Neuman v. Burstein

• Decision Date: 24 June 1992
• Docket Number: No. 2-91-0903,2-91-0903
• Court: United States Appellate Court of Illinois
• Parties: , 172 Ill.Dec. 298 Theckla NEUMAN, Plaintiff-Appellant, v. Scott BURSTEIN, et al., Defendants-Appellees.

Page 659

595 N.E.2d 659

230 Ill.App.3d 33, 172 Ill.Dec. 298

Theckla NEUMAN, Plaintiff-Appellant, v. Scott BURSTEIN, et al., Defendants-Appellees.

No. 2-91-0903.

Appellate Court of Illinois Second District.

June 24, 1992.

Corboy & Demetrio, P.C., Susan J. Schwartz (argued), Chicago, for Theckla Neuman.

Rooks, Pitts & Poust, John J. Mangan, Clausen, Miller, Gorman, Caffrey & Witous, Wheaton, James T. Ferrini, Chicago, for Scott Burstein, DuPage Radiologists Inc., Rosemary M. Deleon, Raj B. Lal.

Thomas H. Ryerson, Clausen, Miller, Gorman, Caffrey & Witous, P.C., Wheaton, Wildman, Harrold, Allen & Dixon, Lenard C. Swanson, Robert A. Strelecky, Bruce S. Terlep, Wheaton, Hinshaw & Culbertson, D. Kendall Griffith, Chicago, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Lisle, Adam S. Kreuzer, Chicago, Robert G. Black (argued), Lisle, for Evangelical Hospital Corp. Johnson & Bell, Thomas H. Fegan, Dean M. Athans, Johnson Bell, Chicago, for John Dongas, M.D.

Justice DUNN delivered the opinion of the court:

On March 7, 1991, plaintiff, Theckla Neuman, filed a five-count medical malpractice complaint against defendants, Scott Burstein, M.D.; Du Page Radiologists, Inc.; Rosemary M. DeLeon, M.D.; Raj B. Lal, M.D., S.C., individually and doing business as Raj B. Lal, M.D.; John Dongas, M.D.; and Evangelical Hospital Corp., doing business as Good Samaritan Hospital, after taking a voluntary dismissal of that action pursuant to section 2-1009 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-1009), on March 12, 1990. The trial court dismissed the complaint with prejudice for failure to file an affidavit and health professional's report as required by section 2-622 of the Code (Ill.Rev.Stat.1989, ch. 110, par. 2-622). We reverse and remand.

Plaintiff initially filed this action on August 7, 1989, seeking damages for medical negligence on the part of each defendant arising both during and after an aortogram and arteriogram performed on plaintiff on August 6, 1987. The complaint contained the affidavit of plaintiff's attorney stating that she was unable to obtain a medical review of the plaintiff's claim pursuant to section 2-622 before the statute of limitations period on the claim expired.

By statute, plaintiff was permitted an additional 90 days to furnish the certificate and written report by a health professional stating he or she believes plaintiff has a reasonable and meritorious claim. Plaintiff failed to file that report within the 90-day extension period. On February 20, 1990, more than 190 days after the filing of her claim, plaintiff received an additional 21 days to file the certificate and report over the objection of defendants. On March 12, 1990, prior to a hearing on defendants' motion to dismiss, plaintiff voluntarily dismissed the action.

Pursuant to section 13-217 of the Code (Ill.Rev.Stat.1989, ch. 110, par. 13-217), plaintiff refiled her action on March 7, 1991. The complaint set forth the same five counts contained in the original complaint. Attached to the complaint was another affidavit signed by plaintiff's attorney stating that she was unable to obtain the necessary medical review of plaintiff's claim pursuant to section 2-622 prior to the expiration of the statute of limitations for refiling the lawsuit.

On April 11, 1991, defendants filed a motion to dismiss based on plaintiff's failure to comply with section 2-622. Defendants argued section 2-622 does not afford plaintiff another 90-day extension for filing the requisite reports with the new action. At the same hearing, plaintiff sought leave to amend her complaint instanter to supply the certificate of merit and report. Defendants objected to plaintiff's request to amend. After taking the matter under advisement, on April 29, 1991, the trial court dismissed the complaint with prejudice for failure to comply with section 2-622. On May 29, 1991, plaintiff filed a motion for rehearing requesting the trial court vacate its dismissal orders. Again, plaintiff sought leave to amend her complaint to include the requisite report and certificate. After a hearing on the matter, the trial court again denied plaintiff's request to file an amended complaint and denied her request to vacate the dismissal orders. Plaintiff timely appeals.

The issue on appeal is whether, after taking a voluntary dismissal in a malpractice action, a plaintiff is entitled to the 90-day extension provided by section 2-622 upon the refiling of the lawsuit.

