                                         No. 2--07--0525           Filed: 12-2-08


                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                                       SECOND DISTRICT


JANET JACKSON,                                     )    Appeal from the Circuit Court of
                                                   )    Lake County.
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )    No. 06--L--958
                                                   )
VICTORY MEMORIAL HOSPITAL,                         )
CYNTHIA WAIT, and ERICK KIRCH,                     )    Honorable
                                                   )    David M. Hall,
       Defendants-Appellees.                       )    Judge, Presiding.


       JUSTICE JORGENSEN delivered the opinion of the court:

       Plaintiff, Janet Jackson, appeals the trial court's dismissal of her medical malpractice complaint

against defendants, Victory Memorial Hospital (VMH), Cynthia Wait, M.D., and Erick Kirch, M.D.1

For the following reasons, we reverse and remand.

                                        I. BACKGROUND

       On February 7, 2005, plaintiff filed a pro se complaint against defendants, asserting claims of

medical malpractice. VMH moved to dismiss the complaint, under sections 2--615 and 2--619 of the

Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619 (West 2004)). VMH alleged that: (1)

the complaint should be dismissed under section 2--615 because it failed to state a cause of action for

which relief could be granted; and (2) the complaint should be dismissed under section 2--619



       1
           "Erick Kirch, M.D." is actually Everett Kirch, M.D.
No. 2--07--0525


because plaintiff failed to submit the affidavit and physician's report required by section 2--622 of the

Code (735 ILCS 5/2--622 (West 2004)). Wait and Kirch moved to dismiss the complaint under

section 2--619 of the Code, based on plaintiff's failure to comply with Supreme Court Rule 103(b)

(177 Ill. 2d R. 103(b)) and based on plaintiff's failure to submit the affidavit and physician's report

required by section 2--622.

        On June 15, 2005, the trial court granted VMH's motion to dismiss under section 2--615 of

the Code, granted plaintiff leave to replead, and set a July 6, 2005, status date.

        On July 6, 2005, plaintiff advised the trial court that she had retained an attorney, and the trial

court continued the matter for a status hearing on August 3, 2005.

        On August 17, 2005, plaintiff advised the trial court that she had not retained an attorney.

The trial court ordered that plaintiff must replead within 28 days, and it set a September 21, 2005,

status date.

        On September 21, 2005, plaintiff advised the trial court that she had retained an attorney. The

court ordered that an attorney must appear and file an appearance on October 4, 2005.

        On October 4, 2005, the trial court ordered as follows:

                "This matter has been continued [several] times for status on plaintiff's obtaining

        representation. Plaintiff is still without representation. Should she wish to replead against

        [VMH] she must do so by notice and motion within the next 28 days Nov 1, 2005[.]"

        (Emphasis in original.)

The trial court set a November 22, 2005, status date.

        On November 22, 2005, the trial court granted plaintiff 28 days to have counsel file an

appearance, and it set a December 20, 2005, status date.



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        On December 20, 2005, plaintiff moved to voluntarily dismiss the complaint under section 2--

1009 of the Code, which provides that "[t]he plaintiff may, at any time before trial or hearing begins,

*** dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed

in the cause." 735 ILCS 5/2--1009(a) (West 2004). The trial court granted plaintiff's motion, ruling

as follows:

                "Plaintiff's Motion to Voluntarily Non-Suit is granted with costs to be paid to

        Defendants upon refiling, and whereupon Drs. Kirch and Waite's [sic] Motions to Dismiss are

        to be reinstated upon refiling."

        On December 20, 2006, one year after her voluntary dismissal, plaintiff, with the assistance

of counsel, refiled her complaint against defendants. Plaintiff's newly filed complaint alleged that she

was treated by defendants in 2003 for Crohn's disease and that Wait and Kirch, as agents, servants,

and/or employees of VMH, negligently prescribed certain medications while she was a patient at

VMH. Plaintiff alleged that the medications caused adverse medical reactions and severe, permanent,

and debilitating injuries. In addition, plaintiff alleged that, as a direct and proximate result of the

negligence, she expended and became liable for large sums of money for medical care. Plaintiff's

attorney attached to the complaint an affidavit pursuant to section 2--622(a)(2) of the Code. In the

affidavit, plaintiff's attorney asserted that he was unable to obtain the medical consultation required

by section 2--622(a)(1), because the statute of limitations would hinder the action (the limitations

period expired the day the complaint was refiled) and that, thus, he needed a 90-day extension to

obtain the required affidavit and report.

