{ "id": 1352932, "name": "ANITA INGOLD et al., Plaintiffs-Appellants, v. G.S. IRWIN et al., Defendants-Appellees (BroMenn Healthcare, Defendant)", "name_abbreviation": "Ingold v. Irwin", "decision_date": "1998-12-31", "docket_number": "No. 4\u201498\u20140308", "first_page": "378", "last_page": "390", "citations": [ { "type": "official", "cite": "302 Ill. App. 3d 378" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "665 N.E.2d 392", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 696", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3405199 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "843" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0840-01" ] }, { "cite": "676 N.E.2d 281", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "290-91" }, { "page": "291" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "286 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544442 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "433-34" }, { "page": "434" }, { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0420-01" ] }, { "cite": "667 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "167 Ill. 2d 569", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "658 N.E.2d 1239", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1244" } ], "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927688 ], "year": 1995, "pin_cites": [ { "page": "1042" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/1038-01" ] }, { "cite": "652 N.E.2d 343", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "162 Ill. 2d 569", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "645 N.E.2d 1377", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "1380" } ], "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 329", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365892 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0329-01" ] }, { "cite": "669 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159489 ], "year": 1996, "pin_cites": [ { "page": "1035" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/1027-01" ] }, { "cite": "594 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "384" }, { "page": "385" } ], "opinion_index": 0 }, { "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": "833-34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0828-01" ] }, { "cite": "693 N.E.2d 494", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "497" }, { "page": "497" }, { "page": "497" }, { "page": "497" } ], "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 358", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45705 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "363" }, { "page": "363-64" }, { "page": "363" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0358-01" ] }, { "cite": "536 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "127" }, { "page": "127" }, { "page": "127" }, { "page": "127" } ], "opinion_index": 0 }, { "cite": "180 Ill. App. 3d 632", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615538 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "636" }, { "page": "636" }, { "page": "636" }, { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0632-01" ] }, { "cite": "599 N.E.2d 84", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "87" }, { "page": "87" } ], "opinion_index": 0 }, { "cite": "233 Ill. App. 3d 327", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5195633 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "330" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0327-01" ] }, { "cite": "520 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "296" }, { "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": "193" }, { "page": "193" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] } ], "analysis": { "cardinality": 1068, "char_count": 29005, "ocr_confidence": 0.751, "pagerank": { "raw": 1.3526364669908318e-07, "percentile": 0.6338608930482047 }, "sha256": "6bbf6018101c11d350ab023cbb29ede719ed7873794f9708c07f00744a34b2d6", "simhash": "1:cff25df4a1841865", "word_count": 4767 }, "last_updated": "2023-07-14T17:49:29.885307+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ANITA INGOLD et al., Plaintiffs-Appellants, v. G.S. IRWIN et al., Defendants-Appellees (BroMenn Healthcare, Defendant)." ], "opinions": [ { "text": "JUSTICE GARMAN\ndelivered the opinion of the court:\nPlaintiffs Anita Ingold and Todd Ingold appeal from the December 9, 1997, order of the circuit court of McLean County dismissing their lawsuit against defendants G.S. Irwin, M.D., and McLean County Orthopedics, Ltd., with prejudice. We affirm.