{ "id": 4283246, "name": "JANET JACKSON, Plaintiff-Appellant, v. VICTORY MEMORIAL HOSPITAL et al., Defendants-Appellees", "name_abbreviation": "Jackson v. Victory Memorial Hospital", "decision_date": "2008-12-02", "docket_number": "No. 2-07-0525", "first_page": "342", "last_page": "352", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 342" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "80 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3232851 ], "year": 1980, "pin_cites": [ { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0915-01" ] }, { "cite": "107 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 1096558 ], "year": 2000, "pin_cites": [ { "page": "793" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0789-01" ] }, { "cite": "325 Ill. App. 3d 1152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570543 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "1153" }, { "page": "1153-54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/1152-01" ] }, { "cite": "210 Ill. App. 3d 1096", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2533430 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "1103" }, { "page": "1103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/1096-01" ] }, { "cite": "382 Ill. App. 3d 1062", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4276774 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "1069" }, { "page": "1069" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/1062-01" ] }, { "cite": "178 Ill. 2d 496", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385513 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0496-01" ] }, { "cite": "172 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55986 ], "year": 1996, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0325-01" ] }, { "cite": "228 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706768 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "467" }, { "page": "467" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0462-01" ] }, { "cite": "167 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473692 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0758-01" ] }, { "cite": "189 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2680066 ], "year": 1989, "pin_cites": [ { "page": "950-51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0945-01" ] }, { "cite": "209 Ill. App. 3d 30", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2540182 ], "year": 1991, "pin_cites": [ { "page": "35-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0030-01" ] }, { "cite": "234 Ill. App. 3d 690", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5186380 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "701" }, { "page": "701" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0690-01" ] }, { "cite": "229 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615024 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "447" }, { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0421-01" ] }, { "cite": "286 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544442 ], "year": 1997, "pin_cites": [ { "page": "426", "parenthetical": "applying amended version of section 2 - -622, where the plaintiff refiled her complaint after the effective date of the amendment" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0420-01" ] }, { "cite": "179 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801349 ], "year": 1997, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0367-01" ] }, { "cite": "223 Ill. 2d 49", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604629 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "59" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0049-01" ] }, { "cite": "353 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3363320 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0654-01" ] } ], "analysis": { "cardinality": 871, "char_count": 26930, "ocr_confidence": 0.776, "pagerank": { "raw": 1.1686309841507059e-07, "percentile": 0.5857735335148884 }, "sha256": "1a7b5ad6070da468305886f6a34af0d8e66fdce43072afb8840b916915bc8515", "simhash": "1:c3ea5522b729596d", "word_count": 4470 }, "last_updated": "2023-07-14T22:05:00.567552+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JANET JACKSON, Plaintiff-Appellant, v. VICTORY MEMORIAL HOSPITAL et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE JORGENSEN\ndelivered the opinion of the court:\nPlaintiff, Janet Jackson, appeals the trial court\u2019s dismissal of her medical malpractice complaint against defendants, Victory Memorial Hospital (VMH), Cynthia Wait, M.D., and Erick Kirch, M.D. For the following reasons, we reverse and remand.