        On January 23, 2007, VMH moved to dismiss the newly filed complaint under section 2--619

on the grounds that it was barred by res judicata. According to VMH, the newly filed complaint was



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barred by the trial court's June 15, 2005, dismissal of plaintiff's initial complaint for failure to state a

claim and by plaintiff's subsequent voluntary dismissal of the initial complaint. On that same day,

Kirch moved to dismiss based on plaintiff's alleged failure to comply with section 2--622. In the

alternative, Kirch requested that his "original motion to dismiss [the initial complaint] be reinstated

and[] ruled upon by the trial court." Wait was granted leave to join Kirch's motion to dismiss. The

trial court gave plaintiff until February 12, 2007, to respond to VMH's motion and until February 7,

2007, to respond to Kirch and Wait's motion.

        On March 12, 2007, plaintiff moved to file her response to VMH's motion instanter, and she

requested an extension of time to obtain certain medical records needed to prepare her section 2--

622(a)(1) affidavit.

        On March 20, 2007, the trial court granted both motions to dismiss. With respect to Kirch

and Wait, the trial court agreed that plaintiff failed to file "either a physician's report pursuant to

Section 2--622 of the Code or an appropriate affidavit pursuant to Section 2--622 of the Code."

Relying on Cargill v. Czelatdko, 353 Ill. App. 3d 654 (2004), the court found that plaintiff's attorney's

affidavit regarding the physician's report was insufficient because it failed to declare, as required by

section 2--622(a)(2), that plaintiff had not previously voluntarily dismissed an action based on the

same or substantially the same acts, omissions, or occurrences.

        With respect to VMH, the court found that plaintiff's claims were barred by res judicata

because: (1) the refiled action involved the same allegations and parties as the initial complaint; (2)

on June 15, 2005, the court granted VMH's motion to dismiss the initial complaint; (3) despite

numerous extensions, plaintiff failed to replead and, instead, in December 2005, voluntarily dismissed




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No. 2--07--0525


her initial complaint; (4) the June 15, 2005, order became final and appealable upon plaintiff's

voluntary dismissal; and (5) plaintiff did not appeal that order.

         The court denied plaintiff's motion to reconsider. Plaintiff appeals both orders.

                                            II. ANALYSIS

                                           A. Kirch and Wait

         We first address whether the trial court properly granted Kirch and Wait's section 2--619

motion to dismiss based on plaintiff's alleged failure to comply with section 2--622. We review de

novo a dismissal under section 2--619 of the Code. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).

         Under section 2--622(a)(1) of the Code, when a plaintiff files a medical malpractice complaint,

the plaintiff's attorney (or the plaintiff, if proceeding pro se) must attach to the complaint an affidavit

stating that he or she has consulted with a "health professional" and that the health professional has

determined in a written report (which must also be attached to the complaint) that "there is a

reasonable and meritorious cause for the filing of such action." 735 ILCS 5/2--622(a)(1) (West

2006). Before 1995, section 2--622(a)(2) provided that a medical malpractice plaintiff was entitled

to a 90-day extension to file the affidavit and medical report required under section 2--622(a)(1) if

he or she filed an affidavit declaring "[t]hat the affiant was unable to obtain a consultation required

by paragraph 1 because a statute of limitations would impair the action and the consultation could

not be obtained before the expiration of the statute of limitations." 735 ILCS 5/2--622(a)(2) (West

1994).

