{ "id": 3584665, "name": "MARY FAY SHANKS, Plaintiff-Appellee, v. MEMORIAL HOSPITAL, Defendant-Appellant", "name_abbreviation": "Shanks v. Memorial Hospital", "decision_date": "1988-06-07", "docket_number": "No. 5\u201487\u20140356", "first_page": "736", "last_page": "743", "citations": [ { "type": "official", "cite": "170 Ill. App. 3d 736" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "509 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506177 ], "weight": 5, "pin_cites": [ { "page": "711" }, { "page": "710" }, { "page": "711" }, { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0708-01" ] }, { "cite": "513 N.E.2d 919", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "920" }, { "page": "921" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 867", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649877 ], "weight": 4, "pin_cites": [ { "page": "868-69" }, { "page": "870" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0867-01" ] }, { "cite": "509 N.E.2d 702", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "707" }, { "page": "706-07" }, { "page": "704" }, { "page": "706-07" } ], "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3504625 ], "weight": 3, "pin_cites": [ { "page": "655" }, { "page": "651-52" }, { "page": "655-56" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0649-01" ] }, { "cite": "520 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "pin_cites": [ { "page": "296" }, { "page": "296" }, { "page": "296" }, { "page": "295" }, { "page": "296" } ], "opinion_index": 0 }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "weight": 5, "pin_cites": [ { "page": "193" }, { "page": "193" }, { "page": "193" }, { "page": "192" }, { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] } ], "analysis": { "cardinality": 633, "char_count": 17461, "ocr_confidence": 0.766, "pagerank": { "raw": 1.6509037928102632e-07, "percentile": 0.6927344026620857 }, "sha256": "22085d59896273f2afa5273b072dc3716143ad4ac7d8196b6441ffa2bd95e008", "simhash": "1:916158b4e74199e9", "word_count": 2871 }, "last_updated": "2023-07-14T14:52:57.912624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARY FAY SHANKS, Plaintiff-Appellee, v. MEMORIAL HOSPITAL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CALVO\ndelivered the opinion of the court:\nPlaintiff, Mary Shanks, sued defendant, Memorial Hospital, alleging that the malpractice of defendant\u2019s nursing staff resulted in her injuries. The Healing Art Malpractice Act (the Act) (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622) requires that at the time of filing a malpractice complaint, a plaintiff must also file an affidavit that he or she has consulted with a health care professional who believes that there is a reasonable and meritorious cause for filing the suit. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a)(1).) A written report by the health care professional must be attached to the affidavit. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a)(1).) If plaintiff files an affidavit with the complaint stating that the consultation could not be obtained before the expiration of the statute of limitations, however, section 2 \u2014 622(a)(2) gives plaintiff 90 days after the filing of the complaint to obtain the consultation and .submit the report pursuant to section 2 \u2014 622(a)(1).\nPlaintiff in the case at bar filed her complaint and section 2\u2014 622(a)(2) affidavit on December 17, 1986, stating that she could not obtain the consultation prior to the running of the statute of limitations. On March 13, 1987, and within the 90-day period which ended on March 17, 1987, plaintiff filed an affidavit under section 2\u2014 622(a)(1) stating that she had consulted with a registered nurse who opined that reasonable and meritorious grounds existed for filing the suit. Defendant thereafter filed a motion to dismiss alleging that plaintiff did not comply with the requirements of section 2 \u2014 622(a)(1). The trial court denied the motion and certified this issue for appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). The primary issue before us is whether plaintiff\u2019s consultation with a registered nurse fulfilled the requirements of section 2 \u2014 622(a)(1).\nThe Illinois legislature passed the Act in order to reduce the number of frivolous malpractice suits filed in the State. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 193, 520 N.E.2d 293, 296.) The pertinent provisions of the Act provide as follows:\n\u201c(a) In any 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, the plaintiff\u2019s attorney or the plaintiff, if the plaintiff is proceeding pro se, 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 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. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional. 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, but, information which would identify the reviewing health professional may be deleted from the copy so attached.\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.\u201d (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a).)\nPlaintiff argues that under section 2 \u2014 622(a)(1) the reviewing health care professional must be a registered nurse when the suit alleges that registered nurses committed malpractice. Defendant contends that under the circumstances of this case the health care professional must be a physician licensed to practice medicine in all its branches. We believe that this is a case of first impression inasmuch as neither party cited, nor are we able to find, any case law interpreting this particular provision of the statute.\nWe agree with defendant\u2019s interpretation of the statute. The statute defines the type of health care professional to be consulted based on the type of defendant sued. If the defendant is \u201ca physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist,\u201d the health care professional must be one licensed in the same profession as the defendant. