{
  "id": 3649877,
  "name": "ISABEL GOLDBERG, Adm'r of the Estate of Jennie Donzis, Deceased, et al., Plaintiffs-Appellants, v. SWEDISH COVENANT HOSPITAL et al., Defendants-Appellees",
  "name_abbreviation": "Goldberg v. Swedish Covenant Hospital",
  "decision_date": "1987-08-28",
  "docket_number": "No. 86\u20143389",
  "first_page": "867",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T16:53:05.010141+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "ISABEL GOLDBERG, Adm\u2019r of the Estate of Jennie Donzis, Deceased, et al., Plaintiffs-Appellants, v. SWEDISH COVENANT HOSPITAL et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nPlaintiffs appeal from orders dismissing with prejudice their medical malpractice complaint against defendants for failure to comply with the requirements of section 2 \u2014 622 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622.) Plaintiffs contend that the dismissals should have been without prejudice. We affirm.\nOn February 24, 1986, plaintiffs filed a three-count complaint alleging that defendants committed acts of medical malpractice which resulted in the death of Jennie Donzis on or about February 23, 1984. Defendants thereafter filed separate motions pursuant to sections 2\u2014 619 and 2 \u2014 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 \u2014 619, 2 \u2014 622), to dismiss the complaint with prejudice because of plaintiffs\u2019 failure to comply with section 2 \u2014 622(a) of the Code of Civil Procedure. The first such motion was filed on April 1, 1986.\nSection 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 medical, hospital, or other healing art malpractice, the plaintiff\u2019s attorney *** 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 ***; that 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 aetion[,] 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 such action. *** A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional\u2019s determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit ***.\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.\u201d\nIn separate orders entered on May 19 and June 13, 1986, the circuit court granted defendants\u2019 motions. On the former date, the court denied as untimely plaintiffs\u2019 oral motion to file instanter the attorney\u2019s affidavit and a physician\u2019s report. Plaintiffs\u2019 subsequent motions to vacate or modify the orders of dismissal were denied. This appeal follows:\nOpinion\nPlaintiffs, as we have noted, contend that noncompliance with section 2 \u2014 622 should not result in a dismissal with prejudice. We disagree.\nThe legislative history of section 2 \u2014 622 reveals that its purpose was to eliminate frivolous lawsuits at the pleadings stage. (84th Ill. Gen. Assem., House Proceedings, May 23, 1985, at 406 (Representative Hawkinson).) Section 2 \u2014 622(g) specifically provides that the failure to file the certificate required by section 2 \u2014 622(a) shall be grounds for involuntary dismissal under section 2 \u2014 619. Dismissal of an action for noncompliance with section 2 \u2014 622(a) constitutes an adjudication on the merits, not a dismissal for lack of jurisdiction or for want of prosecution, as plaintiffs suggest. Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 655-56, 509 N.E.2d 702; 87 Ill. 2d R. 273.\nPlaintiffs could have avoided an involuntary dismissal on the merits by moving for voluntary dismissal pursuant to section 2 \u2014 1009(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1009(a)) before the court ruled on defendants\u2019 previously filed motions to dismiss. (Metcalfe v. St. Elizabeth\u2019s Hospital (1987), 160 Ill. App. 3d 47.) This they failed to do. Accordingly, we affirm the orders dismissing plaintiffs\u2019 complaint and denying their motions to vacate or modify the orders of dismissal.\nAffirmed.\nLORENZ and MURRAY, JJ., concur.\nPlaintiffs do not argue in their brief that the court erred in denying their oral motion to file instanter the attorney\u2019s affidavit and a physician's report more than 90 days after the action was filed. We therefore need not decide whether the court had the discretion to permit a late filing of the documents required by section 2 \u2014 622(a). See Walter v. Hill (1987), 156 Ill. App. 3d 708, 509 N.E.2d 804.",
        "type": "majority",
        "author": "PRESIDING JUSTICE SULLIVAN"
      }
    ],
    "attorneys": [
      "Jerome Goldberg, of Chicago, for appellants.",
      "Pellett, Lundblad & Baker, of Chicago (Robert S. Baker and Kate Collins, of counsel), for appellee Swedish Covenant Hospital.",
      "French, Rogers, Kezelis & Kominiarek, of Chicago (Michael C. Kominiarek and Randall J. Gudmundson, of counsel), for appellee Michael J. Plunkett.",
      "Katten, Muchin, Zavis, Pearl & Caller, of Chicago, for appellee Derek J. Kelly."
    ],
    "corrections": "",
    "head_matter": "ISABEL GOLDBERG, Adm\u2019r of the Estate of Jennie Donzis, Deceased, et al., Plaintiffs-Appellants, v. SWEDISH COVENANT HOSPITAL et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 86\u20143389\nOpinion filed August 28, 1987.\nJerome Goldberg, of Chicago, for appellants.\nPellett, Lundblad & Baker, of Chicago (Robert S. Baker and Kate Collins, of counsel), for appellee Swedish Covenant Hospital.\nFrench, Rogers, Kezelis & Kominiarek, of Chicago (Michael C. Kominiarek and Randall J. Gudmundson, of counsel), for appellee Michael J. Plunkett.\nKatten, Muchin, Zavis, Pearl & Caller, of Chicago, for appellee Derek J. Kelly."
  },
  "file_name": "0867-01",
  "first_page_order": 889,
  "last_page_order": 892
}