         The Civil Justice Reform Amendments of 1995 (Pub. Act 89--7, eff. March 9, 1995) amended

section 2--622 in two respects. Relevant to this appeal, section 2--622(a)(2) was amended to add

another requirement to the affidavit, specifically, a declaration that the "plaintiff has not previously



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No. 2--07--0525


voluntarily dismissed an action based on the same or substantially the same acts, omissions, or

occurrences." Pub. Act 89--7, eff. March 9, 1995 (amending 735 ILCS 5/2--622(a)(2)(West 1994)).

        On December 18, 1997, our supreme court in Best v. Taylor Machine Works, 179 Ill. 2d 367,

467 (1997), held Public Act 89--7 void in its entirety. Although the amendments made to section 2--

622 were not held substantively unconstitutional, they were nevertheless struck down on severability

principles. With the decision in Best, the Act reverted to the pre-1995 version.

        In February 1998, the General Assembly passed Public Act 90--579, which amended section

2--622 by adding naprapaths to its coverage. See Pub. Act 90--579, eff. May 1, 1998. When it did

so, it did not add naprapaths to the pre-1995 version; rather, it added naprapaths to the version struck

down in Best (the version that required under section 2--622(a)(2) a declaration in the affidavit that

the "plaintiff has not previously voluntarily dismissed an action based on the same or substantially the

same acts, omissions, or occurrences"). Therefore, under the 1998 version of section 2--622, a

plaintiff was precluded from obtaining a 90-day extension to file the required affidavit and report if

the plaintiff had previously voluntarily dismissed the same or substantially the same cause of action.

See 735 ILCS 5/2--622(a)(2) (West 1998).

        After plaintiff filed her initial complaint (and prior to the date on which she filed her new

complaint), the legislature passed Public Act 94--677 (Pub. Act 94--677, eff. August 25, 2005),

which again amended section 2--622 of the Code. When plaintiff refiled her complaint on December

20, 2006, section 2--622 provided, in relevant part, as follows:

                "2--622. Healing art malpractice.

                (a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks

        damages for injuries or death by reason of medical, hospital, or other healing art malpractice,



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      the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit,

      attached to the original and all copies of the complaint, declaring one of the following:

                       1. That the affiant has consulted and reviewed the facts of the case with a

              health professional ***; that the reviewing health professional has determined in a

              written report, after a review of the medical record and other relevant material

              involved in the particular action that there is a reasonable and meritorious cause for

              the filing of such action; and that the affiant has concluded on the basis of the

              reviewing health professional's review and consultation that there is a reasonable and

              meritorious cause for filing of such action. *** A copy of the written report, clearly

              identifying the plaintiff and the reasons for the reviewing health professional's

              determination that a reasonable and meritorious cause for the filing of the action

              exists, including the reviewing health care professional's name, address, current license

              number, and state of licensure, must be attached to the affidavit. ***

                       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 expiration of the statute of limitations. If

              an affidavit is executed pursuant to this paragraph, the affidavit and written report

              required by paragraph 1 shall be filed within 90 days after the filing of the complaint.

              No additional 90-day extensions pursuant to this paragraph shall be granted, except

              where there has been a withdrawal of the plaintiff's counsel. The defendant shall be

              excused from answering or otherwise pleading until 30 days after being served with

              an affidavit and a report required by paragraph 1.



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No. 2--07--0525


                                                  ***

                (g) The failure of the plaintiff to file an affidavit and report in compliance with this

        Section shall be grounds for dismissal under Section 2--619.

                (h) This Section does not apply to or affect any actions pending at the time of its

        effective date, but applies to cases filed on or after its effective date.

                ***

                (j) The changes to this Section made by this amendatory Act of the 94th General

        Assembly apply to causes of action accruing on or after its effective date." 735 ILCS 5/2--

        622 (West 2006).

        The court ruled that plaintiff's attorney's affidavit was insufficient under section 2--622(a)(2)

because the affidavit failed to declare that plaintiff had not previously voluntarily dismissed an action

based on the same or substantially the same facts and, thus, it dismissed plaintiff's newly filed

complaint.

