{ "id": 2621788, "name": "ROBERT E. BATTEN, Indiv. and as Ex'r of the Estate of Margaret Batten, Deceased, Plaintiff-Appellant, v. R.D. RETZ et al., Defendants-Appellees", "name_abbreviation": "Batten v. Retz", "decision_date": "1989-04-27", "docket_number": "No. 3-88-0472", "first_page": "425", "last_page": "430", "citations": [ { "type": "official", "cite": "182 Ill. App. 3d 425" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "528 N.Y.S.2d 90", "category": "reporters:state", "reporter": "N.Y.S.2d", "pin_cites": [ { "page": "93" } ], "opinion_index": 0 }, { "cite": "137 A.D.2d 74", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3543677 ], "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ad2d/137/0074-01" ] }, { "cite": "522 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 66", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514229 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0066-01" ] }, { "cite": "521 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473692 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0758-01" ] }, { "cite": "521 N.E.2d 313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 726", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5072285 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0726-01" ] }, { "cite": "523 N.E.2d 1020", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 663", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550245 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0663-01" ] }, { "cite": "509 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506177 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0708-01" ] }, { "cite": "520 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] } ], "analysis": { "cardinality": 551, "char_count": 10959, "ocr_confidence": 0.779, "pagerank": { "raw": 1.1125265633468373e-07, "percentile": 0.5710553009075047 }, "sha256": "93520a7596c5aab5a7dabe5ce35ff7e7943c3311163b8949465a135c5ad308df", "simhash": "1:f7e35cd6ef444d6b", "word_count": 1720 }, "last_updated": "2023-07-14T18:08:14.831486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT E. BATTEN, Indiv. and as Ex\u2019r of the Estate of Margaret Batten, Deceased, Plaintiff-Appellant, v. R.D. RETZ et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nOn October 26, 1987, plaintiff Robert E. Batten brought a complaint in two counts against defendant Doctors Retz, Ebalo and Rhee and defendant radiologist and hospital corporations complaining of medical malpractice that allegedly resulted in the untimely death of Margaret Batten on October 26, 1985. On motion of the defendants, the circuit court of Rock Island County dismissed the complaint with prejudice for failure to comply with section 2 \u2014 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622). The court subsequently denied plaintiff\u2019s post-judgment motion to reconsider and vacate its order of dismissal and for leave to amend. Plaintiff appeals from both dispositions. We affirm.\nAttached to plaintiff\u2019s original complaint is an affidavit of counsel pursuant to section 2 \u2014 622(a)(2) stating that written medical reports and an attorney\u2019s certificate as required by section 2 \u2014 622(a)(1) would not be available before expiration of the statute of limitations. On January 26, 1988, 92 days after the complaint was filed, plaintiff\u2019s attorney filed an affidavit pursuant to section 2 \u2014 622(a)(1) stating that he had consulted with \u201ca physician who has experience, knowledge and training in the area of management and diagnosis of liver disease\u201d and a registered nurse, both of whom had reviewed the medical record for Margaret Batten and indicated that a reasonable cause of action exists. The affidavit further stated that counsel was relying on the doctrine of res ipsa loquitur. Attached to the affidavit were two \u201ccertificates\u201d from an unidentified board-certified internist with a subspecialty in hepatology and an unidentified registered nurse \u201cwith experience in postoperative management of patients who have undergone cholecystectomies.\u201d\nDefendants moved to dismiss the cause of action on grounds that: (1) counsel\u2019s affidavit did not state that he had consulted with a health professional in the same specialties as Dr. Retz, a specialist in general surgery, and defendant radiologists; (2) counsel\u2019s affidavit failed to state that he had consulted with a physician licensed to practice medicine in all its branches as required by section 2\u2014 622(a)(1); (3) plaintiff had failed to provide written reports of reviewing health professionals within 90 days as required by section 2\u2014 622(a)(2); (4) separate certificates and reports were not filed as to each named defendant as required by section 2 \u2014 622(b); (5) plaintiff\u2019s counsel had not stated his intent to rely upon res ipsa loquitur upon filing the complaint; and (6) no reviewing health professional had stated that negligence had occurred in the course of medical treatment as required by section 2 \u2014 622(c).