{ "id": 8498782, "name": "SHEILA LEASK, Indiv. and as Special Adm'r of the Estate of Barbara Andrews, Deceased, Plaintiff-Appellant, v. RANDALL L. HINRICHS et al., Defendants (Anthony F. Altimari, Defendant-Appellee)", "name_abbreviation": "Leask v. Hinrichs", "decision_date": "1992-07-07", "docket_number": "No. 2\u201491\u20140671", "first_page": "332", "last_page": "342", "citations": [ { "type": "official", "cite": "232 Ill. App. 3d 332" } ], "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 ], "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 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0802-01" ] }, { "cite": "142 Ill. App. 3d 584", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450689 ], "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0584-01" ] }, { "cite": "169 Ill. App. 3d 845", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551226 ], "pin_cites": [ { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0845-01" ] }, { "cite": "165 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3613363 ], "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0367-01" ] }, { "cite": "180 Ill. App. 3d 632", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615538 ], "weight": 3, "pin_cites": [ { "page": "638" }, { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0632-01" ] }, { "cite": "210 Ill. App. 3d 996", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2535632 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "999" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0996-01" ] }, { "cite": "212 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600481 ], "year": 1991, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0328-01" ] }, { "cite": "225 Ill. App. 3d 685", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5247476 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0685-01" ] }, { "cite": "173 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3477091 ], "pin_cites": [ { "page": "1037" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/1034-01" ] }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] }, { "cite": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0057-01" ] }, { "cite": "207 Ill. App. 3d 255", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553048 ], "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0255-01" ] }, { "cite": "189 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2680066 ], "weight": 2, "pin_cites": [ { "page": "948" }, { "page": "949" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0945-01" ] }, { "cite": "197 Ill. App. 3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2484044 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "629" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0625-01" ] }, { "cite": "160 Ill. App. 3d 530", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650589 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0530-01" ] }, { "cite": "105 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141899 ], "pin_cites": [ { "page": "500-01" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0486-01" ] }, { "cite": "25 Ill. App. 3d 727", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2702442 ], "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0727-01" ] } ], "analysis": { "cardinality": 952, "char_count": 22794, "ocr_confidence": 0.744, "pagerank": { "raw": 1.5149541353491365e-07, "percentile": 0.6682294990943487 }, "sha256": "f3c5eecd04f97bbc58e28261756d29d815159665a1a110e6380dd595b43239f2", "simhash": "1:afeedd9061250c81", "word_count": 3649 }, "last_updated": "2023-07-14T16:53:50.540896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "INGLIS, P.J., and McLAREN, J., concur." ], "parties": [ "SHEILA LEASK, Indiv. and as Special Adm\u2019r of the Estate of Barbara Andrews, Deceased, Plaintiff-Appellant, v. RANDALL L. HINRICHS et al., Defendants (Anthony F. Altimari, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE DOYLE\ndelivered the opinion of the court:\nPlaintiff, Sheila Leask, individually and as special administrator of the estate of Barbara Andrews, appeals the dismissal with prejudice of Dr. Anthony F. Altimari (Dr. Altimari) as a party defendant to her negligence suit. The trial court held that plaintiff\u2019s third amended complaint failed to comply with the requirements of section 2 \u2014 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 622). The court also denied plaintiff leave to amend the complaint. Plaintiff appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) and argues that the trial court abused its discretion in dismissing Dr. Altimari with prejudice. Plaintiff also asks us to hold that section 2\u2014 622 violates the constitutional separation of legislative and judicial powers.