{ "id": 75265, "name": "RICHARD TUCKER, Plaintiff-Appellant, v. ST. JAMES HOSPITAL et al., Defendants-Appellees", "name_abbreviation": "Tucker v. St. James Hospital", "decision_date": "1996-04-15", "docket_number": "No. 1\u201493\u20142371", "first_page": "696", "last_page": "705", "citations": [ { "type": "official", "cite": "279 Ill. App. 3d 696" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "546 N.E.2d 15", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "16" }, { "page": "16" }, { "page": "19" } ], "opinion_index": 0 }, { "cite": "189 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2680066 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "946-47" }, { "page": "947" }, { "page": "952" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0945-01" ] }, { "cite": "490 N.E.2d 181", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 538", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3497419 ], "year": 1986, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0538-01" ] }, { "cite": "588 N.E.2d 471", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "474" } ], "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 685", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5247476 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "690" }, { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0685-01" ] }, { "cite": "560 N.E.2d 5", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 674", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2588369 ], "year": 1990, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0674-01" ] }, { "cite": "588 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "1142" } ], "opinion_index": 0 }, { "cite": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0057-01" ] }, { "cite": "540 N.E.2d 847", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640665 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0802-01" ] }, { "cite": "520 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "294" }, { "page": "296" }, { "page": "296" } ], "opinion_index": 0 }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "190" }, { "page": "194" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] } ], "analysis": { "cardinality": 696, "char_count": 19776, "ocr_confidence": 0.754, "pagerank": { "raw": 1.834555632890721e-07, "percentile": 0.7212022785884428 }, "sha256": "042c8463575bbf0a161011ba0be1a6c194b53f0d37d4e8523527e34f11a56fa6", "simhash": "1:8b0c4eb5b7ec95ed", "word_count": 3136 }, "last_updated": "2023-07-14T19:15:35.504495+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RICHARD TUCKER, Plaintiff-Appellant, v. ST. JAMES HOSPITAL et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nPlaintiff, Richard Tucker, brought a medical malpractice action against defendant, Michael Zindrick, and codefendants, St. James Hospital and Good Samaritan Hospital (the hospitals). Plaintiff did not attach to his complaint an attorney\u2019s affidavit or a health professional\u2019s report, as required by the Illinois Code of Civil Procedure. 735 ILCS 5/2 \u2014 622 (West 1994). The hospitals filed motions to dismiss, which the trial court granted. Plaintiff does not appeal those rulings. Defendant subsequently filed a motion to dismiss. The trial court granted the motion without prejudice and allowed plaintiff time to file the affidavit and report. However, plaintiff\u2019s subsequent filings were found to be inadequate. The trial court then dismissed the complaint with prejudice and denied plaintiff\u2019s motion to vacate the dismissal. Plaintiff appeals, contending that the trial court abused its discretion in refusing to allow the case to be tried on the merits.\nDefendant is a physician licensed in Illinois and specializing in orthopedic surgery. Plaintiff suffered from a back condition that defendant treated sometime prior to December 5, 1988, by surgically fusing two vertebrae in plaintiffs back. That operation is not part of the negligence alleged by plaintiff.\nOn December 5, 1988, plaintiff fell down and went to the emergency room of St. James Hospital. The complaint alleges that defendant was informed of plaintiff\u2019s discharge diagnosis of \"contusion to the lumbar sacral area of the back\u201d and concurred with it. In January 1989, plaintiff was admitted to Good Samaritan Hospital for the treatment of severe back pain stemming from his fall. He was discharged with a diagnosis of \"lumbar sacral sprain.\u201d On October 25, 1989, plaintiff was admitted into the Mayo Clinic in Rochester, Minnesota, and diagnosed with a \"bi-lateral breakage of the previously performed fusion.