{ "id": 5202507, "name": "RUSSELL THOMPSON, a Minor, by Donald Thompson, Indiv. and as Father and Next Friend, et al., Plaintiffs-Appellants, v. PETER HEYDEMANN et al., Defendants-Appellees (Evanston Hospital Corporation et al., Defendants)", "name_abbreviation": "Thompson v. Heydemann", "decision_date": "1992-06-29", "docket_number": "No. 1\u201488\u20140931", "first_page": "578", "last_page": "584", "citations": [ { "type": "official", "cite": "231 Ill. App. 3d 578" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "479 N.E.2d 976", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "980" } ], "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 141", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636352 ], "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0141-01" ] }, { "cite": "525 N.E.2d 258", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "261" }, { "page": "261" }, { "page": "261" }, { "page": "261-62" } ], "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3617716 ], "weight": 4, "pin_cites": [ { "page": "348" }, { "page": "348" }, { "page": "348" }, { "page": "348-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0344-01" ] }, { "cite": "513 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "544" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 530", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650589 ], "weight": 2, "pin_cites": [ { "page": "534-35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0530-01" ] }, { "cite": "519 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "68-69" }, { "page": "69" } ], "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3613363 ], "weight": 2, "pin_cites": [ { "page": "371" }, { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0367-01" ] }, { "cite": "520 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "weight": 2, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] }, { "cite": "549 N.E.2d 674", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 848", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2507443 ], "pin_cites": [ { "page": "858" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0848-01" ] }, { "cite": "554 N.E.2d 412", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "415" } ], "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 612", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2488833 ], "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0612-01" ] }, { "cite": "477 N.E.2d 1249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 485", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3442364 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0485-01" ] }, { "cite": "349 N.E.2d 664", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382166 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0406-01" ] }, { "cite": "501 N.E.2d 156", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3458038 ], "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0699-01" ] }, { "cite": "558 N.E.2d 341", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 701", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461639 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0701-01" ] } ], "analysis": { "cardinality": 706, "char_count": 14400, "ocr_confidence": 0.773, "pagerank": { "raw": 1.7180158088261702e-07, "percentile": 0.7034688122743835 }, "sha256": "d31b6fcadf4bb42ef39b46c5be25ed249acaf01d8a1feef455bb15c8a2a92bda", "simhash": "1:ebab5434a1448d04", "word_count": 2299 }, "last_updated": "2023-07-14T19:52:19.187731+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RUSSELL THOMPSON, a Minor, by Donald Thompson, Indiv. and as Father and Next Friend, et al., Plaintiffs-Appellants, v. PETER HEYDEMANN et al., Defendants-Appellees (Evanston Hospital Corporation et al., Defendants)." ], "opinions": [ { "text": "JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPlaintiff Russell Thompson appeals orders of the circuit court of Cook County granting motions to dismiss with prejudice two counts of his medical malpractice action naming defendants Robert Lussky, M.D., and Peter Heydemann, M.D., as defendants, and denying plaintiff\u2019s motion to file a supplemental report concerning these two defendants. For the following reasons, we reverse and remand the cause for further proceedings.\nThe facts which give rise to this appeal are as follows: On May 15, 1981, plaintiff filed a medical malpractice action against defendants other than Heydemann and Lussky. In his action, plaintiff, an infant, alleged that on July 22, 1976, defendants introduced contaminated blood or blood products or both into his bloodstream and that air bubbles were introduced into his bloodstream in the process, which caused him to suffer severe brain damage. Plaintiff also alleged that defendants performed unnecessary, high-risk procedures on him by unqualified persons and without consent. Plaintiff further alleged that the conduct of various defendants following these events aggravated his injuries.