\nI. BACKGROUND\nAnita fell and sustained multiple fractures to her right ankle on January 26, 1994. She was taken to the emergency room of BroMenn Healthcare (BroMenn) in Bloomington, Illinois, where Dr. G.S. Irwin, an employee of McLean County Orthopedics, performed surgery on her injured ankle.\nOn January 26, 1996, the Ingolds filed a multiple-count complaint against Dr. Irwin, BroMenn, and McLean County Orthopedics. Anita\u2019s claims alleged medical malpractice; specifically, the failure to properly diagnose and treat the postoperative complication of reflex sympathetic dystrophy. Todd\u2019s claims were based on loss of consortium. The complaint was accompanied by an affidavit signed by plaintiffs\u2019 attorney, Maurice J. Barry, stating that there had been insufficient time to obtain the consultation required by section 2 \u2014 622(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014622(a)(1) (West 1996)) and that the statute of limitations on plaintiffs\u2019 claims would expire on January 26, 1996, if the complaint were not filed on that date. Further, Barry\u2019s affidavit acknowledged that he was required to comply with section 2 \u2014 622(a) of the Code within 90 days of filing the lawsuit (735 ILCS 5/2\u2014622(a)(2) (West 1996)).\nOn April 26, 1996, Barry filed an affidavit in which he stated, under oath, that he had consulted with a health care professional who was qualified to author the report required by section 2 \u2014 622(a)(1) of the Code. The affidavit was accompanied by a written report from David L. Felten, M.D., Ph.D., professor and chair of the Department of Neurobiology and Anatomy at the University of Rochester Medical Center. The report was in the form of a business letter with the salutation, \u201cDear Mr. Barry.\u201d The heading contained the name of Barry\u2019s law firm and the correct street address, but did not contain the city, state, or zip code.\nDr. Irwin filed a motion to dismiss on the ground that the section 2 \u2014 622(a) affidavit had not been filed within 90 days of the filing of the lawsuit. The trial court denied the motion on June 24, 1996, and granted the plaintiffs\u2019 motion that a one-day extension be allowed.\nDiscovery proceeded and the trial court dealt with numerous motions. There were multiple hearings and case management conferences. BroMenn was subsequently dismissed as a defendant after reaching a good-faith settlement with the plaintiffs.\nOn July 31, 1996, plaintiffs filed their disclosure of opinion witnesses as required by Supreme Court Rule 213(g) (166 Ill. 2d R. 213(g)), listing Drs. Felten and Richard S. Laskin, in addition to other opinion witnesses. On August 6, 1997, Dr. Irwin filed a motion seeking, inter alia, to bar Dr. Felten\u2019s testimony as an expert witness on the ground that his curriculum vitae, which was attached to the Rule 213(g) disclosure, \u201cshows that without question that David Felten is not a practicing, board-certified orthopedic surgeon but rather a professor.\u201d Thus, Dr. Irwin argued, Dr. Felten was not qualified to testify as to the standard of care for a board-certified orthopedic surgeon. McLean County Orthopedics filed a motion adopting these pleadings on August 27, 1997. After a hearing on October 1, 1997, the trial court ordered that Dr. Felten\u2019s testimony be limited to the diagnosis of Anita\u2019s condition, the course of treatment, and how the results of treatment might have differed if the condition had been diagnosed or treated sooner.\nOn October 15, 1997, a discovery deposition was taken of Dr. Felten in Rochester, New York. Dr. Felten testified that he is not a licensed physician, has never held a medical license, has never taken an examination to obtain such a license, and has never treated a patient. He further testified that he had never met plaintiffs\u2019 attorney Barry, did not know who he was, and had never consulted with him.