{ "id": 3278173, "name": "JAMES W. McALISTER, Appellant, v. LARRY SCHICK, M.D., et al., Appellees", "name_abbreviation": "McAlister v. Schick", "decision_date": "1992-02-20", "docket_number": "No. 71157", "first_page": "84", "last_page": "103", "citations": [ { "type": "official", "cite": "147 Ill. 2d 84" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "203 Ill. App. 3d 1105", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "weight": 2, "pin_cites": [ { "page": "190" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] }, { "cite": "184 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3551226 ], "weight": 2, "pin_cites": [ { "page": "851" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0845-01" ] }, { "cite": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "weight": 2, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0057-01" ] }, { "cite": "113 Ill. 2d 219", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173826 ], "weight": 3, "year": 1952, "pin_cites": [ { "page": "227" }, { "page": "228" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0219-01" ] }, { "cite": "412 Ill. 145", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2665388 ], "weight": 3, "pin_cites": [ { "page": "148" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0145-01" ] }, { "cite": "76 Ill. 2d 53", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984190 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "58" }, { "page": "57-58" }, { "page": "58" }, { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0053-01" ] }, { "cite": "69 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5454753 ], "weight": 2, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0252-01" ] }, { "cite": "63 Ill. 2d 313", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426720 ], "weight": 2, "pin_cites": [ { "page": "322" }, { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0313-01" ] }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "111 Ill. 2d 416", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167574 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "424" }, { "page": "424" }, { "page": "423-24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0416-01" ] }, { "cite": "79 Ill. 2d 295", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070910 ], "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0295-01" ] }, { "cite": "63 Ill. 2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426854 ], "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0113-01" ] }, { "cite": "63 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426382 ], "year": 1974, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0209-01" ] }, { "cite": "57 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406543 ], "pin_cites": [ { "page": "174-75" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0170-01" ] }, { "cite": "116 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543542 ], "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0186-01" ] }, { "cite": "112 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5539451 ], "year": 1985, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0273-01" ] }, { "cite": "108 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130058 ], "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0373-01" ] }, { "cite": "28 Ill. 79", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5204668 ], "weight": 2, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill/28/0079-01" ] }, { "cite": "40 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857305 ], "weight": 2, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0293-01" ] }, { "cite": "82 Ill. 2d 556", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474979 ], "weight": 3, "pin_cites": [ { "page": "560" }, { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0556-01" ] }, { "cite": "66 Ill. 2d 412", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464426 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0412-01" ] }, { "cite": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "opinion_index": 2, "case_paths": [ "/ill-2d/147/0057-01" ] } ], "analysis": { "cardinality": 1151, "char_count": 30670, "ocr_confidence": 0.77, "pagerank": { "raw": 1.9426000921594253e-07, "percentile": 0.7356973321610643 }, "sha256": "68b7b40164360cc6f3e30bfa250bde4312da3e75f48c43ae2f1eeb147633b453", "simhash": "1:8beadef4e3845c41", "word_count": 5014 }, "last_updated": "2023-07-14T21:35:32.347949+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES W. McALISTER, Appellant, v. LARRY SCHICK, M.D., et al., Appellees." ], "opinions": [ { "text": "JUSTICE MORAN\ndelivered the opinion of the court:\nPlaintiff, James W. McAlister, filed a four-count complaint in the circuit court of Winnebago County against defendants, Larry Schick, M.D., and Rockford Anesthesiologists Associated, alleging medical malpractice. Counts I and III were brought against Larry Schick, M.D., and counts II and IV were brought against Rockford Anesthesiologists Associated.