\u201d\nDefendant filed a medical malpractice action against the hospitals and defendant, alleging that they were negligent in failing to diagnose the broken fusion. On January 9, 1991, however, plaintiff voluntarily dismissed the lawsuit because he was unable to obtain a health professional\u2019s report. Section 2 \u2014 622 of the Illinois Code of Civil Procedure requires a medical malpractice plaintiff to attach to the complaint (1) an affidavit from the plaintiff or his attorney that a qualified health professional has determined in a written report that there is a meritorious cause of action, and (2) the health professional\u2019s written report indicating the basis for his determination. 735 ILCS 5/2 \u2014 622 (West 1994); McCastle v. Sheinkop, 121 Ill. 2d 188, 190, 520 N.E.2d 293, 294 (1987).\nOn January 3, 1992, plaintiff filed a second lawsuit, naming the same defendants. Again, the complaint did not have attached an affidavit or a health professional\u2019s report but, rather, plaintiff asserted that section 2 \u2014 622 is unconstitutional, relying on DeLuna v. St. Elizabeth\u2019s Hospital, 184 Ill. App. 3d 802, 540 N.E.2d 847 (1989). On February 20, 1992, however, the Illinois Supreme Court reversed the appellate court, in a decision that became final on March 30, and ruled that section 2 \u2014 622 is constitutional. DeLuna v. St. Elizabeth\u2019s Hospital, 147 Ill. 2d 57, 588 N.E.2d 1139 (1992). Therefore, on May 4, 1992, the trial court granted plaintiff an extension to file the affidavit and report.\nOn June 11, 1992, plaintiff filed an unsworn, undated affidavit declaring that Dr. Thomas Mitchell is knowledgeable in the relevant issues and has determined in a written report that there is a meritorious cause of action. The affidavit stated that it was made under oath; however, spaces for the date and signature of a notary public were left blank. There was no indication that an oath was actually administered. Attached to the affidavit was a copy of Dr. Mitchell\u2019s report. The report states that the physicians at the Mayo Clinic determined plaintiff\u2019s actual injury, whereas defendant did not. Dr. Mitchell also stated in his report that he is not a surgeon and that he is unable to assess whether defendant was negligent. He stated that he would concur with the opinion of the physicians at the Mayo Clinic.\nThe hospitals filed motions to dismiss which the trial court granted on August 10, 1992, holding that the affidavit and health professional\u2019s report were inadequate. Plaintiff has not appealed those dismissals.\nOn August 13, 1992, defendant filed a motion to dismiss, claiming that the affidavit and report were defective for failing to establish (1) how Dr. Mitchell is knowledgeable in the relevant issues, (2) that Dr. Mitchell has practiced or taught in the same area of health care as defendant for at least six years, (3) that Dr. Mitchell is qualified by experience or demonstrated competence, or (4) that Dr. Mitchell believes there is a meritorious cause of action. See 735 ILCS 5/2\u2014 622 (West 1994)(requiring each of these elements to be included in the health professional\u2019s report). On August 16, 1992, the trial court granted defendant\u2019s motion, but allowed plaintiff 21 days to file a new affidavit and report that adequately satisfy section 2 \u2014 622.\nOn October 1, 1992, plaintiff filed a second health professional\u2019s report written by Dr. Mitchell. In this report, Dr. Mitchell stated that he is knowledgeable in the relevant issues, he has practiced neurology for eight years, he is qualified as an expert, and he believes there to be a meritorious cause of action in this case. The report provided no supporting facts or information for any of these assertions. No attorney affidavit was filed.\nOn October 23, 1992, defendant renewed his motion to dismiss, arguing that plaintiff had still failed to submit an adequate affidavit and that Dr. Mitchell is not qualified because he is not a surgeon and is not licensed in Illinois. On November 11, 1992, the trial court granted defendant\u2019s motion and dismissed the case with prejudice.\nOn December 21, 1992, plaintiff filed a motion to vacate the dismissal. A third health professional\u2019s report was attached to the motion. The report was essentially the same as the second report, adding only that Dr. Mitchell has been licensed for 11 years and is legally qualified as an expert in all branches of medicine. On January 27, 1993, the trial court continued plaintiff\u2019s motion to vacate because he had not yet filed an adequate attorney affidavit.