Crull v. Sriratana

NO. 4-06-0952 Filed 10/11/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DAN CRULL, Special Administrator of ) Appeal from
the Estate of NOVALENE CRULL, ) Circuit Court of
Deceased, ) Livingston County
Plaintiff-Appellant, ) No. 04L36
v. )
PRAMERN SRIRATANA, M.D.; MID-ILLINOIS )
HEMATOLOGY & ONCOLOGY ASSOCIATES, )
LTD., an Illinois Corporation; KENNETH )
N. JORDAN, D.O.; and MADISON STREET )
CLINIC, P.C., an Illinois Professional ) Honorable
CORPORATION, ) Harold J. Frobish,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In December 2004, plaintiff, Dan Crull, as special
administrator of the estate of Novalene Crull, filed a medical-
malpractice complaint against defendants, Pramern Sriratana,
M.D.; Mid-Illinois Hematology & Oncology Associates, Ltd.;
Kenneth N. Jordan, D.O.; and Madison Street Clinic, P.C.
In October 2006, the trial court dismissed plaintiff's
complaint with prejudice, upon learning that the reviewing
health-care professional's report, which was required by section
2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West
2004)), had been written by a person not licensed to practice
medicine.
Plaintiff appeals, arguing that the trial court erred
by (1) ordering him to reveal the identity of the author of the
section 2-622 report and (2) dismissing the case with prejudice.
We disagree and affirm.
I. BACKGROUND
When plaintiff filed his December 2004 medical-malprac-
tice complaint, he failed to attach a report of a reviewing
health-care professional and, instead, invoked the automatic
statutory 90-day extension under section 2-622(a)(2) of the Code
(735 ILCS 5/2-622(a)(2) (West 2004)). However, plaintiff did not
file a report of any reviewing health-care professional before
the automatic 90-day stay expired on March 17, 2005. The statute
of limitations expired on December 19, 2004.
In early March 2005, Sriratana, a specialist in hema-
tology and oncology, and his corporation prematurely filed a
motion to dismiss plaintiff's complaint based on plaintiff's
failure to file a section 2-622 report from a qualified reviewing
health-care professional. On March 21, 2005, Jordan, a special-
ist in orthopedics and muscular osteopathic medicine, and his
corporation filed a motion to dismiss, alleging that plaintiff
failed to comply with section 2-622, in that he failed to submit
an attorney affidavit, health-care professional's report, or a
motion for an extension of time to file the report within the 90-
day period.
The next day, the trial court held a hearing on defen-
dants' motions to dismiss. At the start of the hearing, plain-
tiff's counsel, Guy Geleerd, moved for leave to file three
identical section 2-622 affidavits and health-care professional's
reports instanter and tendered the affidavits and reports he
- 2 -
sought to submit. Each of Geleerd's affidavits stated that he
had consulted and reviewed the facts of this case with a health-
care professional whom he believed (1) to be knowledgeable in the
relevant issues involved in this cause of action, (2) had prac-
ticed within the last six years in the same area of health care
or medicine at issue in this cause of action, and (3) was quali-
fied by experience and demonstrated competence in the subject of
this case. Each affidavit also stated that a copy of the health-
care professional's report was attached, clearly identifying the
reasons for the professional's determination that a reasonable
and meritorious cause for filing of this cause of action existed.
The health-care professional's reports, dated March 18,
2005, stated that the author was a "physician licensed to prac-
tice medicine in all of its branches, residency trained and board
certified in [the] specialty of internal medicine/nephrology."
The report was not signed and did not reveal the reviewing
health-care professional's name and address, as required by
section 2-622(a)(1) of the Code (735 ILCS 5/2-622(a)(1) (West
2004)).
The trial court recognized that the health-care reports
were not signed. When the court asked Geleerd why the health-
care reports did not reveal the author's identity, Geleerd
responded that "Illinois law does not require that we tender
signed [section] 2-622 reports along with our [section] 2-622
affidavit." Sriratana's counsel objected, and the following
colloquy between the court and Geleerd occurred:
- 3 -
"THE COURT: Well, aside from what the
law requires, give me the name of your ex-
pert.
MR. GELEERD: I don't want to do that.
THE COURT: Well, you may regret that.
I want to know from you, as an officer of
this court, that you have got somebody. I
want to know who he is, and I want to know
why his name is not on here.
MR. GELEERD: I have two experts. One
is a board[-]certified internal medicine and
nephrologist [expert]; and one is a board[-]
certified internal medicine and infectious
disease expert. And until the Cargill [v.
Czelatdko, 353 Ill. App. 3d 654, 818 N.E.2d
898 (2004),] decision is reviewed by either
an [a]ppellate [c]ourt or the [s]upreme
[c]ourt, it is our understanding that the
Best v. Taylor [Machine Works, 179 Ill. 2d
367, 689 N.E.2d 1057 (1997),] decision over-
rides the previously stricken [section] 2-622
that requires the plaintiff to identify his
or her expert.