\nOn January 17, 1989, after alighting from a bus driven by defendant Ivor Jackson, Barbara Andrews was struck and severely injured by a car driven by defendant Randall L. Hinrichs. Andrews was taken to Edward Hospital, where Dr. Altimari performed emergency surgery on her. Dr. Altimari was Andrews\u2019 attending physician at the hospital until her death from cardiac arrest on February 9,1989.\nPlaintiff\u2019s original complaint and her first and second amended complaints named defendants other than Dr. Altimari. On March 30, 1990, the court granted leave to take the discovery deposition of Dr. Altimari, who at that time was not a party. On June 20, 1990, plaintiff took Dr. Altimari\u2019s discovery deposition. In the deposition, Dr. Al-timari stated that he was a physician and a board-certified general surgeon. He was the trauma surgeon on call at Edward Hospital on the evening that Barbara Andrews was injured. He first met Andrews in the emergency room that evening. Dr. Altimari assumed the role of Andrews\u2019 attending physician for as long as she was in the hospital.\nDr. Altimari testified in detail to the surgery and subsequent tests performed on Andrews. He opined that her death, though ultimately related to her injuries of January 17, 1989, was the immediate result of a specific embolic event of February 9, 1990, that brought on acute cardiac arrest or pulmonary embolism. Andrews was being transported on a medical cart when she suddenly complained of shortness of breath, went into apparent cardiac arrest, and died.\nDr. Altimari acknowledged that tests performed on Andrews through February 4, 1989, revealed that her red blood cell count, hemoglobin count, and hematocrit levels all decreased to abnormally low levels during this period. There was also evidence of hematuria (blood in the urine). Urinalysis further suggested the possibility of a urinary tract infection. Dr. Altimari admitted that Andrews told him several times that she was experiencing difficulty urinating. No urine or blood tests were performed on Andrews after February 4,1989.\nDr. Altimari agreed that the autopsy report showed a laceration of Andrews\u2019 bladder, a fact not revealed by any hospital examinations. Dr. Altimari conceded that the bladder laceration could have resulted from Andrews\u2019 initial injuries and may have caused the hema-turia. However, he agreed with the autopsy report that the exact mechanism of Andrews\u2019 death could not be demonstrated.\nOn December 13, 1990, plaintiff filed her third amended complaint, adding Edward Hospital, Dr. Altimari, and Naperville Surgical Associates (for whom Dr. Altimari worked) as defendants. Counts X through XV sought recovery against all three of the newly added defendants under the Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.), the Survival Act (Ill. Rev. Stat. 1989, ch. llOVa, par. 27 \u2014 6), and the family expense act (Ill. Rev. Stat. 1989, ch. 40, par. 1015). It appears that Naperville Surgical Associates, for whom Dr. Altimari worked, has never been served with process. Count XIII alleged that Dr. Altimari and Naperville Surgical Associates were guilty of negligence that proximately caused Andrews\u2019 death. Specifically, plaintiff alleged, in part, that each was negligent for not performing a complete and proper examination of Andrews; for not diagnosing her bladder rupture; for not assigning Andrews to a competent board-certified urologist or nephrologist; and for failing to perform follow-up urine and blood tests that could have alerted the defendants to the condition that ultimately caused Andrews\u2019 death from cardiac arrest.\nPlaintiff\u2019s attorney appended an affidavit to the third amended complaint (see Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 622(a)(1)) stating that he had consulted and reviewed the facts of the case with a physician licensed to practice medicine in all its branches; that plaintiff\u2019s attorney believed the consulting physician was knowledgeable in the issues relevant to the case; that the reviewing physician had determined that there was a reasonable and meritorious cause for filing this action; and that plaintiff\u2019s attorney thereby concluded that there was a reasonable and meritorious cause for the action.\nIn his report of December 12, 1990, the consulting physician, Dr. Neil Kramer, stated that because he was a board-certified cardiologist, his report would be directed to the \u201ccardiac aspects of [Andrews\u2019] care.