\nOn February 10,1993, plaintiff filed a fourth health professional\u2019s report. This report repeated the statements made in the third report, but Dr. Mitchell added that he \"understands\u201d that defendant failed to diagnose plaintiff\u2019s condition and that an accurate diagnosis may-have prevented the injury or made it less severe. Plaintiff did not file the requested attorney affidavit.\nOn February 26, 1993, defendant filed his memorandum in opposition to plaintiff\u2019s motion to vacate the dismissal. Defendant claimed that vacation would be inappropriate because (1) plaintiff has still failed to file an affidavit and has not shown good cause for this failure, and (2) the health professional\u2019s reports are all inadequate.\nOn March 23, 1993, plaintiff filed an affidavit containing most of the required language. He also filed a fifth health professional\u2019s report, dated March 22, 1993, prepared by Dr. Mitchell to supplement his fourth report. Dr. Mitchell stated that he believed that defendant \"breached the applicable standard of care.\u201d\nFinally, on June 2, 1993, the trial court denied plaintiff\u2019s motion to vacate, and on June 25, plaintiff filed his notice of appeal.\nDISCUSSION\nWe affirm the trial court\u2019s ruling for two reasons: (1) plaintiff has not submitted an adequate health professional\u2019s report or attorney affidavit, and (2) the trial court acted well within its discretion in dismissing the action after providing plaintiff with numerous opportunities to comply with section 2 \u2014 622.\nA. Adequacy of Documents\n1. Health Professional\u2019s Reports\nPlaintiff contends that by the time the trial court ruled on his motion to vacate on June 2, 1993, he had filed the necessary health professional\u2019s report, especially if all five of Dr. Mitchell\u2019s reports are considered collectively.\nSection 2 \u2014 622 provides that the health professional must be \"knowledgeable [of] the relevant issues involved *** and qualified by experience or demonstrated competence in the subject of the case.\u201d 735 ILCS 5/2 \u2014 622 (West 1994). It further requires that the health professional\u2019s report clearly identify \"the reasons for the reviewing health professional\u2019s determination that a reasonable and meritorious cause for the filing of the action exists.\u201d 735 ILCS 5/2 \u2014 622 (West 1994). Dr. Mitchell\u2019s first report expressly states that he is unknowledgeable, unqualified and unable to determine whether plaintiff\u2019s action is meritorious. Furthermore, when Dr. Mitchell eventually made such a determination despite the admissions in his first report, he provided no reasoning for his conclusion.\nDr. Mitchell\u2019s first report clearly establishes him as incompetent to provide the health professional\u2019s report in this case. The last paragraph of that report states:\n\"Not being a surgeon myself, it is difficult for me to assess the degree of negligence that may exist in this case. Richard has medical problems which will be lifelong. I feel that if the surgeons at the Mayo Clinic are of the opinion that the sequelae that Mr. Tucker endures could have been prevented had there been a more timely response in recognition of the problems that subsequently became evident, then I would concur that there is a case for negligence on the part of the surgeons who originally cared for Richard. Otherwise, I can only state that Richard had a bad outcome, which sometimes results from the uncertainty that accompanies surgical problems such as these.\u201d\nDr. Mitchell is not a surgeon; he cannot assess whether defendant was negligent; he can only state that plaintiff had a bad outcome and that he would concur with the opinion of the doctors at Mayo Clinic. This is an admission by Dr. Mitchell that he is not \"knowledgeable in the relevant issues\u201d and that he is not \"qualified by experience or demonstrated competence in the subject of the case.\u201d 735 ILCS 5/2\u2014 622 (West 1994). Moreover, none of Dr. Mitchell\u2019s subsequent reports explain how he suddenly became able to determine that there is merit to plaintiffs lawsuit.\nEven if Dr. Mitchell had been qualified to determine meritoriousness in this case, his reports would still fail under section 2 \u2014 622 because none of them provide any reasoning for his conclusions. Plaintiff contends that Dr. Mitchell\u2019s fourth and fifth reports provide adequate reasoning. In his fourth report, Dr. Mitchell stated that plaintiffs condition could have been prevented or made less severe if it had been promptly diagnosed and treated. However, this conclusion was not accompanied by any supporting reasoning. Dr. Mitchell\u2019s fifth report stated that defendant\u2019s treatment of plaintiff \"breached the applicable standard of care.