THE COURT: You are conceding that
Cargill requires identification?
MR. GELEERD: Oh, yes. No question
- 4 -
about that.
THE COURT: Do you have any authority
other than Cargill that speaks to the issue
that would excuse you from identifying the
expert?
MR. GELEERD: There is a Rule 23 order
[(166 Ill 2d. R. 23)] that was issued by the
First District Appellate Court that we have
been trying to get a copy of, that we have
been unable to get a copy of. But there is a
Rule 23 order by the First District Appellate
Court that did not follow Cargill. And now
we are kind of waiting.
THE COURT: Cargill is out of what Dis-
trict?
MR. GELEERD: Cargill is out of I be-
lieve it is the Fifth District, Your Honor.
MR. GUNN: I believe it is the Fourth,
Your Honor.
THE COURT: Fourth District, that might
be correct.
***
THE COURT: I am going to give you an
opportunity, Mr. Geleerd, for you to state
who it is that your experts are today. Give
me their names and their physical locations.
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MR. GELEERD: Can I do that in camera?
THE COURT: No.
MR. GELEERD: Can I do that outside the
presence of the defense counsel?
THE COURT: No.
MR. GELEERD: I feel I am in a very ***
THE COURT: I am not going to order you
to. I am going to give you the opportunity
to provide some assurance to the court by
identification of these people that you actu-
ally have them.
MR. GELEERD: Oh, I will be more than
happy to state on the record.
THE COURT: I am not interested in that.
There is a test here. I will know if you
have got them if you give me their names and
addresses. And then they are deposed at a
particular point in time, and they will say
yes, I was on board with Mr. Geleerd on March
22, 2005; or, yes, this man had talked to me,
but I didn't really know what was going on.
No, you know, whatever. I want to be as-
sured. I want the [a]ppellate [c]ourt to be
assured that you have someone on board right
now that has seen this opinion letter to you
and has said, Mr. Geleerd, I will sign that.
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Let me ask this question. Have these
experts signed these opinion letters already?
MR. GELEERD: One has not. The board[-]
certified internist with the specialty in
infectious disease has not. And the board[-]
certified internal medicine [physician] with
the specialty in nephrology has reviewed the
records. And he is the one who gave me a
draft of the letter that I attached to the
[section] 2-622. The actual [section] 2-622
is what I sent down to him on March 18, which
I have not received a copy of them.
THE COURT: As you sit there now, there
is not in your possession a signed opinion
letter by anyone. Would that be true or not
true?
MR. GELEERD: No, that is not true. I
do have a signed opinion letter of a consul-
tant who is an internal[-]medicine physician.
However, I am happy to disclose to this
[c]ourt the names of the two experts that I
would put on the stand in front of the jury.
I just would ask not to do that in front of
defense counsel, unless this [c]ourt is or-
dering me to do so, then, I would be happy to
do so. But both of the individuals who I
- 7 -
will disclose at this point in time will come
on board as experts for the plaintiff to
testify in this case.
THE COURT: Well, you represent the
plaintiff. I am going to let you decide what
it is that you have to do. I am not going to
order you to. If you are going to be sued
for malpractice, this will be a call that you
made that subjected yourself to liability. I
am not saying how I am going to rule. But I
want the record clear that you have an oppor-
tunity today to give the identification of
these two experts. You are either going to
do that, or you are not going to do that.
And that is your call. And you live with
your decision."
Geleerd then asked for an opportunity to consult with the benefi-
ciaries of the estate "so they are made aware of the [c]ourt's
request that I go against what the plaintiff's bar is considering
a wrong decision, that being Cargill." Geleerd wanted to let
them know what was going on "since there is a split in the law
between the plaintiff's bar and the defense bar." Geleerd
indicated he was proceeding under Best, the pre-Cargill case.
The court then stated no split in the law existed, to which
Geleerd responded that he was of the opinion there was a split
between the First District and the Fourth District Appellate
- 8 -
Courts. The court then asked Geleerd if he was aware that they
were in the Fourth District, and Geleerd responded that he was.
Later, at the same hearing, the trial court and Geleerd
had the following discussion:
"THE COURT: What is your reason that
you don't want to disclose them as you sit
there today? Are you afraid you are going to
besmirch their reputation? What's your con-
cern?
MR. GELEERD: No, not at all. I feel
that as a member of the plaintiff's bar, and
recognizing--
THE COURT: Well, forget the club. But
you have clients. Why don't you just want to
say, these are the names of doctors, this is
what they say. I don't understand your rea-
soning. Be clear because we have got a re-
cord here.
MR. GELEERD: My only reason, as you
said, being a member of the club. I don't
want to put my club, as you say, the Illinois
Trial Lawyers Association, into a position
where I have conceded to Cargill where I know
that there is a Rule 23 order from the First
District Appellate Court that is trying to
get its way up to the [s]upreme [c]ourt so
- 9 -
the [s]upreme [c]ourt can look at Cargill.