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a)(1).) For all other defendants, however, the health care professional must be a \u201cphysician licensed to practice medicine in all its branches.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(a)(1).) In the case at bar, defendant is a hospital and therefore does not fall under the first category of defendants. Consequently, defendant falls under the second category of \u201call other defendants,\u201d and plaintiff must thus consult a physician licensed to practice medicine in all its branches. Because plaintiff consulted with a registered nurse, plaintiff\u2019s affidavit did not comply with the requirements of section 2\u2014 622(a)(1).\nPlaintiff focuses on the following language of the statute: \u201cThat 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 ***.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(1).) That language, however, is not contrary to our interpretation of the statute. That part of the statute merely provides that regardless of which health care professional is consulted, the professional must have knowledge of the particular issues involved in the suit. This is a logical requirement because knowledge of the issues bears on the relevancy of the professional\u2019s opinion of the merit of the suit. The professional can have knowledge of the issues in the case without being a member of the same health care field as the defendant.\nPlaintiff points out that under our interpretation, physicians would be determining the validity of claims in situations where they have little knowledge of or interest in the particular health care field. Plaintiff suggests, for example, that a physician\u2019s report would be required in suits against physical therapists, occupational therapists, operating room and lab technicians, pharmacists, hospital administrators, dieticians, respiratory therapists, X-ray technicians, orderlies, optometrists, oculists, opticians, dental hygienists, medical records personnel, nurses aides, as well as nurses. Plaintiff argues further that because physicians would not be appropriate experts in the malpractice actions involving the foregoing professions, requiring a plaintiff to incur the extra cost of obtaining a report from a physician, rather than a report from an expert in the same field as the defendant, in such cases would only unnecessarily increase the cost of litigation and would not be any more helpful in reducing frivolous suits.\nIn Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 655, 509 N.E.2d 702, 707, however, the court held that a plaintiff must comply with section 2 \u2014 622 even if plaintiff could prove his or her case at trial without an expert. The court stated that the purpose of the Act was to eliminate frivolous lawsuits at the pleading stage. Therefore, the type of testimony relied on at trial has no bearing on the requirements of the Act. (Lyon, 156 Ill. App. 2d at 655, 509 N.E.2d at 706-07.) Although plaintiff\u2019s argument in the case at bar is quite persuasive, it is an argument that should be more appropriately addressed to the legislature. The legislature determined which health care professionals could submit the required report under the statute, and we will not substitute our judgment for that of the legislature when the statute is clear.\nDefendant contends that plaintiff\u2019s failure to comply with the Act within the proper time period (her 90 days expired on March 17, 1987) and the expiration of the statute of limitations compel a dismissal of her cause of action with prejudice. The Act states: \u201cThe 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, par. 2 \u2014 622(2)(g).) Section 2 \u2014 619 sets forth the procedure for involuntary dismissals. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619.) Because the trial court agreed with plaintiff\u2019s interpretation of the statute, it denied defendant\u2019s motion to dismiss; thus, it did not address this issue.\nNevertheless, defendant\u2019s argument is without merit. Our supreme court has held that a trial court has discretion to grant dismissal with or without prejudice; section 2 \u2014 622 does not mandate dismissal with prejudice. (McCastle, 121 Ill. 2d at 193, 520 N.E.2d at 296.) The court in McCastle also held that a trial court has discretion to grant a plaintiff leave to file an amended complaint if the plaintiff seeks to amend the affidavits or if the plaintiff neglects to file the affidavits originally. McCastle, 121 Ill. 2d at 193, 520 N.E.2d at 296.\nAlthough both Lyon and Goldberg v. Swedish Covenant Hospital (1987), 160 Ill. App. 3d 867, 513 N.E.2d 919, cited by d\u00e9fendant, upheld the trial court\u2019s dismissal of plaintiff\u2019s complaint for failure to comply with section 2 \u2014 622, those cases are distinguishable from the case at bar. In both cases, the plaintiffs failed to file any affidavit or report at all as required by section 2 \u2014 622(a)(1). (Lyon, 156 Ill. App. 3d at 651-52, 509 N.E.2d at 704; Goldberg, 160 Ill. App. 3d at 868-69, 513 N.E.2d at 920.) Moreover, neither of those cases dealt with the issue before us. The primary issue in Lyon was whether plaintiff\u2019s complaint alleging negligence of an ambulance service fell within the scope of \u201chealing art malpractice\u201d such that plaintiff had to comply with section 2 \u2014 622. Because the court found that part of plaintiff\u2019s complaint fell within the ambit of \u201chealing art malpractice,\u201d it upheld the trial court\u2019s dismissal of that part of the com-, plaint for plaintiff\u2019s failure to submit an affidavit and report as required by section 2 \u2014 622(a)(1). Lyon, 156 Ill. App. 3d at 655-56, 509 N.E.2d at 706-07.