\nOn September 21, 1983, defendants deposed Dr. Robert Mendelsohn, who had been asked by plaintiff to review the records concerning plaintiff\u2019s treatment. Although Mendelsohn had not been asked by plaintiff to render an opinion on any care given by Heydemann, Mendelsohn opined that he had not found any point where Heydemann fell below the standard of care. The parties do not dispute that Lussky was not mentioned during this deposition.\nOn August 15, 1985, section 2 \u2014 622 of the Illinois Code of Civil Procedure went into effect. (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014622). This statute requires in relevant part that a medical malpractice plaintiff\u2019s attorney must attach an affidavit stating that he has conferred with a knowledgeable health professional, that the professional has determined in a written report that after reviewing the records relevant to the action, there is a reasonable and meritorious cause for the filing of an action; the report must also be attached. (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014622(a)(1).) The statute provides that failure to file a required affidavit shall be grounds for dismissal with prejudice. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(g).) This statute, however, does not apply to actions that were pending at the time of its effective date; only cases that were filed on or after the effective date are affected. Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 622(h).\nOn July 18, 1986, with permission of the trial court, plaintiff filed a fourth amended complaint which added Heydemann and Lussky, as well as David Ingall, M.D., and Northwestern University as defendants. On September 17, 1986, Lussky filed his appearance and answer in the trial court. On October 30, 1986, Heydemann filed his appearance and a motion to dismiss the claim against him pursuant to sections 2 \u2014 622 and 2 \u2014 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 \u2014 622, 2 \u2014 619), alleging that plaintiff had not filed an affidavit or report concerning Heydemann. Lussky filed a similar motion on December 29,1986.\nThe trial court held hearings on these motions on June 15 and July 7, 1987, and January 14, 1988. At these hearings, plaintiff argued that section 2 \u2014 622 did not apply to Heydemann and Lussky, who were added to a suit filed before the effective date of the statute. The trial court, stating that it had discretion in granting dismissals pursuant to section 2 \u2014 622, denied the motions, but ordered plaintiff to file affidavits and reports required by section 2 \u2014 622 regarding Heydemann, Lussky, Northwestern University and Dr. Ingall.\nPlaintiff timely complied with this order on January 29, 1988, the final day of the filing period. The same day, Lussky, Heydemann, In-gall and Northwestern filed motions to dismiss for failure to file the affidavits and reports. The trial court denied these motions on February 2, 1988, but granted Lussky leave to challenge the sufficiency of the medical report.\nLussky filed a motion to dismiss on February 16, 1988, alleging that Dr. Mendelsohn failed to state reasons for the conclusion that Dr. Lussky\u2019s conduct deviated from acceptable medical standards. The trial court granted this motion to dismiss with prejudice on March 1, 1988, and denied plaintiff\u2019s oral motions for leave to amend the report or to reconsider.\nOne week later, on March 8, 1988, the court heard motions to dismiss with prejudice filed by Heydemann, Ingall and Northwestern. At this hearing, the trial court compared statements in Mendelsohn\u2019s deposition and report, finding them inconsistent or contradictory regarding Heydemann\u2019s conduct. The trial court therefore granted Heydemann\u2019s motion to dismiss with prejudice, but allowed plaintiff leave to amend regarding the other defendants. This appeal followed.\nInitially, we note that the purpose of a section 2 \u2014 619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact. (Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 558 N.E.2d 341; Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 703, 501 N.E.2d 156.) The trial court may decide questions of fact upon the hearing of the motion. (North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664.) However, in deciding the merits of the motion, a trial court cannot determine disputed factual issues solely upon affidavits and counteraffidavits. Premier Electrical Construction Co. v. LaSalle National Bank (1984), 132 Ill. App. 3d 485, 477 N.E.2d 1249.