\u201d Dr. Kramer\u2019s report concluded that, in his opinion, \u201cno def\u00ed-nate [sic] cardiac cause exists for this patient\u2019s demise. However, in the presence of a patient who has sustained pelvic injury with ongoing hematuria and changes in kidney function blood tests, failure to obtain consultation for further urological investigation and/or follow-up of abnormal laboratory data would be considered substandard care and may have contributed to this patient\u2019s demise.\u201d\nOn February 14, 1991, Edward Hospital moved pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 619) to dismiss the complaint with prejudice for failure to comply with section 2 \u2014 622. Edward Hospital argued that Dr. Kramer\u2019s report was fatally deficient because it did not distinguish between the actions of the defendant physicians and the defendant hospital. The record does not show that plaintiff responded to this specific motion.\nOn March 21, 1991, Dr. Altimari also moved to dismiss the complaint with prejudice for failure to follow section 2 \u2014 622. Dr. Altimari argued that the area of medicine at issue in this case was the surgical and post-surgical care of a trauma patient and that Dr. Kramer, a cardiologist, was not an appropriate specialist to file the required report. Dr. Altimari further stated that plaintiff had been aware of Dr. Alti-mari\u2019s extensive deposition testimony since June 20, 1990, giving her ample time to find an appropriate specialist to file the necessary report.\nOn April 15, 1991, plaintiff filed her response to Dr. Altimari\u2019s motion to dismiss. The response requested that plaintiff be allowed to file an \u201camendment\u201d that would \u201ccure the defect complained of\u201d in Dr. Altimari\u2019s motion to dismiss.\nThe proposed amendment was a report dated April 4, 1991, from Dr. Mordehai Sela, a surgeon and urologist. The report discussed the facts of the case in detail and concluded that Dr. Altimari had failed to correctly interpret signs of urine leakage from Andrews\u2019 urethra or bladder. Dr. Sela opined that seepage of urine into the patient\u2019s pelvic area, combined with other mistakes in treatment, resulted in Andrews\u2019 death. Dr. Sela specifically concluded that the outcome of the treatment could have been different had there been an adequate initial evaluation of the patient and a consultation with a urological surgeon. Therefore, according to Dr. Sela, there was reason to blame the negligence of Dr. Altimari and others for Andrews\u2019 death and reasonable cause for filing the action against Dr. Altimari.\nOn April 18, 1991, Dr. Altimari responded in writing to the proposed amendment. Dr. Altimari argued that by moving to substitute Dr. Sela\u2019s report plaintiff was conceding that Dr. Kramer\u2019s report was inadequate. Thus, Dr. Altimari argued, plaintiff had violated section 2 \u2014 622 because she had failed to file a proper physician\u2019s report at the time her complaint added Dr. Altimari as a defendant.\nOn April 24, 1991, the trial court dismissed Edward Hospital as a defendant. The dismissal was with prejudice, although plaintiff had orally moved for a voluntary dismissal. Plaintiff at no point challenged this order.\nOn May 17, 1991, plaintiff filed a written reply to Dr. Altimari\u2019s response to her proposed amendment. Plaintiff argued that the report by Dr. Kramer was adequate because it stated that the failure to obtain further urological consultations was a breach of the applicable standard of care. Plaintiff also denied that the motion to add Dr. Se-la\u2019s report was an admission that Dr. Kramer\u2019s report was inadequate.\nOn May 17, 1991, the court heard argument on Dr. Altimari\u2019s motion. Addressing plaintiff\u2019s attorney, the trial judge said, \u201cyou seem to agree that [Dr. Kramer\u2019s] report is deficient. And you wish to substitute another doctor?\u201d Plaintiff\u2019s attorney replied, \u201cThat\u2019s correct, your Honor.\u201d Counsel for plaintiff and for Dr. Altimari then argued whether Dr. Sela\u2019s report satisfied section 2 \u2014 622.\nThe trial judge concluded that Dr. Kramer\u2019s report was inadequate because it did not distinguish between the conduct of the doctor and the hospital and did not \u201ccontain the words, that there was a good and meritorious cause of action.\u201d The judge found that Dr. Sela, as a urologist and a medical doctor, was qualified to make the report. The judge found no fault with Dr. Sela\u2019s report.