{
  "id": 3201319,
  "name": "JAMES McCASTLE, Appellant, v. MITCHELL B. SHEINKOP, M.D., LTD., et al., Appellees",
  "name_abbreviation": "Mccastle v. Mitchell B. Sheinkop, M.D., Ltd.",
  "decision_date": "1987-12-30",
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    "judges": [],
    "parties": [
      "JAMES McCASTLE, Appellant, v. MITCHELL B. SHEINKOP, M.D., LTD., et al., Appellees."
    ],
    "opinions": [
      {
        "text": "JUSTICE MORAN\ndelivered the opinion of the court:\nOn February 5, 1986, plaintiff James McCastle filed a medical malpractice action in the circuit court of Cook County against defendants Mitchell Sheinkop, M.D., and Rush-Presbyterian-St. Luke\u2019s Medical Center. Thereafter, defendants filed motions to dismiss for failure to attach to the complaint the attorney's affidavit and health professional\u2019s report as required by section 2 \u2014 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622). The trial court granted the defendants\u2019 motions and dismissed the cause with prejudice. Appeal is taken directly to this court under Rule 302(b). 107 Ill. 2d R. 302(b).\nOn appeal, the plaintiff raises several constitutional challenges to section 2 \u2014 622; however, our disposition of the case makes it necessary to consider only the following issue: whether it was error to dismiss plaintiff\u2019s complaint with prejudice.\nA brief summary of the relevant provisions of section 2 \u2014 622 is necessary. Section 2 \u2014 622(a)(1) (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 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 \u201creasonable and meritorious cause\u201d for the filing of the action. In addition, the plaintiff must also attach the \u2022written report of the health professional indicating the basis for his determination. Section 2 \u2014 622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a)(2)) allows for a 90-day extension for the filing of the affidavits if the statute of limitations is near expiration, and section 2 \u2014 622(a)(3) (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a)(3)) provides that if the plaintiff is having difficulty obtaining necessary medical records he is given 90 days upon receipt of the medical records in which to file the affidavits. Section 2 \u2014 622(g) (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 622(g)) provides that \u201cfailure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619.\u201d\nPlaintiff contends that it was error for the trial court to dismiss the action with prejudice. At the hearing on the motion to dismiss, the plaintiff argued that dismissal should be made without prejudice and he requested leave to file an amended complaint. The trial court, however, granted defendants\u2019 motions to dismiss with prejudice. And while it is not entirely clear, it appears from the record that the trial court felt that it had no discretion but to dismiss the action with prejudice. The record suggests that the trial court viewed dismissal with prejudice as statutorily required.\nPlaintiff argues that dismissal with prejudice was improper since it is usually within the discretion of the trial court whether to grant dismissal with or without prejudice and because section 2 \u2014 622, by its terms, does not mandate dismissal with prejudice. Moreover, plaintiff notes that since failure to file the affidavits could be cured by amendment, it was error for the trial court to deny plaintiff leave to file an amended complaint. Defendants argue that section 2 \u2014 622 requires that dismissals be with prejudice. They argue that because dismissals under section 2 \u2014 622 are pursuant to section 2\u2014 619 (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619), which concerns defects and defenses that cannot be cured by amendment, rather than section 2 \u2014 615 (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615), which concerns defects which can be cured by amendment, it was therefore the legislature\u2019s intent that section 2 \u2014 622 dismissals be with prejudice. Defendants also contend that this legislative intention is further evidenced by provisions in section 2 \u2014 622 which lessen the harshness of the rule. They note that section 2 \u2014 622(a)(2) provides for a 90-day filing extension if the statute of limitations is near expiration and that section 2 \u2014 622(a)(8) provides for a 90-day filing extension if there is difficulty in obtaining medical records and argue that these provisions were included in order to eliminate any unfairness which would otherwise obtain if the plaintiff\u2019s action were dismissed with prejudice. They view these provisions as illustrating the legislature's intent that dismissals be with prejudice by underscoring legislative concern that the rule not operate to forever bar a plaintiff where the failure to file the affidavits was outside of the plaintiff's control. Alternatively, defendants argue that even if the trial court is given discretion as to whether dismissals should be with or without prejudice, the dismissal with prejudice here was proper since the plaintiff never offered to submit the affidavits.\nOur examination of the legislative history of section 2 \u2014 622 reveals that the legislature did not intend to require dismissal with prejudice. During legislative debate, one of the sponsors of section 2 \u2014 622 indicated that the court had the authority to grant leave to file an amended complaint with new affidavits where the plaintiff seeks to alter his theory of liability. The following exchange took place during debate in the House of Representatives between Representative Daniels, a sponsor of section 2 \u2014 622, and Representative Preston:\n\u201cRepresentative Preston: *** What happens in the case after you enter into discovery, you then find out, which is frequently the situation, that at that point you want to rely on the doctrine of res ipsa loquitur, where you hadn\u2019t discovered that prior to the filing of the complaint?\nRepresentative Daniels: You would amend the complaint with a new consulting physician\u2019s report.\nRepresentative Preston: Well, but after discovery has been entered into and there\u2019s been preliminary motions, you then need leave of court, do you not, to amend the complaint? It\u2019s not of right that you can amend the complaint at that time.\nRepresentative Daniels: You would need leave of court. You would have to show good cause to the court.