{ "id": 3472525, "name": "MONICA EDWARDS, by Claire Edwards, her Mother and Next Friend, et al., Plaintiffs-Appellants, v. STERLING DRUGS, INC., Defendant (Memorial Medical Center, Defendant-Appellee)", "name_abbreviation": "Edwards v. Sterling Drugs, Inc.", "decision_date": "1988-03-24", "docket_number": "No. 4-87-0530", "first_page": "181", "last_page": "186", "citations": [ { "type": "official", "cite": "167 Ill. App. 3d 181" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "weight": 3, "pin_cites": [ { "page": "193" }, { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] }, { "cite": "497 N.E.2d 763", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "768" } ], "opinion_index": 0 }, { "cite": "113 Ill. 2d 219", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173826 ], "year": 1987, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0219-01" ] }, { "cite": "475 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142129 ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0389-01" ] }, { "cite": "499 N.E.2d 1309", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1313" }, { "page": "1313" } ], "opinion_index": 0 }, { "cite": "114 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542491 ], "weight": 2, "pin_cites": [ { "page": "157" }, { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0150-01" ] } ], "analysis": { "cardinality": 567, "char_count": 11524, "ocr_confidence": 0.765, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.3077997983666229 }, "sha256": "5c75b98c7a23969e7a81bed99f97c9f1f0ed05a50121f66be99001cab0d7c332", "simhash": "1:a9f984ac2e558b4d", "word_count": 1851 }, "last_updated": "2023-07-14T16:28:30.258145+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MONICA EDWARDS, by Claire Edwards, her Mother and Next Friend, et al., Plaintiffs-Appellants, v. STERLING DRUGS, INC., Defendant (Memorial Medical Center, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nClaire Edwards, individually and as mother and next friend of Monica Edwards (plaintiff), filed a four-count complaint in Sangamon County circuit court June 26, 1986, against Sterling Drug, Inc., and Memorial Medical Center (defendant). The trial court dismissed the counts against defendant on July 27, 1987, for failure of the attorney\u2019s affidavit to comply with section 2 \u2014 622(a)(1) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(l).) Plaintiff appeals, contending her attorney\u2019s affidavit substantially complied with section 2 \u2014 622(a)(1), and in the alternative, the trial court erred in dismissing the counts with prejudice.\nCounts I and II of plaintiff\u2019s complaint alleged a cause of action in products liability against Sterling Drug, Inc., and are not involved in this appeal. Counts III and IV alleged defendant, through its agent Dr. R. W. Roller, negligently and carelessly administered certain drugs to plaintiff during the labor preceding Monica\u2019s birth June 27, 1976.\nPlaintiff filed her complaint June 26, 1986. Attached to the complaint was an affidavit filed pursuant to section 2 \u2014 622(a)(2) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a)(2)) in which Ellen Dauber, one of plaintiff\u2019s attorneys, stated a consultation or report from a health care professional could not be obtained prior to the running of the statute of limitations.\nDefendant filed two motions to dismiss counts III and IV. The first, filed August 5, 1986, alleged essentially that plaintiff\u2019s attorney failed to attach to the complaint either a report or an affidavit stating a consultation could not be obtained prior to the running of the statute of limitations as required by section 2 \u2014 622(a)(2). The disposition of this motion is unclear from the record. The second, filed October 10, 1986, repeated the allegations of the first motion and added that plaintiff failed to file the attorney\u2019s affidavit and the reviewing health professional\u2019s report within 90 days of the filing of the complaint as required by section 2 \u2014 622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 622(a)(2)).\nAt a November 7, 1986, hearing on the motion to dismiss, attorney Bruce Cook, another of plaintiff\u2019s attorneys, filed an affidavit under section 2 \u2014 622(a)(3), stating defendant had failed to furnish complete medical records relating to plaintiffs. Specifically, defendant had not furnished a portion of the fetal heart monitor strip despite repeated written requests. At the November 7 hearing, the court granted plaintiff leave to file affidavits or other proofs in opposition to the motion to dismiss. On November 18, 1987, plaintiff filed a supplemental affidavit relating to whether the fetal heart monitor strip was missing. On December 24, 1986, the court granted plaintiff\u2019s motion to amend the complaint by adding Dr. Roller as a party defendant. Defendant moved January 15, 1987, to consolidate the instant action with the case previously filed against Dr. Roller.\nOn January 28, 1987, plaintiff filed a motion to amend the complaint by adding an affidavit by attorney Cook. Cook\u2019s affidavit, dated December 12, 1986, stated he was plaintiff\u2019s attorney, he had consulted with a health care professional, a specialist in obstetrics and gynecology, pursuant to section 2 \u2014 622, and that after reviewing incomplete medical records, the professional determined in a written report that plaintiff had a reasonable and meritorious cause of action against Dr. Roller. The report was attached to the affidavit.\nAt the July 15, 1987, hearing on the motion to dismiss, the trial court did not decide whether plaintiff had timely filed the affidavit under section 2 \u2014 622(a)(3). It concluded the January 28, 1987, affidavit was fatally deficient in that it failed to state (1) the attorney believed there was a meritorious cause of action against the defendant, and (2) the attorney consulted with a health care professional he believed knowledgeable concerning the case. The judge stated the report\u2019s additional failure to state a meritorious cause of action existed against Memorial itself was not as defective as the other two omissions. The court found no just reason for delaying enforcement or appeal from the order. The written order, entered July 27, 1987, was silent as to whether the dismissal was with or without prejudice, though it did state the counts were dismissed pursuant to section 2 \u2014 619 of the Code. Plaintiff filed her notice of appeal August 3, 1987. Supreme Court Rule 273 (107 Ill. 2d R. 273) states that unless the order provides otherwise, an involuntary dismissal operates as an adjudication on the merits. Therefore, the dismissal here was with prejudice.