                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                            Fox v. Gauto, 2013 IL App (5th) 110327




Appellate Court            RICKIE FOX and RUTH FOX, Plaintiff-Appellees, v. SUZANNE
Caption                    GAUTO, Executor of the Estate of Nelson Gauto, Deceased, Defendant-
                           Appellant.



District & No.             Fifth District
                           Docket No. 5-11-0327


Filed                      September 5, 2013


Held                       In an appeal involving three certified questions arising from a medical
(Note: This syllabus       malpractice action in which plaintiffs initially filed a complaint and a
constitutes no part of     certificate of merit stating that there was no meritorious basis for the
the opinion of the court   claim, and six months later sought to file an amended complaint and
but has been prepared      certificate, the appellate court answered the questions by first stating that
by the Reporter of         the “prejudice to the opposing party” standard, rather than the “good
Decisions for the          cause” standard, should be applied in determining whether the
convenience of the         amendments should be allowed, then stating that the question as to
reader.)
                           whether the trial court had the discretion to find “good cause” for filing
                           a late amended certificate was rendered moot by the finding that the
                           “prejudice to the opposing party” standard applied, and thirdly stating that
                           the trial court had the discretion to find “no prejudice” to defendant from
                           the late amendments.


Decision Under             Appeal from the Circuit Court of Williamson County, No. 10-L-122; the
Review                     Hon. Brad K. Bleyer, Judge, presiding.
Judgment                   Certified questions answered; cause remanded.


Counsel on                 Charles E. Schmidt, of Brandon, Schmidt & Goffinet, of Carbondale, for
Appeal                     appellant.

                           John Womick, of Womick Law Firm, Chtrd., of Herrin, for appellees.


Panel                      JUSTICE STEWART delivered the judgment of the court, with opinion.
                           Justices Wexstten and Cates concurred in the judgment and opinion.




                                             OPINION

¶1           This interlocutory appeal, brought pursuant to Illinois Supreme Court Rule 308 (eff. Feb.
        26, 2010), arises from a medical malpractice case filed by the plaintiffs, Rickie Fox and Ruth
        Fox. The questions certified by the circuit court are related to the statutory requirement that
        a medical malpractice complaint include an affidavit of merit and a doctor’s report.
        Specifically, section 2-622(a)(1) of the Code of Civil Procedure (the Code) requires that in
        any action alleging medical malpractice, the plaintiffs must file an affidavit attached to the
        complaint that states that they have or their attorney has consulted with a health professional
        in whose opinion there is a “reasonable and meritorious cause” for the filing of the action.
        735 ILCS 5/2-622(a)(1) (West 2010). In addition, section 2-622(a)(1) requires the plaintiffs
        to file the written report of the health professional along with the complaint and affidavit of
        merit.
¶2           The circuit court certified three questions of law related to section 2-622 on which it
        found that there were substantial grounds for a difference of opinion and that the answers to
        the questions might materially advance the termination of the litigation. The certified
        questions are as follows:
                 “A. Where plaintiff files a Complaint with Certificate of Merit stating there is no
             meritorious basis for filing a medical malpractice claim, and then nearly six (6) months
             later seeks to file an Amended Complaint and an Amended Certificate of Merit
             disclosing the basis for the ‘erroneous’ certificate, should the Court apply the ‘good
             cause’ standard for late filing of a certificate pursuant to Section 2-622 of the Code of
             Civil Procedure, or the ‘prejudice to opposing party’ standard for amending a Complaint
             in determining whether to allow the filing of the Amended Complaint and the new
             Certificate of Merit?
                 B. Where plaintiff files a Complaint with Certificate of Merit stating there is no
             meritorious basis for filing a medical malpractice claim, and then nearly six (6) months

                                                 -2-
         later, seeks to file an Amended Complaint and a new Certificate of Merit asserting a
         meritorious claim, does the Trial Court have discretion to find ‘good cause’ to permit the
         late filing of a new Certificate of Merit under the provisions of the Code of Civil
         Procedure, Section 2-622?
              C. Where plaintiff files a Certificate of Merit stating there is no meritorious basis for
         filing a medical malpractice claim, and then nearly six (6) months later seeks to file an
         Amended Complaint and Amended Certificate of Merit asserting a meritorious claim,
         does the Court have discretion to find ‘no prejudice’ to the defendant to permit the filing
         of an amendment under those circumstances?” (Emphasis in original.)
¶3       We granted the defendant’s request for an interlocutory appeal for this court to address
     the circuit court’s certified questions of law. We begin our discussion of the certified
     questions with a brief outline of the procedural history leading up to the circuit court
     certifying the questions.

