Premo v. Falcone

• Decision Date: 26 April 1990
• Docket Number: No. 2-89-0497,2-89-0497
• Parties: , 144 Ill.Dec. 32 Thomas PREMO, Indiv. and as Adm'r of the Estate of Sarah Jean Premo, Deceased, et al., Plaintiffs-Appellants, v. James C. FALCONE, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1071

554 N.E.2d 1071

197 Ill.App.3d 625, 144 Ill.Dec. 32

Thomas PREMO, Indiv. and as Adm'r of the Estate of Sarah Jean Premo, Deceased, et al., Plaintiffs-Appellants, v. James C. FALCONE, et al., Defendants-Appellees.

No. 2-89-0497.

Appellate Court of Illinois,

Second District.

April 26, 1990.

Rehearing Denied June 13, 1990.

William F. Cunningham (argued), O'Reilly, Cunningham, Norton & Mancini, Wheaton, for James C. Falcone, M.D., Darien Gynecology & Obstetrics.

David P. Meyer, Nancy G. Lischer, Kathryn A. Spalding, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Lisle, for Hinsdale Hosp.

Jeffrey M. Goldberg (argued), Debra A. Armstrong, Jeffrey M. Goldberg & Associates, Ltd., Chicago, for Thomas Premo, Indv. & Adm., Jamie Lynn, Premo, Indv. & Adm.

Justice DUNN delivered the opinion of the court:

Plaintiffs, Jamie Lynn Premo and Thomas Premo, appeal from the dismissal with prejudice of their medical malpractice complaint against defendants, James Falcone, Darien Gynecology & Obstetrics, Ltd., and Hinsdale Hospital, for failure to comply with the documentation requirements of section 2-622 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1987, ch. 110, par. 2-622). Plaintiffs raise the following contentions on appeal: (1) that the trial court abused its discretion by dismissing their complaint with prejudice; (2) that defendants waived any failure on plaintiffs' part to comply with the terms of section 2-622; and (3) that section 2-622 is unconstitutional. We affirm.

Our supreme court provided a good summary of the relevant requirements of section 2-622 in McCastle v. Sheinkop (1987), 121 Ill.2d 188, 117 Ill.Dec. 132, 520 N.E.2d 293, in which the court stated as follows:

"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 must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion 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) allows for a 90-day extension for the filing of the affidavits if the statute of limitations is near expiration." McCastle, 121 Ill.2d at 190, 117 Ill.Dec. 132, 520 N.E.2d 293.

Plaintiffs filed their medical malpractice complaint against defendants in the circuit court of Cook County on August 11, 1988. The complaint alleged that Jamie Lynn Premo entered Hinsdale Hospital on August 12, 1986, under the care of Dr. Falcone, who at all relevant times was acting as an agent of Darien Gynecology. She gave birth to Sarah Jean Premo later that day. Sarah Jean was subsequently transferred to another hospital where she died on August 16, 1986. The complaint alleged certain negligent acts on the part of Dr. Falcone and agents of Hinsdale Hospital. Attached to the complaint was the affidavit of Jeffrey Goldberg, one of plaintiffs' attorneys. The affidavit stated that Goldberg had been unable to consult with a health professional and an arguable statute of limitations existed on August 12, 1988.

On September 19, 1988, Hinsdale Hospital filed a motion to transfer venue to Du Page County because all defendants resided or were located in Du Page County. This motion was granted on October 21. The statutory extension which plaintiffs had received to file the consultation affidavit and health care professional written report was due to expire on November 10, 1988. On November 9, plaintiffs filed a motion in the circuit court of Cook County to extend this period a further 60 days. This motion was apparently filed in Cook County because the case file had not yet been transferred.

For the same reason, plaintiffs filed the health care professional report itself with the circuit court of Cook County on November 30, 1988. They did so without leave of court, because they had not set their November 9 motion for a hearing. Plaintiffs did not file the required consultation affidavit with the report. On February 16, 1989 defendants Falcone and Darien Gynecology filed their answer to the complaint, mistakenly doing so in the circuit court of Cook County, although the case had been transferred to Du Page County.

Defendant Hinsdale Hospital filed a motion to dismiss on February 27, 1989, alleging plaintiffs had failed to comply with the requirements of section 2-622. The motion states the written health professional's report was filed 20 days late without a showing of good cause for the delay, separate reports were not filed as to each defendant, the profession of the reviewing health professional was not identified, and the report did not indicate how defendants deviated from accepted practices.