\nIn his complaint, plaintiff stated that he was admitted to the Swedish American Hospital for treatment of a small bowel obstruction, and that he subsequently underwent exploratory laparotomy, omental biopsy, lysis of adhesions and small bowel resection. Plaintiff alleged that defendant Dr. Schick, a member of defendant Rockford Anesthesiologists Associated, failed to inform him of the risks involved in the surgery, and failed to properly insert and monitor a right internal jugular venous catheter. Consequently, plaintiff allegedly received unspecified injuries and suffers from a right pneumothorax.\nThe court dismissed the complaint with prejudice for failure to comply with requirements of section 2 \u2014 622 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622). The appellate court affirmed the dismissal. (203 Ill. App. 3d 1105 (unpublished order under Supreme Court Rule 23).) Plaintiff\u2019s petition for leave to appeal to this court was allowed (134 Ill. 2d R. 315(a)).\nThe sole issue presented for review is whether section 2 \u2014 622 of the Code is.unconstitutional. This provision is applicable to \u201cany action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622(a).) To conform with section 2 \u2014 622, the plaintiff\u2019s attorney or the plaintiff, if proceeding pro se, must attach to the complaint an affidavit certifying that he has consulted and reviewed the facts of the case with a health professional, who has determined in an attached report that there is \u201ca reasonable and meritorious cause\u201d for filing the action. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622(a)(1).) If the applicable statute of limitations is near expiration or if there is a delay in receiving medical records, an extension of time is available. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 \u2014 622(a)(2), (a)(3).) Failure to file the required certificate \u201cshall be grounds for dismissal under Section 2 \u2014 619.\u201d Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622(g).\nPlaintiff attached to his medical malpractice complaint, filed on June 15, 1989, an affidavit stating that he had been unable to obtain a consultation with a health professional, and could not obtain one before the expiration of the statute of limitations. Section 2 \u2014 622(a)(2) of the Code \u201callows for a 90-day extension for the filing of the affidavits if the statute of limitations is near expiration.\u201d (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 190.) Plaintiff subsequently requested, and defendants agreed, to extend the required filing date an additional three months, Until December 15, 1989. On December 22, 1989, when plaintiff had not submitted the mandatory affidavit and report, defendants moved to dismiss. The plaintiff then filed a written response to the motion, arguing that section 2 \u2014 622 was unconstitutional. At the hearing on the motion, plaintiff also argued that the delay was excusable because of the holidays and an illness in the family of plaintiffs attorney. The trial court granted defendants\u2019 motion and dismissed the cause with prejudice. It is established that a court has discretion to dismiss a case governed by section 2 \u2014 622 with or without prejudice. McCastle, 121 Ill. 2d at 194.\nPlaintiff appealed, arguing that section 2 \u2014 622 is unconstitutional because it violates section 1 of article II and section 1 of article VI of the Illinois Constitution (Ill. Const. 1970, art. II, \u00a71; art. VI, \u00a71) regarding separation of powers. As authority, plaintiff cited the holding of the Appellate Court, First District, in DeLuna v. St. Elizabeth\u2019s Hospital (1989), 184 Ill. App. 3d 802.\nPlaintiff noted the similarity of DeLuna to the case at bar. In DeLuna the plaintiff brought an action for medical and hospital negligence against the defendants, but failed to attach an affidavit of merit and written report by a health professional, as required by section 2\u2014 622(a)(1) (Ill. Rev. Stat. 1987, ch. 110, par. 2-622(a)(l)). Retracing the reasoning in DeLuna, plaintiff contended that section 2 \u2014 622 sets up a prerequisite to filing a malpractice suit which usurps the judiciary\u2019s power to hear and decide medical negligence cases. Plaintiff argued that, as the constitution empowers the judicial branch alone to adjudicate and apply principles of law, section 2 \u2014 622 directly violates the constitutional concepts of separation of powers and reservation of judicial power.\nThe Appellate Court, Second District, rejected plaintiff\u2019s contention, noting that, in Bloom v. Guth (1987), 164 Ill. App. 3d 475, it had upheld the constitutionality of section 2 \u2014 622 against an almost identical argument. The court pointed out that its holding in Bloom was followed by the Third District in Sakovich v. Dodt (1988), 174 Ill. App. 3d 649, 652, and the Fourth District in Alford v. Phipps (1988), 169 Ill. App. 3d 845, 851. Thus, the court rejected the First District\u2019s reasoning in DeLuna, and affirmed the judgment of the circuit court. We accepted plaintiff\u2019s appeal in order to resolve the dispute within the appellate court as to the constitutionality of section 2 \u2014 622. For the reasons set out below, we hold that section 2 \u2014 622 is constitutional, and accordingly affirm the judgment of the appellate court. We point out that, concurrent with the announcement of our opinion in this cause, we are reversing the judgment of the Appellate Court, First District, in DeLuna v. St. Elizabeth\u2019s Hospital (1992), 147 Ill. 2d 57.