¶4                                       BACKGROUND
¶5        When the plaintiffs filed their medical malpractice complaint, the complaint included the
     affidavit of their attorney that is required by section 2-622 of the Code. The plaintiffs’
     attorney stated in his affidavit that a health professional “has determined in a written report,
     a copy of which is attached, *** that there is a reasonable and meritorious cause for the filing
     of such action.” A doctor’s report was attached to the attorney’s affidavit that was authored
     by Dr. M. V. Altug. Contrary to the attorney’s affidavit, however, Dr. Altug concluded in his
     report as follows: “By the review of the pathology reports and the surgical procedure records,
     I can not see any management problems in this case.”
¶6        The defendant moved to dismiss the plaintiffs’ complaint on the ground that Dr. Altug’s
     report did not satisfy the requirements of section 2-622 of the Code because Dr. Altug did
     not opine that there is a “reasonable and meritorious cause” for the filing of the action.
     Instead, he did “not see any management problems in this case.” After the defendant moved
     to dismiss the plaintiffs’ complaint, the plaintiffs filed a motion for leave to amend their
     complaint. Specifically, the plaintiffs sought leave to amend their complaint to attach a new
     report from a different physician, Dr. Ralph Kelley. In his report, Dr. Kelley opined that, to
     a reasonable degree of medical certainty, the plaintiffs had a meritorious cause of action. The
     defendant objected to the motion for leave to amend the complaint with this new report.
¶7        The circuit court denied the plaintiffs’ request to amend their complaint to attach Dr.
     Kelley’s report and granted the defendant’s request to dismiss the plaintiffs’ complaint with
     prejudice. In its docket entry dismissing the complaint, the court wrote that the “defendant
     in the instant case would clearly be prejudiced if the amended complaint were allowed.” The
     court held that section “2-622 is not so broad as to allow the amendment in this case.”
¶8        The plaintiffs filed a motion to reconsider the dismissal of their complaint. The plaintiffs’
     attorney stated in an affidavit attached to the motion to reconsider that he had initially
     consulted with Dr. Altug concerning the facts of the case and that Dr. Altug indicated that
     he believed that “there was a violation of the standard of care.” Based on this consultation,
     the plaintiffs’ attorney submitted a draft of a report to Dr. Altug. However, when Dr. Altug

                                                -3-
       reviewed medical records relevant to the plaintiffs’ claim of malpractice, either he did not
       have all of the medical records that were relevant to the plaintiffs’ claim or he overlooked
       some of the relevant medical records. After reviewing only part of the medical records, he
       concluded that “there had been proper management,” and he prepared a report consistent
       with this conclusion. The plaintiffs’ attorney stated in his affidavit that this report was
       “accidently filed” with the complaint. The plaintiffs’ attorney explained that he was out of
       town for depositions in an unrelated case when Dr. Altug delivered his report to his office.
       The attorney, believing that the report was consistent with his previous consultation with the
       doctor, told his assistant to file the report along with the complaint “based on the false
       assumption that the report was the one which had been sent to Dr. Altug in draft form.”
¶9         Sometime after the complaint was filed, Dr. Altug conducted another review of all of the
       medical records that were relevant to the plaintiffs’ medical malpractice claim, including the
       records he did not previously review. He then came to the conclusion that there was a
       violation of the appropriate standard of care. The plaintiffs’ motion to reconsider included
       the affidavit of Dr. Altug in which he states, “[A]fter having reviewed all the records it is my
       opinion, to a reasonable degree of medical certainty, that a meritorious cause of action exists
       against Dr. Gauto pertaining to the care he provided to Mr. Fox.”
¶ 10       The plaintiffs asked the court to reconsider the dismissal with prejudice. In their
       memorandum of law in support of the motion to reconsider, the plaintiffs argued that the
       court “should reconsider its order and allow the amendment by the filing of one of the two
       correct reports of a healthcare professional.” The circuit court agreed and entered an order
       granting the motion to reconsider as follows: “The [plaintiffs’] Motion to Reconsider is
       hereby GRANTED, the Attorney Affidavit and Health Professional Report executed in
       compliance with 735 ILCS 5/2-622 are hereby filed instanter.”
¶ 11       The defendant then filed a motion requesting the circuit court, pursuant to Rule 308, to
       certify the three questions of law quoted above. The circuit court certified the questions, and
       we granted the defendant’s application for this interlocutory appeal to answer the certified
       questions.

