{ "id": 1596981, "name": "MICHAEL A. APA, Plaintiff-Appellant, v. DAVID ROTMAN et al., Defendants-Appellees", "name_abbreviation": "Apa v. Rotman", "decision_date": "1997-06-02", "docket_number": "No. 5\u201496\u20140461", "first_page": "585", "last_page": "591", "citations": [ { "type": "official", "cite": "288 Ill. App. 3d 585" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "180 Ill. App. 3d 632", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615538 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "638-39" }, { "page": "639" }, { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0632-01" ] }, { "cite": "233 Ill. App. 3d 327", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5195633 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "332" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0327-01" ] }, { "cite": "276 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927688 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "1042" }, { "page": "1042" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/1038-01" ] }, { "cite": "165 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3613363 ], "year": 1988, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0367-01" ] }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "year": 1987, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] }, { "cite": "231 Ill. App. 3d 578", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5202507 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "582" }, { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0578-01" ] }, { "cite": "229 Ill. App. 3d 828", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5214044 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "832" }, { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0828-01" ] }, { "cite": "232 Ill. App. 3d 332", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498782 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "339" }, { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0332-01" ] }, { "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": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "year": 1992, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0057-01" ] } ], "analysis": { "cardinality": 584, "char_count": 14558, "ocr_confidence": 0.777, "pagerank": { "raw": 1.2643930376298316e-07, "percentile": 0.6131899967913187 }, "sha256": "d7fb5e45515aa95872a385b536c50e69c60f181f4be3a50611c1bb3389a46b94", "simhash": "1:dbeedee4a7498148", "word_count": 2395 }, "last_updated": "2023-07-14T15:57:07.793358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL A. APA, Plaintiff-Appellant, v. DAVID ROTMAN et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE WELCH\ndelivered the opinion of the court:\nPlaintiff, Michael A. Apa, appeals from an order of the circuit court of Crawford County dismissing with prejudice his medical malpractice suit against defendants, David Rotman, M.D., and Michael W. Elliott, M.D. For reasons that follow, we reverse the judgment of the circuit court of Crawford County and remand this cause for further proceedings.\nPlaintiff\u2019s complaint was dismissed, on motion of defendants, for the failure to comply with section 2 \u2014 622 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 622 (West 1992)). That statute requires that in any action for medical malpractice the plaintiff or his attorney shall file an affidavit that he has consulted with a qualified medical expert who has concluded in a written report that a meritorious cause of action exists. The statute further requires that the medical expert\u2019s written report be attached to the affidavit. It is undisputed that plaintiff did file such an affidavit and report in a timely fashion. Defendants argue, however, that the affidavit and written report do not comply with the statute\u2019s substantive requirements.\nOn July 11,1994, plaintiff filed in the circuit court of Cook County a complaint against defendants, seeking damages for their negligence in treating a fractured finger. Attached to the complaint was the affidavit of plaintiff\u2019s attorney, in accordance with section 2 \u2014 622 of the Code (735 ILCS 5/2 \u2014 622 (West 1992)). The affidavit stated that the affiant had been unable to obtain the required consultation with a medical expert because the statute of limitations would impair the action and the consultation could not be obtained before the expiration of the statute of limitations. Pursuant to the statute, the filing of this affidavit extended the time for filing the required affidavit and medical report for 90 days after the filing of the complaint. 735 ILCS 5/2 \u2014 622 (West 1992).\nOn August 26, 1994, defendant Elliott filed a motion for a change of venue to Crawford County. This motion was granted on September 16, 1994. However, the file was not transferred to Crawford County until November 20, 1995.\nOn October 11, 1994, within the 90 days allowed by law, plaintiffs attorney filed an affidavit pursuant to section 2 \u2014 622, stating that he had consulted and reviewed the facts of the case with a qualified health professional, that the health professional had determined in a written report, after a review of the medical records and other relevant materials, that there is a reasonable and meritorious cause for filing the cause of action, and that based thereon the attorney had concluded that there is a reasonable and meritorious cause for filing the action. Attached to the affidavit is the written report of a licensed medical doctor, stating:\n\"I ***; after a review of the facts of Michael A. Apa\u2019s case involving the Crawford Memorial Hospital and medical professionals, conclude on the basis of my review that there is a reasonable and meritorious case for filing of a malpractice action.\u201d\nThe record does not indicate that the affidavit was ever served on the defendants.