Carrie B. Pritchett v. State of Illinois

ORDER

STORINO, J. This matter comes before this Court on Respondent’s Motion to Dismiss, due notice having been given, and this Court being advised in the premises.

On May 2, 2005, Claimant, Carrie B. Pritchett filed a two-count complaint for medical malpractice against Respondent, Board of Trustees of the University of Illinois (named as the University of Illinois Medical Center).

Claimant’s complaint alleges that between the dates of May 18, 2001 to May 2, 2003, Claimant was under the care of Respondent for the purposes of [*229] consultation regarding and the undertaking of knee replacement surgery.

Claimant alleges that she became aware of Respondent’s negligence after September 16, 2005. Claimant further alleges that she suffered serious and permanent injuries as a result of Respondent’s negligence and deviation from the standard of care before, during and after the surgery. A health professional’s report was not attached to the complaint as required by Section 2-622(a)(1) of the Code of Civil Procedure. (735 ILCS 5/2-622(a)(1)). However, in accordance with Section 2-622(a)(2) of the Code of Civil Procedure, the compliant did include an affidavit from the Claimant’s attorney, Alan Bender, stating that he had been unable to consult with health professional before the limitations period expired, thereby allowing Claimant an additional 90 days to file the requisite affidavit pursuant to Section 2-622(a)(1).

On August 12, 2005, Respondent moved to dismiss for failure to comply with the requirement of 735 ILCS 5/2-622. Respondent argued that although the 90-day extension period under Section 2-622(1)(2) had expired on or about August 1, 2005, Claimant had not filed the required report from a health professional as mandated by Section 2-622(a)(1). Respondent also argues that dismissal with prejudice is warranted under Section 2-622(g). (735 ILCS 5/2-622(g)).

As of the date of the Order, Claimant has not filed a response to Respondent’s motion to dismiss or sought an extension of time for the filing of the required health professional report.

The legislature enacted Section 2-622 of the Code of Civil Procedure to discourage frivolous suits for medical malpractice and to eliminate such actions in the early stages, before the expenses of litigation have mounted. Hobbs v. Lorez, 337 Ill. App. 3d 566, 569, 786 N.E.2d 260, 271 Ill.

Dec. 1002 (2003); citing DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139, 167 Ill. Dec. 1009 (1992). Section 2-622 of the Code directs a claimant to file an affidavit declaring one of the following three options in support a complaint for medical malpractice. Under Section 2- 622(a)(1) of the Code, a claimant must file an affidavit attaching a report from a qualified health professional stating that he or she has reviewed the medical records and believes that the claimant has a meritorious cause file the action. (735 ILCS 5/2-622(a)(1)). Under Section 2-622(a)(2) of the Code, an affidavit must be provided, stating that the report required by Section 2- 622(a)(1) cannot be procured prior to the expiration of the statute of limitations, in which case the Claimant is given 90 days to procure and file the required documents. (735 ILCS 5/2-622(a)(2)). Under Section 2-622(a)(3) of the Code, the affidavit must state that counsel has made a request for records pursuant to Section 8-2001 of the Code (735 ILCS 5/8-2001), and that the party to whom the request was made failed to comply within 60 days, whereupon Claimant is granted 90 days from the time the records are received to file the required report.

Section 2-622 of the Code should be liberally construed so that a claimant does not lose substantive rights merely because they have not strictly complied with the statute. Hobbs v. Lorenz, 337 Ill. App. 3d 566, 569,786 [*230] N.E.2d 260, 271 Ill. Dec. 1002 (2003); citing Comford v. Wheaton Family Practice, 229 Ill. App. 3d 828, 832, 594, N.E.2d 381, 171 Ill. Dec. 529 (1992).

However, if a claimant does not comply with Section 2-622, the trial court, may in its discretion, dismiss the complaint with or without prejudice.

Hobbs, 337 Ill. App. 3d at 569; citing McCastle v. Sheinkop, 121 Ill. 2d 188, 193, 520 N.E.2d 293, 117 Ill. Dec. 132 (1987); Cothren v. Thompson, 356 Ill.

App. 3d 279, 282, 826 N.E.2d 534, 292 Ill. Dec. 393 (2005).

Claimant in this matter originally filed this Complaint alleging medical malpractice on May 2, 2005. At that time a health professional’s report was not attached to the complaint as required by Section 2-622(a)(1), however, the complaint did include an affidavit from the Claimant’s attorney, Alan Bender, pursuant to Section 2-622(a)(2) stating that he had been unable to consult with health professional before the limitations period expired.

Accordingly, Claimant was thereby allowed 90 days, or until August 1, 2005, to file the requisite affidavit pursuant to section 2-622(a)(1). As of the date of this Order, this Court has not received any such filing, nor has it received a request for an extension to file the requisite report. Moreover, Claimant has even failed to file any response to Respondent’ motion to dismiss, which was filed and served upon Claimant’s attorney on August 12, 2005, and clearly argues for dismissal due to Claimant’s failure to meet the requirements of Section 2-622(a). Since Claimant has done little to advance the litigation and nothing to preserve the time for filing the required affidavit, this Court finds that it is within its discretion to dismiss Claimant’s complaint with prejudice.

See Buckner v. State of Illinois, 47 Ill. Ct. Cl. 196, 198 (1995).

IT IS HEREBY ORDERED THAT:

Respondent’s motion to dismiss is hereby granted and Claimant’s complaint is dismissed with prejudice.