\nI. BACKGROUND\nOn February 7, 2005, plaintiff filed a pro se complaint against defendants, asserting claims of medical malpractice. VMH moved to dismiss the complaint, under sections 2 \u2014 615 and 2 \u2014 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615, 2 \u2014 619 (West 2004)). VMH alleged that: (1) the complaint should be dismissed under section 2 \u2014 615 because it failed to state a cause of action for which relief could be granted; and (2) the complaint should be dismissed under section 2 \u2014 619 because plaintiff failed to submit the affidavit and physician\u2019s report required by section 2 \u2014 622 of the Code (735 ILCS 5/2 \u2014 622 (West 2004)). Wait and Kirch moved to dismiss the complaint under section 2 \u2014 619 of the Code, based on plaintiffs failure to comply with Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)) and based on plaintiff\u2019s failure to submit the affidavit and physician\u2019s report required by section 2 \u2014 622.\nOn June 15, 2005, the trial court granted VMH\u2019s motion to dismiss under section 2 \u2014 615 of the Code, granted plaintiff leave to replead, and set a July 6, 2005, status date.\nOn July 6, 2005, plaintiff advised the trial court that she had retained an attorney, and the trial court continued the matter for a status hearing on August 3, 2005.\nOn August 17, 2005, plaintiff advised the trial court that she had not retained an attorney. The trial court ordered that plaintiff must replead within 28 days, and it set a September 21, 2005, status date.\nOn September 21, 2005, plaintiff advised the trial court that she had retained an attorney. The court ordered that an attorney must appear and file an appearance on October 4, 2005.\nOn October 4, 2005, the trial court ordered as follows:\n\u201cThis matter has been continued [several] times for status on plaintiff\u2019s obtaining representation. Plaintiff is still without representation. Should she wish to replead against [VMH] she must do so by notice and motion within the next 28 days Nov 1, 2005[.]\u201d (Emphasis in original.)\nThe trial court set a November 22, 2005, status date.\nOn November 22, 2005, the trial court granted plaintiff 28 days to have counsel file an appearance, and it set a December 20, 2005, status date.\nOn December 20, 2005, plaintiff moved to voluntarily dismiss the complaint under section 2 \u2014 1009 of the Code, which provides that \u201c[t]he plaintiff may, at any time before trial or hearing begins, *** dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.\u201d 735 ILCS 5/2 \u2014 1009(a) (West 2004). The trial court granted plaintiffs motion, ruling as follows:\n\u201cPlaintiffs Motion to Voluntarily Non-Suit is granted with costs to be paid to Defendants upon refiling, and whereupon Drs. Kirch and Waite\u2019s [szc] Motions to Dismiss are to be reinstated upon refiling.\u201d\nOn December 20, 2006, one year after her voluntary dismissal, plaintiff, with the assistance of counsel, refiled her complaint against defendants. Plaintiff\u2019s newly filed complaint alleged that she was treated by defendants in 2003 for Crohn\u2019s disease and that Wait and Kirch, as agents, servants, and/or employees of VMH, negligently prescribed certain medications while she was a patient at VMH. Plaintiff alleged that the medications caused adverse medical reactions and severe, permanent, and debilitating injuries. In addition, plaintiff alleged that, as a direct and proximate result of the negligence, she expended and became liable for large sums of money for medical care. Plaintiffs attorney attached to the complaint an affidavit pursuant to section 2 \u2014 622(a)(2) of the Code. In the affidavit, plaintiffs attorney asserted that he was unable to obtain the medical consultation required by section 2 \u2014 622(a)(1), because the statute of limitations would hinder the action (the limitations period expired the day the complaint was refiled) and that, thus, he needed a 90-day extension to obtain the required affidavit and report.