Walter v. Hill

• Decision Date: 23 June 1987
• Docket Number: No. 3-86-0571,3-86-0571
• Citation: 156 Ill.App.3d 708,509 N.E.2d 804,109 Ill.Dec. 143
• Parties: , 109 Ill.Dec. 143 Charlotte J. WALTER, Administrator of the Estate of Richard L. Walter, Deceased, Plaintiff-Appellant, v. Jeffrey HILL, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 804

509 N.E.2d 804

156 Ill.App.3d 708, 109 Ill.Dec. 143

Charlotte J. WALTER, Administrator of the Estate of Richard

L. Walter, Deceased, Plaintiff-Appellant, v. Jeffrey HILL, M.D., Defendant-Appellee.

No. 3-86-0571.

Appellate Court of Illinois,

Third District.

June 23, 1987.

Raymond C. Rose, Raymond C. Rose, Ltd., Michael A. Fleming (argued), Cusack & Fleming, P.C., Peoria, for Charlotte J. Walter, Adm'r of the Estate.

Roger C. Clayton (argued), Nicholas J. Bertschy, Heyl, Royster, Voelker & Allen, Peoria, for Jeffrey Hill, M.D.

Justice STOUDER delivered the Opinion of the court:

Plaintiff, Charlotte J. Walter, appeals from the judgment of the Circuit Court of Knox County which dismissed her medical malpractice claim with prejudice for failure to file an affidavit of merit as required by section 2-622 of the Illinois Code of Civil Procedure (the Code). (Ill.Rev.Stat.1985, ch. 110, par. 2-622.) Walter contends that the trial court improperly construed section 2-622 as a limitations statute under which the court had no discretion to permit a late filing of the affidavit.

Walter filed this action on February 13, 1986, alleging certain acts of medical malpractice against the defendant, Dr. Jeffrey Hill occurring on or before April 26, 1983. These acts of malpractice in the diagnosis and treatment of her husband allegedly caused his death. Under the "discovery rule" provisions of section 13-212 of the Illinois Code of Civil Procedure, Ill.Rev.Stat.1985, ch. 110, par. 13-212, the statute of limitations established February 14, 1986, as the final day to file her action; one day after it was initially filed.

A 1985 amendment to the Code requires that an affidavit of merit accompany the complaint when it is filed. Section 2-622 states, in pertinent part, that when an action is filed seeking damages for medical malpractice that:

Plaintiff's attorney or the plaintiff * * * shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes is knowledgeable in the relevant issues involved * * *; that the reviewing health professional has determined in a written report * * * that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the * * * review and consultation that there is a reasonable and meritorious cause for filing such action. * * * [or]

2. That the affiant was unable to obtain a consultation required by paragraph 1 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. If an affidavit is executed pursuant to this paragraph, the certificate and affidavit required by paragraph 1 shall be filed within 90 days after the filing of the complaint.

* * *

* * *

(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619 [Ill.Rev.Stat.1985, ch. 110, par. 2-619.]

At the time of filing, Walter had attached neither the affidavit of merit as required by section 2-622(a)(1), nor an affidavit asserting the inability to comply with the 2-622(a)(1) requirement pursuant to 2-622(a)(2) to her complaint. Hill responded with a section 2-619 motion to dismiss based on Walter's failure to file an affidavit. Walter subsequently filed a motion for leave to file the affidavit. She claimed that an expert had been retained prior to the filing of the lawsuit and that the affidavit "was inadvertently not attached to said Complaint." Hill then filed his Objection and Motion to Strike and a Memorandum in Support of his Motion to Dismiss. Walter filed her response, in which she apparently changed her position, stating that she was unable to obtain a consultation and opinion prior to the expiration of the limitations period and requesting she be allowed to file the affidavit pursuant to section 2-622(a)(2). This request was made 64 days after the filing of the complaint.

A hearing was held and an order dismissing the complaint with prejudice was entered. This appeal follows and we reverse.

The basis for the change in the pleading requirements in medical malpractice actions was to deter medical malpractice plaintiffs from filing frivolous or nonmeritorious lawsuits. (See generally, Ill.Ann.Stat ch. 110, pars. 2-109 & 2-622, Historical and Practice Notes (Smith-Hurd 1987).) To that end, the legislature enacted section 2-622 which requires a plaintiff to have the merits of his case pre-screened by another professional in the field. However, the absence of the affidavit at the time of filing does not strike the death knell for a medical malpractice claim. The statute itself offers a safety valve which permits the late filing of the affidavit of merit if there are time constraints, e.g. the statute of limitations, which do not permit the plaintiff to file the affidavit with the complaint. (Ill.Rev.Stat.1985, ch. 110, par. 2-622(a)(2).) The only conclusion that can be drawn is that the legislature did not intend that 2-622 comprise a...