¶ 12                                      DISCUSSION
¶ 13      Because the appeal involves certified questions of law pursuant to Supreme Court Rule
       308, our review is de novo. In re M.M.D., 213 Ill. 2d 105, 113, 820 N.E.2d 392, 398 (2004).

¶ 14                                              I.
¶ 15                                 Section 2-622 of the Code
¶ 16       Section 2-622 of the Code, commonly known as the Healing Arts Malpractice Act, was
       designed to eliminate frivolous medical malpractice lawsuits at the pleading stage. Lyon v.
       Hasbro Industries, Inc., 156 Ill. App. 3d 649, 655, 509 N.E.2d 702, 706-07 (1987). It
       requires that the merits of a plaintiff’s medical malpractice case be prescreened by another
       medical professional in the field. Walter v. Hill, 156 Ill. App. 3d 708, 710, 509 N.E.2d 804,
       806 (1987).


                                                 -4-
¶ 17       In order to promote the purpose of section 2-622, the general rule “is that the required
       consultation with a health professional must occur before the complaint is filed and the
       required documents certifying the meritoriousness of the action must be filed with the
       complaint.” Premo v. Falcone, 197 Ill. App. 3d 625, 631, 554 N.E.2d 1071, 1076 (1990). To
       achieve this purpose, section 2-622(a)(1) requires the plaintiff to attach to his complaint a
       report from a health professional stating that the professional has reviewed the plaintiff’s
       medical records and believes that the plaintiff has a reasonable and meritorious cause of
       action. 735 ILCS 5/2-622(a)(1) (West 2010). In addition, the plaintiff must also file an
       affidavit that states that he, or his counsel, discussed the case with the health professional and
       that there is merit to the medical malpractice claim. Id.
¶ 18       Section 2-622 provides two exceptions to this general rule. These two exceptions allow
       a plaintiff to file a complaint without having first obtained a report from a physician. First,
       under section 2-622(a)(2), the plaintiff may file an affidavit along with the complaint that
       states that a physician’s report could not yet be obtained and that the complaint is being filed
       anyway because the statute of limitations is about to expire. 735 ILCS 5/2-622(a)(2) (West
       2010). Under these circumstances, the plaintiff then has 90 days in which to file the report
       and the affidavit required by section 2-622(a)(1). Id. Second, under section 2-622(a)(3), the
       plaintiff may file an affidavit that indicates that the medical records necessary to prepare the
       report have been requested but not yet received. 735 ILCS 5/2-622(a)(3) (West 2010). Under
       these circumstances, the plaintiff then has 90 days to file the report and the affidavit
       following receipt of the requested records. These two exceptions to the general rule have
       been described as “safety valves” that permit the late filing of the affidavit and report
       required by section 2-622(a)(1). Whamond v. McGill, 168 Ill. App. 3d 66, 70, 522 N.E.2d
       211, 214 (1988).
¶ 19       Section 2-622(g) states that “[t]he failure to file a certificate required by this Section shall
       be grounds for dismissal under Section 2-619.” 735 ILCS 5/2-622(g) (West 2010). Although
       the statute allows a dismissal with prejudice for failure to file a certificate, a dismissal with
       prejudice is not required. McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill. 2d 188, 192,
       520 N.E.2d 293, 295 (1987). Instead, a trial court has discretion in determining whether to
       dismiss an action due to a plaintiff’s failure to comply with the requirements of section 2-622
       or, alternatively, allow amendments to the pleadings in order to bring them into compliance
       with the statute. Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939,
       949, 704 N.E.2d 731, 739 (1998); Premo v. Falcone, 197 Ill. App. 3d 625, 630, 554 N.E.2d
       1071, 1075 (1990) (legislature “intended to allow the trial court to have the discretion to
       permit plaintiff to amend the complaint to add an affidavit which was inadvertently
       omitted”).
¶ 20       In discussing a trial court’s exercise of discretion in determining whether to dismiss or
       allow the plaintiff to amend, reviewing courts have emphasized that the trial court’s exercise
       of discretion must be viewed in relation to the purpose of the statute, which is to deter
       frivolous medical malpractice lawsuits at an early stage. Leask v. Hinrichs, 232 Ill. App. 3d
       332, 339, 595 N.E.2d 1343, 1347 (1992). It is not meant to be a substantive defense to a
       meritorious claim. Cookson v. Price, 393 Ill. App. 3d 549, 554, 914 N.E.2d 229, 233 (2009).
       Therefore, “a medical malpractice plaintiff should be afforded every reasonable opportunity