\nOn January 23, 2007, VMH moved to dismiss the newly filed complaint under section 2 \u2014 619 on the grounds that it was barred by res judicata. According to VMH, the newly filed complaint was barred by the trial court\u2019s June 15, 2005, dismissal of plaintiff\u2019s initial complaint for failure to state a claim and by plaintiff\u2019s subsequent voluntary dismissal of the initial complaint. On that same day Kirch moved to dismiss based on plaintiffs alleged failure to comply with section 2 \u2014 622. In the alternative, Kirch requested that his \u201coriginal motion to dismiss [the initial complaint] be reinstated and[ ] ruled upon by the trial court.\u201d Wait was granted leave to join Kirch\u2019s motion to dismiss. The trial court gave plaintiff until February 12, 2007, to respond to VMH\u2019s motion and until February 7, 2007, to respond to Kirch and Wait\u2019s motion.\nOn March 12, 2007, plaintiff moved to file her response to VMH\u2019s motion instanter, and she requested an extension of time to obtain certain medical records needed to prepare her section 2 \u2014 622(a)(1) affidavit.\nOn March 20, 2007, the trial court granted both motions to dismiss. With respect to Kirch and Wait, the trial court agreed that plaintiff failed to file \u201ceither a physician\u2019s report pursuant to Section 2 \u2014 622 of the Code or an appropriate affidavit pursuant to Section 2 \u2014 622 of the Code.\u201d Relying on Cargill v. Czelatdko, 353 Ill. App. 3d 654 (2004), the court found that plaintiffs attorney\u2019s affidavit regarding the physician\u2019s report was insufficient because it failed to declare, as required by section 2 \u2014 622(a)(2), that plaintiff had not previously voluntarily dismissed an action based on the same or substantially the same acts, omissions, or occurrences.\nWith respect to VMH, the court found that plaintiffs claims were barred by res judicata because: (1) the refiled action involved the same allegations and parties as the initial complaint; (2) on June 15, 2005, the court granted VMH\u2019s motion to dismiss the initial complaint; (3) despite numerous extensions, plaintiff failed to replead and, instead, in December 2005, voluntarily dismissed her initial complaint; (4) the June 15, 2005, order became final and appealable upon plaintiff\u2019s voluntary dismissal; and (5) plaintiff did not appeal that order.\nThe court denied plaintiffs motion to reconsider. Plaintiff appeals both orders.\nII. ANALYSIS\nA. Kirch and Wait\nWe first address whether the trial court properly granted Kirch and Wait\u2019s section 2 \u2014 619 motion to dismiss based on plaintiffs alleged failure to comply with section 2 \u2014 622. We review de novo a dismissal under section 2 \u2014 619 of the Code. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).\nUnder section 2 \u2014 622(a)(1) of the Code, when a plaintiff files a medical malpractice complaint, the plaintiffs attorney (or the plaintiff, if proceeding pro se) must attach to the complaint an affidavit stating that he or she has consulted with a \u201chealth professional\u201d and that the health professional has determined in a written report (which must also be attached to the complaint) that \u201cthere is a reasonable and meritorious cause for the filing of such action.\u201d 735 ILCS 5/2\u2014 622(a)(1) (West 2006). Before 1995, section 2 \u2014 622(a)(2) provided that a medical malpractice plaintiff was entitled to a 90-day extension to file the affidavit and medical report required under section 2 \u2014 622(a)(1) if he or she filed an affidavit declaring \u201c[t]hat the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation could not be obtained before the expiration of the statute of limitations.\u201d 735 ILCS 5/2 \u2014 622(a)(2) (West 1994).\nThe Civil Justice Reform Amendments of 1995 (Pub. Act 89 \u2014 7, eff. March 9, 1995) amended section 2 \u2014 622 in two respects. Relevant to this appeal, section 2 \u2014 622(a)(2) was amended to add another requirement to the affidavit, specifically, a declaration that the \u201cplaintiff has not previously voluntarily dismissed an action based on the same or substantially the same acts, omissions, or occurrences.\u201d Pub. Act 89 \u2014 7, eff. March 9, 1995 (amending 735 ILCS 5/2 \u2014 622(a)(2) (West 1994)).\nOn December 18, 1997, our supreme court in Best v. Taylor Machine Works, 179 Ill. 2d 367, 467 (1997), held Public Act 89 \u2014 7 void in its entirety. Although the amendments made to section 2 \u2014 622 were not held substantively unconstitutional, they were nevertheless struck down on severability principles. With the decision in Best, the Act reverted to the pre-1995 version.