Edwards v. Sterling Drugs, Inc.

521 N.E.2d 296, 167 Ill. App. 3d 181, 118 Ill. Dec. 228, 1988 Ill. App. LEXIS 348
CourtAppellate Court of Illinois
DecidedMarch 24, 1988
DocketNo. 4-87-0530
StatusPublished
Cited by2 cases

This text of 521 N.E.2d 296 (Edwards v. Sterling Drugs, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwards v. Sterling Drugs, Inc., 521 N.E.2d 296, 167 Ill. App. 3d 181, 118 Ill. Dec. 228, 1988 Ill. App. LEXIS 348 (Ill. Ct. App. 1988).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

Claire Edwards, individually and as mother and next friend of Monica Edwards (plaintiff), filed a four-count complaint in Sangamon County circuit court June 26, 1986, against Sterling Drug, Inc., and Memorial Medical Center (defendant). The trial court dismissed the counts against defendant on July 27, 1987, for failure of the attorney’s affidavit to comply with section 2 — 622(a)(1) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-622(a)(l).) Plaintiff appeals, contending her attorney’s affidavit substantially complied with section 2 — 622(a)(1), and in the alternative, the trial court erred in dismissing the counts with prejudice.

Counts I and II of plaintiff’s complaint alleged a cause of action in products liability against Sterling Drug, Inc., and are not involved in this appeal. Counts III and IV alleged defendant, through its agent Dr. R. W. Roller, negligently and carelessly administered certain drugs to plaintiff during the labor preceding Monica’s birth June 27, 1976.

Plaintiff filed her complaint June 26, 1986. Attached to the complaint was an affidavit filed pursuant to section 2 — 622(a)(2) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(2)) in which Ellen Dauber, one of plaintiff’s attorneys, stated a consultation or report from a health care professional could not be obtained prior to the running of the statute of limitations.

Defendant filed two motions to dismiss counts III and IV. The first, filed August 5, 1986, alleged essentially that plaintiff’s attorney failed to attach to the complaint either a report or an affidavit stating a consultation could not be obtained prior to the running of the statute of limitations as required by section 2 — 622(a)(2). The disposition of this motion is unclear from the record. The second, filed October 10, 1986, repeated the allegations of the first motion and added that plaintiff failed to file the attorney’s affidavit and the reviewing health professional’s report within 90 days of the filing of the complaint as required by section 2 — 622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2— 622(a)(2)).

At a November 7, 1986, hearing on the motion to dismiss, attorney Bruce Cook, another of plaintiff’s attorneys, filed an affidavit under section 2 — 622(a)(3), stating defendant had failed to furnish complete medical records relating to plaintiffs. Specifically, defendant had not furnished a portion of the fetal heart monitor strip despite repeated written requests. At the November 7 hearing, the court granted plaintiff leave to file affidavits or other proofs in opposition to the motion to dismiss. On November 18, 1987, plaintiff filed a supplemental affidavit relating to whether the fetal heart monitor strip was missing. On December 24, 1986, the court granted plaintiff’s motion to amend the complaint by adding Dr. Roller as a party defendant. Defendant moved January 15, 1987, to consolidate the instant action with the case previously filed against Dr. Roller.

On January 28, 1987, plaintiff filed a motion to amend the complaint by adding an affidavit by attorney Cook. Cook’s affidavit, dated December 12, 1986, stated he was plaintiff’s attorney, he had consulted with a health care professional, a specialist in obstetrics and gynecology, pursuant to section 2 — 622, and that after reviewing incomplete medical records, the professional determined in a written report that plaintiff had a reasonable and meritorious cause of action against Dr. Roller. The report was attached to the affidavit.

At the July 15, 1987, hearing on the motion to dismiss, the trial court did not decide whether plaintiff had timely filed the affidavit under section 2 — 622(a)(3). It concluded the January 28, 1987, affidavit was fatally deficient in that it failed to state (1) the attorney believed there was a meritorious cause of action against the defendant, and (2) the attorney consulted with a health care professional he believed knowledgeable concerning the case. The judge stated the report’s additional failure to state a meritorious cause of action existed against Memorial itself was not as defective as the other two omissions. The court found no just reason for delaying enforcement or appeal from the order. The written order, entered July 27, 1987, was silent as to whether the dismissal was with or without prejudice, though it did state the counts were dismissed pursuant to section 2 — 619 of the Code. Plaintiff filed her notice of appeal August 3, 1987. Supreme Court Rule 273 (107 Ill. 2d R. 273) states that unless the order provides otherwise, an involuntary dismissal operates as an adjudication on the merits. Therefore, the dismissal here was with prejudice.

Plaintiff argues the defects in the affidavit do not warrant dismissal with prejudice without reasonable leave to amend. Defendant contends failure to adhere to the statutory requirements requires dismissal with prejudice. We need not reach this question, as the facts require that we reverse the court’s order and remand this cause for further proceedings.

Section 2 — 622 requires that in a healing arts malpractice action: “[Plaintiff’s attorney or the plaintiff *** shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes is knowledgeable in the relevant issues involved in the particular action and who practices in the same specialty as the defendant if the defendant is a specialist; 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’s review and consultation that there is a reasonable and meritorious cause for filing of such action. ***
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 certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. ***
That a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to Part 20 of Article VIII of this Code and the party required to comply under those Sections has failed to produce such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. ***
* * *
(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 — 619.” Ill. Rev. Stat. 1985, eh. 110, par. 2-622.

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Cite This Page — Counsel Stack

Bluebook (online)
521 N.E.2d 296, 167 Ill. App. 3d 181, 118 Ill. Dec. 228, 1988 Ill. App. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-sterling-drugs-inc-illappct-1988.