\u201d This was the first time that Dr. Mitchell stated his conclusion that defendant was negligent, but again, the report lacked any reasoning for this determination. Specifically, Dr. Mitchell never identified the \"applicable standard of care\u201d or how defendant breached it. Therefore, Dr. Mitchell failed to provide a report containing \"the reasons for [his] determination\u201d of meritoriousness. See 735 ILCS 5/2 \u2014 622 (West 1994).\nThe purpose of section 2 \u2014 622 is \"to reduce the number of frivolous suits that are filed and to eliminate such actions at an early stage, before the expenses of litigation have mounted.\u201d DeLuna, 147 Ill. 2d at 65, 588 N.E.2d at 1142. It would do a tremendous disservice to this objective if health professionals\u2019 reports could be mere conclusions, unsupported by reason, provided by doctors who are admittedly unqualified and unknowledgeable.\n2. Affidavits\nPlaintiff filed two statements prepared by his attorney and labeled \"AFFIDAVIT\u201d; however, neither statement satisfies section 2 \u2014 622. The statute provides that the plaintiff\u2019s attorney, or the plaintiff if he is proceeding pro se, must submit an affidavit attesting to the following: (1) the affiant has consulted a knowledgeable, qualified health professional who has practiced or taught in the same area of medicine as the defendant for at least six years, (2) the health professional has prepared a written report in which he has found there to be a reasonable and meritorious cause of action, and (3) the affiant has concluded based on the health professional\u2019s report that there is a reasonable and meritorious cause of action. 735 ILCS 5/2\u2014 622 (West 1994).\nThe first affidavit submitted by plaintiff\u2019s attorney stated only that Dr. Mitchell is knowledgeable in the relevant issues and has determined in an attached written report that plaintiff has a meritorious cause of action. However, the statement contained no information concerning Dr. Mitchell\u2019s qualifications or experience in defendant\u2019s field of medicine, and it did not contain any assertion that the affiant has determined that there is a meritorious cause of action. Furthermore, the affidavit was inaccurate because the attached report did not state that Dr. Mitchell believed that this lawsuit had merit. On the contrary, the report expressly stated Dr. Mitchell\u2019s inability to make such a determination. Moreover, the affidavit did not contain any evidence that it was taken under oath or any of the language required for certification under section 1 \u2014 109 of the Code of Civil Procedure. 735 ILCS 5/1 \u2014 109 (West 1994). Therefore, the affidavit was invalid. Hough v. Weber, 202 Ill. App. 3d 674, 692, 560 N.E.2d 5, 18 (1990).\nThe second affidavit, submitted 15 months after the second complaint was filed, contained most of the necessary information; however, it still lacked any statement concerning Dr. Mitchell\u2019s qualifications. Moreover, the affidavit was based on Dr. Mitchell\u2019s reports, and as explained above, Dr. Mitchell is not competent to make a determination as to meritoriousness in this case, and his reports are inadequate. Therefore, both attorney affidavits fail because they are incomplete and they are based on invalid health professional\u2019s reports.\nB. Trial Court Discretion\nThe decision of whether to grant a medical malpractice plaintiff leave to file an affidavit and report in accordance with section 2 \u2014 622 is within the sound discretion of the trial court and will not be reversed absent a manifest abuse of that discretion. McCastle v. Sheinkop, 121 Ill. 2d 188, 194, 520 N.E.2d 293, 296 (1987). Section 2 \u2014 622 provides that the affidavit and report must be filed with the complaint, or within 90 days thereafter, if the complaint is . filed just prior to the expiration of the statute of limitations. 735 ILCS 5/2\u2014 622 (West 1994). If the plaintiff fails to file the affidavit and report within the statutory period, the trial court may provide an extension of time if the plaintiff can show good cause for not filing these documents during the statutory period. Simpson v. Illinois Health Care Services, Inc., 225 Ill. App. 3d 685, 690, 588 N.E.2d 471, 474 (1992).