\nIn February 1998, the General Assembly passed Public Act 90\u2014 579, which amended section 2 \u2014 622 by adding naprapaths to its coverage. See Pub. Act 90 \u2014 579, eff. May 1, 1998. When it did so, it did not add naprapaths to the pre-1995 version; rather, it added naprapaths to the version struck down in Best (the version that required under section 2 \u2014 622(a)(2) a declaration in the affidavit that the \u201cplaintiff has not previously voluntarily dismissed an action based on the same or substantially the same acts, omissions, or occurrences\u201d). Therefore, under the 1998 version of section 2 \u2014 622, a plaintiff was precluded from obtaining a 90-day extension to file the required affidavit and report if the plaintiff had previously voluntarily dismissed the same or substantially the same cause of action. See 735 ILCS 5/2 \u2014 622(a)(2) (West 1998).\nAfter plaintiff filed her initial complaint (and prior to the date on which she filed her new complaint), the legislature passed Public Act 94 \u2014 677 (Pub. Act 94 \u2014 677, eff. August 25, 2005), which again amended section 2 \u2014 622 of the Code. When plaintiff refiled her complaint on December 20, 2006, section 2 \u2014 622 provided, in relevant part, as follows:\n\u201c2 \u2014 622. Healing art malpractice.\n(a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiffs attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:\n1. That the affiant has consulted and reviewed the facts of the case with a health professional ***; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional\u2019s review and consultation that there is a reasonable and meritorious cause for filing of such action. *** A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional\u2019s determination that a reasonable and meritorious cause for the filing of the action exists, including the reviewing health care professional\u2019s name, address, current license number, and state of licensure, must be attached to the affidavit. ***\n2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the affidavit and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. No additional 90-day extensions pursuant to this paragraph shall be granted, except where there has been a withdrawal of the plaintiffs counsel. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with an affidavit and a report required by paragraph 1.\n(g) The failure of the plaintiff to file an affidavit and report in compliance with this Section shall be grounds for dismissal under Section 2 \u2014 619.\n(h) This Section does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.\n(j) The changes to this Section made by this amendatory Act of the 94th General Assembly apply to causes of action accruing on or after its effective date.\u201d 735 ILCS 5/2 \u2014 622 (West 2006).\nThe court ruled that plaintiff\u2019s attorney\u2019s affidavit was insufficient under section 2 \u2014 622(a)(2) because the affidavit failed to declare that plaintiff had not previously voluntarily dismissed an action based on the same or substantially the same facts and, thus, it dismissed plaintiffs newly filed complaint.\nWe hold that the trial court\u2019s dismissal of the complaint was erroneous because, under the applicable version of section 2 \u2014 622 of the Code, such a declaration was not required. Plaintiff filed her new complaint after the effective date of Public Act 94 \u2014 677, and, thus, its provisions apply. 735 ILCS 5/2- \u2014 -622(h) (West 2006); see Calamari v. Drammis, 286 Ill. App. 3d 420, 426 (1997) (applying amended version of section 2 \u2014 -622, where the plaintiff refiled her complaint after the effective date of the amendment). Effective August 25, 2005, section 2 \u2014 622(a)(2) no longer contained the requirement that a plaintiff proceeding thereunder must declare \u201c[t]hat the plaintiff has not previously voluntarily dismissed an action based upon the same or substantially the same acts, omissions, or occurrences\u201d (735 ILCS 5/2 \u2014 622(a)(2) (West 2004)). Therefore, under the plain language of section 2 \u2014 622(a)(2), contrary to the trial court\u2019s holding, plaintiff was entitled to the 90-day extension to file the affidavit and medical report required under section 2 \u2014 622(a)(1), irrespective of whether she had previously voluntarily dismissed her cause of action. 735 ILCS 5/2\u2014 622(a)(1), (a)(2) (West 2006).