\nThe court nonetheless refused the proposed amendment and dismissed the case against Dr. Altimari with prejudice. The judge referred to the delay between Dr. Altimari\u2019s deposition and the filing of the third amended complaint, noting that in all this time plaintiff had failed to submit a proper report with the complaint. Plaintiff had not asked for extra time to file the required medical report. The court entered a written order dismissing the case and specifically finding that there was no just reason to delay enforcement or appeal of the order. (See 134 El. 2d R. 304(a).) Plaintiff filed this timely appeal.\nPlaintiff argues that the trial court erred in dismissing the complaint for failure to comply with section 2 \u2014 622(a)(1). The first contention in this regard is that the trial court erred in holding that Dr. Kramer\u2019s report did not satisfy section 2 \u2014 622(a)(1).\nWe conclude that plaintiff has waived this argument. Her original response to Dr. Altimari\u2019s motion to dismiss did not defend Dr. Kramer\u2019s report but submitted an amendment to \u201ccure the defect complained of\u201d in Dr. Altimari\u2019s motion. Plaintiff later filed an argument defending Dr. Kramer\u2019s report. However, at the hearing on the motion, her attorney stated unequivocally that plaintiff wished to substitute Dr. Sela\u2019s report for Dr. Kramer\u2019s report. Plaintiff\u2019s attorney did not thereafter attempt to defend Dr. Kramer\u2019s report. Rather, he argued that Dr. Sela\u2019s report was adequate and that the amendment should be allowed.\nA reviewing court will recognize the principle of waiver whenever a party intentionally relinquishes a known right or acts in such a manner as to warrant an inference of such relinquishment. (In re Estate of Trahey (1975), 25 Ill. App. 3d 727, 731.) Issues not raised in the trial court are deemed waived and may not be raised on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500-01.) Having acknowledged that she wanted to amend her complaint by substituting a new medical report for the original one, plaintiff waived the right to rely on the original medical report. She therefore waived the argument that her third amended complaint, as originally filed, met the requirements of section 2 \u2014 622(a)(1). We believe, however, that the question of the sufficiency of Dr. Kramer\u2019s report is relevant to our consideration of whether the trial court abused its discretion in dismissing plaintiff\u2019s complaint and denying her leave to amend the complaint with Dr. Sela's report.\nPlaintiff argues next that the trial court lacked the authority to dismiss the complaint with prejudice solely because the medical report filed with the complaint was insufficient. Plaintiff points to Huff v. Hadden (1987), 160 Ill. App. 3d 530. There the Appellate Court, Fourth District, held that, although section 2 \u2014 622(a)(1) requires the filing of both a consultation affidavit and a medical report with the complaint, section 2 \u2014 622(g) provides for dismissal only for the failure to file the \u201ccertificate,\u201d i.e., the consultation affidavit. This court also has held that the term \u201ccertificate\u201d as used in section 2 \u2014 622 refers specifically to the consultation affidavit. Premo v. Falcone (1990), 197 Ill. App. 3d 625, 629; Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 948.\nPlaintiff did not raise this argument at the trial level, and we may therefore consider it waived. (Barkei v. Delnor Hospital (1990), 207 Ill. App. 3d 255, 263.) Further, even if we were to disregard the waiver rule, we find it unnecessary to resolve the issue here, as it would not affect the result. Assuming arguendo that the trial court had the discretion to dismiss Dr. Altimari and to deny plaintiff leave to amend based solely on an insufficient medical report, we hold that under the circumstances of this case the court abused that discretion.\nThe trial court\u2019s discretion must be viewed in relation to the basic purpose of section 2 \u2014 622. This purpose is to deter frivolous medical malpractice suits at an early stage. (DeLuna v. St. Elizabeth\u2019s Hospital (1992), 147 Ill. 2d 57, 65; McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 193.) Ensuring that the plaintiff has a meritorious claim is the touchstone of section 2 \u2014 622. (Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 949; Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1037.) The technical pleading requirements imposed by section 2 \u2014 622 should not be utilized to deprive a plaintiff of a trial on the merits of a medical malpractice claim. (Simpson v. Illinois Health Care Services, Inc. (1992), 225 Ill. App. 3d 685, 689; Requena v. Franciscan Sisters Health Care Corp. (1991), 212 Ill. App. 3d 328, 333.) Amendments to medical malpractice pleadings should be liberally allowed so that the case may be decided on its merits. Cato v. Attar (1991), 210 Ill. App. 3d 996, 999; Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638.