        We hold that the trial court's dismissal of the complaint was erroneous because, under the

applicable version of section 2--622 of the Code, such a declaration was not required. Plaintiff filed

her new complaint after the effective date of Public Act 94--677, and, thus, its provisions apply. 735

ILCS 5/2--622(h) (West 2006); see Calamari v. Drammis, 286 Ill. App. 3d 420, 426 (1997) (applying

amended version of section 2--622, where the plaintiff refiled her complaint after the effective date

of the amendment). Effective August 25, 2005, section 2--622(a)(2) no longer contained the

requirement that a plaintiff proceeding thereunder must declare "[t]hat the plaintiff has not previously

voluntarily dismissed an action based upon the same or substantially the same acts, omissions, or

occurrences" (735 ILCS 5/2--622(a)(2) (West 2004)). Therefore, under the plain language of section



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No. 2--07--0525


2--622(a)(2), contrary to the trial court's holding, plaintiff was entitled to the 90-day extension to file

the affidavit and medical report required under section 2--622(a)(1), irrespective of whether she had

previously voluntarily dismissed her cause of action. 735 ILCS 5/2--622(a)(1), (a)(2) (West 2006).

        We also note that, even if the 1998 version of section 2--622 applied, plaintiff was

nevertheless entitled to the 90-day extension. As noted, the court's ruling that plaintiff's attorney's

affidavit was insufficient under section 2--622(a)(2) for failing to declare that plaintiff had not

previously voluntarily dismissed an action based on the same or substantially the same facts was based

on Cargill, 353 Ill. App. 3d 654, and its interpretation of the 1998 version of section 2--622(a)(2).

In Cargill, the Fourth District held that, "in looking at the plain language of [section 2--622(a)(2)],

if a physician's report is not attached to the complaint, the plaintiff must attach an affidavit indicating

that he [or she] 'has not previously voluntarily dismissed an action based upon the same or

substantially the same acts' " to be entitled to a 90-day extension. Cargill, 353 Ill. App. 3d at 661,

quoting 735 ILCS 5/2--622(a)(2) (West 2002). Recently, however, the Illinois Supreme Court

reversed Cargill in O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill. 2d 421 (2008).

        The issue in O'Casek was whether the legislature intended, when it passed the 1998 version

of section 2--622, to reenact the version struck down by Best (which included the language

precluding a plaintiff from obtaining a 90-day extension under section 2--622(a)(2) if the plaintiff had

previously voluntarily dismissed an action based on the same or substantially the same facts).

Following an examination of the legislative history of the 1998 version of section 2--622, the supreme

court concluded that the legislature did not intend to reenact the version struck down in Best and that

the inclusion in section 2--622(a)(2) of the language concerning previous voluntary dismissals was

"legislative oversight." O'Casek, 229 Ill. 2d at 447. The court held that, contrary to Cargill's holding,



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No. 2--07--0525


under the 1998 version of section 2--622, a plaintiff was not precluded from obtaining a 90-day

extension if the plaintiff had previously voluntarily dismissed an action based on the same or

substantially the same facts. O'Casek, 229 Ill. 2d at 450. Therefore, based on O'Casek, even if the

1998 version of section 2--622 applied here, plaintiff's attorney's affidavit was not insufficient for

failing to declare that plaintiff had not previously voluntarily dismissed an action based upon the same

or substantially the same facts.

        Kirch and Wait maintain in the alternative that, even if we find that plaintiff was entitled to

the 90-day extension, we should affirm the trial court's dismissal, based on plaintiff's failure to file the

required affidavit and medical report within those 90 days. Without any citation to authority, Kirch

and Wait maintain that "no further extensions can be granted" and that, thus, plaintiff's failure to file

the affidavit and report within the 90-day period is dispositive. We disagree.

        Although the 2005 version of section 2--622(a)(2) provides that "[n]o additional 90-day

extensions pursuant to this paragraph shall be granted, except where there has been a withdrawal of

the plaintiff's counsel" (735 ILCS 5/2--622(a)(2) (West 2006)), it also provides that "[t]he changes

to this Section made by this amendatory Act of the 94th General Assembly apply to causes of action

accruing on or after its effective date" (735 ILCS 5/2--622(j) (West 2006)). The prohibition against

any "additional 90-day extensions" was added when the legislature passed Public Act 94--677 (Pub.

