendants' motion to strike. The court granted defendants' motion to dismiss plaintiff's first amended complaint with prejudice. Plaintiff filed a motion to reconsider on June 19, 2000, and it was denied. Plaintiff filed a timely notice of appeal.

The relevant facts are as follows. Plaintiff filed a medical malpractice complaint against defendants on May 25, 1999. The complaint stated that on May 28, 1997, plaintiff was taken to the emergency room at the Hospital. Plaintiff had symptoms that caused the emergency room physician, Dr. Stuart Hickerson, to suspect that plaintiff was suffering from a myocardial infarction. Dr. Hickerson ordered certain diagnostic tests and the administration of, among other things, thrombolytic therapy. Plaintiff claimed that the Hospital and Smith had a duty to provide proper care and that they breached that duty by failing to appropriately deliver thrombolytic therapy.

Pursuant to section 2-622(a)(2) of the Code (735 ILCS 5/2-622(a)(2) (West 1996)), plaintiff's attorney attached an affidavit to the complaint. The affidavit stated, "[Plaintiff's attorney was] unable to obtain a consultation required by statute because the statute of limitations would impair the action and a consultation required [sic] could not be obtained before the expiration of the statute of limitations." According to section 2-622(a)(2), "[i]f 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." 735 ILCS 5/2-622(a)(2) (West 1996). Hence, plaintiff's affidavit and written report were required to be filed by August 23, 1999.

Plaintiff's counsel sent a notice of discovery deposition on September 13, 1999, requesting "[a]ll medical records pertaining to any care and treatment of [plaintiff]." On September 17, 1999, defendants filed a motion for involuntary dismissal stating that plaintiff failed to comply with the requirements of section 2-622(a)(2) in that he failed to file within 90 days the certificate and written report as required by that section.

Dr. Frank Bleyer's deposition took place on September 22, 1999. Dr. Bleyer testified that he is a board-certified cardiologist. Dr. Bleyer opined that Smith had deviated from the standard of care that was necessary for a nurse in her position.

Plaintiff filed a motion for leave to amend plaintiff's complaint and a response to defendants' motion to dismiss on October 4, 1999. The proposed amended complaint contained portions of the transcript of Dr. Bleyer's deposition. Within said motion, plaintiff alleged that section 2-622(a)(3) (735 ILCS 5/2-622(a)(3) (West 1996)) does not require that the affidavit and report be filed until the plaintiff has received the relevant medical records. Plaintiff alleged that he had requested all of the medical records pertaining to the emergency room care provided by defendants. Plaintiff claimed that when defendants provided plaintiff's medical records, they failed to provide pertinent information relating to the infusion process. More specifically, plaintiff claimed that the infusion process did not work properly and that, for an unknown period of time, he was not properly infused. The medical records provided by defendants failed to indicate any problem with the infusion of the thrombolytic. Plaintiff claimed that the entire incident was contained in an "incident report" which was not released to him. Plaintiff stated that he had requested that the incident report be provided to him. Although plaintiff did not initially receive the thrombolytic administration record from the Hospital's records department, the hospital sent it to plaintiff on August 26, 1999. Plaintiff contended that the thrombolytic administration record does not describe what occurred, either.

The circuit court denied defendants' motion to dismiss and granted plaintiff leave to file an amended complaint. Plaintiff filed the amended complaint claiming that Smith had been negligent, and he sued the hospital under the respondeat superior theory. Attached to the complaint was an affidavit from plaintiff's attorney and selected pages from the transcript of plaintiff's treating physician's deposition.

On November 12, 1999, defendants filed a motion to dismiss the amended complaint. Defendants asserted that plaintiff's amended complaint should be dismissed because the attorney's affidavit and physician's deposition transcript did not satisfy the requirements of section 2-622(a)(1) of the Code (735 ILCS 5/2-622(a)(1) (West 1996)). Defendants contended that the physician was not qualified to render an opinion regarding the nurse's actions. Additionally, defendants claimed that neither the affidavit nor the deposition transcript set forth the qualifications of the physician to render opinions and that the physician failed to state in his deposition that a meritorious cause of action existed to bring an action against Smith or the Hospital.

After hearing oral argument on defendants' motion to dismiss, the circuit court dismissed plaintiff's amended complaint without prejudice on April 4, 2000, finding as follows: "The attachment of a portion of a physician's deposition [transcript] to plaintiff's complaint does not satisfy [section 2-622 (735 ILCS 5/2-622 (West 1996))][,] which requires plaintiff to attach an appropriate `written medical [sic] report.'"

On April 14, 2000, plaintiff filed a first amended complaint. This complaint contained the same allegations of negligence as those stated in the original amended complaint. Plaintiff also attached an attorney's affidavit and a written report from Dr. Ralph Kelley. Dr. Kelley stated that he had reviewed the records from the Hospital and the transcripts of the discovery depositions of Dr. Bleyer, Dr. Hickerson, and Smith. Dr. Kelley opined that the thrombolytic therapy was not provided to plaintiff in compliance with protocol and that the failure to do so constituted a deviation from the standard of care by Smith and the Hospital.

Defendants filed a motion to strike and dismiss plaintiff's first amended complaint on April 24, 2000. Defendants requested that the circuit court strike plaintiff's first amended complaint because plaintiff failed to ask for leave of court to file it. Additionally, defendants requested that the circuit court dismiss plaintiff's first amended complaint because the attorney's affidavit and written report did not satisfy the requirements of section 2-622(a)(1) of the Code. Defendants again complained that neither the attorney's affidavit nor the physician's medical report showed that the physician was qualified to render opinions regarding Smith's actions.

On May 23, 2000, the circuit court entered an order denying defendants' motion to strike. The court granted defendants' motion to dismiss plaintiff's first amended complaint with prejudice. The court held, "The medical report and attorney affidavit filed pursuant to section 2-622 is insufficient in that the medical report fails to set forth the qualifications of the affiant as required and enumerated within section 2-622." The court also stated that pursuant to section 2-622(a)(1) and two Illinois Supreme Court cases (Dolan v. Galluzzo, 77 Ill.2d 279, 32 Ill.Dec. 900, 396 N.E.2d 13 (1979); Jones v. O'Young, 154 Ill.2d 39, 180 Ill.Dec. 330, 607 N.E.2d 224 (1992)), the physician who prepared the medical report was not qualified to testify, provide opinions, or prepare a medical report regarding whether a meritorious cause of action existed against a nurse for any alleged negligence in performing nursing procedures. The court also stated, "[Plaintiff] has had sufficient time within which to file an appropriate attorney affidavit and medical report under [section 2-622 of the Code] and has failed to do so." Plaintiff filed a motion to reconsider on June 19, 2000. The circuit court entered an order on June 20, 2000, denying plaintiff's motion to reconsider. Plaintiff filed a timely notice of appeal.

The determination as to whether a complaint should be dismissed with or without prejudice for the plaintiff's failure to satisfy the requirements of section 2-622(a) is in the sound discretion of the circuit court. Peterson v. Hinsdale Hospital, 233 Ill.App.3d 327, 330, 174 Ill.Dec. 538, 599 N.E.2d 84, 87 (1992). The circuit court's decision will not be disturbed unless it is...