\nWe note at the outset the strong presumption that legislative enactments are constitutional. (Bernier v. Burris (1986), 113 Ill. 2d 219, 227.) Courts have a duty to sustain legislation whenever possible and to resolve all doubts in favor of constitutional validity. Agran v. Checker Taxi Co. (1952), 412 Ill. 145,148.\nPlaintiff contends that limiting access to the courts to only those plaintiffs who have secured an affidavit of merit and written report by a health professional singles out medical malpractice plaintiffs from all other personal injury plaintiffs. In so doing, plaintiff argues, the legislature has, in effect, created a special class of plaintiffs, and imposed on them a burden greater than on any other class, in violation of the due process clauses and the equal protection clauses of the Illinois and United States Constitutions.\nIn reviewing the constitutionality of section 2 \u2014 622, we reject plaintiffs equal protection and due process claims, as such claims have been similarly rejected by our appellate court. (Bloom v. Guth (1987), 164 Ill. App. 3d 475; Sakovich v. Dodt (1988), 174 Ill. App. 3d 649; Alford v. Phipps (1988), 169 Ill. App. 3d 845.) The authorities cited applied the rational basis standard, as set out in Bernier, to test the constitutionality of medical malpractice legislation under guarantees of due process and equal protection. The standard is whether the provisions bear a rational relationship to a legitimate governmental interest. (Bernier, 113 Ill. 2d at 228.) The courts found section 2 \u2014 622 to be rationally related to a legitimate purpose of the legislature \u2014 that of eliminating frivolous lawsuits at the pleading stage.\nThus, we concentrate on a determination of whether, as plaintiff alleges, section 2 \u2014 622 usurps. the judicial power, violating the separation of powers provisions of article II, section 1, and article VI, section 1, of the Illinois Constitution (Ill. Const. 1970, art. II, \u00a71; art. VI, \u00a71). Article II, section 1, of the Illinois Constitution of 1970 states that \u201c[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.\u201d (Ill. Const. 1970, art. II, \u00a71.) This court has historically regarded the doctrine of separation of powers as meaning that \u201c \u2018the whole power of two or more of the branches, of government shall not be lodged in the same hands.\u2019 \u201d (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 58, quoting In re Estate of Barker (1976), 63 Illl. 2d 113, 119.) Article VI, section 1, declares that \u201c[t]he judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.\u201d (Ill. Const. 1970, art. VI, \u00a71.) \u201cJudicial power is not defined in the Constitution, but all such power is granted exclusively to the courts.\u201d Strukoff, 76 Ill. 2d at 57-58, citing People v. Jackson (1977), 69 Ill. 2d 252, 256.\nBecause judicial power is reserved exclusively to the courts, this court has consistently held that the sharing or even the potential sharing of judicial power is unconstitutional. (Bernier, 113 Ill. 2d at 234; Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 322.) In Wright the court examined the constitutionality of the medical malpractice act (Ill. Rev. Stat. 1975, ch. 110, pars. 58.2 through 58.10), which created the requirement of a review panel, composed of a doctor, a lawyer, and a circuit judge, to hear and determine malpractice claims. The circuit judge was to preside over the hearing and decide procedural and evidentiary issues, leaving substantive issues of law and fact to be decided by the panel as a whole. Although the party was not bound by the findings of the panel and could proceed to the circuit court, he faced the possibility of paying fees and costs if he did not ultimately prevail in that court. This court found such legislation unconstitutional, holding that it \u201cempowers the nonjudicial members of the medical review panel to exercise a judicial function in violation of sections 1 and 9 of article VI of the Constitution.\u201d Wright, 63 Ill. 2d at 322.\nIn Bernier this court once again addressed an attempt by the legislature to limit malpractice actions by creating a review panel of a doctor, a lawyer and a judge to determine liability and assess damages. In distinction to the review panel in Wright, the judicial member of the review panel considered in Bernier was vested with sole authority over all legal issues. Issues of fact remained to be decided by the panel as a whole. This court found that the statute in Bernier also violated the Illinois Constitution. The court held that the issue was not whether the judicial member exclusively or the panel as a whole determined questions of law. Rather, the panel procedures were unconstitutional because they failed to distinguish between the functions and roles of the judicial and the nonjudicial members.