Woodard v. Krans

• Decision Date: 15 September 1992
• Docket Number: No. 2-91-1008,2-91-1008
• Citation: 600 N.E.2d 477,234 Ill.App.3d 690,175 Ill.Dec. 546
• Parties: , 175 Ill.Dec. 546 Sarah WOODARD, Plaintiff-Appellant and Cross-Appellee, v. David KRANS, et al., Defendants-Appellees and Cross-Appellants.
• Court: United States Appellate Court of Illinois

Page 477

600 N.E.2d 477

234 Ill.App.3d 690, 175 Ill.Dec. 546

Sarah WOODARD, Plaintiff-Appellant and Cross-Appellee, v. David KRANS, et al., Defendants-Appellees and Cross-Appellants.

No. 2-91-1008.

Appellate Court of Illinois,

Second District.

Sept. 15, 1992.

Philip A. Nicolosi, Brent D. Blair, Philip A. Nicolosi & Assoc., Rockford, Ill., for Sarah Woodard.

G. Kimball MacCloskey, Jeffrey Spears, Lord, Bissell & Brook, Douglas J. Pomatto, Heyl, Royster, Voelker & Allen, Rockford, Ill., for David Krans, M.D., Rockford Anesthesiologist Associated, SwedishAmerican Hosp., Francis Schweitzer, James Schweitzer, Jr., Gary Schweitzer, Larry Schweitzer, IIT Chicago-Kent College Law and Parkinson Disease Foundation.

Karen L. Kendall, Heyl, Royster, Voelker & Allen, Peoria, David P. Faulkner, Hugh C. Griffin, Lord, Bissell & Brook, Chicago, for appellee.

Justice WOODWARD delivered the opinion of the court:

Plaintiff, Sarah Woodard, appeals the dismissal of her three-count amended complaint against defendants, David Krans, M.D., Rockford Anesthesiologists Associated (Rockford), and SwedishAmerican Hospital (the Hospital). The complaint alleged that, as a result of defendants' negligence, plaintiff contracted tuberculosis from Dr Krans, an anesthesiologist, while the latter was performing electroshock therapy upon plaintiff at the Hospital. The trial court held that plaintiff failed to submit a certificate of merit and medical report that complied with section 2-622 of the Code of Civil Procedure (section 2-622) (Ill.Rev.Stat.1989, ch. 110, par. 2-622).

On appeal, plaintiff argues that (1) section 2-622 is unconstitutional; (2) the trial court abused its discretion in refusing to grant plaintiff discovery of certain records relating to the diagnosis and treatment of Dr. Krans' illness; (3) the trial court abused its discretion in refusing plaintiff leave to submit an amended certificate of merit and medical report; and (4) the court erred in holding that count II of the complaint sounded in healing art malpractice, thus requiring compliance with section 2-622, rather than in ordinary negligence.

Defendants cross-appeal, arguing that the trial court erred in (1) granting plaintiff 90 days from the filing of the complaint to supply the documentation needed under section 2-622 (see Ill.Rev.Stat.1989, ch. 110, par. 2-622(a)(2)); and (2) granting plaintiff an additional 30 days in which to file the needed documentation.

On January 4, 1991, plaintiff filed her original one-count complaint for medical malpractice. Plaintiff alleged the following facts. During the summer of 1988, Dr. Krans, a partner in Rockford, administered electroshock therapy to plaintiff at the Hospital. On January 5, 1989, plaintiff tested positive for tuberculosis. Plaintiff contracted tuberculosis from Dr. Krans while she was his patient. During this treatment period, Dr. Krans knew and the other defendants knew or should have known that Dr. Krans was ill. Dr. Krans was negligent in continuing to anesthetize patients while he was ill, and Rockford and the Hospital were negligent in allowing him to do so and in not inquiring into the nature of his illness. Defendants' negligence proximately caused plaintiff's tuberculosis and resultant injuries, pain and suffering, and medical expenses.

In an affidavit attached to the complaint, plaintiff's attorney stated that he had reviewed some of the records of Dr. Krans' treatment of plaintiff; that plaintiff's condition was not reasonably known to her until January 5, 1989; that it was possible nonetheless that the complaint was time barred; and that because of the possible running of the limitations period, plaintiff's attorney had been unable to obtain the medical consultation required by section 2-622.

On February 5, 1991, plaintiff moved to amend her complaint, stating that upon further consideration she believed she also had causes of action against all defendants for common-law negligence and for negligence based on res ipsa loquitur. The amended complaint, filed February 14, 1991, alleged the same facts as the original complaint and added the common-law negligence and res ipsa loquitur theories as counts II and III, respectively. Count III, although not employing the term "res ipsa loquitur," also alleged that the operation of plaintiff's electroshock treatment was entirely within the control of one or more of the defendants and that the plaintiff did not voluntarily contribute to her exposure to tuberculosis other than by presenting herself for treatment.