\nOn February 26, 1988, plaintiff moved to amend his complaint. Attached to the proposed first amended complaint are an affidavit of counsel and four \u201ccertificates\u201d from an unidentified \u201cmedical physician licensed to practice medicine in all of its branches.\u201d Counsel\u2019s affidavit concludes with a statement that he is relying on both res ipsa loquitur and specific negligence. The four \u201ccertificates\u201d allege that the physician reviewed the medical records of Margaret Batten; that the records indicate that a reasonable and meritorious cause of action exists against each of the named defendants; that defendants \u201cfailed to order appropriate diagnostic tests and timely consult with a gastroenterologist prior to surgical intervention,\u201d \u201cfailed to recommend and perform appropriate diagnostic tests to rule out common bile duct obstructions,\u201d and \u201cfailed to follow standard practices and procedures in the plaintiff\u2019s decedent\u2019s postoperative management of her T-tube drain\u201d; and that defendants\u2019 various departures from acceptable medical care caused or contributed to Margaret Batten\u2019s untimely death.\nOn March 8, the circuit court granted defendant Illini Hospital\u2019s motion to dismiss with prejudice on grounds that plaintiff had failed to file a timely certificate and written report of a reviewing physician licensed to. practice medicine in all its branches, and that the nurse\u2019s certificate filed on the 92nd day after filing the complaint was insufficient under section 2 \u2014 622(a)(1). In the exercise of its discretion, the court denied plaintiff\u2019s motion to amend the complaint against the hospital on grounds that the proposed physician\u2019s certificate was untimely and no evidence of good cause for the late filing had been shown.\nThe court similarly granted motions to dismiss with prejudice filed by the remaining defendants. Grounds stated are that the affidavit and certificate filed on January 26, 1988, were legally insufficient and that plaintiff\u2019s proposed amendment failed to meet the requirements of section 2 \u2014 622 of the Code of Civil Procedure.\nIn this appeal, plaintiff argues that his two-day delay in filing documentation pursuant to section 2 \u2014 622(a)(2) should have been excused as a mere technicality. (See, e.g., McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293; Walter v. Hill (1987), 156 Ill. App. 3d 708, 509 N.E.2d 804; Bassett v. Wang (1988), 169 Ill. App. 3d 663, 523 N.E.2d 1020; see also Ushman v. Sterling Drugs, Inc. (1988), 166 Ill. App. 3d 726, 521 N.E.2d 313.) Plaintiff also contends that the circuit court abused its discretion in denying plaintiff leave to file an amended complaint with an affidavit of counsel and four certificates.\nThe case before us is distinguishable from those cited by plaintiff in support of his \u201cmere technicality\u201d argument. In each of the cases cited, the trial judge did not exercise any discretion but dismissed the complaints with prejudice on the understanding that such dismissal was mandated by the act. Here, the trial judge was aware that he had discretion to dismiss with or without prejudice and expressly exercised that discretion in allowing defendants\u2019 motions. Thus, the question before us is whether the court here abused its discretion in dismissing plaintiff\u2019s complaint with prejudice and denying plaintiff leave to amend.\nIn Hauk v. Day (1988), 167 Ill. App. 3d 758, 521 N.E.2d 1243, this court affirmed a ruling of the circuit court denying defendants\u2019 motion to dismiss with prejudice for plaintiff\u2019s 12-day delay in filing an affidavit pursuant to the 90-day extension of section 2 \u2014 622(a)(2). (See also Whamond v. McGill (1988), 168 Ill. App. 3d 66, 522 N.E.2d 211.) It does not appear, however, that the reviewing professional\u2019s report was in any other respect objectionable in Hauk. Neither Hauk nor any other case cited to us requires the exercise of discretion in favor of a plaintiff in a medical malpractice action when the certificates and medical reports suffer from numerous other defects in addition to being untimely filed.