{ "id": 2535632, "name": "NICHELLE CATO, by her Mother and Next Friend, Regina Cato, Plaintiff-Appellant, v. ADNAN ATTAR, Defendant-Appellee", "name_abbreviation": "Cato v. Attar", "decision_date": "1991-03-27", "docket_number": "No. 2-90-1058", "first_page": "996", "last_page": "1000", "citations": [ { "type": "official", "cite": "210 Ill. App. 3d 996" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "182 Ill. App. 3d 425", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621788 ], "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0425-01" ] }, { "cite": "164 Ill. App. 3d 475", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582207 ], "pin_cites": [ { "page": "478-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0475-01" ] }, { "cite": "184 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640665 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0802-01" ] }, { "cite": "197 Ill. App. 3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2484044 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "633" }, { "page": "633" }, { "page": "633" }, { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0625-01" ] }, { "cite": "156 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506177 ], "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0708-01" ] }, { "cite": "180 Ill. App. 3d 632", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615538 ], "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0632-01" ] }, { "cite": "189 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2680066 ], "year": 1989, "pin_cites": [ { "page": "951" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0945-01" ] }, { "cite": "169 Ill. App. 3d 845", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551226 ], "weight": 2, "pin_cites": [ { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0845-01" ] }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "pin_cites": [ { "page": "192-93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] } ], "analysis": { "cardinality": 426, "char_count": 8078, "ocr_confidence": 0.75, "pagerank": { "raw": 2.680968896929755e-07, "percentile": 0.826666149261984 }, "sha256": "aec79b075ab562bac31bc821be636054890daa10ccf82d404ab2172abf7e393e", "simhash": "1:8fba8ca4634ef4c4", "word_count": 1356 }, "last_updated": "2023-07-14T22:48:57.765044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NICHELLE CATO, by her Mother and Next Friend, Regina Cato, Plaintiff-Appellant, v. ADNAN ATTAR, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nPlaintiff, Nichelle Cato, through her mother and next friend, Regina Cato, appeals from an order of the trial court denying her motion for leave to file an amended complaint and dismissing her complaint with prejudice. Plaintiff argues the trial court\u2019s decision was an abuse of discretion. We reverse and remand.\nOn March 22, 1990, plaintiff filed a complaint through her mother and next friend, Regina Cato, against defendant, Dr. Adnan Attar, for medical malpractice which allegedly occurred during plaintiff\u2019s birth. Plaintiff did not attach an affidavit or written report to her complaint as required by section 2 \u2014 622 of the Illinois Code of Civil Procedure (Code) (see Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 622). On May 9, defendant filed a motion to dismiss the complaint due to the failure to attach the affidavit or report to the complaint. On May 18, plaintiff filed a motion for leave to file an amended complaint instanter. The amended complaint had an affidavit and written medical report attached to it.\nOn June 8, the court conducted a hearing on plaintiff\u2019s motion for leave to file an amended complaint and defendant\u2019s motion to dismiss. The court denied plaintiff\u2019s motion to file an amended complaint and granted defendant\u2019s motion to dismiss with prejudice. Plaintiff filed a motion to reconsider, and on August 28, the court denied the motion. Plaintiff appeals from the trial court\u2019s orders of June 8 and August 28.\nWe initially note defendant has filed a motion to strike certain portions of plaintiff\u2019s statement of facts alleging violations of Supreme Court Rule 341(e)(6). (134 Ill. 2d R. 341(e)(6).) This court ordered the motion to be decided with the merits of the case. We agree with defendant and grant his motion to strike. The improper factual statements have not been considered by this court.\nSection 2 \u2014 622 requires a plaintiff to attach an affidavit of merit and a written report from a health professional to any complaint for medical malpractice. (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014 622(a)(1).) Failure to comply with this requirement is ground for dismissal under section 2 \u2014 619 of the Code. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 622(g).) Plaintiff admits that she did not comply with the above requirements when she filed her complaint.\nThe clear purpose of section 2 \u2014 622 is to deter the filing of frivolous medical malpractice lawsuits and insure the meritoriousness of those cases which are filed. While section 2 \u2014 622 allows the court to dismiss a complaint for failure to comply with its mandates, it does not require dismissal with prejudice. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 192-93.) A party who fails to comply with section 2\u2014 622 may be granted leave to amend its pleadings to cure the defect, or the court may dismiss the complaint with or without prejudice. The determination of whether to allow amendment or to dismiss depends on the facts and circumstances of each case. (Alford v. Phipps (1988), 169 Ill. App. 3d 845, 855.) The trial court\u2019s choice of one of the above options is within its sound discretion. (McCastle, 121 Ill. App. 3d at 194.) The trial court\u2019s decision will not be overturned absent an abuse of discretion. (Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 951.) However, it must be noted that amendments to medical malpractice pleadings should be liberally allowed to enable the case to be decided on its merits rather than on procedural technicalities. Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638.\nIn the case at bar, plaintiff\u2019s initial complaint was filed on March 22, 1990, and admittedly did not comply with the requirements of section 2 \u2014 622. In the face of a motion to dismiss, plaintiff sought to cure the defect in her pleading by attempting to file an amended complaint on May 18 (approximately 57 days after filing her initial complaint). The statute itself allows for affidavits of merit to be filed 90 days after the filing of the complaint in some circumstances. (See Ill. Rev. Stat. 1989, ch. 110, pars. 2 \u2014 622(a)(2), (a)(3).) While we note the case at bar does not exhibit the circumstances set forth in the statute for late filing, we acknowledge the legislature\u2019s determination that the concurrent filing of an affidavit of merit and a complaint is not imperative in all cases. \u201c[T]he absence of the affidavit at the time of filing does not strike the death knell for a medical malpractice claim.\u201d Walter v. Hill (1987), 156 Ill. App. 3d 708, 710.\nThis court has held that a trial court may consider whether there was a showing of good cause for failure to timely file section 2 \u2014 622 documents in deciding if late filings should be allowed. (See Premo v. Falcone (1990), 197 Ill. App. 3d 625, 633.) In the case at bar, plaintiff\u2019s noncompliance with section 2 \u2014 622 was based upon plaintiff\u2019s reliance on a first district case, DeLuna v. St. Elizabeth\u2019s Hospital (1989), 184 Ill. App. 3d 802, which held the requirements of section 2 \u2014 622 to be unconstitutional. This court had, prior to DeLuna, determined the statute to be constitutional (see Bloom v. Guth (1987), 164 Ill. App. 3d 475, 478-79) and has since confirmed this position. (See Premo, 197 Ill. App. 3d at 633.) Defendant contends plaintiff\u2019s reliance on an out-of-district appellate court opinion that was contrary to a prior opinion rendered by this court did not establish good cause for the late filing of the affidavits and medical report.\nIn Premo, we affirmed the dismissal of a malpractice complaint with prejudice for failure to comply with section 2 \u2014 622. (Premo, 197 Ill. App. 3d at 633.) We noted the plaintiff\u2019s failure to present any evidence of good cause for untimely filing. (Premo, 197 Ill. App. 3d at 631; see also Batten v. Retz (1989), 182 Ill. App. 3d 425, 430 (court acted within its discretion in considering lack of any showing of good cause for late filing and in dismissing complaint with prejudice).) While we do not condone incomplete research by an attorney, in this case, plaintiff did present current Illinois case law supporting its lack of compliance. Additionally, plaintiff attempted to comply with section 2 \u2014 622 within 10 days of becoming aware of this court\u2019s contrary interpretation of the statute and within 60 days of the filing of her complaint. There is no indication of bad faith or an intent to frustrate justice by plaintiff. We can discern no prejudice that would have inured to defendant if the court would have either allowed amendment or dismissed the complaint without prejudice. As previously noted, medical malpractice cases should be determined on the merits when at all possible.\nBased upon the facts and circumstances of this case, we determine the trial court abused its discretion in not allowing plaintiff to amend her pleadings and in dismissing plaintiff\u2019s complaint with prejudice.\nDefendant argues that, even if the trial court erred in dismissing the complaint for failure to attach the required affidavit and medical report, this court should affirm the trial court due to the insufficiency of the proposed amendments. The determination of the sufficiency of the documents required by section 2 \u2014 622 is a determination to be made initially by the trial court. (See Alford, 169 Ill. App. 3d 845.) The record reflects the trial court in this case did not determine the sufficiency of the affidavit and the medical report. We defer to the trial court on this issue.\nFor the reasons stated above, the judgment of the circuit court of Lake County is reversed, and the cause is remanded.\nReversed and remanded.\nBOWMAN and GEIGER, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Cynthia L. Chase, John C. Mullen, and Mary R. Minella, all of Mullen, Minella & Chase, of Chicago, for appellant.", "George E. Riseborough and Thomas K. Gerling, both of Brydges, Rise-borough, Morris, Franke & Miller, of Waukegan, for appellee." ], "corrections": "", "head_matter": "NICHELLE CATO, by her Mother and Next Friend, Regina Cato, Plaintiff-Appellant, v. ADNAN ATTAR, Defendant-Appellee.\nSecond District\nNo. 2 \u2014 90\u20141058\nOpinion filed March 27, 1991.\nCynthia L. Chase, John C. Mullen, and Mary R. Minella, all of Mullen, Minella & Chase, of Chicago, for appellant.\nGeorge E. Riseborough and Thomas K. Gerling, both of Brydges, Rise-borough, Morris, Franke & Miller, of Waukegan, for appellee." }, "file_name": "0996-01", "first_page_order": 1018, "last_page_order": 1022 }