THE COURT: So it is the club, and not
your clients. You asked for a recess to talk
to the clients to get permission. And they
are not going to understand one iota.
MR. GELEERD: You are absolutely right.
But that is the legal[-]malpractice issue.
But I have absolutely no objection, if the
[c]ourt begs my indulgence, I can get these
people."
Sriratana's counsel then objected because the 90-day
statutory deadline had passed and plaintiff had still not offered
a signed section 2-622 report. Counsel for the other defendants
also objected. The court reserved ruling and gave plaintiff time
to file a motion for leave to extend the statutory deadline, but
urged Geleerd to furnish the signed opinion letters as soon as
possible.
At the end of the hearing, Geleerd indicated that on
January 1, 2005, his law partner died unexpectedly of a heart
attack. As a result, Geleerd had to review over 300 files and
overlooked the deadline to file the section 2-622 affidavit and
report.
In April 2005, Geleerd sent a letter disclosing the
name of a physician who Geleerd purported was the reviewing
health-care professional. In this letter, Geleerd stated that
"in accord with the [c]ourt's order, and after having engaged
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plaintiff's expert in accord with the [c]ourt's order," he
received the expert's draft letter via e-mail and indicated he
would be forwarding the same to defendants' counsel. Later in
April 2005, plaintiff filed a motion for an extension of time in
which to file the section 2-622 report. Attached thereto was the
report of a reviewing health-care professional identifying Bruce
R. Leslie, M.D., as the author. This report was different in
both format and content from the reports presented at the March
2005 hearing. In his report, Leslie stated that he was board
certified in internal medicine but did not mention a specialty in
either nephrology or infectious disease. Geleerd revealed for
the first time in May 2005 that Leslie was not the author of the
unsigned reports tendered at the March 2005 hearing.
In July 2005, the parties were before the trial court
for a hearing on defendants' motion to dismiss and plaintiff's
motion for an extension of time to file the section 2-622 report.
The court denied defendants' motion to dismiss and, over defen-
dants' objections, granted plaintiff's motion for extension and
allowed the late filing of the section 2-622 report. Sriratana's
counsel pointed out the identity of the original author of the
section 2-622 reports tendered at the March 2005 hearing had not
been disclosed and asked that they be disclosed. Because the
issue had not been briefed to the point the court felt that it
could make an informed decision, the court stated that counsel
could raise the issue later in a new motion and described it as a
"separate[,] very meaty issue."
- 11 -
In October 2005, Sriratana filed a motion to compel
plaintiff to reveal the identity of plaintiff's reviewing health-
care professionals. At a January 2006 hearing, the trial court
described the issue as whether "plaintiff should be compelled to
identify the individuals that have been described as consul-
tants." Geleerd stated that he had already disclosed one of his
two experts and would be disclosing the other expert, who was an
infectious-disease expert. He then clarified that the only
identity he was "seeking to prohibit from disclosure [was] one
consultant who signed the [section] 2-622 that [Geleerd] tendered
in open court [in March 2005]." Geleerd also stated that the
second expert whose report he would be submitting was Dr. Frank
Rhame.
Geleerd acknowledged that he relied on the undisclosed
author of the March 2005 report as being within the confines of
section 2-622 but stated this was "[u]nder the auspices that he
[was] a nondisclosed expert" under discovery rules. The trial
court asked Geleerd if he wanted "to hide whoever this person was
and prevent [defendants] from really ascertaining whether [he]
had [his] ducks in a row, whether [he] had the solid basis for a
malpractice action." Geleerd denied that he was doing that and
reiterated he was litigating the case under the pre-Cargill state
of law, which, according to Geleerd, did not require the identity
of a section 2-622 health-care professional.
Defendants argued that plaintiff forfeited the right
not to reveal the consultant's identity since plaintiff used the
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consultant to defeat defendants' motion to dismiss. The trial
court and Geleerd engaged in a dialogue as to why Geleerd should
not be required to reveal the identity of the consultant who
authored the section 2-622 reports tendered in March 2005.
Geleerd responded, "Why can't they take my word and yours?" and
suggested he could identify the consultant to the court and
defendants could then take the court's word that a medical doctor
had signed the report. Geleerd stated that no law supported the
theory that a plaintiff forfeits the right not to disclose the
consultant's identity by using the consultant to defeat a motion
to dismiss. Geleerd also stated that this argument failed
because the court entered an order extending the time within
which plaintiff could file the section 2-622 report, and Geleerd
filed the report signed by Leslie.
Defendants' counsel then argued that in 1998 the
legislature passed section 2-622 of the Code, which gave defen-
dants the right to know who was certifying the case against them.
Thus, Geleerd's argument that disclosure was not required prior
to the decision in Cargill lacked merit.