The clear purpose of section 2-622 is to deter the filing of frivolous malpractice lawsuits. (Simpson v. Illinois Health Care Services, Inc. (1992), 225 Ill.App.3d 685, 689, 167 Ill.Dec. 830, 588 N.E.2d 471; Cato v. Attar (1991), 210 Ill.App.3d 996, 998, 155 Ill.Dec. 500, 569 N.E.2d 1111.) Section 2-622 requires a plaintiff to attach an affidavit of merit and a written report from a health professional to any complaint for medical malpractice. (Ill.Rev.Stat.1989, ch. 110, par. 2-622(a)(1).) Section 2-622 also provides that if a plaintiff is unable to obtain such a consultation because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations, the plaintiff is permitted to file the certificate and the report within 90 days of the filing of the complaint, provided the plaintiff's attorney files an affidavit to that effect along with the complaint. Ill.Rev.Stat.1989, ch. 110, par. 2-622(a)(2).

Because the plaintiff's attorney filed an affidavit pursuant to section 2-622(a)(2) in the original action, defendants argue plaintiff is prohibited from receiving another 90-day extension in the refiled action. Plaintiff argues the refiled lawsuit is a "new action" making whatever transpired in the original action irrelevant. The trial court, considering what it deemed plaintiff's lack of diligence in filing the certificate and report, dismissed the action. The trial court employed a similar reasoning to that used under Supreme Court Rule 103(b) (134 Ill.2d R. 103(b)).

Section 13-217 of the Code of Civil Procedure provides that after a voluntary dismissal the plaintiff may file a "new action" within a year or the remaining period of limitation. (Ill.Rev.Stat.1989, ch. 110, par. 13-217.) Thus, plaintiff is correct that under the language of section 13-217 the complaint before us constitutes a new action. (See Lyon v. Hasbro Industries, Inc. (1987), 156 Ill.App.3d 649, 656, 109 Ill.Dec. 41, 509 N.E.2d 702.) Although the trial court recognized the complaint as a new action, it found that, based on the delay in filing the certificate in the previous action, plaintiff was not entitled to another 90-day extension and dismissed the action. The court reasoned that because the trial judge had the discretion to deny the plaintiff's motion for nonsuit in the previous action and hear the defendant's motion to dismiss, the trial court in the present action "may look at the time lapse between the original affidavit and the current one as it relates to the merits of the request to extend the time for compliance with 2-622." (Emphasis added.) We do not agree.

Defendants argue the issue before us involves a conflict between the plaintiff's right to voluntary dismissal and the requirements of section 2-622. However, a close reading of section 2-622 reveals the present situation does not raise the potential conflict argued by defendants. When interpreting a disputed provision, courts should ascertain and give effect to the true intent and meaning of the legislature, considering first the statutory language. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill.2d 450, 455, 145 Ill.Dec. 894, 557 N.E.2d 873.) Unambiguous terms must be given their plain and ordinary meaning. (Hayes, 136 Ill.2d at 455, 145 Ill.Dec. 894, 557 N.E.2d 873.) The language of section 2-622 provides for an automatic 90-day extension to one who files an attorney affidavit with his complaint stating he is unable to obtain the requisite certificate and report before the expiration of a statute of limitations which would impair the action. Thus, it is only after the expiration of the 90-day extension period that the trial court has the discretion to dismiss the action for failure to file the certificate and report as required by section 2-622. See Wasielewski v. Gilligan (1989), 189 Ill.App.3d 945, 137 Ill.Dec. 391, 546 N.E.2d 15.

In Wasielewski, the plaintiff filed a malpractice action against the defendants in Cook County on January 30, 1987. Due to his inability to obtain a medical expert, plaintiff voluntarily dismissed the action on May 8, 1987. (189 Ill.App.3d at 946, 137 Ill.Dec. 391, 546 N.E.2d 15.) On April 28, 1988, plaintiff refiled his action against the defendants in Du Page County. An affidavit was attached to his complaint which stated the statute of limitations was about to expire and plaintiff could not obtain the requisite medical consultation. The defendants filed motions to dismiss based upon the plaintiff's failure to comply with section 2-622(a)(1). (189 Ill.App.3d at 946-47, 137 Ill.Dec. 391, 546 N.E.2d 15.) On September 1, 1988, the trial court dismissed the complaint with prejudice for failure to comply with the documentation requirements and time limits established by section 2-622. (189 Ill.App.3d at 947, 137 Ill.Dec 391. 546 N.E.2d 15.) This court held the trial court properly exercised its discretion in dismissing the action. 189 Ill.App.3d at 952, 137 Ill.Dec. 391, 546 N.E.2d 15.

Although the issue as to whether a plaintiff should receive a second 90-day extension period upon the refiling of his or her action was not explicitly raised by the defendants in Wasielewski, the right to receive the second extension was implicitly recognized. We stated, "[p]laintiff filed malpractice actions in two different circuit courts approximately 15 months apart, each time receiving the statutory 90-day extension to file the...