\nOn April 2, 1996, defendant Rotman filed a motion to vacate any defaults theretofore entered against him, and Rotman\u2019s motion sought leave to file instanter a motion to dismiss the complaint. A notice of the motion to vacate defaults and a hearing to be held on April 15, 1996, was served on plaintiff by deposit in the United States mail on March 29, 1996. Rotman\u2019s motion to dismiss was not filed until April 15, the date of the hearing. It was not served on plaintiff. Rotman\u2019s motion to dismiss seeks dismissal pursuant to sections 2 \u2014 622 and 2 \u2014 615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 622, 2 \u2014 615 (West 1992)). The motion alleges that plaintiff had failed to file the affidavit and written report required by section 2 \u2014 622.\nOn April 12, 1996, defendant Elliott filed a motion to dismiss the complaint pursuant to sections 2 \u2014 619 and 2 \u2014 622 of the Code (735 ILCS 5/2 \u2014 619, 2 \u2014 622 (West 1992)), alleging that plaintiff had failed to comply with section 2 \u2014 622. Attached to the motion is defendant\u2019s memorandum stating that plaintiff had failed to file the affidavit required by section 2 \u2014 622 and that it was within the discretion of the trial court to dismiss plaintiffs complaint with or without prejudice. The motion, memorandum, and notice of hearing thereon scheduled for April 15, 1996, were served on plaintiff by being deposited in the United States mail on April 11, 1996.\nThe matter came on for hearing on April 15, 1996. Plaintiff failed to appear. No report of proceedings of the hearing on the motion to dismiss is included in the record on appeal. It is clear from the defendants\u2019 motions to dismiss, however, that they were unaware that plaintiff had, indeed, filed an affidavit and written report pursuant to section 2 \u2014 622. Whether the trial court was also unaware of this fact is not clear from the record. In any event, the circuit court entered an order dismissing plaintiffs complaint with prejudice for failure to comply with section 2 \u2014 622.\nOn May 14, 1996, plaintiff filed a motion to vacate the order of dismissal. Plaintiffs motion to vacate alleges that he had not received notice of Elliott\u2019s motion to dismiss by mail until the day of the hearing, at which point it was too late for plaintiffs attorney to travel to the hearing. Plaintiff did receive notice of Rotman\u2019s motion to vacate defaults and for leave to file a motion to dismiss, but plaintiff had intended to reply to the motion to dismiss in writing when it was filed. Plaintiff did not know that the motion to dismiss would be filed and heard on April 15. Attached to the motion to vacate is a copy of a facsimile message that plaintiff\u2019s attorney sent to the trial court and defendants\u2019 attorneys immediately upon receiving notice of the hearing on Elliott\u2019s motion to dismiss. That message recites that the section 2 \u2014 622 affidavit had been filed and explains plaintiff\u2019s attorney\u2019s failure to appear at the hearing. Again, there is no report of proceedings of the hearing on plaintiffs motion to vacate. The motion was denied by a docket entry order, which fails to state any reasons for the denial. Plaintiff brings this appeal.\nBecause of the condition of the record on appeal, we cannot determine on what basis the trial court dismissed with prejudice plaintiffs complaint. Defendants had moved for dismissal on the mistaken assumption that no affidavit had been filed. However, the timely filing of the affidavit was brought to the attention of the trial court at the hearing on plaintiffs motion to vacate the dismissal, and the trial court persisted in dismissing the complaint with prejudice. Certainly, if the trial court dismissed because it mistakenly believed that the affidavit had not been timely filed, its finding is erroneous and the dismissal of plaintiffs complaint with prejudice was an abuse of the trial court\u2019s discretion. However, we further find that, even assuming that the affidavit is substantively deficient and that the trial court dismissed on that basis, as defendants argue, the trial court abused its discretion in dismissing with prejudice and not allowing plaintiff an opportunity to amend his affidavit and written report.\nSection 2 \u2014 622 is designed to reduce the number of frivolous medical malpractice lawsuits that are filed and to eliminate such actions at an early stage. DeLuna v. St. Elizabeth\u2019s Hospital, 147 Ill. 2d 57, 65 (1992). The purpose of the enactment is not to burden the plaintiff with insurmountable hurdles prior to filing (Requena v. Franciscan Sisters Health Care Corp., 212 Ill. App. 3d 328, 333 (1991)), but to ensure that plaintiff has a meritorious claim. Leask v. Hinrichs, 232 Ill. App. 3d 332, 339 (1992). The technical requirements of the statute should not interfere with the spirit or purpose of the statute, and the absence of strict technical compliance is one of form only and not one of substance. Comfort v. Wheaton Family Practice, 229 Ill. App. 3d 828, 832 (1992).\nAccordingly, 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 (Thompson v. Heydemann, 231 Ill. App. 3d 578, 582 (1992)), and the technical requirements of the statute should not be mechanically applied to deprive a plaintiff of his substantive rights. Comfort, 229 Ill. App. 3d at 832.\nWhile the statute provides that the failure to file the required affidavit shall be grounds for dismissal (735 ILCS 5/2 \u2014 622(g) (West 1992)), whether to dismiss a complaint for a failure to conform to the requirements of section 2 \u2014 622 is within the discretion of the trial court. McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill. 2d 188, 193 (1987). However, we have held that, 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. Thompson, 231 Ill. App. 3d at 582; Hagood v. O\u2019Conner, 165 Ill. App. 3d 367, 371 (1988).