                                                   -5-
       to establish his case.” Hansbrough v. Kosyak, 141 Ill. App. 3d 538, 549, 490 N.E.2d 181, 188
       (1986). “[A]mendments to pleadings are to be liberally allowed to enable medical
       malpractice actions to be decided on their merits rather than on procedural technicalities. The
       test is the furtherance of the ends of justice.” Moss v. Gibbons, 180 Ill. App. 3d 632, 638, 536
       N.E.2d 125, 129 (1989). “[T]he legislature did not intend that section 2-622 comprise a
       further limitation on actions to the extent that section 2-622 would cut off all rights to relief.
       Rather, section 2-622 only puts a requirement of meritoriousness on the pending suit.”
       Walter, 156 Ill. App. 3d at 710, 509 N.E.2d at 806.
¶ 21        The legislature enacted section 2-622 as part of a package of medical malpractice reforms
       in 1985. Christmas v. Dr. Donald W. Hugar, Ltd., 409 Ill. App. 3d 91, 97, 949 N.E.2d 675,
       681 (2011). Since the statute was enacted in 1985, Illinois reviewing courts have articulated
       two different standards for the circuit courts to utilize when exercising their discretion under
       section 2-622 in determining whether to allow a plaintiff to amend a complaint so that it
       complies with section 2-622 or whether to dismiss the complaint with prejudice for failure
       to comply with section 2-622. When a plaintiff requests an extension of the deadlines
       provided in section 2-622, the courts have allowed the plaintiff additional time if the plaintiff
       can show “good cause” for his failure to timely comply with the deadlines. However, when
       a plaintiff requests leave to amend section 2-622 documents that are already filed, the courts
       have allowed the plaintiff to amend when there is “no prejudice” to the defendant.
¶ 22        The questions certified by the circuit court in this case require us to determine which
       standard the court should utilize to determine whether to allow the plaintiffs to amend their
       complaint so that it complies with section 2-622(a)(1) or dismiss the complaint with
       prejudice.

¶ 23                                               (a)
¶ 24                                          Good Cause
¶ 25        Courts have applied the “good cause” standard in situations when a plaintiff has not filed
       the required affidavit and report within 90 days after the complaint was filed and the plaintiff
       sought to extend the time for filing the report and affidavit for some period of time after the
       initial 90-day period.
¶ 26        For example, in Simpson v. Illinois Health Care Services, Inc., 225 Ill. App. 3d 685, 588
       N.E.2d 471 (1992), the plaintiff’s medical malpractice complaint did not include the affidavit
       and report required by 2-622(a)(1), but alleged in the body of the complaint that the required
       certificate and report would be filed within 90 days as provided in section 2-622(a)(2). The
       defendants moved to dismiss the complaint when the plaintiff did not file the affidavit or
       report within 90 days. The plaintiff responded to the motion to dismiss by requesting an
       extension of time for filing the affidavit and report, and the request for an extension of time
       included an affidavit of the plaintiff’s attorney which detailed the efforts that had been made
       to obtain the required physician’s report. Id. at 687, 588 N.E.2d at 473. The trial court
       dismissed the plaintiff’s complaint with prejudice. Id. at 688, 588 N.E.2d at 473.
¶ 27        In reversing the trial court’s dismissal with prejudice, the Simpson court noted that the
       trial court had discretion to extend the 90-day period provided in section 2-622(a)(2) and that