\nWe also note that, even if the 1998 version of section 2 \u2014 622 applied, plaintiff was nevertheless entitled to the 90-day extension. As noted, the court\u2019s ruling that plaintiffs attorney\u2019s affidavit was insufficient under section 2 \u2014 622(a)(2) for failing to declare that plaintiff had not previously voluntarily dismissed an action based on the same or substantially the same facts was based on Cargill, 353 Ill. App. 3d 654, and its interpretation of the 1998 version of section 2 \u2014 622(a)(2). In Cargill, the Fourth District held that, \u201cin looking at the plain language of [section 2 \u2014 622(a)(2)], if a physician\u2019s report is not attached to the complaint, the plaintiff must attach an affidavit indicating that he [or she] \u2018has not previously voluntarily dismissed an action based upon the same or substantially the same acts\u2019 \u201d to be entitled to a 90-day extension. Cargill, 353 Ill. App. 3d at 661, quoting 735 ILCS 5/2 \u2014 622(a)(2) (West 2002). Recently, however, the Illinois Supreme Court reversed Cargill in O\u2019Casek v. Children\u2019s Home & Aid Society, 229 Ill. 2d 421 (2008).\nThe issue in O\u2019Casek was whether the legislature intended, when it passed the 1998 version of section 2 \u2014 622, to reenact the version struck down by Best (which included the language precluding a plaintiff from obtaining a 90-day extension under section 2 \u2014 622(a)(2) if the plaintiff had previously voluntarily dismissed an action based on the same or substantially the same facts). Following an examination of the legislative history of the 1998 version of section 2 \u2014 622, the supreme court concluded that the legislature did not intend to reenact the version struck down in Best and that the inclusion in section 2 \u2014 622(a)(2) of the language concerning previous voluntary dismissals was \u201clegislative oversight.\u201d O\u2019Casek, 229 Ill. 2d at 447. The court held that, contrary to Cargill\u2019s holding, under the 1998 version of section 2 \u2014 622, a plaintiff was not precluded from obtaining a 90-day extension if the plaintiff had previously voluntarily dismissed an action based on the same or substantially the same facts. O\u2019Casek, 229 Ill. 2d at 450. Therefore, based on O\u2019Casek, even if the 1998 version of section 2 \u2014 622 applied here, plaintiffs attorney\u2019s affidavit was not insufficient for failing to declare that plaintiff had not previously voluntarily dismissed an action based upon the same or substantially the same facts.\nKirch and Wait maintain in the alternative that, even if we find that plaintiff was entitled to the 90-day extension, we should affirm the trial court\u2019s dismissal, based on plaintiffs failure to file the required affidavit and medical report within those 90 days. Without any citation to authority, Kirch and Wait maintain that \u201cno further extensions can be granted\u201d and that, thus, plaintiffs failure to file the affidavit and report within the 90-day period is dispositive. We disagree.\nAlthough the 2005 version of section 2 \u2014 622(a)(2) provides that \u201c[n]o additional 90-day extensions pursuant to this paragraph shall be granted, except where there has been a withdrawal of the plaintiffs counsel\u201d (735 ILCS 5/2 \u2014 622(a)(2) (West 2006)), it also provides that \u201c[t]he changes to this Section made by this amendatory Act of the 94th General Assembly apply to causes of action accruing on or after its effective date\u201d (735 ILCS 5/2 \u2014 622(j) (West 2006)). The prohibition against any \u201cadditional 90-day extensions\u201d was added when the legislature passed Public Act 94 \u2014 677 (Pub. Act 94 \u2014 677, eff. August 25, 2005); therefore, it does not apply to plaintiffs cause of action, which accrued in 2003. See 735 ILCS 5/2 \u2014 622(j) (West 2006).\nBecause the express prohibition against \u201cadditional 90-day extensions\u201d does not apply to plaintiff, the trial court did have discretion to extend the period for filing the affidavit and medical report beyond the 90 days specified by section 2 \u2014 622(a)(2). See Woodard v. Krans, 234 Ill. App. 3d 690 (1992). In Woodard, the defendants argued \u201cthat, by providing a specific 90-day period in section 2 \u2014 622(a)(2), the legislature intended that a medical malpractice plaintiff have only 90 days after the filing of the complaint to provide the required documentation.