\nIn this case, plaintiff\u2019s second complaint was filed on January 3, 1992. Plaintiff contends that his fourth health professional\u2019s report satisfies the requirements of section 2 \u2014 622. However, the fourth report was not filed until February 10, 1993, more than a year after the complaint. This is clearly well beyond the 90-day statutory extension period. Therefore, while the trial court was not required to dismiss the action (McCastle, 121 Ill. 2d at 194, 520 N.E.2d at 296), its decision to do so was well within its discretion. Simpson, 225 Ill. App. 3d at 690, 588 N.E.2d at 474.\nPlaintiff contends that this court should allow him to proceed on the merits despite his failure to follow the procedures mandated by the Code of Civil Procedure, because \"a medical malpractice plaintiff should be afforded every reasonable opportunity to establish his case.\u201d Hansbrough v. Kosyak, 141 Ill. App. 3d 538, 549, 490 N.E.2d 181, 188 (1986). The trial court in this case, however, allowed plaintiff ample opportunity to comply with section 2 \u2014 622. See Wasielewski v. Gilligan, 189 Ill. App. 3d 945, 546 N.E.2d 15 (1989).\nIn Wasielewski, a medical malpractice plaintiff voluntarily dismissed his first action because he was unable to obtain a health professional\u2019s report. He later filed a second action, attaching an affidavit from his attorney stating that the statute of limitations would soon expire and seeking the statutory 90-day extension. Wasielewski, 189 Ill. App. 3d at 946-47, 546 N.E.2d at 16. About 120 days later, plaintiff had still not filed the affidavit or report required under section 2 \u2014 622, and the trial court dismissed the case with prejudice. Wasielewski, 189 Ill. App. 3d at 947, 546 N.E.2d at 16. The appellate court affirmed, finding no abuse of discretion. The court found that the plaintiff had received sufficient opportunity to meet the documentation requirements of section 2 \u2014 622, in that he filed two actions, about 15 months apart, each time receiving the statutory 90-day extension. The court held that \u201d[t]he trial court was not required to exercise its discretion in favor of plaintiff given the numerous opportunities plaintiff had to comply with section 2 \u2014 622.\u201d Wasielewski, 189 Ill. App. 3d at 952, 546 N.E.2d at 19.\nIn this case plaintiff had even more opportunities to comply than the plaintiff in Wasielewski. First, the trial court allowed plaintiff an extension of time to file the affidavit and report after the supreme court found that section 2 \u2014 622 is constitutional. DeLuna, 147 Ill. 2d 57, 588 N.E.2d 1139. Plaintiff responded by submitting an unsworn, uncertified, incomplete affidavit and an insufficient report. Second, the trial court initially dismissed the complaint without prejudice and allowed plaintiff more time to file an adequate affidavit and report. Plaintiff filed another insufficient report and failed to file an affidavit. Third, after finally dismissing the case with prejudice, the trial court afforded plaintiff the opportunity to file a new affidavit and report with his motion to vacate. Again, plaintiff failed to comply. Fourth, the trial court continued plaintiff\u2019s motion to vacate to allow still more time. However, plaintiff still failed to submit an affidavit, and the report he filed still lacked some of the information required by the statute. Finally, the trial court accepted plaintiff\u2019s second affidavit and fifth health professional\u2019s report while the motion to vacate was pending. Again, however, the trial court found that the affidavit and report did not meet the requirements of section 2 \u2014 622.\nWe believe that the trial court made every reasonable effort to afford plaintiff extra time to comply with section 2 \u2014 622. Even if plaintiff\u2019s March 23, 1993, affidavit and health professional\u2019s report were sufficient, these documents were nonetheless filed long after the statutory period had expired. Therefore, the trial court was well within its discretion when it dismissed plaintiff\u2019s case with prejudice and denied his motion to vacate.\nFor the foregoing reasons, the trial court\u2019s dismissal of plaintiff\u2019s action and denial of his motion to vacate are affirmed.\nAffirmed.\nCAMPBELL, P.J., and BRADEN, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "John Thomas Moran, Jr., of Chicago, for appellant.", "Clausen, Miller, P.C., of Chicago (James T. Ferrini and Susan Condon, of counsel), for appellees." ], "corrections": "", "head_matter": "RICHARD TUCKER, Plaintiff-Appellant, v. ST. JAMES HOSPITAL et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1\u201493\u20142371\nOpinion filed April 15, 1996.\nJohn Thomas Moran, Jr., of Chicago, for appellant.\nClausen, Miller, P.C., of Chicago (James T. Ferrini and Susan Condon, of counsel), for appellees." }, "file_name": "0696-01", "first_page_order": 714, "last_page_order": 723 }