Act 94--677, eff. August 25, 2005); therefore, it does not apply to plaintiff's cause of action, which

accrued in 2003. See 735 ILCS 5/2--622(j) (West 2006).

        Because the express prohibition against "additional 90-day extensions" does not apply to

plaintiff, the trial court did have discretion to extend the period for filing the affidavit and medical

report beyond the 90 days specified by section 2--622(a)(2). See Woodard v. Krans, 234 Ill. App.



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3d 690 (1992). In Woodard, the defendants argued "that, by providing a specific 90-day period in

section 2--622(a)(2), the legislature intended that a medical malpractice plaintiff have only 90 days

after the filing of the complaint to provide the required documentation." Woodard, 234 Ill. App. 3d

at 701. This court rejected that argument, stating: "This argument is patently without merit. The

appellate court has already recognized that a trial court has the discretion to allow, for good cause,

filings that are not timely even under the deadline provided in section 2--622(a)(2)." Woodard, 234

Ill. App. 3d at 701, citing Garland v. Kauten, 209 Ill. App. 3d 30, 35-36 (1991), Wasielewski v.

Gilligan, 189 Ill. App. 3d 945, 950-51 (1989), and Hauk v. Day, 167 Ill. App. 3d 758 (1988). We

further noted that "[s]uch a construction is consistent not only with the principle that section 2--622

is to be construed liberally [citation], but also with the trial court's power under both Supreme Court

Rule 183 (134 Ill. 2d R. 183) and section 2--1007 of the Code of Civil Procedure [(735 ILCS 5/2--

1007 (West 2006))] to grant continuances for good cause." Woodard, 234 Ill. App. 3d at 701.

        Under the statute in effect at the time, plaintiff was entitled to 90 days from the date she

refiled her claim. The dismissal on March 20, 2007, occurred on the ninetieth day. However, on

March 12, 2007, plaintiff had requested an extension of time to locate medical records that were

needed to prepare the affidavit and medical report required by section 2--622(a)(1). There is no

evidence that, at the March 20, 2007, hearing, the trial court considered plaintiff's request for an

additional extension. Instead of conducting a hearing to determine whether plaintiff had established

good cause for another extension, the trial court erroneously relied on the belief that plaintiff was not

entitled to any extension beyond the filing date of December 20, 2006.




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No. 2--07--0525


        Accordingly, we remand the cause for the trial court to consider whether plaintiff can meet

her burden of good cause shown for an additional extension to comply with the 2005 version of

section 2--622(a)(1), and, if plaintiff cannot, the trial court may dismiss her complaint.

             B. Whether Plaintiff's Claims Against VMH Were Barred by Res Judicata

        Plaintiff next argues that the trial court erred in granting VMH's section 2--619 motion to

dismiss the newly filed complaint, based on res judicata. We review the issue de novo. DeLuna v.

Burciaga, 223 Ill. 2d 49, 59 (2006).

        " 'The doctrine of res judicata provides that a final judgment on the merits rendered by a court

of competent jurisdiction bars any subsequent actions between the same parties or their privies on the

same cause of action.' " Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008), quoting Rein v.

David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). "Three requirements must be satisfied for res

judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent

jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical

in both actions." Hudson, 228 Ill. 2d at 467.

        Plaintiff does not dispute that the second and third elements of res judicata are satisfied here.

Rather, plaintiff contends that res judicata does not apply because the June 15, 2005, order granting

VMH's motion to dismiss the initial complaint for failure to state a claim and the December 20, 2005,

order granting plaintiff's motion for a voluntary dismissal are "unenforceable orders" because they "do

not contain necessary Supreme Court Rule 304(a) [(210 Ill. 2d R. 304(a))] language." According

to plaintiff, the lack of Rule 304(a) language renders the orders nonfinal. In response, VMH agrees

that the June 15, 2005, order does not contain the "enforceable and appealable" language of Rule

304(a); however, relying on Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (1997),



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VMH maintains that the order became final when the trial court granted plaintiff's motion to

voluntarily dismiss the complaint.