\u201d Woodard, 234 Ill. App. 3d at 701. This court rejected that argument, stating: \u201cThis argument is patently without merit. The appellate court has already recognized that a trial court has the discretion to allow, for good cause, filings that are not timely even under the deadline provided in section 2 \u2014 622(a)(2).\u201d Woodard, 234 Ill. App. 3d at 701, citing Garland v. Kauten, 209 Ill. App. 3d 30, 35-36 (1991), Wasielewski v. Gilligan, 189 Ill. App. 3d 945, 950-51 (1989), and Hauk v. Day, 167 Ill. App. 3d 758 (1988). We further noted that \u201c[s]uch a construction is consistent not only with the principle that section 2 \u2014 622 is to be construed liberally [citation], but also with the trial court\u2019s power under both Supreme Court Rule 183 (134 Ill. 2d R. 183) and section 2 \u2014 1007 of the Code of Civil Procedure [(735 ILCS 5/2 \u2014 1007 (West 2006))] to grant continuances for good cause.\u201d Woodard, 234 Ill. App. 3d at 701.\nUnder the statute in effect at the time, plaintiff was entitled to 90 days from the date she refiled her claim. The dismissal on March 20, 2007, occurred on the ninetieth day. However, on March 12, 2007, plaintiff had requested an extension of time to locate medical records that were needed to prepare the affidavit and medical report required by section 2 \u2014 622(a)(1). There is no evidence that, at the March 20, 2007, hearing, the trial court considered plaintiffs request for an additional extension. Instead of conducting a hearing to determine whether plaintiff had established good cause for another extension, the trial court erroneously relied on the belief that plaintiff was not entitled to any extension beyond the filing date of December 20, 2006.\nAccordingly, we remand the cause for the trial court to consider whether plaintiff can meet her burden of good cause shown for an additional extension to comply with the 2005 version of section 2 \u2014 622(a)(1), and, if plaintiff cannot, the trial court may dismiss her complaint.\nB. Whether Plaintiffs Claims Against VMH Were Barred by Res Judicata\nPlaintiff next argues that the trial court erred in granting VMH\u2019s section 2 \u2014 619 motion to dismiss the newly filed complaint, based on res judicata. We review the issue de novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).\n\u201c \u2018The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action.\u2019 \u201d Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008), quoting Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). \u201cThree requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions.\u201d Hudson, 228 Ill. 2d at 467.\nPlaintiff does not dispute that the second and third elements of res judicata are satisfied here. Rather, plaintiff contends that res judicata does not apply because the June 15, 2005, order granting VMH\u2019s motion to dismiss the initial complaint for failure to state a claim and the December 20, 2005, order granting plaintiffs motion for a voluntary dismissal are \u201cunenforceable orders\u201d because they \u201cdo not contain necessary Supreme Court Rule 304(a) [(210 Ill. 2d R. 304(a))] language.\u201d According to plaintiff, the lack of Rule 304(a) language renders the orders nonfinal. In response, VMH agrees that the June 15, 2005, order does not contain the \u201cenforceable and appealable\u201d language of Rule 304(a); however, relying on Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (1997), VMH maintains that the order became final when the trial court granted plaintiffs motion to voluntarily dismiss the complaint.\nIf the dismissal was not a final adjudication on the merits, res judicata does not apply. \u201cA final order is one that \u2018disposes of the rights of the parties either with respect to the entire controversy or some definite and separate portion thereof.\u2019 \u201d In re Estate of Yucis, 382 Ill. App. 3d 1062, 1069 (2008), quoting Arachnid, Inc. v. Beall, 210 Ill. App. 3d 1096, 1103 (1991). An order striking or dismissing a complaint is not final \u201cunless its language indicates the litigation is terminated and the plaintiff will not be permitted to replead.