{ "id": 3649595, "name": "ROBERT M. ABBEY, Plaintiff-Appellant, v. P. G. RAVINGDRANATHAN et al., Defendants-Appellees", "name_abbreviation": "Abbey v. P. G. Ravingdranathan", "decision_date": "1987-08-31", "docket_number": "No. 5\u201486\u20140397", "first_page": "161", "last_page": "164", "citations": [ { "type": "official", "cite": "160 Ill. App. 3d 161" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "232 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "90 Ill. App. 2d 348", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2898968 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/90/0348-01" ] }, { "cite": "509 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "806" }, { "page": "806" }, { "page": "806" }, { "page": "806" } ], "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506177 ], "weight": 4, "pin_cites": [ { "page": "711" }, { "page": "710" }, { "page": "711" }, { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0708-01" ] } ], "analysis": { "cardinality": 479, "char_count": 9213, "ocr_confidence": 0.783, "pagerank": { "raw": 8.353259638621567e-08, "percentile": 0.4812205267565792 }, "sha256": "615e608424b01711c31680786a7682666feee4474649b42f5d229e18e6e60310", "simhash": "1:c3f65c9def659fe1", "word_count": 1513 }, "last_updated": "2023-07-14T16:53:05.010141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT M. ABBEY, Plaintiff-Appellant, v. P. G. RAVINGDRANATHAN et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE KASSERMAN\ndelivered the opinion of the court:\nPlaintiff, Robert M. Abbey, has perfected this appeal from the judgment of the circuit court of White County which dismissed with prejudice his medical malpractice complaint against defendants, P. G. Ravingdranathan, M.D., and P. G. Ravingdranathan, M.D., Ltd. The complaint was dismissed for failure of plaintiff to file an affidavit with his complaint as required by section 2 \u2014 622 of the Civil Practice Law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622.)\nOn March 21, 1986, plaintiff filed his complaint consisting of essentially identical counts against each defendant. The complaint alleged that plaintiff saw Dr. Ravingdranathan on four occasions in early 1984, the last being March 21, 1984, and that because of the doctor\u2019s improper care, plaintiff went into a diabetic coma on March 22,1984, resulting in permanent disability.\nSection 2 \u2014 622 of the Civil Practice Law, adopted by Public Act 84 \u2014 7, was specified to be effective as to cases filed on or after August 15, 1985 (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(h)), and was part of the legislature\u2019s attempt to deter frivolous or nonmeritorious medical malpractice lawsuits. (See generally Ill. Ann. Stat., ch. 110, pars. 2 \u2014 109, 2 \u2014 622, Historical and Practice Notes, at 21, 71 (Smith-Hurd 1987 Supp.).) Section 2 \u2014 622(a) provides in pertinent part:\n\u201cIn any action *** in which the plaintiff seeks damages for injuries or death by reason of *** healing art malpractice, the plaintiff\u2019s attorney or the plaintiff *** shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:\n1. 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 in the particular action ***; 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 reviewing health professional\u2019s review and consultation that there is a reasonable and meritorious cause for filing of such action. ***\n2. 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 written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.\n3. That a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to (Ill. Rev. Stat. 1985, ch. 110, par. 8 \u2014 2001, pertaining to inspection of hospital records) and the party required to comply under those Sections has failed to produce such records within 60 days of the receipt of the request.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a).)\nAt the time of filing the complaint on March 21, 1986, plaintiff did not attach an affidavit pursuant to this section. Subsection (g) of 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. 1985, ch. 110, pars. 2 \u2014 622(g), 2 \u2014 619.\nOn April 16, 1986, defendants filed a motion to dismiss, alleging that the complaint should be dismissed with prejudice on two grounds: (1) because of plaintiff\u2019s failure to attach an affidavit to his complaint as required by section 2 \u2014 622(a); and (2) because the cause of action was barred by the statute of limitations. The motion also alleged that count two failed to allege sufficient facts to support a recovery under the theory of respondeat superior. Plaintiff responded to defendants\u2019 motion by challenging the constitutionality of section 2 \u2014 622.\nOn May 19, 1986, plaintiff\u2019s attorney filed an affidavit stating, inter alia, that he was unable to obtain the required consultation before the filing of the complaint because of potential statute of limitations problems and that he had scheduled an appointment with a qualified physician and would file the requisite certificate and report by June 21,1986, the 90th day after the complaint was filed.