                                                  -6-
       “[i]n determining whether late filing should be allowed, the court may consider whether the
       plaintiff has demonstrated good cause for failure to file timely the documents.” (Emphasis
       added.) Id. at 689, 588 N.E.2d at 474. The court held that the trial court abused its discretion
       in dismissing the complaint with prejudice because the plaintiff had demonstrated good cause
       for her failure to file the report and affidavit within 90 days. Id. at 690, 588 N.E.2d at 475.
       The court stated, “While in retrospect it might have been better had plaintiff filed a motion
       for extension of time within the original 90-day extension, this is more akin to a procedural
       technicality, which should not be the basis for dismissing an otherwise allegedly meritorious
       complaint.” Id.
¶ 28        Other cases also articulate the “good cause” standard in addressing a trial court’s
       discretion to extend the 90-day deadline contained in section 2-622(a)(2) in order to allow
       a plaintiff to file the documents required under section 2-622. Knight v. Van Matre
       Rehabilitation Center, LLC, 404 Ill. App. 3d 214, 217, 936 N.E.2d 1152, 1155 (2010) (“[I]f
       the plaintiff failed to file the affidavit and report within the 90-day statutory period, the trial
       court could grant the plaintiff another extension of time to file them if the plaintiff could
       establish good cause for not filing them within 90 days.”); Stoelting v. Betzelos, 2013 IL App
       (2d) 120651, ¶ 17, 983 N.E.2d 543 (section 2-622(a)(2) allows a trial court to extend the
       initial 90-day period, “for good cause shown, to file the attorney affidavit as well as the
       doctor’s report”); Premo, 197 Ill. App. 3d at 631, 554 N.E.2d at 1076 (“Allowing trial courts
       to consider whether good cause exists for noncompliance with the deadlines for filing the
       required documentation in section 2-622 is consistent with the objectives of that statute
       because it encourages compliance with the deadlines set forth therein and encourages filing
       the required documentation as expeditiously as possible in the event compliance is not
       possible.”).
¶ 29        As further justification for using the “good cause” standard in extending section 2-622
       deadlines, some courts have cited Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011).
       Garland v. Kauten, 209 Ill. App. 3d 30, 35, 567 N.E.2d 707, 711 (1991). Rule 183 states that
       the “court, for good cause shown on motion after notice to the opposite party, may extend
       the time for filing any pleading or the doing of any act which is required by the rules to be
       done within a limited period, either before or after the expiration of the time.” Ill. S. Ct. R.
       183 (eff. Feb. 16, 2011).

¶ 30                                               (b)
¶ 31                                           Prejudice
¶ 32       In contrast to cases where a plaintiff seeks to extend section 2-622(a)(2)’s 90-day
       deadline, the courts have used a different analysis in cases involving plaintiffs who have
       timely filed the affidavits and physician reports required by section 2-622, but the plaintiffs
       subsequently moved to file new or amended affidavits and/or reports because the original
       section 2-622 documents were deficient. Similar to extending section 2-622’s deadlines, in
       these situations, a trial court has discretion to either grant the plaintiffs leave to amend their
       pleadings so that they comply with section 2-622 or dismiss the complaint with prejudice.
       Cookson v. Price, 393 Ill. App. 3d 549, 552, 914 N.E.2d 229, 231 (2009) (“A plaintiff may