\nDr. Irwin filed two motions on November 21, 1997, seeking, in the alternative, dismissal or an order barring Dr. Felten from testifying. The motion to dismiss pursuant to section 2 \u2014 619 of the Code (735 ILCS 5/2\u2014619 (West 1996)) argued that dismissal with prejudice was appropriate because plaintiffs had failed to comply with the statutory pleading requirements of section 2 \u2014 622(a)(1) of the Code. On December 5, 1997, McLean County Orthopedics filed a motion to dismiss, adopting the arguments made in Dr. Irwin\u2019s motion.\nAttached to plaintiffs\u2019 December 5, 1997, response to the motion was an affidavit of Michael E Flomenhaft, who is licensed to practice law in the State of New York and was admitted to this case as cocounsel pro hac vice on February 19, 1997. Flomenhaft stated under oath that he consulted with attorney Barry on this case beginning in January 1994 and that it was he, rather than Barry, who had direct contact with Dr. Felten. Dr. Felten\u2019s findings were relayed to Barry through Flomenhaft. Thus, according to Flomenhaft, Barry\u2019s affidavit was accurate \u201cexcept for the fact that there was no direct conversation\u201d between Barry and Dr. Felten. Flomenhaft also stated that this is confirmed \u201cby the fact that the Certificate which was signed by Dr. Felten was made out directly to Maurice J. Barry and sent to him at his address.\u201d Plaintiffs also argued that any deficiency in Dr. Felten\u2019s credentials could be corrected by adopting the deposition testimony of Dr. Laskin, a board-certified orthopedic surgeon and licensed physician, or by allowing Dr. Laskin to prepare the required written report.\nA hearing was held on December 9, 1997, 30 days before the jury trial was scheduled to commence. The trial court made the following docket entry:\n\u201cThe Court finds that [plaintiffs\u2019] \u2018health professional,\u2019 Dr. Felt[e]n, is not, and never has been, a licensed physician, and thus is not only not \u2018qualified\u2019 under 735 ILCS 5/2\u2014622[(a)] to render an opinion on [defendants\u2019] negligence, but is also not a proper person to make a report under said law to be attached to [plaintiffs\u2019] complaint, and further that [plaintiffs\u2019] counsel, Maurice Barry, in his \u00a7 2 \u2014 622[(a)] affidavit, falsely states that he \u2018consulted with\u2019 Dr. Felt[e]n when in fact he has never directly communicated with Dr. Felt[e]n in any way. Further, [attorney] Barry has filed Rule 213 disclosures which state that he has consulted with his opinion witnesses, Drs. Felt[e]n [and] Laskfin] and that they have certain opinions regarding [defendant\u2019s] alleged negligence, when in fact [plaintiffs\u2019] counsel has not personally consulted with said witnesses and they do not hold the opinions which [attorney] Barry asserts that they hold. Accordingly, the Court finds and rules that [plaintiff] has failed to file a valid [\u00a7 ]2 \u2014 622[(a)] certificate with her complaint, that the time for filing same has long passed, and that said complaint should be and is dismissed with prejudice as to all remaining counts. Further, the Court finds that [attorney] Barry\u2019s failure to consult with his opinion witnesses as required by statute, and his failure to exercise reasonable diligence or make reasonable inquiry of his opinion witnesses, and his reckless disregard for truth in filing affidavits and disclosures violates ethical standards of conduct for Illinois attorneys, and appropriate sanctions, to be determined later, should be imposed on Mr. Barry.\u201d\nPlaintiffs filed a motion to reconsider on December 29, 1997, which was denied following a hearing on March 26, 1998. All defense motions regarding sanctions were withdrawn at that time and the trial court pronounced the dismissal with prejudice final and all issues resolved. Plaintiffs filed a timely notice of appeal.\nII. ANALYSIS\nWe first address defendants\u2019 motion to strike a portion of plaintiffs\u2019 reply brief as irrelevant or, in the alternative, to supplement the record. We agree that the disputed portions of plaintiffs\u2019 reply brief are irrelevant to this inquiry and, thus, allowed the motion to strike in open court at oral argument.\nWe also commend the trial court for its helpful docket entry, clearly outlining the reasons for its ruling. The process of appellate review is greatly assisted by the presence of such detail.