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                                     Appellate Court                             Date: 2019.02.13
                                                                                 08:54:01 -06'00'



           Lee v. Berkshire Nursing & Rehab Center, LLC, 2018 IL App (1st) 171344



Appellate Court         EARNEST LEE and MILDRED LEE, Plaintiffs-Appellants, v.
Caption                 BERKSHIRE NURSING & REHAB CENTER, LLC, d/b/a
                        APERION CARE FOREST PARK, APERION CARE, INC., JUAN
                        COBO, M.D., RUSH OAK PARK HOSPITAL, INC., d/b/a RUSH
                        OAK PARK PHYSICIANS GROUP ADULT MEDICINE,
                        NUCARE SERVICES CORPORATION, d/b/a ARIA POST ACUTE
                        CARE, ARIA POST ACUTE CARE, LLC, HARIS HAMSAKUTTY,
                        M.D., KRISHNA PATEL, M.D., DILIP PATEL, M.D., MIDTOWN
                        PHYSICIANS, S.C., and LOYOLA UNIVERSITY MEDICAL
                        CENTER, Defendants (Rush Oak Park Hospital, Inc., d/b/a Rush Oak
                        Park Physicians Group Adult Medicine, and Juan Cobo, M.D.,
                        Defendants-Appellees).



District & No.          First District, First Division
                        Docket No. 1-17-1344



Filed                   July 16, 2018



Decision Under          Appeal from the Circuit Court of Cook County, No. 16-L-007561; the
Review                  Hon. John H. Erlich, Judge, presiding.



Judgment                Reversed and remanded.


Counsel on              Michael B. Gunzburg, of Highland Park, for appellants.
Appeal
                               Johnson & Bell, Ltd., of Chicago (Garrett L. Boehm Jr. and Brad R.
                               Schneiderman, of counsel), for appellees.



     Panel                     JUSTICE HARRIS delivered the judgment of the court, with opinion.
                               Presiding Justice Pierce and Justice Mikva concurred in the judgment
                               and opinion.


                                                OPINION

¶1          Plaintiffs-appellants, Earnest Lee and Mildred Lee, filed a medical negligence complaint
       against defendants-appellees along with several other entities and doctors stemming from the
       time Earnest was under their respective care. At the time the appellants filed their initial
       complaint, their attorney attached an affidavit, alleging that, pursuant to section 2-622(a)(2) of
       the Code of Civil Procedure (735 ILCS 5/2-622(a)(2) (West 2016)), the attorney was unable to
       obtain the requisite physician’s report and would need a 90-day extension. Appellants did not
       file the physician’s report and attorney affidavit within the 90 days. The day after the 90-day
       period expired, appellees moved to dismiss. At a hearing a few days later, the trial court
       granted appellees’ motion to dismiss with prejudice. The circuit court subsequently denied
       appellants’ motion to reconsider.
¶2          Appellants now appeal the dismissal of the two counts brought against appellees to this
       court. They raise two issues before us: (1) the circuit court abused its discretion when it
       dismissed the two counts against appellees and (2) the circuit court erred when it denied their
       motion to reconsider. For the reasons stated below, we agree with appellants that the circuit
       court abused its discretion, and we therefore reverse the dismissal with prejudice. The issue
       involving the motion to reconsider is therefore moot, and we decline to consider it.

¶3                                            JURISDICTION
¶4         On November 29, 2016, the circuit court dismissed with prejudice count V and count VI of
       appellants’ fourth amended complaint. These were the only counts directed against appellees.
       On February 10, 2017, the trial court denied appellants’ motion to reconsider the dismissal
       with prejudice. On May 12, 2017, the trial court found “pursuant to Illinois Supreme Court
       Rule 304(a) that there is no just cause to delay an appeal from this court’s orders of November
       29, 2016, and February 10, 2017.” We note that while the order of May 12 does not strictly
       recite Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), its reference to Rule 304(a) and
       “appealability” is sufficient to confer jurisdiction on this court. In re Application of the
       Du Page County Collector, 152 Ill. 2d 545, 550-51 (1992) (holding a reference to appealability
       sufficient to confer appellate jurisdiction pursuant to Rule 304(a)). Accordingly, this court has
       jurisdiction over this matter pursuant to article VI, section 6, of the Illinois Constitution (Ill.
       Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 304(a)
       (eff. Mar. 8, 2016).