Following more argument, the trial court granted
defendants' motion to compel disclosure of the identity of the
author of the unsigned reports tendered in March 2005. The court
gave Geleerd a short time to reveal the identity of the consul-
tant but indicated if he refused to do so, the court would
dismiss the case. The trial court then stated as follows:
"I am simply requiring--finding that you have
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chosen to use, for good reason, you have
chosen this individual to keep your case
alive. And you have kept your case alive by
using him. And fair play and the right to
enforce the law as contemplated by the
[l]egislature entitles the defense to know
who he is."
In February 2006, plaintiff filed a motion to recon-
sider the trial court's January 2006 ruling requiring disclosure
of the consultant. At an April 2006 hearing on that motion, the
court asked Geleerd if Leslie had been contacted and was "on
board" as of the March 22, 2005, hearing. Geleerd responded that
he had contacted both Leslie and Rhame in November 2004. How-
ever, he acknowledged that as of March 22, 2005, (1) he had not
yet sent Leslie or Rhame all of the medical records in the case,
(2) neither Leslie nor Rhame had sufficient records upon which
they could make an opinion as to whether the case presented a
meritorious cause of action, and (3) the only person who could
make such an opinion was his unnamed consultant. The court
denied plaintiff's motion to reconsider. Later in April 2006,
Geleerd revealed to defendants that plaintiff's consultant was
Dr. Bernard R. Lerner.
During a May 2006 conference call with counsel, the
trial court was advised that a question had arisen as to whether
Lerner was licensed to practice medicine at the time his opinion
was given. Geleerd was to get an affidavit and documentation
- 14 -
regarding that issue. The record does not show that Geleerd ever
produced such an affidavit.
In May 2006, Lerner submitted a letter stating that the
last medical license he held was in New Mexico. He later moved
to Chicago to pursue a career in medical consulting, and because
he was no longer practicing medicine, he did not pay his fees or
dues. After moving to Chicago, he learned that his license to
practice medicine had been suspended.
Defendants provided the trial court with evidence
showing the following. Lerner's Illinois license to practice
medicine was revoked in July 1990 after he was convicted of
felony narcotics-related charges. Lerner's New Mexico medical
license expired in June 1999, and he was not licensed in any
other state when he authored the March 2005 section 2-622 report.
In January 2003, this court recognized that Lerner misrepresented
his licensures and qualifications when authoring a section 2-622
report. See Long v. Mathew, 336 Ill. App. 3d 595, 599, 783
N.E.2d 1076, 1079 (2003). Long was published in the official
advance sheet on April 2, 2003 (Official Reports Advance Sheet
No. 7 (April 2, 2003)), well before Geleerd filed the complaint
in December 2004 and the section 2-622 affidavit and health-care
professional's report in March 2005. Lerner was not board
certified in internal medicine, as the March 2005 section 2-622
report stated, but rather practiced as a neurosurgeon (when he
was licensed).
In October 2006, the trial court ordered that Lerner's
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section 2-622 report be stricken because he was not a licensed
physician. The court also ordered that Geleerd's March 2005
affidavit be stricken because it was based on Lerner's report.
The court stated, "It is absolutely clear in this case that the
requirements of [section 2-622] have not been met. Absolutely
clear." The court further stated that, "[i]n a very real sense,
a fraud has been committed upon" defendants, the court system,
and the people of Illinois. The court explained as follows:
"The plaintiff relying on Lerner was never
entitled to have a cause of action pursued.
The plaintiff's case was dead in the water.
Mr. Lerner was not a [licensed] physician.
And the record must be made very clear here.
No one, no one else was on board with the
required opinion on March 17, [2005,] when
the 90-day period expired."
The court also made it clear that while it had found good cause
for the late filing of the section 2-622 report, "it was good
cause for the late filing of a health-care report by a doctor who
was on board by March 17, [2005]." The court then dismissed the
case with prejudice.
This appeal followed.
II. MOTIONS TO STRIKE PLAINTIFF'S REPLY BRIEF
In April 2007, Sriratana and Jordan each filed a motion
to strike plaintiff's reply brief, alleging that it failed to
satisfy the requirements of Illinois Supreme Court Rule 341 (210
- 16 -
Ill. 2d R. 341) because plaintiff (1) did not cite to the offi-
cial record when making statements of fact, (2) referenced
matters not within the record on appeal, and (3) failed to cite
legal authority for legal arguments. We agree and strike plain-
tiff's reply brief.