\nThe procedures examined in Wright and Bernier differed essentially from the procedure required by section 2 \u2014 622. In Wright and Bernier, the roles of the judicial and nonjudicial members of the review panels overlapped, and were at times indistinguishable. Under the procedure set out in section 2 \u2014 622, on the other hand, there is no sharing of judicial power. Section 2 \u2014 622 mandates that an advisory opinion, in the form of a report made by a health care professional, be attached to the complaint. The judge presumably takes the medical report into account in determining the sufficiency of the complaint. However, the judge alone has power to dismiss the cause if he finds the complaint to be insufficient.\nRelying upon DeLuna, plaintiff asserts that when a medical professional\u2019s determination completely bars a cause of action, there is an infringement upon the judiciary\u2019s inherent power to determine whether a cause of action can be maintained. The DeLuna court, defining judicial power as \u201c[t]he power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the law,\u201d stated:\n\u201c[I]n section 2 \u2014 622, the legislature unconstitutionally delegates to a professional group the function of deciding whether a plaintiff\u2019s claim should proceed to a hearing, for it is the role of the court, applying the law concerning the sufficiency of allegations in a complaint, to determine whether there is any set of facts under which the plaintiff may state a cause of action in a particular case and move on in the judicial process. *** It is one thing to require a medical malpractice plaintiff to provide expert opinion testimony at trial supporting his claim, yet quite another to give control over the ability of our courts to hear and decide medical malpractice cases to those experts.\u201d DeLuna, 184 Ill. App. 3d at 806-07.\nDefendants criticize the DeLuna holding, contending that it is premised on two incorrect assumptions: (1) that the General Assembly\u2019s enactment of the pleading requirements encroaches upon judicial power and (2) that the health professional\u2019s review of a case is in itself an exercise of judicial power. Defendants point out that judicial power is coterminous with jurisdiction and that, absent a conflicting supreme court rule, it is always concurrent with the legislature\u2019s power to enact laws governing judicial practice in the exercise of the legislature\u2019s charge to determine and effectuate public policy. (People v. Cox (1980), 82 Ill. 2d 268; People v. Jackson (1977), 69 Ill. 2d 252.) The most salient example of the legislature\u2019s concurrent powers is the enactment of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 1 \u2014 101 et seq.).\nIt was stated in- Strukoff that this court possesses rulemaking authority to regulate the trial of cases, and that a conflicting statute would infringe upon the power of the judiciary. (Strukoff, 76 Ill. 2d at 58.) However, in this case, as in Strukoff, no conflict exists between a supreme court rule and the statute at issue. As we held in reversing the appellate court in DeLuna, 147 Ill. 2d at 71, section 2 \u2014 622 is consistent with Supreme Court Rule 137 (134 Ill. 2d R. 137), which requires that, before filing a complaint, an attorney must conduct a \u201creasonable inquiry\u201d into whether a claim is well-founded in fact.\nIn Agran v. Checker Taxi Co. (1952), 412 Ill. 145, the court held invalid a statute requiring the giving of a five-day notice to every attorney of record prior to an ex parte action to dismiss a case for want of prosecution. The court further found that the legislature had intruded upon the inherent power of the court to adjudge, determine and render a judgment. Agran, 412 Ill. at 150.\nThe statute in Agran specified the court procedure to be followed after the court\u2019s jurisdiction had been properly invoked and it had begun to exercise its purely judicial duties. Here, we confront a statutory requirement affecting procedure prior to attachment of the court\u2019s jurisdiction. In this, section 2 \u2014 622 is similar to statutes of repose or limitations governing medical malpractice suits, which have been found constitutional. Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 424; Anderson v. Wagner (1979), 79 Ill. 2d 295, 313.\nThe doctrine of separation of powers does not contemplate that there should be \u201c \u2018rigidly separated compartments\u2019 \u201d or \u201c \u2018a complete divorce among the three branches of government.\u2019 \u201d (Strukoff, 76 Ill. 2d at 58, quoting In re Estate of Barker (1976), 63 Ill. 2d 113, 119.) Nor does the constitution forbid every exercise by one branch of government of functions which are usually exercised by another branch. (People v. Farr (1976), 63 Ill. 2d 209, 213, citing City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170, 174-75.) The separate spheres of governmental authority may overlap. (County of Kane v. Carlson (1987), 116 Ill. 2d 186, 208.) Legislative enactments may regulate the court\u2019s practice so long as they do not dictate to the court how it must adjudicate and apply the law or conflict with the court\u2019s right to control its procedures. (O\u2019Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 281.) This court has repeatedly recognized that the legislature may impose reasonable limitations and conditions upon access to the courts. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 383.\nThe requirement that an affidavit be attached to a pleading is not new to Illinois law. In 1862 this court upheld dismissal of the defendant\u2019s plea because he had failed to submit with it an affidavit of merits, as required by the statute. (Roberts v. Thomson (1862), 28 Ill. 79.) The court remarked that it had no wish to exalt the \u201csalutary rule of practice\u201d to the \u201cdignity of a constitutional question,\u201d but had no doubt of the legislature\u2019s competency to exact such a rule of practice. Roberts, 28 Ill. at 81.\nIn People ex rel. County Collector v. Jeri, Ltd. (1968), 40 Ill. 2d 293, this court rejected the contention that the statutory requirement of attaching a transcript of evidence relating to the findings of the trial court to a court order for the issuance of a tax deed constituted a legislative infringement on the power of the judiciary. The court pointed out that the requirement did not purport to direct how a court should decide cases, nor did it limit the power of a judge to determine facts and apply the law to them. (County Collector, 40 Ill. 2d at 302.) Similarly, section 2 \u2014 622 does not direct the judge to accept or dismiss a medical malpractice complaint to which the required medical report and affidavit have been attached. The judge must still examine the facts as laid out in the complaint and determine whether the allegations are sufficient to state a cause of action. Thus, the court does not relinquish its decisionmaking authority.\nThe court examined another alleged legislative invasion of judiciary authority in People v. Youngbey (1980), 82 Ill. 2d 556, where the challenged statute required a nonwaivable presentence report in felony cases. Although the imposition of a criminal sentence is a judicial function (People v. Phillips (1977), 66 Ill. 2d 412), the court found that the statute at issue in Youngbey did not infringe upon the inherent powers of the judiciary, as it related solely to a presentencing procedure. (Youngbey, 82 Ill. 2d at 560.) The presentence report was found to be a useful tool for the sentencing judge, insuring that he would have all the necessary information before the sentence was imposed. (Youngbey, 82 Ill. 2d at 564.) Similarly, we believe that section 2 \u2014 622 serves the purpose of informing the judge, who cannot be expected to have the medical knowledge of a professional in the field, of the learned opinion of a health professional with training and experience in a specialized area. Although he could recognize the elements of breach of contract on the face of a complaint, a judge without medical training might well be unable to determine that a \u201cright pneumothorax\u201d could be related to an \u201cimproper jugular catheterization.\u201d Thus, rather than limiting the power of a judge to determine facts, the statute helps him to understand the facts. Consequently, we find that the legislature, in enacting section 2 \u2014 622, did not encroach on judicial power.\nUnder section 2 \u2014 622, the health care professional is to make a factual determination concerning the quality of care given the plaintiff. If the health professional believes that the plaintiff was not given proper care, he states his opinion that there is a \u201creasonable and meritorious cause\u201d for filing suit. The health professional offers that opinion from the point of view of a layman with a specialty in the same medical field as that of the defendant, rather than from the standpoint of a legal professional. The statute does not require that the health care professional base his opinion upon legal principles. Nor must the health professional make the ultimate decision on any facts. He simply states, based upon the assumption that the information supplied by the plaintiff is true, that, in his view, the plaintiff\u2019s cause is reasonable and has merit. Whether the information is indeed true is a matter to be decided by the court. The health care professional is not asked to give his views concerning the outcome of the suit. Rather, he is to base his determination on a \u201creview of the medical record and other relevant material involved in the particular action.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 622(a)(1).) Thus, the health professional certifies the underlying claim rather than the cause of action. It is the court\u2019s responsibility,' then, to judge the legal sufficiency of the complaint. Consequently, we find that the health care professional does not exercise judicial power.\nPlaintiff\u2019s final contention is that the prerequisites of section 2 \u2014 622 deny him a remedy guaranteed by the Illinois and the United States Constitutions. Article I, section 12, of the Illinois Constitution provides: \u201cEvery person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.