\nPlaintiff argues the defects in the affidavit do not warrant dismissal with prejudice without reasonable leave to amend. Defendant contends failure to adhere to the statutory requirements requires dismissal with prejudice. We need not reach this question, as the facts require that we reverse the court\u2019s order and remand this cause for further proceedings.\nSection 2 \u2014 622 requires that in a healing arts malpractice action: \u201c[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:\nThat 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 and who practices in the same specialty as the defendant if the defendant is a specialist; 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 action 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. ***\nThat 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. ***\nThat a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to Part 20 of Article VIII of this Code and the party required to comply under those Sections has failed to produce such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. ***\n* * *\n(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 \u2014 619.\u201d Ill. Rev. Stat. 1985, eh. 110, par. 2-622.\nThe interpretation and construction of statutory provisions are governed by the fundamental principle that the legislature\u2019s intent should be ascertained and given full effect. (Benjamin v. Cablevision Programming Investments (1986), 114 Ill. 2d 150, 157, 499 N.E.2d 1309, 1313.) In determining the legislative intent, consideration must be given to the entire statute, its nature, object, purpose to be attained, and evil to be remedied. If the intent of the legislature can be ascertained from the language of the statute, then that intent will prevail without resort to extrinsic aids for construction. (Benjamin, 114 Ill. 2d at 157, 499 N.E.2d at 1313.) The language of a statute should be given its plain and ordinary meaning. Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill. 2d 389, 475 N.E.2d 536.\nThe new medical malpractice provisions, adopted in 1985, were enacted to remedy a perceived crisis in the area of medical malpractice. (Bernier v. Burris (1986), 113 Ill. 2d 219, 229, 497 N.E.2d 763, 768.) The purpose of the legislation resulting in section 2 \u2014 622 was to reduce the number of medical malpractice suits and the size of the awards in successful cases. (Ill. Ann. Stat., ch. 110, par. 2 \u2014 622, Historical and Practice Notes, at 71 (Smith-Hurd Supp. 1987).) The specific purpose of section 2 \u2014 622 was to eliminate frivolous lawsuits at the pleading stage. 84th Ill. Gen. Assem., House Proceedings, May 23,1985, at 406 (statements of Representative Hawkinson).\nThe supreme court in McCastle v. Sheinkop (1987), 121 Ill. 2d 188, ruled the legislature did not intend to require dismissal with prejudice for failure to attach the affidavit and report. It stated to do so would be \u201ca 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.\u201d McCastle v. Sheinkop, 121 Ill. 2d at 193.\nIn McCastle, plaintiff filed a medical malpractice complaint but failed to attach the affidavit and report. The trial judge dismissed the complaint with prejudice. The record showed plaintiff requested leave to file an amended complaint. The record also suggested the trial judge thought he had no choice under section 2 \u2014 622 but to dismiss \"with prejudice.\nThe supreme court vacated the trial court\u2019s dismissal order and remanded for further consideration. The court looked to legislative debate which indicated that if, during discovery, plaintiff wished to amend the complaint to add a new theory, he could obtain leave of court to amend the complaint with a new consulting physician\u2019s report. The court found it unlikely the legislature would give the trial judge discretion to allow amendment but mandate dismissal with prejudice for omission of the affidavits. McCastle v. Sheinkop, 121 Ill. 2d at 193.\nHere, the record shows no written motion to amend the affidavit. During the July 15, 1987, hearing, plaintiff\u2019s counsel stated the statute\u2019s purpose would be best served by allowing plaintiff to amend the affidavit. Although the record does show the trial judge considered at what point the affidavit would be untimely filed, the judge\u2019s statement refers to the evidentiary issue under section 2 \u2014 622(a)(3), and not to whether he thought dismissal was mandated by section 2\u2014 622(a)(1) for the failure to include certain statements in the affidavit.\nIt is not apparent from this record the trial judge thought he had discretion to dismiss the counts against defendant with or without prejudice. McCastle requires that under the circumstances of this case, we reverse the trial court\u2019s order dismissing counts III and IV and remand for a determination whether the dismissal was with or without prejudice.\nReversed and remanded.\nMcCULLOUGH and SPITZ, JJ., concur.", "type": "majority", "author": "JUSTICE KNECHT" } ], "attorneys": [ "Ellen A. Dauber, of Cook, Shevlin & Keefe, Ltd., of Belleville, for appellants.", "Susan M. Hickman and Marian A. Sargent, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee." ], "corrections": "", "head_matter": "MONICA EDWARDS, by Claire Edwards, her Mother and Next Friend, et al., Plaintiffs-Appellants, v. STERLING DRUGS, INC., Defendant (Memorial Medical Center, Defendant-Appellee).\nFourth District\nNo. 4\u201487\u20140530\nOpinion filed March 24, 1988.\nEllen A. Dauber, of Cook, Shevlin & Keefe, Ltd., of Belleville, for appellants.\nSusan M. Hickman and Marian A. Sargent, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee." }, "file_name": "0181-01", "first_page_order": 203, "last_page_order": 208 }