The rules of procedure concerning appellate briefs are
not mere suggestions, and it is within this court's discretion to
strike the plaintiff's brief for failing to comply with Supreme
Court Rule 341. Niewold v. Fry, 306 Ill. App. 3d 735, 737, 714
N.E.2d 1082, 1084 (1999). Rule 341(j), which authorizes an
appellant to file a reply brief, provides as follows: "The reply
brief, if any, shall be confined strictly to replying to argu-
ments presented in the brief of appellee and need contain only
[a]rgument." 210 Ill. 2d R. 341(j). Rule 341(h)(7) requires
appellants to give reasons for their contentions "with citation
of the authorities and the pages of the record relied on." 210
Ill. 2d R. 341(h)(7). This court has stated that "[s]trict
adherence to the requirement of citing relevant pages of the
record is necessary to expedite and facilitate the administration
of justice." Maun v. Department of Professional Regulation, 299
Ill. App. 3d 388, 399, 701 N.E.2d 791, 799 (1998). A contention
that is supported by some argument but no authority does not meet
the requirements of Rule 341 and is considered forfeited.
Sakellariadis v. Spanos, 163 Ill. App. 3d 1084, 1089, 517 N.E.2d
324, 328 (1987).
Plaintiff's reply brief is 14 pages long, contains
- 17 -
assertions that are either not in the record or are contrary to
the record, and contains no citations to the record. In addi-
tion, instead of being strictly confined to replying to arguments
raised in the appellee brief, plaintiff devotes much of his reply
brief to (1) justifying Geleerd's failure to timely obtain a
health-care professional who met the requirements of section 2-
622 and (2) explaining why Geleerd did not know Lerner did not
have the necessary qualifications to meet section 2-622 require-
ments.
III. ANALYSIS
A. Plaintiff's Claim That the Trial Court Erred By
Ordering Him To Reveal Lerner's Identity
Plaintiff first argues that the trial court erred by
ordering him to reveal Lerner's identity. Specifically, he
contends that the court abused its discretion by applying
Cargill. We disagree.
1. Cargill: What Does Section 2-622 Require?
The legislature enacted section 2-622(a)(1), which
requires a medical-malpractice plaintiff to file an affidavit and
accompanying health-care professional's report with the complaint
(735 ILCS 5/2-622(a)(1) (West 2004)), to minimize frivolous
medical-malpractice suits. Hull v. Southern Illinois Hospital
Services, 356 Ill. App. 3d 300, 304, 826 N.E.2d 930, 933 (2005).
The health professional's report is supposed to demonstrate that
plaintiff has a meritorious claim and reasonable grounds exist
for pursuing the action. Sullivan v. Edward Hospital, 209 Ill.
2d 100, 117, 806 N.E.2d 645, 656 (2004).
- 18 -
In Cargill, the plaintiffs voluntarily dismissed their
medical-malpractice complaint because they could not obtain the
physician's report required by section 2-622(a)(1). The plain-
tiffs then refiled their complaint and asked for a 90-day exten-
sion (735 ILCS 5/2-622(a)(2) (West 2004)) to obtain the physi-
cian's report. The defendants argued that section 2-622 does not
allow for a 90-day extension for plaintiffs to file a physician's
report when plaintiffs have previously voluntarily dismissed an
action based on the same acts. Cargill, 353 Ill. App. 3d at 656,
818 N.E.2d at 901. This court held that under section 2-
622(a)(2), if a physician's report is not attached to the com-
plaint, the plaintiff must attach an affidavit indicating that
she has not previously dismissed an action based on the same or
substantially the same acts. Cargill, 353 Ill. App. 3d at 661,
818 N.E.2d at 905. In so doing, we discussed the history of
section 2-622 as follows:
"Prior to 1995, section 2-622(a) pro-
vided, in part, as follows:
'In any action *** in which
the plaintiff seeks damages for
injuries or death by reason of
medical, hospital, or other healing
art malpractice, the plaintiff's
attorney *** shall file an affida-
vit, attached to the original and
all copies of the complaint, de-
- 19 -
claring one of the following:
1. That the affiant
has consulted and re-
viewed the facts of the
case with a health pro-
fessional who *** has
determined in a written
report, after a review of
the medical record and
other relevant material
involved in the particu-
lar action that there is
a reasonable and merito-
rious cause for the fil-
ing of such action ***.
*** A copy of the writ-
ten report, clearly iden-
tifying the plaintiff and
the reasons for the re-
viewing health profes-
sional's determination
that a reasonable and
meritorious cause for the
filing of the action
exists, must be attached
to the affidavit, but
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information which would
identify the reviewing
health professional may
be deleted from the copy
so attached.
2. 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 expi-
ration of the statute of
limitations.' 735 ILCS
5/2-622(a)(1), (a)(2)
(West 1994).
Prior to 1995, section 2-622 did not include
a restriction on a plaintiff's right to vol-
untarily dismiss an action and refile the
suit if the plaintiff was unable to obtain
the required consultation at the time of
filing. Further, the name and address of the
reviewing health professional was not re-
quired in the written report.