\nPlaintiffs make two arguments on appeal. First, the plaintiffs argue that to \u201cremedy any shortcomings\u201d in Dr. Felten\u2019s qualifications, they should have been allowed to substitute the opinion of Dr. Laskin, as expressed in his deposition testimony, for the deficient medical report. Second, they argue that attorney Barry\u2019s affidavit was not false, in light of the fact that cocounsel, Flomenhaft, did consult directly with Dr. Felten. Because the trial court found the section 2 \u2014 622(a)(1) filing flawed in two respects \u2014 the doctor\u2019s lack of licensure and the attorney\u2019s false statement \u2014 the dismissal with prejudice must stand if the trial court\u2019s exercise of discretion was appropriate in either respect.\nDefendants argue that the trial court did not abuse its discretion by dismissing with prejudice; the matter should have been dismissed when plaintiffs failed to comply with the statute of limitations in the first instance; and dismissal with prejudice was warranted as a sanction for plaintiffs\u2019 violation of Supreme Court Rule 137 (155 Ill. 2d R. 137). Because we agree with defendant\u2019s first argument, we need not address the other issues.\nSection 2 \u2014 622(a)(1) of the Code requires that a medical malpractice plaintiff or her attorney attach to the complaint an affidavit declaring that the affiant has consulted with a qualified health-care professional who has determined that \u201cthere is a reasonable and meritorious cause for the filing of such action.\u201d 735 ILCS 5/2\u2014622(a)(1)(iii) (West 1994). When, as in this case, the defendant is a physician, the complaint must also be accompanied by a written report prepared by \u201ca physician licensed to practice medicine in all its branches.\u201d 735 ILCS 5/2\u2014622(a)(1) (West 1994). In addition to licensure, the reviewing health professional must be \u201cknowledgeable in the relevant issues\u201d\n(735 ILCS 5/2\u2014622(a)(1)(i) (West 1994)), have practiced or taught in the same area of medicine or health care within the six years preceding the making of the report (735 ILCS 5/2\u2014622(a)(1)(ii) (West 1994)), and be \u201cqualified by experience or demonstrated competence\u201d in the subject matter of the case (735 ILCS 5/2\u2014622(a)(1)(iii) (West 1994)).\nA plaintiffs noncompliance with section 2 \u2014 622(a) of the Code does not require the trial court to dismiss with prejudice:\n\u201cRequiring that section 2 \u2014 622 dismissals be with prejudice would be a triumph of form over substance. It would elevate a pleading requirement designed to reduce frivolous lawsuits into a substantive defense forever barring plaintiffs who initially fail to comply with its terms.\u201d McCastle v. Sheinkop, 121 Ill. 2d 188, 193, 520 N.E.2d 293, 296 (1987).\nThus, the determination of whether to dismiss an action with or without prejudice is within the sound discretion of the trial court. Mc Castle, 121 Ill. 2d at 193, 520 N.E.2d at 296. The test to be applied by a reviewing court is whether the trial court took \u201cthe particular facts and unique circumstances of the case into consideration before determining that the complaint should be dismissed with prejudice.\u201d Peterson v. Hinsdale Hospital, 233 Ill. App. 3d 327, 330, 599 N.E.2d 84, 87 (1992). Where this has been done, the trial court\u2019s determination is not an abuse of discretion and will not be reversed on appeal. Peterson, 233 Ill. App. 3d at 330, 599 N.E.2d at 87. Similarly, whether to grant leave to amend the pleadings to conform to the requirements of section 2 \u2014 622(a) is within the sound discretion of the trial court. McCastle, 121 Ill. 2d at 194, 520 N.E.2d at 296.\nA. Health Professional\u2019s Report\nThis court has previously noted that section 2 \u2014 622(a) of the Code permits a medical malpractice plaintiff to choose his own reviewing health professional with few restrictions. First, the health professional must be knowledgeable with regard to the relevant issues. Second, the health professional must be licensed to practice medicine and, third, must practice or teach in the same medical specialty as the defendant. Moss v. Gibbons, 180 Ill. App. 3d 632, 636, 536 N.E.2d 125, 127 (1989). Because the State of Illinois does not define or otherwise regulate the medical specialties of physicians, a physician licensed to practice in Illinois is \u201cqualified to practice medicine in all of its branches.