\u201d Cole v. Hoogendoorn, Talbot, Davids, Godfrey & Milligan, 325 Ill. App. 3d 1152, 1153 (2001). Plaintiff is correct that the June 15, 2005, order dismissing the complaint was not final, but, contrary to plaintiff\u2019s argument, it is not the absence of Rule 304(a) language that makes the order nonfinal. Rule 304(a) language does not make an order final; it makes appealable a final order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in an action. See 210 Ill. 2d R. 304(a); In re Adoption of Ginnell, 316 Ill. App. 3d 789, 793 (2000). Rather, the order was not final because it granted plaintiff leave to amend. See Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 585 (2003) (\u201cThe court\u2019s decision to grant leave to amend indicates that defendants\u2019 motions were not final dispositions of the case, and thus it cannot be considered a final order\u201d).\nNevertheless, VMH argues that, even though the order granted plaintiff leave to amend, plaintiffs failure to plead within the time allowed by the trial court operated as an election to stand on the original pleading and that, when the trial court granted plaintiffs motion for a voluntary dismissal of the case, the June 15, 2005, dismissal became final. We disagree. First, there is no indication that plaintiff elected to stand on the complaint. While the record indicates that the trial court granted several extensions to plaintiff to replead and that plaintiff failed to do so, the record also indicates that plaintiffs failure to do so was likely a result of her inability to secure counsel rather than a desire to stand on her complaint. In addition, although the trial court set a deadline by which plaintiff had to file her amended complaint, it was within the trial court\u2019s discretion to extend that deadline, even well after the original deadline. See Richardson v. Economy Fire & Casualty Co., 109 Ill. 2d 41, 46 (1985). Indeed, the trial court had previously done so, extending its August 31, 2005, deadline to November 1, 2005.\nMoreover, \u201c[e]ven if a plaintiff subsequently elects to stand on his or her complaint, an order striking or dismissing a complaint is not final until the trial court enters an order dismissing the suit\u201d (Cole, 325 Ill. App. 3d at 1153-54) and does so with prejudice. See Wick Building Systems, Inc. v. Bunning, 107 Ill. App. 3d 61, 62 (1982); Martin v. Marks, 80 Ill. App. 3d 915, 918 (1980). Here, the trial court never entered an order dismissing the suit with prejudice. To the contrary, the trial court granted plaintiff\u2019s motion for a voluntary dismissal. A voluntary dismissal is a dismissal without prejudice. See 735 ILCS 5/2 \u2014 1009 (West 2006). While it is well settled that upon entry of a voluntary dismissal all final orders become appealable (see Hudson, 228 Ill. 2d at 468; Dubina, 178 Ill. 2d at 503), VMH does not cite, nor have we found, any case holding that an order granting a voluntary dismissal renders final an otherwise nonfinal order. Prior to the voluntary dismissal, the trial court did not enter an order that \u201c \u00a3dispose[d] of the rights of the parties either with respect to the entire controversy or some definite and separate portion thereof\u2019 \u201d (Yucis, 382 Ill. App. 3d at 1069, quoting Arachnid, 210 Ill. App. 3d at 1103). Therefore, we hold that res judicata does not bar plaintiffs cause of action against VMH and that the trial court erred in granting VMH\u2019s motion to dismiss.\nIII. CONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Lake County is reversed, and the cause is remanded.\nReversed and remanded.\nZENOFF, P.J., and SCHOSTOK, J., concur.\n\u201cErick Kirch, M.D.\u201d is actually Everett Kirch, M.D.", "type": "majority", "author": "JUSTICE JORGENSEN" } ], "attorneys": [ "Alfred T. Whiters, of Chicago, for appellant.", "Ruth V. Enright and Bret C. Jessee, both of Baker & Enright, of Chicago, for appellee Victory Memorial Hospital.", "James P. DeNardo and Sara E. Cook, both of McKenna Storer, of Chicago, for appellee Cynthia Waites.", "Suzanne F. Gillen and Melissa J. Gordon, both of Langhenry, Gillen & Lundquist, LLC, of Chicago, for appellee Everett Kirch." ], "corrections": "", "head_matter": "JANET JACKSON, Plaintiff-Appellant, v. VICTORY MEMORIAL HOSPITAL et al., Defendants-Appellees.\nSecond District\nNo. 2 \u2014 07\u20140525\nOpinion filed December 2, 2008.\nAlfred T. Whiters, of Chicago, for appellant.\nRuth V. Enright and Bret C. Jessee, both of Baker & Enright, of Chicago, for appellee Victory Memorial Hospital.\nJames P. DeNardo and Sara E. Cook, both of McKenna Storer, of Chicago, for appellee Cynthia Waites.\nSuzanne F. Gillen and Melissa J. Gordon, both of Langhenry, Gillen & Lundquist, LLC, of Chicago, for appellee Everett Kirch." }, "file_name": "0342-01", "first_page_order": 358, "last_page_order": 368 }