\nThe issue in Goldberg was whether the trial court could dismiss the complaint with prejudice because plaintiffs failed to file an affidavit and report as required by section 2 \u2014 622(a)(1). The court upheld the trial court\u2019s dismissal, because plaintiffs could have moved for an involuntary dismissal but failed to do so. (Goldberg, 160 Ill. App. 3d at 870, 513 N.E.2d at 921.) The court in Goldberg specifically noted that the issue of whether the trial court had the discretion to permit a late filing of the documents required by section 2\u2014 622(a) was not before it. (Goldberg, 160 Ill. App. 3d at 869 n.1, 513 N.E.2d at 921 n.1.) In both Ly\u00f3n and Goldberg, the appellate court merely upheld the trial court\u2019s discretion in dismissing the suit. Neither decision mandated dismissal, and certainly both decisions must be read in the context of the supreme court\u2019s opinion in McCastle.\nThe court in Walter v. Hill (1987), 156 Ill. App. 3d 708, 509 N.E.2d 804, however, reversed the trial court\u2019s order dismissing plaintiff\u2019s suit with prejudice. In Walter, plaintiff failed to file the requisite affidavit under section 2 \u2014 622(a)(1) or section 2 \u2014 622(a)(2). She filed her complaint one day before the expiration of the statute of limitations. Defendant filed a motion to dismiss and plaintiff thereafter filed a motion for leave to file the affidavit stating that she had retained an expert prior to filing the complaint but inadvertently failed to attach the affidavit. Defendant filed a memorandum in support of his position, and plaintiff filed her response in which she changed her position and alleged that she could not obtain the consultation prior to the running of the statute of limitations; she thus requested leave to file a section 2 \u2014 622(a)(2) affidavit. She made this request 64 days after filing the complaint. The trial court, however, granted defendant\u2019s motion to dismiss with prejudice.\nThe appellate court reversed the trial court\u2019s order. The appellate court first noted that plaintiff\u2019s failure to attach the affidavit was a mere technical and inadvertent error, especially inasmuch as the affidavit existed prior to the filing of the lawsuit. (Walter, 156 Ill. App. 3d at 711, 509 N.E.2d at 806.) The court stated that the legislature did not intend for section 2 \u2014 622 to limit malpractice actions by cutting off a plaintiff\u2019s right to relief. Rather, the legislature only wanted to prevent meritless suits. (Walter, 156 Ill. App. 3d at 710, 509 N.E.2d at 806.) Thus, the appellate court held that the trial court had discretion to permit plaintiff to file the affidavit at a later date. Walter, 156 Ill. App. 3d at 711, 509 N.E.2d at 806.\nWe, likewise, believe that plaintiff in the case at bar is entitled to amend her complaint upon remand. As we noted earlier, the supreme court has held that failure to comply with section 2 \u2014 622 does not mandate dismissal. (McCastle, 121 Ill. 2d at 192, 520 N.E.2d at 295.) Moreover, the courts in both McCastle and Walter stated that a plaintiff can be granted leave to amend the complaint to correct any defects resulting from failure to comply with section 2-622. (McCastle, 121 Ill. 2d at 193, 520 N.E.2d at 296; Walter, 156 Ill. App. 3d at 711, 509 N.E.2d at 806.) We are not faced with the situation where plaintiff failed to file any affidavit pursuant to section 2 \u2014 622(a)(1) or section 2 \u2014 622(a)(2). On the contrary, plaintiff timely filed affidavits under both sections. Plaintiff thereafter challenged the statute\u2019s requirement regarding the type of health care professional to be consulted for the affidavit, and plaintiff was well within her rights to assert that challenge.\nDefendant contends that Illinois law only allows an amendment to relate back to the original pleading if\n\u201cthe time prescribed or limited had not expired when the original pleading was filed, and if *** the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed ***.\u201d (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 616(b).)\nDefendant argues that the condition precedent of obtaining the physician\u2019s affidavit was not performed and therefore because the amendment cannot relate back to the original pleading, plaintiff\u2019s complaint should be dismissed. Although compliance with section 2\u2014 622 may be a condition precedent to plaintiff\u2019s right to recovery, such compliance need not take place prior to the running of the statute of limitations. In fact, the Act itself allows a plaintiff to file the appropriate affidavits after the complaint is filed (but within 90 days), even if the statute of limitations has expired. Again, we point out that a court has discretion to allow a plaintiff to amend the affidavit even after the expiration of the 90-day period. As we noted earlier, the legislature only enacted section 2 \u2014 622 to prevent frivolous lawsuits. Allowing plaintiff leave to amend in order to comply with the statute will not defeat that purpose.\nFor the foregoing reasons, we reverse the order of the trial court and remand this cause with instructions to grant plaintiff leave to file an amended affidavit in accordance with this opinion.\nReversed and remanded with directions.\nHARRISON, P.J., and LEWIS, J., concur.", "type": "majority", "author": "JUSTICE CALVO" } ], "attorneys": [ "Thomas W. Alvey, Jr., of Thompson & Mitchell, of Belleville, for appellant.", "M. Melinda Sanderson, of Kujawski & Rosen, of Belleville, for appellee." ], "corrections": "", "head_matter": "MARY FAY SHANKS, Plaintiff-Appellee, v. MEMORIAL HOSPITAL, Defendant-Appellant.\nFifth District\nNo. 5\u201487\u20140356\nOpinion filed June 7, 1988.\nThomas W. Alvey, Jr., of Thompson & Mitchell, of Belleville, for appellant.\nM. Melinda Sanderson, of Kujawski & Rosen, of Belleville, for appellee." }, "file_name": "0736-01", "first_page_order": 758, "last_page_order": 765 }