\u201d Moss, 180 Ill. App. 3d at 636, 536 N.E.2d at 127.\nIt is undisputed that Dr. Felten, although he holds an M.D. degree, is not and never has been licensed to practice medicine by the State of Illinois or any other state. Thus, although he may be knowledgeable on the subject of reflex sympathetic dystrophy, he is not, by definition, qualified to author the written report required by section 2 \u2014 622(a)(1) of the Code.\nPlaintiffs argue that this is merely a technical pleading matter and should not deprive them of their day in court. They cite Brems v. Trinity Medical Center, 295 Ill. App. 3d 358, 363, 693 N.E.2d 494, 497 (1998), in which the trial court gave the plaintiff four opportunities to cure the deficiencies in the medical report. The reviewing court found the fourth amended report sufficient to meet the requirements of section 2 \u2014 622(a) of the Code and reversed the trial court\u2019s dismissal of the action (Brems, 295 Ill. App. 3d at 363-64, 693 N.E.2d at 497), stating, \u201cSection 2 \u2014 622 should not be so strictly construed that fine technicalities can be used as a means of stripping plaintiffs of their substantive rights and their day in court.\u201d Brems, 295 Ill. App. 3d at 363, 693 N.E.2d at 497. At issue in Brems was whether the medical report was sufficiently detailed in its discussion of the deficiencies in the medical care rendered by the two defendant physicians. The physicians argued that the report was \u201cconclusory\u201d (Brems, 295 Ill. App. 3d at 362, 693 N.E.2d at 497); the court disagreed. There was no suggestion in Brems that the reviewing physician was not qualified to render the opinion.\nPlaintiffs also cite Comfort v. Wheaton Family Practice, 229 Ill. App. 3d 828, 832, 594 N.E.2d 381, 384 (1992), for its discussion of the technical requirements of section 2 \u2014 622:\n\u201cThe absence of strict technical compliance with the statute is one of form only and not of substance. The technical requirements of the statute should not be mechanically applied to deprive the plaintiff of her substantive rights. [Citations.] The purpose of the enactment was not to burden the plaintiff with insurmountable hurdles prior to filing but to reduce the number of frivolous lawsuits.\u201d\nThe plaintiffs medical report in Comfort was challenged because it did not contain separate medical certificates for the two defendants, the physician and the partnership that employed him. The court found that the plaintiff had conformed to the purpose of section 2 \u2014 622, despite the lack of a separate certificate addressing the conduct of the partnership, whose liability arose by operation of law under partnership and agency principles. Comfort, 229 Ill. App. 3d at 833-34, 594 N.E.2d at 385.\nPlaintiffs have not, however, provided any reasoning for their assertion that this court should consider Dr. Felten\u2019s lack of licensure to be a mere technical requirement. Indeed, it has been held that a physician\u2019s inability to render a competent opinion because he did not meet the statutory qualifications is not a minor or technical error. Cuthbertson v. Axelrod, 282 Ill. App. 3d 1027, 1035, 669 N.E.2d 601, 606 (1996).\nNor does plaintiffs\u2019 citation to Moscardini v. Neurosurg, S.C., 269 Ill. App. 3d 329, 645 N.E.2d 1377 (1994), appeal denied, 162 Ill. 2d 569, 652 N.E.2d 343 (1995), support their position. Moscardini is distinguishable. At issue in Moscardini was the plaintiffs motion under section 2 \u2014 402 of the Code (735 ILCS 5/2\u2014402 (West 1994)) to convert two respondents in discovery to defendants. There was no question that the medical report attached to the motion fully complied with the requirements of section 2 \u2014 622. The question for the court was whether the medical report was a sufficient basis for granting a section 2 \u2014 402 motion. Moscardini, 269 Ill. App. 3d at 332, 645 N.E.2d at 1380. The court held that it was.