                                                    -2-
¶5                                        BACKGROUND
¶6       Appellants filed their original complaint on July 29, 2016, against Berkshire Nursing &
     Rehab Center, LLC, d/b/a Aperion Care Forest Park, and Aperion Care, Inc. On August 22,
     2016, appellants filed an amended complaint against the appellees, Juan Cobo, M.D., and Rush
     Oak Park Hospital, Inc., d/b/a Rush Oak Park Physicians Group Adult Medicine. The count
     against Cobo alleged medical negligence, while the claim against Rush Oak alleged medical
     negligence/loss of consortium. Appellants’ attorney attached an affidavit to the amended
     complaint, stating he was unable to obtain the health professional’s report required by section
     2-622(a)(1) (735 ILCS 5/2-622(a)(1) (West 2016)) but it would be filed within 90 days.
     Appellants filed a second amended complaint on August 26, 2016. The second amended
     complaint added new parties but did not raise any new allegations against appellees. A third
     amended complaint was filed on September 13, 2016. This added more defendants but no new
     allegations against the appellees. The affidavit attached to the amended complaint was also
     attached to the second and third amended complaints.
¶7       On September 30, 2016, appellants filed a fourth amended complaint. This complaint
     dropped some defendants but also added new ones. The allegations against the appellees
     remained the same. An attorney affidavit attached to the fourth amended complaint opined that
     appellants’ attorney was unable to obtain the required health professional’s report but one
     would be filed within 90 days.
¶8       On November 23, 2016 (91 days after the amended complaint was filed), appellees Dr.
     Cobo and Rush Oak filed a motion to dismiss pursuant to section 2-619 (735 ILCS 5/2-619
     (West 2016)) based on the failure of the appellants to attach the health professional’s report
     within the required 90 days. The motion further noted the two-year statute of limitation had
     expired. Appellees’ motion to dismiss was scheduled for a hearing on November 29, 2016.
     Appellants filed no response to the motion to dismiss, but on the day of the hearing, they
     tendered a motion for an extension of time to file the health professional’s report. The motion
     for an extension of time made several claims. Appellants’ counsel claimed that, prior to
     leaving his old firm, he believed the medical records had been transmitted to the medical
     professional for review. When appellant’s counsel later contacted the professional, he was
     informed the records had never been received. Based on this, counsel requested an additional
     45 days to file the report. The motion further noted several other defendants had not yet
     appeared and answered. The November 29 order denied the motion for extension of time and
     granted appellees’ motion to dismiss. The dismissal was with prejudice.
¶9       On December 29, 2016, appellants filed a motion to reconsider the dismissal with
     prejudice. The motion claimed the circuit court abused its discretion when it dismissed
     appellants with prejudice. Attached to this motion was an affidavit from appellants’ counsel,
     which reiterated the explanation contained in the motion for an extension of time. Also
     attached to the motion to reconsider were a section 2-622 attorney affidavit and health
     professional’s report. The circuit court denied the motion to reconsider on February 10, 2017.
     On May 10, 2017, the court granted appellants’ request for Rule 304(a) language and this
     timely appeal followed.




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¶ 10                                              ANALYSIS
¶ 11        In their first issue before this court, appellants argue the circuit court erred in dismissing
       the two counts brought against the appellees based on a failure to file the requisite affidavit and
       report within 90 days.
¶ 12        Section 2-622(g) provides, “[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 2016). Normally,
       the dismissal of a complaint pursuant to section 2-619 of the Code is reviewed de novo. Porter
       v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008). However, a party’s failure to
       comply with section 2-622 does not automatically require a dismissal with prejudice
       (McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill. 2d 188, 192 (1987)) and a circuit court
       has the discretion to grant a plaintiff additional time to comply with section 2-622’s
       requirements (Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939, 949
       (1998)). Accordingly, our review of a dismissal based on the failure to comply with section
       2-622 is subject to an abuse of discretion standard. Holloway v. Chicago Heart & Vascular
       Consultants, Ltd., 2017 IL App (1st) 160315, ¶ 29. A court abuses its discretion when its ruling
       is arbitrary, fanciful, or unreasonable. Id.
¶ 13        Section 2-622(a)(1) requires every plaintiff alleging “medical, hospital, or other healing art
       malpractice” to attach to his or her complaint an affidavit stating that the affiant has consulted
       with a healthcare professional in whose opinion there is a “reasonable and meritorious cause”
       for filing the complaint. 735 ILCS 5/2-622(a)(1) (West 2016). Additionally, the plaintiff must
       attach a written report of the healthcare professional, attesting to the basis of this
       determination. McCastle, 121 Ill. 2d at 190. Section 2-622(a)(2) allows for a 90-day extension
       for compliance with section 2-622(a)(1) if the affiant avers that he or she could not obtain the
       report before filing suit because of the pending expiration of the statute of limitation. 735 ILCS
       5/2-622(a)(2) (West 2016); McCastle, 121 Ill. 2d at 190.
¶ 14        Section 2-622(a)(1) is designed to screen and deter frivolous or nonmeritorious medical
       negligence claims. Schroeder v. Northwest Community Hospital, 371 Ill. App. 3d 584, 595
       (2006). The section is “not a substantive defense which may be employed to bar plaintiffs who
       fail to meet its terms.” Id. “[S]ection 2-622 only puts a requirement of meritoriousness on the
       pending suit.” Walter v. Hill, 156 Ill. App. 3d 708, 710 (1987). Based on this, “a medical
       malpractice plaintiff should be afforded every reasonable opportunity to establish his case.”
       Hansbrough v. Kosyak, 141 Ill. App. 3d 538, 549 (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, 638-39 (1989).1
¶ 15        We first address appellees’ argument that the record is “inadequate for this court to assess
       any purported abuse of discretion possibly associated with the November 29, 2016 ruling.”
       Appellees argue the record is not sufficiently clear as to the basis of the November 29 order to
       allow this court to engage in an abuse of discretion analysis. They argue that the