\u201d (Ill. Const. 1970, art. I, \u00a712.) This court has stated that the \u201ccertain remedy\u201d provision is merely an expression of philosophy, and does not mandate that a certain remedy be provided in any form for any alleged wrong. (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 424.) In Mega the court found that the constitutional right to a remedy was not violated by application of a four-year medical malpractice limitations period, even though its effect was to bar injuries discovered after that time. Mega, 111 Ill. 2d at 423-24.\nWe recognize that obtaining the affidavit and report of a medical care professional places an added burden on the medical malpractice plaintiff. However, the medical malpractice plaintiff already has a burden not required in other cases \u2014 that of presenting expert medical testimony at trial. We find that the benefits of preventing frivolous suits outweigh the burden on the plaintiff.\nFurther, the plaintiff is not required to accept the determination of a medical professional who might be hostile to his claim. Just as he selects his own expert witness at trial, the plaintiff can interview any number of medical professionals before finding one who agrees with him that his case has merit.\nFinally, under section 2 \u2014 622(a)(2), a plaintiff unable to secure the required medical report at the time of filing his complaint because a statute of limitations would impair the action is permitted an additional 90 days to obtain the report. (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014 622(a)(2).) Here the plaintiff received two 90-day extensions, yet apparently was unable to obtain a favorable medical consultation within that time. That the plaintiff is unable to fulfill pleading requirements does not mean that he has been denied a constitutionally guaranteed remedy.\nThe medical malpractice plaintiff who finds the court house door locked because his complaint is not in conformity with section 2 \u2014 622 need only ask a qualified health care professional for the key. By consulting with the health care professional whom he has selected, the plaintiff will have the means of ascertaining that his pleadings are factually correct. If the plaintiff cannot find at least one health care professional willing to report that the plaintiff\u2019s claim is reasonable and meritorious, it is unlikely that he will be able to fulfill the requirements of Supreme Court Rule 137, which requires the plaintiff or his attorney to certify that, \u201cto the best of his knowledge, information, and belief formed after reasonable inquiry,\u201d the pleading is well-grounded in fact. (Emphasis added.) 134 Ill. 2d R. 137.\nBefore the medical malpractice plaintiff is entitled to a remedy, he must show the existence of a wrong. Section 2 \u2014 622\u2019s requirements are simply a means of ensuring the factual validity of the plaintiff\u2019s allegations. Thus, we find that section 2 \u2014 622 does not deprive the plaintiff of a constitutionally guaranteed remedy.\nFor the reasons stated above, we affirm the judgment of the appellate court.\nJudgment affirmed.", "type": "majority", "author": "JUSTICE MORAN" }, { "text": "JUSTICE CUNNINGHAM,\nspecially concurring:\nAlthough I concur with my colleagues in the disposition of the present appeal, I write separately to explain an additional basis for my agreement.\nIn my opinion the adjudicatory process has not yet come into play when certification is required under section 2 \u2014 622. The affidavit with attached written report of a health professional is a pleading requirement. If noncompliance is not raised by the defendant, the requirement is waived.\nThe argument that the certification requirement violates the constitutional separation of powers is not valid because the health professional is not applying legal principles to the facts of a particular case. Rather, the health professional is only rendering an opinion which will assist the court in applying legal principles to the facts of a particular case. The health professional is not making a legal judgment but is making a professional judgment derived from the particular health professional\u2019s own training and experience.\nSection 2 \u2014 622 provides in part \u201cthat the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action ***.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014 622(a)(1).) The health professional who must review the medical record, in order to make a medical judgment, must also have some knowledge of the facts of the particular situation in order to render an opinion. This does not mean that the health professional is applying legal principles to the facts.\nWhile the word \u201cmeritorious\u201d has a legal connotation (defined as \u201c[possessing or characterized by \u2018merit\u2019 in the legal sense of the word\u201d (Black\u2019s Law Dictionary 892 (5th ed. 1979)), its use in section 2 \u2014 622 does not grant the health professional the power to make the final determination as to whether the cause has merit. Rather, the court makes that final determination vis-avis section 2 \u2014 619 because section 2 \u2014 622 provides that \u201c[t]he failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 \u2014 619.