\nIn Steinberg v. Dunseth, 276 Ill. App. 3d 1038, 1042 (1995), we held that while a complaint may be dismissed where it fails to comply with the substantive requirements of section 2 \u2014 622, that is, where it does not clearly identify the reasons for the health care professional\u2019s determination that there is a meritorious cause of action, leave to amend should then be granted. We pointed out that, in a medical malpractice case, a plaintiff should be afforded every reasonable opportunity to establish his case. Steinberg, 276 Ill. App. 3d at 1042. Accordingly, amendments to pleadings are to be liberally allowed to enable medical malpractice actions to be decided on their merits rather than on procedural technicalities. Peterson v. Hinsdale Hospital, 233 Ill. App. 3d 327, 332 (1992). The goal is the furtherance of the ends of justice. Moss v. Gibbons, 180 Ill. App. 3d 632, 638-39 (1989).\nWhere a court takes the particular facts and unique circumstances of the case into consideration before determining that the complaint should be dismissed with prejudice, the court\u2019s determination is not an abuse of discretion, and absent a manifest abuse of discretion, the trial court\u2019s determination will not be reversed on appeal. Peterson v. Hinsdale Hospital, 233 Ill. App. 3d 327, 330 (1992).\nWe find that the trial court failed to take into consideration the particular facts and unique circumstances of this case in determining to dismiss plaintiff\u2019s complaint with prejudice. Under the facts of this case, dismissal with prejudice of plaintiff\u2019s complaint does not appear to have served the purpose of section 2 \u2014 622, which is to ensure that plaintiff has a meritorious claim. Nothing in the record indicates that plaintiff is bringing a frivolous claim, and plaintiff did file the section 2 \u2014 622 affidavit and written report in a timely fashion. The record does not suggest any bad faith or abuse of the legal process on plaintiff\u2019s part. Plaintiff\u2019s filing of the affidavit and report was timely. Prior to the dismissal with prejudice, plaintiff was given absolutely no notice of any deficiency in the affidavit and report and no notice that the sufficiency of the affidavit and report had been attacked or questioned. Plaintiff\u2019s failure to appear at the hearing on defendants\u2019 motions to dismiss is adequately explained by his failure to receive timely notice of the filing of the motions and hearing thereon. Moreover, other than additional delay, we fail to see any undue prejudice to defendants from at least allowing plaintiff the opportunity to attempt to amend his affidavit and report if and to the extent they are deficient. We note that the case has been pending for some time without any strong objection from defendants to the delay. Furthermore, inconvenience or delay is insufficient in itself to deny a medical malpractice plaintiff leave to amend. Leask v. Hinrichs, 232 Ill. App. 3d 332, 340 (1992).\nWe note that the record does not indicate that plaintiff tendered a proposed amended affidavit and report while asking leave to amend, a factor that has been important in other cases that affirmed a dismissal with prejudice for failure to substantively comply with section 2 \u2014 622. See Moss v. Gibbons, 180 Ill. App. 3d 632, 639 (1989). In Moss, 180 Ill. App. 3d at 639, the court held that a proposed amendment need not be offered where its offer is foreclosed by the trial court. Such is the case here, where plaintiff was given no notice prior to the dismissal with prejudice or presumably prior to the hearing on his motion to vacate the dismissal that the sufficiency of his affidavit and report had been challenged or found lacking. The motions of defendants seeking the dismissal of plaintiff\u2019s complaint alleged only that no affidavit had been timely filed by plaintiff, plaintiff was effectively foreclosed from attending the hearing on the motions to dismiss because of late notice, and the trial court\u2019s order of dismissal did not specify the basis for the dismissal. Plaintiff had no reason to offer a proposed amended affidavit where he was unaware of any alleged deficiency in the affidavit he had timely filed. Accordingly, we find that plaintiff\u2019s failure to offer a proposed amended affidavit is excused here and does not mandate that we affirm the trial court\u2019s dismissal with prejudice.\nWe conclude that, based on the particular facts and unique circumstances of this case, the trial court abused its discretion in dismissing plaintiff\u2019s complaint with prejudice and without giving plaintiff the opportunity to attempt to correct any deficiencies in his affidayit and attached report. Accordingly, we reverse the judgment of the circuit court of Crawford County dismissing plaintiff\u2019s complaint with prejudice and remand this cause to the circuit court of Crawford County for further proceedings not inconsistent with this order.\nReversed and remanded.\nCHAPMAN and HOPKINS, JJ., concur.", "type": "majority", "author": "JUSTICE WELCH" } ], "attorneys": [ "Philip J. Schmidt, of Chicago, for appellant.", "William V. Johnson and Steven E. Lieb, both of Johnson & Bell, Ltd., of Chicago, for appellee David Rotman.", "James E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Michael P. Doyle, Assistant Attorney General, of counsel), for appellee Michael W. Elliott." ], "corrections": "", "head_matter": "MICHAEL A. APA, Plaintiff-Appellant, v. DAVID ROTMAN et al., Defendants-Appellees.\nFifth District\nNo. 5\u201496\u20140461\nOpinion filed June 2, 1997.\nPhilip J. Schmidt, of Chicago, for appellant.\nWilliam V. Johnson and Steven E. Lieb, both of Johnson & Bell, Ltd., of Chicago, for appellee David Rotman.\nJames E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Michael P. Doyle, Assistant Attorney General, of counsel), for appellee Michael W. Elliott." }, "file_name": "0585-01", "first_page_order": 605, "last_page_order": 611 }