        If the dismissal was not a final adjudication on the merits, res judicata does not apply. "A final

order is one that 'disposes of the rights of the parties either with respect to the entire controversy or

some definite and separate portion thereof.' " In re Estate of Yucis, 382 Ill. App. 3d 1062, 1069

(2008), quoting Arachnid, Inc. v. Beall, 210 Ill. App. 3d 1096, 1103 (1991). An order striking or

dismissing a complaint is not final "unless its language indicates the litigation is terminated and the

plaintiff will not be permitted to replead." Cole v. Hoogendoorn, Talbot, Davids, Godfrey &

Milligan, 325 Ill. App. 3d 1152, 1153 (2001). Plaintiff is correct that the June 15, 2005, order

dismissing the complaint was not final, but, contrary to plaintiff's argument, it is not the absence of

Rule 304(a) language that makes the order nonfinal. Rule 304(a) language does not make an order

final; it makes appealable a final order that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties in an action. See 210 Ill. 2d R. 304(a); In re Adoption of

Ginnell, 316 Ill. App. 3d 789, 793 (2000). Rather, the order was not final because it granted plaintiff

leave to amend. See Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 585 (2003) ("The

court's decision to grant leave to amend indicates that defendants' motions were not final dispositions

of the case, and thus it cannot be considered a final order").

        Nevertheless, VMH argues that, even though the order granted plaintiff leave to amend,

plaintiff's failure to plead within the time allowed by the trial court operated as an election to stand

on the original pleading and that, when the trial court granted plaintiff's motion for a voluntary

dismissal of the case, the June 15, 2005, dismissal became final. We disagree. First, there is no

indication that plaintiff elected to stand on the complaint. While the record indicates that the trial



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court granted several extensions to plaintiff to replead and that plaintiff failed to do so, the record also

indicates that plaintiff's failure to do so was likely a result of her inability to secure counsel rather than

a desire to stand on her complaint. In addition, although the trial court set a deadline by which

plaintiff had to file her amended complaint, it was within the trial court's discretion to extend that

deadline, even well after the original deadline. See Richardson v. Economy Fire & Casualty Co., 109

Ill. 2d 41, 46 (1985). Indeed, the trial court had previously done so, extending its August 31, 2005,

deadline to November 1, 2005.

           Moreover, "[e]ven if a plaintiff subsequently elects to stand on his or her complaint, an order

striking or dismissing a complaint is not final until the trial court enters an order dismissing the suit"

(Cole, 325 Ill. App. 3d at 1153-54) and does so with prejudice. See Wick Building Systems, Inc. v.

Bunning, 107 Ill. App. 3d 61, 62 (1982); Martin v. Marks, 80 Ill. App. 3d 915, 918 (1980). Here,

the trial court never entered an order dismissing the suit with prejudice. To the contrary, the trial

court granted plaintiff's motion for a voluntary dismissal. A voluntary dismissal is a dismissal without

prejudice. See 735 ILCS 5/2--1009 (West 2006). While it is well settled that upon entry of a

voluntary dismissal all final orders become appealable (see Hudson, 228 Ill. 2d at 468; Dubina, 178

Ill. 2d at 503), VMH does not cite, nor have we found, any case holding that an order granting a

voluntary dismissal renders final an otherwise nonfinal order. Prior to the voluntary dismissal, the

trial court did not enter an order that " 'dispose[d] of the rights of the parties either with respect to

the entire controversy or some definite and separate portion thereof' " (Yucis, 382 Ill. App. 3d at

1069, quoting Arachnid, 210 Ill. App. 3d at 1103). Therefore, we hold that res judicata does not bar

plaintiff's cause of action against VMH and that the trial court erred in granting VMH's motion to

dismiss.



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                                       III. CONCLUSION

       For the foregoing reasons, the judgment of the circuit court of Lake County is reversed, and

the cause is remanded.

       Reversed and remanded.

       ZENOFF, P.J., and SCHOSTOK, J., concur.




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