\u201d Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622(g).\nSection 2 \u2014 619 sets forth the provisions for involuntary dismissal and 2 \u2014 619(c) permits the plaintiff to establish facts \u201cobviating the grounds of defect\u201d and authorizes the court to hear and determine the same and to grant or deny the motion. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 619.) It is the involuntary dismissal proceeding under section 2 \u2014 619 that brings the adjudicatory or judicial function into play. Thus, it is the trial judge, not the health professional, who makes the final determination whether a cause is to be dismissed. The trial judge is merely assisted in that determination by the opinion of the health professional.\nIt should also be noted that section 2 \u2014 622(c) provides that a certificate of a health professional is also required when the plaintiff relies on res ipsa loquitur. However, section 2 \u2014 622(c) refers to res ipsa loquitur as defined in section 2 \u2014 1113. Section 2 \u2014 1113 provides that the court shall determine whether res ipsa loquitur applies and provides that the court, in making that determination, shall rely upon either the common knowledge of laymen, if it determines that to be adequate, or upon expert medical testimony.\nThus, in deciding a motion for involuntary dismissal under section 2 \u2014 619, not only may the court hear and determine matters obviating the defects, but in cases involving res ipsa loquitur the court may also determine whether the alleged malpractice is of the nature that does not require medical testimony but is within the common knowledge of laymen. It is not the health professional who makes that determination but the court, just as the court makes the determination whether the plaintiffs complaint is to be dismissed for failing to contain the necessary affidavit and accompanying health professional\u2019s report.\nIn summary, section 2 \u2014 622 simply sets forth pleading requirements as do many other sections of the Code. The judicial function is performed under section 2 \u2014 619 when the trial judge determines whether the case should be dismissed for failure to comply with section 2 \u2014 622. If the required certification is not filed and the court, under section 2 \u2014 619, determines that one should have been filed, the court may dismiss the case. That is exactly what the court is required to do at the end of the plaintiff\u2019s case at trial if the plaintiff fails to present the testimony of an expert witness to establish the applicable standard of care and its violation.\nAt the pleading stage, the case may be dismissed because of the plaintiff\u2019s failure to present the affidavit of the attorney and accompanying report of a health professional with the complaint. At the end of the plaintiff\u2019s case, it may be dismissed for failure to present evidence from a health professional. In neither case has a health professional usurped any judicial function, because in neither case has a health professional done anything but render an opinion. It is the plaintiff who has failed, in one instance, to plead properly, and in the other, to present the necessary evidence.", "type": "concurrence", "author": "JUSTICE CUNNINGHAM," }, { "text": "JUSTICE CLARK,\ndissenting:\nFor the reasons I stated in my dissent in DeLuna v. St. Elizabeth\u2019s Hospital (1992), 147 Ill. 2d 57, I respect-\nfully dissent in this case. I believe that section 2 \u2014 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622) is unconstitutional in that it violates the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, \u00a71).\nJUSTICES BILANDIC and FREEMAN join in this dissent.", "type": "dissent", "author": "JUSTICE CLARK," } ], "attorneys": [ "William T. Cacciatore, of Rockford, for appellant.", "Lawrence R. Kream, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., of Rockford, and William L. Barr, Jr., and Brigid M. McGrath, of Bell, Boyd & Lloyd, of Chicago, for appellees.", "Saul J. Morse and Robert J. Kane, of Morse, Giganti & Appleton, of Springfield, and James R. Thompson and Calvin Sawyier, of Winston & Strawn, of Chicago, for amicus curiae Illinois State Medical Society." ], "corrections": "", "head_matter": "(No. 71157.\nJAMES W. McALISTER, Appellant, v. LARRY SCHICK, M.D., et al., Appellees.\nOpinion filed February 20, 1992.\nCUNNINGHAM, J., specially concurring.\nCLARK, J., joined by BILANDIC and FREEMAN, JJ., dissenting.\nWilliam T. Cacciatore, of Rockford, for appellant.\nLawrence R. Kream, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., of Rockford, and William L. Barr, Jr., and Brigid M. McGrath, of Bell, Boyd & Lloyd, of Chicago, for appellees.\nSaul J. Morse and Robert J. Kane, of Morse, Giganti & Appleton, of Springfield, and James R. Thompson and Calvin Sawyier, of Winston & Strawn, of Chicago, for amicus curiae Illinois State Medical Society." }, "file_name": "0084-01", "first_page_order": 94, "last_page_order": 113 }