\nUnder the facts of this case, involuntary dismissal with prejudice of the malpractice claim against Dr. Altimari does not appear to have served the purpose of section 2 \u2014 622. Nothing in the record demonstrates that plaintiff is bringing a frivolous claim, and it appears that plaintiff acted in good faith to secure the required medical opinion to support the claim. Moreover, any undue prejudice to Dr. Altimari from allowing plaintiff to amend her complaint is unclear at best.\nPlaintiff timely filed both the required consulting affidavit and the required medical report. Although plaintiff apparently conceded that Dr. Kramer\u2019s report was inadequate, any inadequacies in that report are not so glaring as to suggest bad faith or abuse of the legal process on plaintiff\u2019s part.\nThe trial judge specifically found that Dr. Kramer\u2019s report was defective in that (1) it did not \u201cdistinguish between the doctor and the hospital\u201d and (2) it did not contain the words \u201cthat there was a good and meritorious cause of action.\u201d However, the medical report need not contain the specific words \u201cgood and meritorious cause of action\u201d; it is sufficient that the consulting health care professional has given reasons for his conclusion that the cause has merit. Hagood v. O\u2019Conner (1988), 165 Ill. App. 3d 367, 373.\nDr. Kramer\u2019s report did not explicitly distinguish between the involvement of Dr. Altimari and the hospital. A single medical report in a suit against multiple defendants (the situation at the time Dr. Kramer made his report) should be broad enough to cover all the defendants and should adequately discuss deficiencies in the medical care given by the defendants. (Premo v. Falcone (1990), 197 Ill. App. 3d 625, 632.) The report should discuss the involvement of each defendant. (Moss, 180 III. App. 3d at 638.) Although the report did not specifically delineate the negligence of Dr. Altimari (as opposed to that of the hospital), this shortcoming appears unlikely to have caused significant confusion or prejudice.\nDr. Kramer\u2019s statement that the failure to obtain consultation for further urological investigation or follow-up of abnormal laboratory data was substandard care was an implicit conclusion that Dr. Alti-mari, as the attending physician for Barbara Andrews, was negligent in determining what tests should be performed. Because prejudicial confusion was unlikely under these circumstances (see Alford v. Phipps (1988), 169 Ill. App. 3d 845, 855), vagueness in Dr. Kramer\u2019s report is a relatively minor shortcoming which does not necessarily suggest a lack of diligence on plaintiff\u2019s part or prejudice to Dr. Alti-mari therefrom.\nDr. Altimari did not challenge Dr. Kramer\u2019s report until March 21, 1991. Within a month thereafter, plaintiff moved to amend the complaint by adding a detailed and apparently satisfactory medical report. This report was dated April 4, 1991, about two weeks after Dr. Altimari\u2019s motion to dismiss.\nConsidering all of these circumstances, we are compelled to hold that the trial court abused its discretion in dismissing Dr. Alti-mari with prejudice rather than allowing plaintiff to amend the complaint. Plaintiff provided a satisfactory medical report less than a month after the original report (which was not grossly deficient) was challenged. Although some inconvenience to Dr. Altimari may have resulted from plaintiff\u2019s delay, such inconvenience or delay is insufficient in itself to deny a medical malpractice plaintiff leave to amend. (Moss, 180 Ill. App. 3d at 639, citing Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 591.) The trial court never implied that plaintiff\u2019s claim against Dr. Altimari was frivolous and found no fault with the report of Dr. Sela which stated that the suit had merit.