\nPlaintiff\u2019s first argument on appeal is that the trial court erred in requiring him to amend his pleadings regarding Lussky and Heydemann because section 2 \u2014 622 should not apply to defendants added to a suit filed before the statute\u2019s effective date. The record, however, indicates that plaintiff failed to seek an express ruling on this issue from the trial court, which constitutes waiver of the argument on appeal. See Wilson v. Gorski\u2019s Food Fair (1990), 196 Ill. App. 3d 612, 615, 554 N.E.2d 412, 415.\nPlaintiff next argues that Lussky waived any motion to dismiss by filing an answer prior to moving for dismissal. This argument is unpersuasive. Filing an answer does not preclude filing a section 2 \u2014 619 motion; even if it is procedurally improper, the judgment of the trial court will not be reversed absent a showing of prejudice to plaintiff. (See Stewart v. County of Cook (1989), 192 Ill. App. 3d 848, 858, 549 N.E.2d 674, 680.) Based on the record here, plaintiff has failed to make such a showing.\nPlaintiff\u2019s final argument is that the trial court erred in dismissing the claims against Heydemann and Lussky without granting plaintiff leave to supplement Dr. Mendelsohn\u2019s medical report. The decision to dismiss a complaint for failure to conform to the requirements of section 2 \u2014 622 is within the discretion of the trial court. (Mc Castle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293.) Nevertheless, section 2 \u2014 622 must be liberally construed, so that cases may be quickly and finally decided according to the substantive rights of the parties. (Hagood v. O\u2019Conner (1988), 165 Ill. App. 3d 367, 371, 519 N.E.2d 66, 68-69.) Section 2 \u2014 622 is a technical pleading requirement intended to deter frivolous lawsuits, not a substantive defense. (See McCastle, 121 Ill. 2d at 193, 520 N.E.2d at 296.) Consequently, where a minor technical error is involved, permitting a plaintiff to amend more closely furthers the purpose of section 2 \u2014 622 than dismissing with prejudice. See Hagood, 165 Ill. App. 3d at 371, 519 N.E.2d at 69.\nSection 2 \u2014 622 provides that \u201c[t]he 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(g).) In this case, plaintiff had not attached the certificate or report required by section 2 \u2014 622. The trial court directed plaintiff to amend his complaint to include the certificate and report required by section 2 \u2014 622. Plaintiff timely complied with this order. Defendants then attacked the sufficiency of the report. The trial court dismissed the claims against Heydemann and Lussky with prejudice and denied plaintiff the opportunity to amend. The record indicates that plaintiff filed a motion to reconsider to which supplemental reports containing Dr. Mendelsohn\u2019s reasons were attached. Nevertheless, the trial court refused plaintiff the opportunity to amend as to Heydemann and Lussky due to perceived inconsistencies or contradictions between Dr. Mendelsohn\u2019s deposition in 1983 and his medical report. The trial court allowed plaintiff to amend as to other after-added defendants because perceived inconsistencies regarding them were not as clear.\nThus, the record indicates that the perceived inconsistencies in Mendelsohn\u2019s report were the basis for the dismissal. Indeed, the record reflects that the trial court analogized to the situation where a party submits contradictory affidavits in an attempt to survive summary judgment.\nThe analogy to summary judgment is not appropriate in this case for two reasons. First, as noted above, the dismissal with prejudice here was not based upon plaintiff\u2019s failure to file the certificate required by section 2\u2014 622. In Huff v. Hadden (1987), 160 Ill. App. 3d 530, 513 N.E.2d 541, this court held that the plain language of section 2 \u2014 622 does not authorize the trial court to dismiss without leave to amend for failure to submit the written reports referred to in section 2-622. (Huff, 160 Ill. App. 3d at 534-35, 513 N.E.2d at 544.) Similarly, there is no language in section 2 \u2014 622 authorizing dismissal under section 2 \u2014 619 where a report may be inconsistent with depositions or other discovery materials. Thus, it is not clear that the filing of a written report that is inconsistent with discovery materials can be a basis for dismissal under section 2 \u2014 622.