                                                  -7-
       be granted leave to amend a complaint to correct defects resulting from a failure to comply
       with section 2-622 or the trial court may dismiss the complaint with or without prejudice.”).
       The trial court’s discretion includes granting “leave to file an amended complaint with a new
       affidavit and health professional’s report.” (Emphasis added.) Id. at 552, 553, 914 N.E.2d at
       231-32, 232 (nothing in section 2-622 necessitates a difference “between amending an
       existing report and substituting a report by a new author”).
¶ 33        The circuit court’s exercise of discretion in a situation where a plaintiff moves to amend
       or file new section 2-622 documents is not evaluated under the same “good cause” standard
       that is used for extending section 2-622’s 90-day deadlines. Instead, the trial court’s
       discretion to allow the plaintiff to amend or substitute timely filed section 2-622 documents
       depends on whether the proposed amendments or substitutions would cause “prejudice” to
       the defense.
¶ 34        For example, in Leask, the physician’s report attached to the plaintiff’s medical
       malpractice complaint was inadequate because the physician was not an appropriate
       specialist in the area of medicine that was at issue in the case. The defendant moved to
       dismiss the complaint with prejudice due to this defect. In response to the motion to dismiss,
       the plaintiff requested leave to file a new report from another physician that would cure the
       defect in the original report. In response, the defendant argued that by moving to substitute
       the original report, the plaintiff conceded that the original report was inadequate and that she
       violated section 2-622 at the time she filed her complaint. Leask, 232 Ill. App. 3d at 337, 595
       N.E.2d at 1346. The trial court agreed with the defendant, did not allow the plaintiff to file
       the new report, and dismissed the case with prejudice. Id.
¶ 35        The Leask court held that the trial court abused its discretion in dismissing the claim with
       prejudice and not allowing the plaintiff to file the new report. Id. at 339, 595 N.E.2d at 1347.
       The court emphasized that the purpose of section 2-622 is to ensure that the plaintiff has a
       meritorious claim and that its technical pleading requirements should not deprive a plaintiff
       of a trial on the merits. Id. The court explained why dismissal of the complaint did not serve
       the purpose of section 2-622 as follows: “Nothing in the record demonstrates that plaintiff
       is bringing a frivolous claim, and it appears that plaintiff acted in good faith to secure the
       required medical opinion to support the claim. Moreover, any undue prejudice to [defendant]
       from allowing plaintiff to amend her complaint is unclear at best.” (Emphasis added.) Id. In
       holding that the trial court abused its discretion, the court also noted that within a month of
       the defendant’s challenge to the report, “plaintiff moved to amend the complaint by adding
       a detailed and apparently satisfactory medical report.” Id. at 340, 595 N.E.2d at 1348.
¶ 36        In Apa v. Rotman, 288 Ill. App. 3d 585, 587, 680 N.E.2d 801, 802 (1997), the plaintiff
       timely filed an affidavit and report, but the defendant maintained that the affidavit and report
       did not comply with the statute’s substantive requirements. On appeal, the court held that,
       assuming the affidavit and written report were deficient, the circuit court should have
       afforded the plaintiff an opportunity to amend his affidavit and written report before
       dismissing the case with prejudice. Id. at 589, 680 N.E.2d at 804. The court noted that
       “[n]othing in the record indicates that plaintiff is bringing a frivolous claim, and plaintiff did
       file the section 2-622 affidavit and written report in a timely fashion.” Id. at 590, 680 N.E.2d
       at 805. In addition, the court stated, “other than additional delay, we fail to see any undue

                                                  -8-
       prejudice to defendants from at least allowing plaintiff the opportunity to attempt to amend
       his affidavit and report if and to the extent they are deficient.” (Emphasis added.) Id.
¶ 37       Likewise, in Cookson, the court held that the plaintiff should be allowed to file an
       amended attorney affidavit and a new health professional’s report where there was nothing
       in the record to show that the defendant would be prejudiced. Cookson, 393 Ill. App. 3d at
       553, 914 N.E.2d at 232. The court stated, “To bar a plaintiff from amending his or her
       affidavits and corresponding report would elevate the pleading requirements set forth in
       section 2-622 to a substantive defense contrary to both the spirit and purpose of the statute.”
       Id. at 554, 914 N.E.2d at 233.

¶ 38                                              II.
¶ 39                                    Certified Question A:
¶ 40           Which Standard Applies: Good Cause or Prejudice to Opposing Party
¶ 41       The first question certified by the circuit court is as follows:
           “Where plaintiff files a Complaint with Certificate of Merit stating there is no
           meritorious basis for filing a medical malpractice claim, and then nearly six (6) months
           later seeks to file an Amended Complaint and an Amended Certificate of Merit
           disclosing the basis for the ‘erroneous’ certificate, should the Court apply the ‘good
           cause’ standard for late filing of a certificate pursuant to Section 2-622 of the Code of
           Civil Procedure, or the ‘prejudice to opposing party’ standard for amending a Complaint
           in determining whether to allow the filing of the Amended Complaint and the new
           Certificate of Merit?”
¶ 42       In order to fully discuss this certified question, we must consider the question in the
       context of the procedural history and surrounding facts in which the question arose. See
       Unifund CCR Partners v. Shah, 407 Ill. App. 3d 737, 738, 946 N.E.2d 885, 887 (2011) (“The
       issues presented by the certified questions arose in the context of a motion to dismiss under
       section 2-619 of the Code ***, so for the purpose [of] our discussion of the certified
       questions we will rely on facts alleged in the complaint and its attached affidavits.”).
¶ 43       As discussed in the background section above, when the plaintiffs in the present case
       filed their medical malpractice complaint, they timely filed an affidavit and a doctor’s report
       in an attempt to comply with the requirements of section 2-622(a)(1) of the Code. The report,
       however, was ineffective because the doctor authoring the section 2-622 report, Dr. Altug,
       either did not have all of the documents relevant to the plaintiffs’ claim or did not review all
       of the relevant documents. Therefore, he concluded in his initial report that he did “not see
       any management problems in this case.”
¶ 44       The defendant moved to dismiss the plaintiffs’ complaint with prejudice pursuant to
       section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)) on the basis that the physician’s
       report was inadequate under the requirements of section 2-622(a)(1) of the Code. In
       response, the plaintiffs moved for leave to amend the complaint to attach a new physician’s
       report from a different doctor, Dr. Kelley. At the time the plaintiffs requested leave to amend
       the complaint with Dr. Kelley’s report, only 55 days had passed since they filed their original