\nIn Cato v. Attar (1991), 210 Ill. App. 3d 996, this court reversed the denial of the plaintiff\u2019s motion to amend her medical malpractice claim and the dismissal of that claim with prejudice. The plaintiff did not attach a consultation affidavit or a written medical report with her complaint. She forewent the requirements of section 2 \u2014 622 in reliance on the holding of the Appellate Court, First District, in DeLuna v. St. Elizabeth\u2019s Hospital (1989), 184 Ill. App. 3d 802, rev\u2019d (1992), 147 Ill. 2d 57, that section 2 \u2014 622 was unconstitutional. We noted that before the first district\u2019s decision this court had already upheld the constitutionality of the statute in Bloom v. Guth (1987), 164 Ill. App. 3d 475, 478-79. In holding in Cato that the trial court should have granted the plaintiff\u2019s prompt motion to amend her complaint, we reasoned that, despite the plaintiff\u2019s poor legal research, there was no indication of bad faith or an intent to frustrate justice by the plaintiff and no showing that defendant would have been prejudiced had the amendment been allowed or the complaint been dismissed without prejudice.\nSuch considerations apply with at least equal force here, where plaintiff timely filed both the consultation affidavit and the report required by statute and moved promptly to amend the complaint upon the motion to dismiss. Plaintiff\u2019s conduct here seems neither less reasonable, nor more indicative of a frivolous lawsuit, than that of the plaintiff in Cato. (See also Simpson v. Illinois Health Care Services, Inc. (1992), 225 Ill. App. 3d 685 (dismissal with prejudice was abuse of discretion where plaintiff filed required affidavit and report late but was diligent in attempting to submit the report on time).) Accordingly, we hold that the trial court abused its discretion in dismissing plaintiff\u2019s complaint with prejudice and denying plaintiff leave to amend \u25a0with the medical report of Dr. Sela.\nCases on which Dr. Altimari relies all involve conduct far more indicative of the plaintiffs\u2019 irresponsibility or the lack of a meritorious suit than plaintiff\u2019s conduct here. In Premo v. Falcone (1990), 197 Ill. App. 3d 625, the plaintiffs filed no consultation affidavit at all until they moved to reconsider the trial court\u2019s grant of involuntary dismissal. The plaintiffs were also late in filing their written medical reports. The original medical report was grossly insufficient, and the report submitted with the motion for reconsideration was only somewhat better. In Batten v. Retz (1989), 182 Ill. App. 3d 425, both the consultation affidavit and the medical report were filed late, and the documents were grossly deficient in several respects. Moreover, the plaintiff\u2019s motion to amend did not include a proposed complaint with certificates and reports in compliance with section 2 \u2014 622. Thus, the plaintiff had done nothing to demonstrate that the complaint was not frivolous. In Moss v. Gibbons (1989), 180 Ill. App. 3d 632, the plaintiff filed both the certificate and the medical report late and without leave of court. The medical report was seriously deficient. The consultation affidavit predated the report and thus violated the requirement that it be based on a review of the report. Finally, the plaintiff did not submit any proposed amendments when seeking leave to amend the complaint.\nPlaintiff also asks this court to declare that section 2 \u2014 622 is an unconstitutional breach of the separation of powers. However, we must follow the supreme court\u2019s recent holding that section 2 \u2014 622 is valid. See DeLuna v. St. Elizabeth\u2019s Hospital (1992), 147 Ill. 2d 57.\nThe judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nINGLIS, P.J., and McLAREN, J., concur.", "type": "majority", "author": "JUSTICE DOYLE" } ], "attorneys": [ "Lee Phillip Forman, of Lee Phillip Forman, Ltd., of Chicago, for appellant.", "James T. Ferrini and Susan Condon, both of Clausen, Miller, Gorman, Caffrey & Witous, P.C., and Greenberger, Krauss & Jacobs, Ltd., both of Chicago, Clausen, Miller, Gorman, Caffrey & Witous, O\u2019Reilly, Cunningham, Norton & Mancini, and Wildman, Harrold, Allen & Dixon, all of Wheaton, and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, for appel-lees." ], "corrections": "", "head_matter": "SHEILA LEASK, Indiv. and as Special Adm\u2019r of the Estate of Barbara Andrews, Deceased, Plaintiff-Appellant, v. RANDALL L. HINRICHS et al., Defendants (Anthony F. Altimari, Defendant-Appellee).\nSecond District\nNo. 2\u201491\u20140671\nOpinion filed July 7, 1992.\nLee Phillip Forman, of Lee Phillip Forman, Ltd., of Chicago, for appellant.\nJames T. Ferrini and Susan Condon, both of Clausen, Miller, Gorman, Caffrey & Witous, P.C., and Greenberger, Krauss & Jacobs, Ltd., both of Chicago, Clausen, Miller, Gorman, Caffrey & Witous, O\u2019Reilly, Cunningham, Norton & Mancini, and Wildman, Harrold, Allen & Dixon, all of Wheaton, and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, for appel-lees." }, "file_name": "0332-01", "first_page_order": 352, "last_page_order": 362 }