\nSecond, assuming that a trial court may dismiss a claim under section 2 \u2014 619(a)(9) where an expert appears to contradict himself or herself in a written report, the summary judgment analogy fails in this case. It is true that a party or the party\u2019s agent may not create an issue of material fact by filing affidavits that conflict with that person\u2019s prior sworn testimony. (Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 348, 525 N.E.2d 258, 261.) However, an admission \u201c \u2018must be deliberate testimony relating to a concrete fact, and not a matter of opinion, estimate, appearance or uncertain summary\u2019 \u201d to warrant the granting a summary judgment or section 2 \u2014 619 motion. (See Schmall, 171 Ill. App. 3d at 348, 525 N.E.2d at 261, quoting Thomas v. Northington (1985), 134 Ill. App. 3d 141, 147, 479 N.E.2d 976, 980.) A deponent may controvert earlier statements that are not deliberate, repeated and unequivocal. (See Schmall, 171 Ill. App. 3d at 348, 525 N.E.2d at 261.) In order to determine whether the deponent\u2019s statements may be controverted or explained, the court must consider the entire deposition and the statements must be given a meaning consistent with the context in which they are found. Schmall, 171 Ill. App. 3d at 348-49, 525 N.E.2d at 261-62.\nIn this case, the record shows that Mendelsohn\u2019s deposition was taken in September 1983. In the deposition, Mendelsohn indicates the bases for his opinions, including the amended complaint. The record also indicates that in October 1983, plaintiff was given leave to file a second amended complaint. Heydemann and Lussky were not added as defendants until 1986, as part of plaintiff\u2019s fourth amended complaint. The record further indicates that plaintiff was not ordered to attach Mendelsohn\u2019s reports until 1988. Plaintiff attached Mendelsohn\u2019s initial report as part of the fifth amended complaint. Mendelsohn\u2019s report indicates that he reaffirmed his previous statements from the 1983 deposition, rereviewed all medical records, reviewed the actions of Heydemann and Lussky and concluded that their conduct fell below the applicable standard of care.\nViewed in the context of this record, we cannot conclude that Mendelsohn\u2019s \"\u201creaffirmation\u201d of his 1983 deposition mandates that statements therein indicating that he did not see negligence by Heydemann or negligence in the after care of plaintiff are binding judicial admissions. Neither Heydemann nor Lussky was a defendant in September 1983; it is therefore unlikely that the portions of the deposition at issue were deliberate. Indeed, while Mendelsohn indicated that he \u201creaffirmed\u201d his prior deposition, the record does not indicate that he ever read or reviewed that deposition. Moreover, the record indicates that plaintiff obtained more information during discovery since 1983; thus, Mendelsohn may \u201creaffirm\u201d statements made in a prior deposition as correct based on the materials available in 1983, yet expand on those statements based on the new materials. Furthermore, the statements which are purportedly contradictory are isolated statements of opinion, rather than repeated statements of concrete fact. Given these factors, Heydemann and Lussky have failed to show that Mendelsohn should not be permitted to explain his statements through additional reports or affidavits or both.\nFor the aforementioned reasons, the orders of the circuit court of Cook County dismissing the claims against Heydemann and Lussky are reversed, and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nBUCKLEY, P.J., and O\u2019CONNOR, J., concur.", "type": "majority", "author": "JUSTICE CAMPBELL" } ], "attorneys": [ "Albert Brooks Friedman, Ltd., of Chicago (George E. Panos and John P. Coleman, of counsel), for appellants.", "Lord, Bissell & Brook, of Chicago (Hugh C. Griffin and Paul J. Peralta, of counsel), for appellee Peter Heydemann.", "Johnson, Cusack & Bell, Ltd., of Chicago (Pamela L. Gellen, Emilio E. Machado, and Thomas H. Fegan, of counsel), for appellee Robert Lussky." ], "corrections": "", "head_matter": "RUSSELL THOMPSON, a Minor, by Donald Thompson, Indiv. and as Father and Next Friend, et al., Plaintiffs-Appellants, v. PETER HEYDEMANN et al., Defendants-Appellees (Evanston Hospital Corporation et al., Defendants).\nFirst District (1st Division)\nNo. 1\u201488\u20140931\nOpinion filed June 29, 1992.\nAlbert Brooks Friedman, Ltd., of Chicago (George E. Panos and John P. Coleman, of counsel), for appellants.\nLord, Bissell & Brook, of Chicago (Hugh C. Griffin and Paul J. Peralta, of counsel), for appellee Peter Heydemann.\nJohnson, Cusack & Bell, Ltd., of Chicago (Pamela L. Gellen, Emilio E. Machado, and Thomas H. Fegan, of counsel), for appellee Robert Lussky." }, "file_name": "0578-01", "first_page_order": 598, "last_page_order": 604 }