\nClearly, plaintiff\u2019s original complaint, attorney\u2019s affidavit and the certificates were insufficient under section 2 \u2014 622. Untimely filing of the documents is the least of their faults. Although the attorney\u2019s affidavit attached to plaintiff\u2019s proposed first amended complaint appears on its face to satisfy the minimal requirements of sections 2 \u2014 622(a) and (c), we find that the material defects of the proffered \u201ccertificates\u201d of the reviewing physician were too substantial to be readily curable. Moreover, our reading of section 2 \u2014 622 does not comport with plaintiff\u2019s understanding, as acknowledged during oral argument of this case, that the terms \u201cwritten report\u201d and \u201ccertificate\u201d are simply interchangeable. In subparagraph 2\u2014 622(a)(1), it is apparent that the legislature contemplated the filing of a written report by a reviewing health professional \u201cclearly identifying the plaintiff [here, plaintiff\u2019s decedent] and the reasons for the reviewing health professional\u2019s determination that a reasonable and meritorious cause for the filing of the action exists\u201d (emphasis added), and a certificate of merit \u2014 or affidavit \u2014 of the plaintiff or his attorney, concluding that \u201con the basis of the reviewing health professional\u2019s review and consultation that there is a reasonable and meritorious cause [of] *** action.\u201d When res ipsa loquitur is to be invoked, both the certificate of merit and the written report of the reviewing health professional \u201cmust state that, in the opinion of the reviewing health professional, negligence has occurred in the course of medical treatment.\u201d (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 622(c).\nThe \u201ccertificates\u201d submitted by plaintiff in this case are poor substitutes for the documentation contemplated by section 2 \u2014 622. They lack details to explain the basis for the physician\u2019s conclusion that a reasonable and meritorious cause for filing the complaint exists, and they fail to make any allegation of negligence. The attorney\u2019s affidavit in this case is defective as well in that it fails to allege that any health professional was of the opinion that negligence occurred in the course of Margaret Batten\u2019s medical treatment. Moreover, the circuit court acted within its discretion in considering the lack of any showing of good cause for the late filing of written reports and certificates or affidavits. See Santangelo v. Raskin (1988), 137 A.D.2d 74, 78, 528 N.Y.S.2d 90, 93 (construing comparable New York legislation enacted \u201cto insure that the [medical malpractice] plaintiff has a valid cause of action\u201d and finding that \u201cthe Legislature did not intend that a violation of the statute should be excused without some proof that there was a reasonable excuse for the default and that there is legal merit to the claim\u201d).\nWe also reject plaintiff\u2019s argument that the circuit court abused its discretion in denying plaintiff\u2019s post-judgment motion to amend to cure all defects. Plaintiff did not tender a proposed amended complaint with a certificate of merit and written reports in compliance with the statute to demonstrate that the complaint was not frivolous. We hold that the trial court did not abuse its discretion.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nWOMBACHER, P.J., and HEIPLE, J., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Paul R. O\u2019Malley, of Paul R. O\u2019Malley, Ltd., of Chicago (Thomas D. Nissen, of counsel), for appellant.", "Roger Clayton and Nicholas J. Bertschy, both of Heyl, Royster, Voelker & Allen, of Peoria (John V. Patton and Peter C. Fieweger, of counsel), for appellee R.D. Retz.", "John V. Patton, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellees Y. Rhee and Quad-City Radiologists, Ltd.", "Murvel Pretorius, Jr., and Donna Wamack Cruz, both of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellee M. Ebalo.", "Peter C. Fieweger, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellee Illini Hospital District." ], "corrections": "", "head_matter": "ROBERT E. BATTEN, Indiv. and as Ex\u2019r of the Estate of Margaret Batten, Deceased, Plaintiff-Appellant, v. R.D. RETZ et al., Defendants-Appellees.\nThird District\nNo. 3-88-0472\nOpinion filed April 27, 1989.\nPaul R. O\u2019Malley, of Paul R. O\u2019Malley, Ltd., of Chicago (Thomas D. Nissen, of counsel), for appellant.\nRoger Clayton and Nicholas J. Bertschy, both of Heyl, Royster, Voelker & Allen, of Peoria (John V. Patton and Peter C. Fieweger, of counsel), for appellee R.D. Retz.\nJohn V. Patton, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellees Y. Rhee and Quad-City Radiologists, Ltd.\nMurvel Pretorius, Jr., and Donna Wamack Cruz, both of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellee M. Ebalo.\nPeter C. Fieweger, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellee Illini Hospital District." }, "file_name": "0425-01", "first_page_order": 447, "last_page_order": 452 }