The trial court held a hearing on the motion to dismiss on March 3, 1989. Falcone and Darien Gynecology requested and received leave of court to withdraw their answers and join in the motion. Plaintiffs requested that the court grant their motion for a 60-day extension of time in which to file the health professional's report, since that motion had never been ruled upon, and that the court rule the report was timely filed.

The trial court granted the motion to dismiss and dismissed the case with prejudice in an order dated March 7, 1989. In its letter of opinion concerning the motion, the court stated plaintiffs had failed to show good cause for their late filing of the written report and denied their motion for an extension of time in which to file the report. The court also stated that the written report was inadequate because it did not set forth the author's qualifications, it did not state how the defendants were negligent and did not deal with each defendant separately.

On April 5, 1989, plaintiffs filed a motion for reconsideration of the dismissal order and a supporting memorandum. Plaintiffs argued for the first time that Falcone and Darien Gynecology waived any objection to plaintiffs' alleged failure to comply with section 2-622 by filing an answer to the complaint, and that Hinsdale Hospital waived any similar objection by waiting three months to file its motion to dismiss. Plaintiffs also attached a proposed amended complaint with a revised health professional's report and a consultation affidavit signed by one of plaintiffs' attorneys.

The trial court denied plaintiffs' motion for reconsideration. Plaintiffs filed a timely notice of appeal in which they stated they were seeking reversal of the aforementioned order and the March 7, 1989, order dismissing their complaint with prejudice.

We will first consider plaintiffs' contention that defendants waived any objection to plaintiffs' alleged failure to comply with section 2-622. Falcone and Darien Gynecology argue that this issue was not properly preserved for appeal since plaintiffs' notice of appeal makes no mention of the order granting them leave to withdraw their answer. A notice of appeal only confers jurisdiction upon a reviewing court to consider the judgments or portions of those judgments specified in the notice of appeal. (Sterne v. Forrest (1986), 145 Ill.App.3d 268, 279, 99 Ill.Dec. 569, 495 N.E.2d 1304.) Here, the notice of appeal states that plaintiffs seek reversal of the order denying their motion to reconsider. Plaintiffs raised the waiver issue in the motion, and the trial court considered it in denying the motion. We shall therefore consider plaintiffs' waiver argument on appeal.

Plaintiffs cite Pieszchalski v. Oslager (1984), 128 Ill.App.3d 437, 83 Ill.Dec. 663, 470 N.E.2d 1083, and Swift & Co. v. Dollahan (1954), 2 Ill.App.2d 574, 120 N.E.2d 249, in support of their contention that Falcone and Darien Gynecology waived any objection to the complaint by filing an answer. In Pieszchalski, however, the court specifically noted that defendants had not sought leave to withdraw their answer. (Pieszchalski, 128 Ill.App.3d at 444, 83 Ill.Dec. 663, 470 N.E.2d 1083.) The trial court has discretion to permit a defendant to withdraw an answer and file a motion to dismiss as long as there will be no prejudice to plaintiff. (Tyler v. J.C. Penney Co. (1986), 145 Ill.App.3d 967, 971, 99 Ill.Dec. 748, 496 N.E.2d 323; Wheeler v. Caterpillar Tractor Co., (1984), 123 Ill.App.3d 539, 542, 78 Ill.Dec. 908, 462 N.E.2d 1262, rev'd on other grounds (1985), 108 Ill.2d 502, 92 Ill.Dec. 561, 485 N.E.2d 372.) Falcone and Darien Gynecology sought and received leave of court to withdraw their answer and join in Hinsdale Hospital's motion. Since plaintiffs did not suffer any prejudice by the withdrawal of an answer that had been filed only two weeks earlier, the trial court did not abuse its discretion by allowing the withdrawal and permitting these defendants to join in Hinsdale Hospital's motion to dismiss.

Plaintiffs also argue that the trial court should not have permitted Hinsdale Hospital to proceed with a motion to dismiss filed approximately three months after they filed their health professional's written report. If, as in the instant case, plaintiffs receive a 90-day extension of time to satisfy the documentation requirements of section 2-622 because they were unable to obtain the required consultation prior to the expiration of the statute of limitations, "defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1." (Ill.Rev.Stat.1987, ch. 110, par. 2-622(a)(2).) Although the term "certificate" is not defined in section 2-622, the clear language of the provision indicates that the certificate is the consultation affidavit required by section 2-622(a)(1) which must be prepared by plaintiff or plaintiff's attorney. (Wasielewski v. Gilligan (1989), 189 Ill.App.3d 945, 948, 137 Ill.Dec. 391, 546 N.E.2d 15.) Our review of the record reveals that plaintiffs did not file the required consultation affidavit when they filed their original...