- 21 -
With the Civil Justice Reform Amendments
of 1995, the General Assembly amended section
2-622 through the enactment of Public Act 89-
7 (Act) (Pub. Act 89-7, §15, eff. March 9,
1995 (1995 Ill. Laws 284, 291) (amending 735
ILCS 5/2-622 (West 1994))). Following the
1995 amendment, section 2-622 provided, in
pertinent part, as follows:
'1. That the affiant has con-
sulted and reviewed the facts of
the case with a health professional
who *** has determined in a written
report, after a review of the medi-
cal record and other relevant mate-
rial involved in the particular
action that there is a reasonable
and meritorious cause for the fil-
ing of such action ***. *** A copy
of the written report, clearly
identifying the plaintiff and the
reasons for the reviewing health
professional's determination that a
reasonable and meritorious cause
for the filing of the action ex-
ists, must be attached to the affi-
davit. The report shall include
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the name and the address of the
health professional.
2. That the plaintiff has not
previously voluntarily dismissed an
action based upon the same or sub-
stantially the same acts, omis-
sions, or occurrences and 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.' (Em-
phasis added.) 735 ILCS 5/2-
622(a)(1), (a)(2) (West 1996).
In 1997, the Illinois Supreme Court
issued its opinion in Best v. Taylor Machine
Works, 179 Ill. 2d 367, 689 N.E.2d 1057(1997). In that case, the court found cer-
tain 'core provisions' of Public Act 89-7
were unconstitutional and 'inseparable' from
the remainder of the Act. Best, 179 Ill. 2d
at 467, 689 N.E.2d at 1104. Thus, the whole
Act was declared void in its entirety. Best,
179 Ill. 2d at 467, 689 N.E.2d at 1104. The
- 23 -
court emphasized that 'all of the remaining
provisions of Public Act 89-7, which were not
challenged in the instant cases, are deemed
invalid in this case solely on grounds of
severability. As such, the General Assembly
is free to reenact whatever provisions it
deems desirable or appropriate.' Best, 179
Ill. 2d at 471, 689 N.E.2d at 1106.
In February 1998, the General Assembly
passed Public Act 90-579 (Pub. Act 90-579,
§5, eff. May 1, 1998 (1998 Ill. Laws 48, 48)
(amending 735 ILCS 5/2-622 (West 1996))). In
May 1998, Governor Ryan signed Public Act 90-
579 into law. Along with adding a subsection
setting forth the effective date of the
amendment, Public Act 90-579 added the empha-
sized language:
'If the affidavit is filed as to a
defendant who is a physician li-
censed to treat human ailments
without the use of drugs or medi-
cines[,] *** a psychologist, or a
naprapath, the written report must
be from a health professional li-
censed in the same profession, with
the same class of license, as the
- 24 -
defendant.' (Emphasis added.) Pub.
Act 90-579, §5, eff. May 1, 1998
(1998 Ill. Laws at 49).
Public Act 90-579 also contained the same
language requiring the name and address of
the health professional and the affidavit
requirement that a plaintiff had not previ-
ously voluntarily dismissed an action based
on the same or substantially the same acts.
That language remains in the statute. See 735
ILCS 5/2-622 (West 2002)." Cargill, 353 Ill.
App. 3d at 656-58, 818 N.E.2d at 901-03.
The Cargill court concluded that Public Act 90-579 resurrected
the amendments to section 2-622 as inserted by Public Act 89-7,
which the Best court found unconstitutional. Cargill, 353 Ill.
App. 3d at 661, 818 N.E.2d at 905.
2. Application of the Rule in This Case
Accordingly, under Cargill, section 2-622 of the Code
clearly requires that medical-malpractice plaintiffs disclose the
name and address of the physician who prepared the plaintiff's
health-care professional's report. We thus conclude that the
trial court did not abuse its discretion by ordering that plain-
tiff reveal Lerner's identity.
Although Geleerd conceded below that Cargill would
require disclosure of the health-care professional's name, he
argued that Cargill did not necessarily apply because a subse-
- 25 -
quent case decided in the First District Appellate Court called
the Cargill holding into question.
We reject this argument. As all attorneys and circuit
courts in the state are well aware, "A decision of the appellate
court, though not binding on other appellate districts, is
binding on the circuit courts throughout the State." State Farm
Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539, 605 N.E.2d
539, 542 (1992). "[A] circuit court must follow the precedent of
the appellate court of its district, if such precedent exists; if
no such precedent exists, the circuit court must follow the
precedent of other districts." Schramer v. Tiger Athletic Ass'n
of Aurora, 351 Ill. App. 3d 1016, 1020, 815 N.E.2d 994, 996
(2004). In this case, until either the Fourth District or
supreme court holds otherwise, circuit courts are required to
follow Cargill. See People v. Caban, 318 Ill. App. 3d 1082,
1086, 743 N.E.2d 600, 604 (2001). Since the trial court in this
case sat in the Fourth District, it was required to follow
Cargill and any argument by Geleerd to the contrary was without
merit.