\nRepresentative Preston: And the court can deny that, I assume.\nRepresentative Daniels: I think the Judge would do the right thing.\u201d 84th Ill. Gen. Assem., House Proceedings, May 23,1985, at 385-86.\nIn our view, it is unlikely that the legislature intended that the court have discretion to grant leave to file an amended complaint where the plaintiff seeks to amend the affidavits but not where the plaintiff neglects to file the affidavits originally. It seems unlikely that the legislature would entrust such discretion to the trial judge where the plaintiff seeks to proceed on a new theory of liability while mandating dismissal with prejudice for inadvertent omission of the affidavits. Moreover, we have held that an act of the legislature will not be construed so as to lead to absurd, inconvenient or unjust consequences (People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 312-13) and such would be the consequence if here the court were without authority to permit amendments to add the necessary affidavits. Requiring that section 2 \u2014 622 dismissals be with prejudice would be a triumph of form over substance. It would elevate a pleading requirement designed to reduce frivolous lawsuits into a substantive defense forever barring plaintiffs who initially fail to comply with its terms. We decline to ascribe such intentions to the legislature.\nFinally, defendants urge that the dismissal with prejudice was nevertheless proper since the plaintiff did not offer to submit the affidavits. This contention, however, is contrary to the record. At the hearing on the motion to dismiss, the plaintiff stated that \u201csuch affidavits could be filed and then made available to the court.\u201d This statement, while not as precise as it might be, clearly expresses the plaintiff\u2019s desire that he be given leave to file an amended complaint. Furthermore, it appears that the court understood the statement to be such a request but nonetheless dismissed the plaintiff\u2019s cause with prejudice.\nThe decision whether to grant leave to amend the pleadings is within the sound discretion of the trial court. However, we will not hesitate to overturn the trial court\u2019s determination where there has been a manifest abuse of discretion. (Deasey v. City of Chicago (1952), 412 Ill. 151, 156.) Here, the trial court proceeded under the erroneous belief that section 2 \u2014 622 requires dismissal with prejudice.\nBecause the trial court acted under the misapprehension that it did not have discretion, the cause is remanded for further consideration consistent with the views expressed in this opinion.\nOrder vacated; cause remanded.\nJUSTICE SIMON took no part in the consideration or decision of this case.",
        "type": "majority",
        "author": "JUSTICE MORAN"
      },
      {
        "text": "JUSTICE MILLER,\nspecially concurring:\nI agree with the majority that dismissal with prejudice should not be the inevitable consequence of every failure to file the certificate required by section 2 \u2014 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622). But in reaching that result I would not rely, as the majority does, on the discussion concerning amendments to pleadings that appears in the legislative history of section 2 \u2014 622.\nUnder section 2 \u2014 622(g), the failure to file the required certificate \u201cshall be grounds for dismissal under Section 2 \u2014 619.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 622(g).) Section 2 \u2014 619(a) of the Code of Civil Procedure provides, \u201cDefendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619(a).) Construing identical language in the statutory predecessor of section 2 \u2014 619, section 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48), the court in A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252, said, \u201cThe reference *** to \u2018other appropriate relief makes it obvious that dismissal is not mandated or the only form of relief afforded by that statute, as the circuit court seemingly presumed.\u201d I would hold here that the reference in section 2 \u2014 622(g) to \u201cdismissal under Section 2 \u2014 619\u201d incorporates the provision for \u201cother appropriate relief.\u201d In light of Staley, then, the trial judge in this case was not automatically required to dismiss the action with prejudice for plaintiffs failure to submit the certificate required by section 2 \u2014 622.\nJUSTICE RYAN joins in this special concurrence.",
        "type": "concurrence",
        "author": "JUSTICE MILLER,"
      }
    ],
    "attorneys": [
      "Barbara J. Clinite, of Chicago, for appellant.",
      "Kevin T. Martin, George F. Fitzpatrick, Jr., and Ruth E. VanDemark, of Wildman, Harrold, Allen & Dixon, of Chicago, for appellees Mitchell B. Sheinkop, M.D., Ltd., and Mitchell B. Sheinkop, M.D.",
      "Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Richard G. Howser, Donna Wamack Cruz and Helen Marie Ryan, of counsel), for appellee Rush-Presbyterian-St. Luke\u2019s Medical Center.",
      "Saul J. Morse & Associates, Ltd., of Springfield (Saul J. Morse and Eric A. Artman, of counsel), Winston & Strawn, of Chicago (Calvin Sawyier, of counsel), and Jenner & Block, of Chicago (John B. Simon, Russ M. Strobel, and Ellen R. Kordik, of counsel), for amicus cu riae Illinois State Medical Society."
    ],
    "corrections": "",
    "head_matter": "(No. 64240.\nJAMES McCASTLE, Appellant, v. MITCHELL B. SHEINKOP, M.D., LTD., et al., Appellees.\nOpinion filed December 30, 1987.\n\u2014 Rehearing denied April 5, 1988.\nSIMON, J., took no part.\nMILLER and RYAN, JJ., specially concurring.\nBarbara J. Clinite, of Chicago, for appellant.\nKevin T. Martin, George F. Fitzpatrick, Jr., and Ruth E. VanDemark, of Wildman, Harrold, Allen & Dixon, of Chicago, for appellees Mitchell B. Sheinkop, M.D., Ltd., and Mitchell B. Sheinkop, M.D.\nClausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Richard G. Howser, Donna Wamack Cruz and Helen Marie Ryan, of counsel), for appellee Rush-Presbyterian-St. Luke\u2019s Medical Center.\nSaul J. Morse & Associates, Ltd., of Springfield (Saul J. Morse and Eric A. Artman, of counsel), Winston & Strawn, of Chicago (Calvin Sawyier, of counsel), and Jenner & Block, of Chicago (John B. Simon, Russ M. Strobel, and Ellen R. Kordik, of counsel), for amicus cu riae Illinois State Medical Society."
  },
  "file_name": "0188-01",
  "first_page_order": 200,
  "last_page_order": 207
}