                                                 -9-
       complaint and their original section 2-622 documents. Therefore, they were still inside the
       90-day “safety valve” provisions expressly provided within the language of section 2-622.
¶ 45        The defendant objected to the motion for leave to amend the complaint, arguing that there
       was no basis in section 2-622 that would allow the plaintiffs to file a new physician’s report.
       For the reasons noted above, this argument lacked merit. The defendant did not claim that
       the new report was inadequate or otherwise failed to meet the requirements of section 2-622,
       did not maintain that the plaintiffs’ claim lacked arguable merit, and did not allege that she
       would suffer prejudice as a result of the proposed amendment.
¶ 46        Nonetheless, the circuit court granted the defendant’s motion to dismiss the complaint
       with prejudice, stating that the “defendant in the instant case would clearly be prejudiced if
       the amended complaint were allowed” and that section “2-622 is not so broad as to allow the
       amendment in this case.” The plaintiffs then filed a motion to reconsider in which they
       explained why Dr. Altug’s report was mistakenly filed with the complaint and why the report
       did not accurately reflect Dr. Altug’s actual opinion concerning the meritoriousness of the
       plaintiffs’ claim. The motion to reconsider included an affidavit from Dr. Altug in which he
       opined that the plaintiffs had a meritorious claim against the defendant. In their brief in
       support of their motion to reconsider, the plaintiffs argued that the court should allow “the
       filing of one of the two correct reports of a healthcare professional.” The substance of the
       plaintiffs’ motion to reconsider was not a request for the court to extend any missed
       deadlines; it was a request for leave to amend pleadings that were already filed.
¶ 47        The defendant objected to the plaintiffs’ motion to reconsider, arguing, in part, that “[a]
       five month delay in presenting an appropriate affidavit and certificate of merit is far outside
       the 90 days permitted.” In an order entered on March 15, 2011, the circuit court granted the
       plaintiffs’ motion to reconsider. The court’s order stated that “the Attorney Affidavit and
       Health Professional Report executed in compliance with 735 ILCS 5/2-622 are hereby filed
       instanter.”1
¶ 48        In answering certified question A in light of the facts and procedural history of the case
       leading up to the certified question, we hold that the “prejudice to opposing party” standard
       for amending a complaint applies, not the “good cause” standard.
¶ 49        The facts of this case do not present a scenario in which the plaintiffs sought an extension
       of deadlines in order to comply with section 2-622(a)(1). Instead, they initially attempted to
       timely comply with section 2-622(a)(1) when they filed their complaint, but their initial
       doctor’s report was ineffective. The plaintiffs subsequently attempted to amend their timely
       filed documents so that they complied with the requirements of section 2-622(a)(1). The facts
       and procedural history of this case, therefore, are comparable to Leask, Apa, and Cookson,
       rather than Simpson, Knight, Stoelting, or Premo.
¶ 50        In exercising discretion to determine whether to allow an amendment to section 2-622


               1
                We cannot determine from the circuit court’s order whether Dr. Altug’s amended report or
       Dr. Kelley’s report was filed instanter. We conclude that this uncertainty in the record is irrelevant
       to answering the certified questions because we hold that the standard is the same regardless of
       which report the circuit court allowed to be filed instanter.

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       documents or dismiss with prejudice, a circuit court should consider whether the plaintiffs’
       request to amend the documents would cause the defendant any prejudice. Absent undue
       prejudice to the defendant, the circuit court should afford the plaintiffs an opportunity to
       amend their affidavit and written report before dismissing their case with prejudice. Apa, 288
       Ill. App. 3d at 589, 680 N.E.2d at 804. “To refuse to permit new pleadings essential to the
       presentation of a party’s [case], when a strong showing has been made as to their truth,
       defeats justice in the absence of a showing of prejudice to the opposing party.” Banks v.
       United Insurance Co. of America, 28 Ill. App. 3d 60, 64, 328 N.E.2d 167, 171 (1975).
¶ 51        We believe that applying the prejudice standard in evaluating a plaintiff’s request to
       amend timely filed section 2-622 documents prevents the technical pleading requirements
       imposed by section 2-622 to be utilized to deprive a plaintiff of a trial on the merits of a
       medical malpractice claim. Leask, 232 Ill. App. 3d at 339, 595 N.E.2d at 1347. The intent
       of the legislature with respect to section 2-622 would not be furthered by denying a
       meritorious claim under such circumstances absent a showing of undue prejudice to the
       defendant.
¶ 52        Accordingly, our answer to certified question A is the “prejudice to opposing party”
       standard.