Moreover, we are not aware of any case published before
the trial court dismissed this case that did not follow Cargill.
Instead, on July 21, 2005, over a year before the trial court
dismissed this case, the First District cited Cargill and stated
"the provisions of section 2-622 limiting the statute of limita-
tions exception to plaintiffs who have not already voluntarily
dismissed the same or substantially the same claim, as well as
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the portion requiring that the consulting physician's name and
address be indicated on the report, apply with full force here."
Beauchamp v. Zimmerman, 359 Ill. App. 3d 143, 149 n.1, 833
N.E.2d 877, 883 n.1 (2005). Accordingly, the First District and
Fourth District were consistent as to a plaintiff's obligation to
reveal the identity of reviewing health-care professionals under
section 2-622.
In so concluding, we recognize that a panel of this
court recently concluded that Cargill wrongly assessed the effect
of Public Act 90-579. See O'Casek v. Children's Home & Aid
Society of Illinois, 374 Ill. App. 3d 507, 511-12, N.E.2d ,
___ (2007). The O'Casek court concluded that amendments to
section 2-622 through Public Act 94-677 (Public Act 94-677, §330,
eff. August 25, 2005 (2005 Illinois Laws 4964, 4995)) made it
clear that Public Act 90-579 did not reenact the civil-reform
language regarding voluntary dismissals. O'Casek, 374 Ill. App.
3d at 508-09, N.E.2d at . This case is distinguishable from
O'Casek in that it does not involve the language in section 2-
622(a)(2) concerning voluntary dismissals. The version of
section 2-622(a)(2) in effect when Cargill was decided did not
allow a 90-day extension to file the reviewing health-care
professional's report if plaintiff had voluntarily dismissed the
case and then refiled it (735 ILCS 5/2-622(a)(2) (West 2002),
while the version of section 2-622(a)(2) in effect when O'Casek
was decided contains no language concerning voluntary dismissals
(735 ILCS 5/2-622(a)(2) (West 2006)) (effective August 25, 2005).
- 27 -
However, the issue in this case is whether section 2-622(a)(1)
required plaintiff to identify the reviewing heath-care profes-
sional who authored the section 2-622 health-care professional's
report used to defeat defendants' initial motion to dismiss in
March 2005.
Although the present case and O'Casek deal with differ-
ent aspects of section 2-622, we need to clarify this court's
position regarding our earlier decision in Cargill, upon which we
rely here, and which the O'Casek court concluded was incorrectly
decided. We disagree with that conclusion and adhere both to
Cargill's result and analysis. To the extent that O'Casek is
inconsistent with Cargill or this case, O'Casek is hereby over-
ruled.
B. Plaintiff's Claim That the Trial Court Erred
By Dismissing the Case With Prejudice
Plaintiff also argues that the trial court abused its
discretion by dismissing the case with prejudice. We disagree.
Under section 2-622(a)(1) of the Code, the plaintiff
must attach a report from a qualified health-care professional
stating that he has reviewed the medical records and has deter-
mined in a written report that a reasonable and meritorious cause
exists for filing a cause of action. 735 ILCS 5/2-622(a)(1)
(West 2004). This court has noted that a health-care profes-
sional must (1) be knowledgeable as to the relevant issues, (2)
be licensed to practice medicine, and (3) practice or teach in
the same medical specialty as the defendants. Ingold v. Irwin,
302 Ill. App. 3d 378, 384, 705 N.E.2d 135, 140 (1998). A plain-
- 28 -
tiff's failure to file a report shall be grounds for dismissal.
735 ILCS 5/2-622(g) (West 2004). However, a plaintiff's noncom-
pliance with section 2-622 does not require the trial court to
dismiss the action with prejudice. Cothren v. Thompson, 356 Ill.
App. 3d 279, 282, 826 N.E.2d 534, 538 (2005), overruled on other
grounds by Vision Point of Sale, Inc. v. Haas, No. 103140, slip
op. at 15 (September 20, 2007), ____ Ill. 2d ___, ___, ___ N.E.2d
___, ___ (2007).
Whether to dismiss an action with or without prejudice
is a matter within the trial court's discretion. On review, we
consider whether the court took the particular facts and unique
circumstances of the case into account before determining that
the case should be dismissed with prejudice. When the court has
done so, we will not reverse the court's determination. Ingold,
302 Ill. App. 3d at 383-84, 705 N.E.2d at 139-40.
In this case, the record clearly shows that Lerner was
not licensed to practice medicine when he authored the March 2005
report. Accordingly, although Lerner may have been knowledgeable
on the relevant subject matter, he was not qualified to author a
section 2-622 report, and the defect could not have been cured by
amending the report. See Ingold, 302 Ill. App. 3d at 386, 705
N.E.2d at 141 (concluding that the plaintiff's physician's lack
of a medical license was a defect that could not be cured by
amending the original section 2-622 report). In addition,
Geleerd's sworn affidavit was based on Lerner's defective report.