\nIn Steinberg v. Dunseth, 276 Ill. App. 3d 1038, 1042, 658 N.E.2d 1239, 1244 (1995), appeal denied, 167 Ill. 2d 569, 667 N.E.2d 1063 (1996), this court said:\n\u201cSection 2 \u2014 622 does not, however, provide that a defendant may secure a dismissal by showing that the written report is mistaken or inconsistent with depositions or other discovery materials. [Citation.] Section 2 \u2014 622 is a pleading requirement designed to reduce frivolous lawsuits, not a substantive defense which may be employed to bar plaintiffs who fail to meet its terms. [Citation.] A complaint may be dismissed where the section 2 \u2014 622 written report does not clearly identify the reasons for the health care professional\u2019s determination that there is a meritorious cause of action, but leave to amend should then be granted.\u201d\nDefendants cite Steinberg in support of their argument that plaintiffs are not entitled to leave to amend in this case because it is not the content of the report they are challenging but the competence of Dr. Felten to make the report in the first place. Dr. Felten\u2019s lack of a medical license cannot be cured by granting plaintiffs leave to amend. Defendants argue that allowing plaintiffs to obtain a written report from another physician at this late date and to substitute that report for Dr. Felten\u2019s would have the effect of indefinitely extending the statute of limitations.\nIn Calamari v. Drammis, 286 Ill. App. 3d 420, 433-34, 676 N.E.2d 281, 290-91 (1997), the court analyzed prior cases involving dismissal for failure to comply with section 2 \u2014 622 of the Code and grouped the decisions into two categories. In one group of cases, reviewing courts found an abuse of discretion when an action was dismissed with prejudice. In the second group, the appellate court upheld the trial court\u2019s decision to dismiss. The Calamari court distinguished the first group of cases\n\u201con the basis that they involved plaintiffs who had substantially complied with the requirements of section 2 \u2014 622 and who, prior to the dismissals with prejudice, proposed amendments to remedy the deficiencies in their complaints.\u201d Calamari, 286 Ill. App. 3d at 434, 676 N.E.2d at 291.\nCalamari concluded that, in the second group of cases, it was not an abuse of discretion to deny a party leave to amend a pleading if amendment could not cure the defect in the original pleading. Calamari, 286 Ill. App. 3d at 435, 676 N.E.2d at 291.\nWe find that the plaintiff in this case did not substantially comply with the requirements of section 2 \u2014 622 of the Code. The defect, the lack of a medical license, could not have been cured by amending the original pleading. Plaintiffs\u2019 attempt to comply with section 2 \u2014 622 almost two years after the filing of the initial complaint and only after the defendants\u2019 discovery of Dr. Felten\u2019s lack of qualifications does not comport with the letter or the spirit of section 2 \u2014 622 of the Code.\nWe, therefore, hold that the trial court did properly take into consideration the particular facts and unique circumstances of the case and, thus, did not abuse its discretion by dismissing the action with prejudice.\nB. Attorney\u2019s Affidavit\nThe trial court based its decision to dismiss with prejudice not only on Dr. Felten\u2019s lack of qualifications to author the medical report, but on attorney Barry\u2019s false statements in the section 2 \u2014 622 affidavit.\nPlaintiffs argue that the statute does not require a direct \u201cone-on-one\u201d communication between the section 2 \u2014 622 affiant and the reviewing health professional. Rather, plaintiffs claim, section 2 \u2014 622 of the Code requires only an affidavit \u201cstating that a qualified health professional has determined in a written report that there is a meritorious cause of action.\u201d\nThe plain language of the statute belies plaintiffs\u2019 interpretation. Section 2 \u2014 622(a)(1) of the Code requires that the affiant declare \u201c[t]hat the affiant has consulted and reviewed the facts of the case with a health professional.\u201d (Emphasis added.) 735 ILCS 5/\u2014622(a)(1) (West 1994).