On February 5, 1991, plaintiff filed a "bill of discovery" alleging that most of the information necessary to her cause of action was entirely within the control of one or more of the defendants. Plaintiff requested that the trial court temporarily suspend section 2-622's "90 day period for obtaining an expert affidavit" (see Ill.Rev.Stat.1989, ch. 110, par. 2-622(a)(2)). Plaintiff requested further that the court order defendants to produce any and all records which would disclose "the dates and means by which Dr. Krans was examined, diagnosed or treated for tuberculosis." Also, plaintiff asked the court to order the defendants to answer interrogatories that she appended to her bill of discovery. These interrogatories asked inter alia about the date that Dr. Krans was diagnosed with tuberculosis, any examinations and treatment he received thereafter, the date that any defendant knew of Dr. Krans' illness, and the nature of any procedures that defendants used to protect Dr. Krans' patients.

On February 25, 1991, Dr. Krans and Rockford moved to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-619). The motion argued that plaintiff had failed to comply with section 2-622 in the following respects: (1) plaintiff did not and in good faith could not certify, as required by section 2-622(a)(2), that she could not have obtained the required consultation before the running of the statute of limitations; (2) the amended complaint did not include any certificate of merit; and (3) the amended complaint, though purportedly based on res ipsa loquitur, failed to comply with the requirements of section 2-622(c) that (a) plaintiff certify that she was relying on the doctrine of res ipsa loquitur; and (b) plaintiff provide the report of a reviewing health professional stating that, in the opinion of the reviewing professional, negligence had occurred in the course of medical treatment.

To bolster their argument that plaintiff was not entitled to invoke the 90-day extension provided by section 2-622(a)(2), Dr. Krans and Rockford attached two exhibits to their motion. Exhibit "A" is a letter dated December 27, 1988, from Rockford and the Hospital to plaintiff. The letter informed plaintiff of the following. Rockford and the Hospital had jointly determined that "during a procedure at [the Hospital] on 8/03/88, 9/2/88 & 9/6/88 you were treated by an anesthesiologist who has recently been diagnosed as having active tuberculosis. Consequently, you may have been exposed to tuberculosis during your surgery." All patients treated at local hospitals by this anesthesiologist were being contacted. The anesthesiologist was currently undergoing treatment and was not involved in patient care. Because plaintiff risked contracting tuberculosis "in this type of situation," the Hospital and Rockford had arranged for her to obtain a free tuberculosis screening.

Exhibit "B" is an affidavit of Terry Robins, "administrator" of Rockford. Robins stated that on June 14, 1989, Nancee Melquist, a Hospital employee, told Robins by phone that plaintiff's attorney had contacted Melquist regarding plaintiff's claimed exposure to tuberculosis; that Melquist told Robins that plaintiff's attorney would be "sending a letter on behalf of the patient regarding damages"; and that on June 14, 1989, plaintiff's attorney telephoned Robins and told the latter of plaintiff's claim and of a letter on this matter that plaintiff's attorney would be sending Robins.

On March 5, 1991, the Hospital also moved to dismiss plaintiff's complaint for failure to comply with section 2-622. The Hospital argued that, at the time plaintiff filed her original complaint, her counsel had been aware for over a year and one-half of her potential cause of action and that this was enough time to obtain the required medical report. The Hospital therefore asserted that plaintiff's complaint should be dismissed with prejudice because (1) plaintiff had failed to file any affidavit or medical report with her amended complaint; and (2) plaintiff was not entitled to request 90 additional days pursuant to section 2-622(a)(2) because she had had ample time to obtain the required consultation before the running of the limitations period.

The Hospital included an affidavit from its risk manager, James L. Roberts. Roberts stated that in June 1989 his department received a letter from John C. Thomalla, the legal assistant to plaintiff's attorney. In the letter, a copy of which was appended to Roberts' affidavit, Thomalla advised Roberts that the law firm of Philip A. Nicolosi & Associates was representing plaintiff in "a claim that arises out of an incident which caused [plaintiff] to become exposed to a tuberculosis bacteria [sic ]." Thomalla's letter asked Roberts to advise plaintiff's law firm of who would be handling the matter for the Hospital and to send, pursuant to plaintiff's enclosed release form, any medical reports relative to plaintiff's treatment. Roberts stated further in his affidavit that on July 10, 1989, he referred Thomalla to Rockford Anesthesiologists Association; since July 10, 1989 Roberts had not heard from anyone on behalf of plaintiff.

Defendants supplemented their motions to dismiss with the affidavit of Nancee Melquist, who stated that on or about June 14, 1989, while employed as assistant risk manager for the Hospital, she...