\nAlso on May 19, 1986, a hearing was held on defendants\u2019 motion and plaintiff\u2019s response thereto. The circuit court rejected plaintiff\u2019s constitutional challenges to the statute, denied defendants\u2019 motion as it related to the statute of limitations and respondeat superior, but granted defendants\u2019 motion to dismiss with prejudice for the failure of the complaint to include the requisite affidavit. The circuit court indicated that it was of the opinion that a dismissal pursuant to section 2 \u2014 619 could not provide for leave to amend.\nOn appeal, plaintiff continues to challenge the constitutionality of section 2 \u2014 622, alleging violations of the equal protection and separation of powers doctrines. In the alternative, plaintiff contends that: (1) section 2 \u2014 622(g) may require dismissal for the failure to file the requisite certificate but does not require dismissal for the failure to file an affidavit; (2) that the failure to file an affidavit under section 2\u2014 622 is a pleading defect, subject to amendment under section 2 \u2014 615, and (3) in any event, section 2 \u2014 622(g) does not require a dismissal with prejudice.\nThe \u201caffidavit\u201d and \u201ccertificate\u201d required by section 2 \u2014 622 are different concepts. The affidavit is the statement by plaintiff or his attorney pursuant to subsections (aXl), (a)(2), or (aX3). The certificate is the declaration of the reviewing health professional and the affiant (either plaintiff or his attorney) pursuant to subsection (aXl) that each believes that there is a reasonable and meritorious cause for the filing of the action. We conclude that subsection (g) of section 2 \u2014 622 does not require dismissal with prejudice for failure to file an affidavit with the complaint and that the circuit court had the discretion to permit the plaintiff to file a late affidavit under subsection (a)(2). See Walter v. Hill (1987), 156 Ill. App. 3d 708, 711, 509 N.E.2d 804, 806.\nIn Walter, as here, plaintiff attached to her complaint neither the affidavit of merit under subsection (a)(1) nor the affidavit asserting the inability to comply pursuant to subsection (a)(2). Nevertheless, the court came to the conclusion \u201cthat the legislature did not intend that section 2 \u2014 622 comprise a further limitation on actions to the extent that section 2 \u2014 622 would cut off all rights to relief. Rather, section 2 \u2014 622 only puts a requirement of meritoriousness on the pending suit.\u201d (156 Ill. App. 3d 708, 710, 509 N.E.2d 804, 806.) Although the Walter court relied on the fact that the affidavit existed at the time the original complaint was filed but was merely inadvertently omitted, the court also went on to reject a strict interpretation of section 2\u2014 622 that would require dismissal. The court relied on the provision in the Code of Civil Procedure which provides:\n\u201cThis Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. The rule that statutes in derogation of the common law must be strictly construed does not apply to this Act or to the rules made in relation thereto.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 1 \u2014 106.)\nThe court also relied on the principle that, in keeping with the intent to guard the parties\u2019 substantive rights, section 2 \u2014 619 does not require a dismissal with prejudice on the basis of a technical defect in pleading. Walter v. Hill (1987), 156 Ill. App. 3d 708, 711, 509 N.E.2d 804, 806, citing Martin v. Masini (1967), 90 Ill. App. 2d 348, 232 N.E.2d 770.\nWe agree with the reasoning set forth in Walter and conclude that the circuit court had the discretion to allow plaintiff to file a late affidavit in satisfaction of subsection (a)(2) of section 2 \u2014 622. As the court stated in Walter, \u201c[t]his course of action would have most fully fulfilled the legislative goal of protecting the substantive rights of the parties while at the same time keeping with the spirit of section 2\u2014 622 and its purpose of deterring nonmeritorious litigation.\u201d Walter v. Hill (1987), 156 Ill. App. 3d 708, 711, 509 N.E.2d 804, 806.\nBecause of our disposition on this issue, we find it unnecessary to consider plaintiff\u2019s constitutional issues.\nConsistent with the foregoing, the judgment of the circuit court of White County is reversed and the cause is remanded for further proceedings.\nReversed and remanded.\nEARNS, P.J., and WELCH, J., concur.", "type": "majority", "author": "JUSTICE KASSERMAN" } ], "attorneys": [ "Rick L. Hobler, of Mt. Carmel, for appellant.", "Paul R. Lynch and Rochelle A. Funderburg, both of Craig & Craig, of Mt. Vernon (Richard F. Record, Jr., of counsel), for appellees." ], "corrections": "", "head_matter": "ROBERT M. ABBEY, Plaintiff-Appellant, v. P. G. RAVINGDRANATHAN et al., Defendants-Appellees.\nFifth District\nNo. 5\u201486\u20140397\nOpinion filed August 31, 1987.\nRick L. Hobler, of Mt. Carmel, for appellant.\nPaul R. Lynch and Rochelle A. Funderburg, both of Craig & Craig, of Mt. Vernon (Richard F. Record, Jr., of counsel), for appellees." }, "file_name": "0161-01", "first_page_order": 183, "last_page_order": 186 }