\nAttorney Barry does not deny that he never consulted with Dr. Felten and never reviewed the facts of the case with him. Instead, he argues that his sworn statement was not false because Dr. Felten\u2019s written report was addressed to him. As noted above, however, the address was incomplete, indicating that although Dr. Felten may have been instructed to address his report to an attorney in Illinois with whom he had never spoken, he had no contact, even by mail, with the plaintiffs\u2019 attorney.\nAttorney Flomenhaft was admitted to the case pro hac vice on February 19, 1997, 10 months after the affidavit was filed. Attorney Barry now argues that the earlier communication between Dr. Felten and cocounsel should be sufficient for purposes of the affidavit. He cites two cases in support of his argument that this court should consider communication with cocounsel sufficient for purposes of the affidavit required by section 2 \u2014 622 of the Code. Neither case is persuasive.\nWynter v. Wynter, 54 Ill. App. 3d 840, 368 N.E.2d 1104 (1977), involved a default decree in a divorce action. The respondent husband was a nonresident of Illinois whose retained New York counsel failed to keep his promise to obtain Illinois counsel for his client. The court vacated the decree, holding that substantial justice required giving the husband the opportunity to respond to the complaint. Wynter, 54 Ill. App. 3d at 843, 368 N.E.2d at 1105. Wynter does not support Barry\u2019s claim that the conduct of cocounsel should be imputed to him.\nIn re Estate of Garbalinski, 120 Ill. App. 3d 767, 458 N.E.2d 1065 (1983), is similarly unavailing. Garbalinski involved miscommunication between cocounsel and other lapses of communication between the parties to a will contest and their attorneys. The executor, who was represented by five separate attorneys during the pendency of the proceeding, had in her possession documents that questioned the competence of the decedent to make a valid will. One of the contestants\u2019 attorneys replied to a notice to produce that no such documents existed when he intended to reply that there were no additional documents beyond those already provided to executor and her former attorney. He was unaware that cocounsel for contestants had additional documents. The court found that, in these circumstances, summary judgment in favor of the executor was not justified. Garbalinski, 120 Ill. App. 3d at 773, 458 N.E.2d at 1070.\nNeither the language of section 2 \u2014 622 of the Code nor the cases cited permit someone other than the affiant himself to perform the statutorily required act of consulting and reviewing the facts of the case with the health care professional. In any event, defendants note that Barry\u2019s affidavit made two false statements, that Dr. Felten possessed the qualifications required by statute and that Barry consulted with Dr. Felten.\nIn Moss, this court found a section 2 \u2014 622 affidavit invalid because it was sworn and dated prior to the date of the written medical report of the reviewing health professional. Moss, 180 Ill. App. 3d at 636, 536 N.E.2d at 127. We affirmed the trial court\u2019s decision to dismiss with prejudice because \u201cthe plaintiff failed to comply with the statutory prerequisites for filing a medical malpractice action.\u201d Moss, 180 Ill. App. 3d at 636, 536 N.E.2d at 127. The falsehood in the affidavit in this case is similar to the falsehood in Moss. In Moss, the affiant swore that he had performed an act that he did not, in fact, perform until later. In this case, the affiant swore that he had performed an act that was performed by another. Both statements are equally false.\nSimilarly, in Tucker v. St. James Hospital, 279 Ill. App. 3d 696, 703, 665 N.E.2d 392, 396 (1996), the court upheld dismissal with prejudice where the affidavit was invalid because it was incomplete and based on an invalid health professional\u2019s report.\nWe find that the invalid affidavit is sufficient grounds, standing alone, on which the trial court could have dismissed this action with prejudice.\nAttorney Barry, at oral argument, acknowledged that the certificate and affidavit did not \u201ctechnically\u201d conform to the requirements of section 2 \u2014 622 of the Code. He argued, however, that dismissal with prejudice was an abuse of the trial court\u2019s discretion because it did not further the legislative purpose of the statute \u2014 the prevention of frivolous medical malpractice lawsuits. He claimed that plaintiffs\u2019 action was meritorious and, even in the face of their attorney\u2019s noncompliance with the statute, their lawsuit should have been allowed to continue. He offered no authority for this assertion.