Further, as of March 17, 2005, the day the 90-day extension
- 29 -
expired, neither of plaintiff's other two health-care profession-
als was in a position to author a report that met the require-
ments of section 2-622. Moreover, instead of admitting to the
court that he did not have a qualified health-care professional
on hand, he tried to hide Lerner's identity and lack of qualifi-
cations.
The record shows that the trial court considered these
particular facts and unique circumstances of this case in reach-
ing its decision to dismiss plaintiff's complaint with prejudice.
In our view, not only was the trial court's decision not an abuse
of discretion, the court may have abused its discretion had it
not dismissed the case with prejudice.
As a final matter, we commend the trial court for
asking Geleerd probing questions. Had it not been for the
court's questioning of Geleerd, it is very unlikely that it would
ever have been discovered that the March 2005 section 2-622
affidavit and report did not meet the statutory requirements.
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT, J., concurs.
MYERSCOUGH, J., concurs in part and dissents in part.
- 30 -
JUSTICE MYERSCOUGH, specially concurring in part and
dissenting in part:
I respectfully concur in part and dissent in part. I
concur in the affirmance of the trial court but strenuously
object to the ruminations of the majority attempting to override
O'Casek and resurrect Cargill. However, I agree the legislature
clearly intended to retain the identity of the health-care
professional language.
In Cargill, 353 Ill. App. 3d at 660, 818 N.E.2d at 904,
this court noted that Public Act 90-579 contained the same
language regarding the identity of the health-care professional
and voluntary dismissals that had been contained in Pubic Act 89-
7. The Cargill court concluded that Public Act 90-579 resur-
rected the amendments to section 2-622 of the Code as inserted by
Public Act 89-7. Cargill, 353 Ill. App. 3d at 661, 818 N.E.2d at
905.
As noted in the majority, however, more recently, in
O'Casek, another panel of this court found that the legislative
enactments following Cargill demonstrated that the legislature
never reenacted the civil-reform language regarding voluntary
dismissals contained in Public Act 89-7 but instead continued in
effect the earlier pre-1995 version of section 2-622(a)(2) of the
Code. O'Casek, 374 Ill. App. 3d at 512-13, N.E.2d at .
Because O'Casek did not expressly make any ruling regarding the
"identity of the health-care professional" language in section 2-
622(a)(1), the majority's disagreement herein with O'Casek is at
- 31 -
best inappropriate and mere dicta.
An examination of the history of section 2-622 demon-
strates that, as O'Casek held, the legislature never intended to
reenact the voluntary-dismissal language contained in Public Act
89-7. However, the legislature did intend to reenact the lan-
guage pertaining to the identification of the health-care profes-
sional. This fact distinguishes the instant case from O'Casek.
The following chart details the legislative changes:
- 32 -
Identity of Health- Voluntary Dismissal
Care Professional-- --section 2-
section 2-622(a)(1) 622(a)(2)
Pre-1995 Allowed identity of No restriction on
health-care profes- right to voluntarily
sional to be deleted dismiss and refile
if plaintiff could
not obtain the re-
quired consultation
Public Act 89-7 Required name and Contained require-
(eff. March 9, 1995) address ment that plaintiff
aver that he/she had
(In 1997, Best, 179 "not previously
Ill. 2d 367, 689 voluntarily dis-
N.E.2d 1057, de- missed an action
clared Public Act based upon the same
89-7 void.) or substantially the
same acts, omis-
sions, or occur-
rences"
Public Act 90-579 Required name and Contained require-
(eff. May 1, 1998) address ment that plaintiff
aver that he/she had
"not previously
voluntarily dis-
missed an action
based upon the same
or substantially the
same acts, omis-
sions, or occur-
rences"
- 33 -
Public Act 94-677 Required name, ad- No restriction on
(eff. August 25, dress, license num- right to voluntarily
2005) ber, and state of dismiss and refile
licensure if plaintiff could
Smith-Hurd Histori- not obtain the re-
cal and Statutory quired consultation
Notes indicate that
(1) Public Act 94-
677 did not include
the changes made by
Public Act 89-7; and
(2) prior to Public
Act 94-677, this
section did not
require the identi-
fication of the
health-care profes-
sional or contain
the voluntary dis-
missal language.
725 ILCS Ann. 5/2-
622, Historical &
Statutory Notes, at
94-95 (Smith-Hurd
Supp. 2007). (Note,
however, the text in
the main volume
shows that the sec-
tion, as amended by
Public Act No. 90-
579 did contain the
voluntary dismissal
language (735 ILCS
Ann. 5/2-622(a)(2),
at 964 (Smith-Hurd
2003)).
Because the legislature clearly intended to retain the
identity of the health-care professional language, this case is
distinguishable from O'Casek, and the majority cannot overrule
O'Casek. For this reason, I dissent insofar as the majority
purports to do so.
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