¶ 53                                             III.
¶ 54                                   Certified Question B:
¶ 55                   The Circuit Court’s Discretion to Find “Good Cause”
¶ 56       The second question certified by the circuit court is as follows:
           “Where plaintiff files a Complaint with Certificate of Merit stating there is no
           meritorious basis for filing a medical malpractice claim, and then nearly six (6) months
           later, seeks to file an Amended Complaint and a new Certificate of Merit asserting a
           meritorious claim, does the Trial Court have discretion to find ‘good cause’ to permit the
           late filing of a new Certificate of Merit under the provisions of the Code of Civil
           Procedure, Section 2-622?”
¶ 57       As noted above, we answer the first certified question by holding that the “prejudice to
       opposing party” standard applies when the trial court exercises its discretion to allow
       amendments to section 2-622 documents in order to bring them in compliance with section
       2-622(a)(1). Certified question B is incorrectly premised on the conclusion that the “good
       cause” standard applies to the exercise of the trial court’s discretion. Certified question B,
       therefore, is moot in light of our answer to certified question A.

¶ 58                                             IV.
¶ 59                                  Certified Question C:
¶ 60                 The Circuit Court’s Discretion to Find “No Prejudice”
¶ 61      The final question certified by the circuit court is as follows:
          “Where plaintiff files a Certificate of Merit stating there is no meritorious basis for filing


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           a medical malpractice claim, and then nearly six (6) months later seeks to file an
           Amended Complaint and Amended Certificate of Merit asserting a meritorious claim,
           does the Court have discretion to find ‘no prejudice’ to the defendant to permit the filing
           of an amendment under those circumstances?” (Emphasis in original.)
       We answer this question in the affirmative.
¶ 62       None of the facts encompassed within certified question C establish any basis for a
       finding of prejudice to the defense. Therefore, the circuit court has “discretion to find ‘no
       prejudice’ ” under the fact scenario presented by the question. In addition, neither the facts
       nor the procedural history in which the certified question arose indicates any prejudice to the
       defendant in this case. In fact, during oral arguments in this appeal, counsel for the defendant
       correctly acknowledged that the defendant was not claiming that she would suffer undue
       prejudice as a result of an amendment to the plaintiffs’ section 2-622 documents.
¶ 63       Inconvenience or delay alone is insufficient to establish any prejudice that could justify
       denying a medical malpractice plaintiff leave to amend. Apa, 288 Ill. App. 3d at 591, 680
       N.E.2d at 805. The denial of leave to file an amended complaint solely because of delay and
       without a showing of prejudice other than mere inconvenience to the defendant could be an
       abuse of discretion. Merrill v. Drazek, 58 Ill. App. 3d 455, 458, 374 N.E.2d 792, 794 (1978).
       Instead of mere inconvenience, the delay must operate to hinder the defendant’s ability to
       present his case on the merits. Banks v. United Insurance Co. of America, 28 Ill. App. 3d 60,
       64, 328 N.E.2d 167, 171 (1975).
¶ 64       The plaintiffs offered two alternative amendments to their complaint, a new report from
       Dr. Kelley and an amended report from Dr. Altug. Both reports complied with section 2-
       622(a)(1), both established that the plaintiffs had a meritorious claim and thus both reports
       fulfilled the purpose of section 2-622, and neither proposed report hindered the defendant’s
       ability to present her case on the merits. Accordingly, the circuit court had discretion to find
       “no prejudice” and allow the plaintiffs leave to amend the complaint to include either
       doctor’s report so that the plaintiffs’ claim could be heard on its merits.
¶ 65       Accordingly, we answer certified question C in the affirmative.

¶ 66                                    CONCLUSION
¶ 67     The certified questions of the circuit court of Williamson County are hereby answered.
       We remand this matter to the circuit court for further proceedings.

¶ 68      Certified questions answered; cause remanded.




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