\nThis argument is entirely without merit. Even if we were to agree that the plaintiffs have made a potentially meritorious claim and that it was not the intent of the legislature to bar such claims, neither this court, nor the trial court, nor counsel may simply disregard the plain language of the statute.\nC. Rule 137\nWe briefly address the argument, made on behalf of Dr. Irwin at oral argument, that Supreme Court Rule 137 (155 Ill. 2d R. 137) provides an independent basis for affirming the dismissal with prejudice.\nRule 137 requires that every pleading, motion, or other paper of a party be signed by that party\u2019s attorney. Further:\n\u201cThe -signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion[,] or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact ***. *** If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction ***.\u201d 155 Ill. 2d R. 137.\nDefendants invoked Rule 137 in their joint brief, but on a different basis than that asserted at oral argument. In the brief, defendants argued that a false statement in a section 2 \u2014 622 affidavit also violates Rule 137. At oral argument, the additional claim was made that plaintiffs\u2019 response to defendants\u2019 interrogatories under Supreme Court Rule 213 (166 Ill. 2d R. 213) also contained false statements.\nRule 213(g) requires a party to state, in response to a written interrogatory: (1) the subject matter about which an opinion witness is expected to testify; (2) the conclusions and opinions of that witness and the bases therefor; and (3) the qualifications of the witness and copies of any reports prepared by the witness. 166 Ill. 2d R. 213(g).\nAccording to counsel for Dr. Irwin, plaintiffs\u2019 response to Rule 213 interrogatories, signed by attorney Barry, contained false statements that attributed certain opinions to Drs. Felten and Laskin. In their deposition testimony, the doctors disavowed the opinions attributed to them by attorney Barry. In the interim, however, counsel asserts that a third defendant, BroMenn, reached a settlement with plaintiffs and that a reasonable inference may be drawn that the settlement was influenced by the false pleading. The gravamen of counsel\u2019s argument is that by falsely attributing opinions to such witnesses, a plaintiff places a defendant in the position of either settling a claim in reliance on the truth of the statements or incurring the unnecessary expense of verifying the truth of the statements by taking depositions of the witnesses.\nBecause we have disposed of this appeal on other grounds, we need not accept counsel\u2019s invitation to compare the deposition testimony of the doctors with the opinions attributed to them in the papers filed by plaintiffs. We do agree with defendants, however, that such conduct by a plaintiffs attorney is not to be tolerated.\nIII. CONCLUSION\nFor the reasons set forth above, we affirm the judgment of the trial court dismissing plaintiffs\u2019 action with prejudice.\nAffirmed.\nKNECHT, EJ., and STEIGMANN, J., concur.", "type": "majority", "author": "JUSTICE GARMAN" } ], "attorneys": [ "Maurice J. Barry (argued), of Ostling, Ensign & Barry, of Bloomington, for appellants.", "James J. Hagle (argued), of Johnson, Frank, Frederick & Walsh, of Urbana, for appellee G.S. Irwin.", "Murvel Pretorius, Jr. (argued), of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellee McLean County Orthopedics, Ltd." ], "corrections": "", "head_matter": "ANITA INGOLD et al., Plaintiffs-Appellants, v. G.S. IRWIN et al., Defendants-Appellees (BroMenn Healthcare, Defendant).\nFourth District\nNo. 4\u201498\u20140308\nArgued November 17, 1998.\n\u2014 Opinion filed December 31, 1998.\nMaurice J. Barry (argued), of Ostling, Ensign & Barry, of Bloomington, for appellants.\nJames J. Hagle (argued), of Johnson, Frank, Frederick & Walsh, of Urbana, for appellee G.S. Irwin.\nMurvel Pretorius, Jr. (argued), of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellee McLean County Orthopedics, Ltd." }, "file_name": "0378-01", "first_page_order": 396, "last_page_order": 408 }