           1
            We are aware that other cases have applied a “good cause” standard to whether a plaintiff should
       be granted an extension of time to comply with section 2-622. Simpson v. Illinois Health Care Services,
       Inc., 225 Ill. App. 3d 685, 689 (1992); Fox v. Gauto, 2013 IL App (5th) 110327, ¶ 25. However,
       appellant did not appeal the denial of their motion for extension of time. We therefore confine our
       analysis to whether the dismissal with prejudice was an abuse of discretion.

                                                      -4-
       incompleteness of the court’s reasoning in granting the motion to dismiss should be held
       against appellants and result in affirmance of the dismissal with prejudice. Foutch v. O’Bryant,
       99 Ill. 2d 389, 391-92 (1984) (noting that any doubts in the record will be resolved against the
       appellant).
¶ 16       We disagree with the appellees’ contention regarding the completeness of the record on
       this issue. The record demonstrates that the sole basis for appellees’ motion to dismiss was
       appellants’ failure to file the requisite affidavit and healthcare report within the allotted 90
       days. Appellees argued no other basis for dismissal. Accordingly, the only basis under which
       the circuit court could grant the dismissal with prejudice was appellants’ failure to file the
       affidavit and healthcare report within 90 days. The record is sufficiently clear for us to
       determine whether the circuit court abused its discretion in granting the motion to dismiss with
       prejudice.
¶ 17       In this matter, the alleged misdiagnosis by appellees occurred between August 5 and
       August 25, 2014. The amended complaint, which contained the first allegations against the
       appellants, was filed on August 22, 2016. This proximity to the statute of limitations deadline
       is sufficient to invoke the 90-day extension found in section 2-622(a)(2). 735 ILCS
       5/2-622(a)(2) (West 2016). The extension expired on November 22, 2016. One day later, on
       November 23, 2016, the appellees moved to dismiss with prejudice. On November 29, the
       circuit court granted the motion to dismiss with prejudice. While the circuit court felt it
       necessary to grant the motion to dismiss, filed a day after the expiration of the 90-day
       extension, the record shows the court had no problem granting the appellants an extension as to
       other defendant-doctors. The fourth amended complaint filed on September 30, 2016, named
       Dr. Hamsakutty, Dr. Krishna Patel, and Dr. Dilip Patel as defendants. No section 2-622 report
       was filed, and the 90-day period lasted until December 29, 2016. Yet on January 9, 2017, after
       this period had expired, the court granted appellants until January 31, 2017, to file the report as
       to these doctors. On February 10, 2017, the court again granted an extension until February 24,
       2017.
¶ 18       Based on the events in the case and the underlying purpose of section 2-622, we conclude
       the circuit court abused its discretion when it dismissed with prejudice the two counts brought
       against appellees. The purpose of section 2-622 is to deter frivolous or nonmeritorious medical
       negligence claims. Schroeder, 371 Ill. App. 3d at 595. “[T]he statute should be liberally
       construed and not mechanically applied to deprive a plaintiff of [their] substantive rights.” Id.
       In granting the dismissal with prejudice, filed one day after the expiration of the 90-day period,
       the circuit court wrongly converted the 90-day period into another time limitation that would
       cut off all relief if appellants failed to comply. This is not the legislative intent of the statute.
       Walter, 156 Ill. App. 3d at 710 (section 2-622 is not meant to act as another statute of limitation
       that cuts off all relief). When appellants sought an extension, the court denied the request, but
       the record then shows that the court granted several extensions to allow appellants time to file
       a section 2-622 report as to other defendant-doctors even after the 90-day period had passed.
       The circuit court’s dismissal of the counts against appellees placed form over substance and
       represented an abuse of discretion.
¶ 19       In reaching this conclusion, we find the two cases primarily relied on by appellees,
       Horlacher v. Cohen, 2017 IL App (1st) 162712, and Tucker v. St. James Hospital, 279 Ill. App.
       3d 696 (1996), to be distinguishable. In Tucker, this court affirmed the dismissal with prejudice
       for two reasons: “(1) plaintiff has not submitted an adequate health professional’s report or

                                                     -5-
       attorney affidavit, and (2) the trial court acted well within its discretion in dismissing the action
       [with prejudice] after providing plaintiff with numerous opportunities to comply with section
       2-622.” (Emphasis added.) Tucker, 279 Ill. App. 3d at 701. In addressing whether the circuit
       court abused its discretion, the appellate court noted that the circuit court had given plaintiff at
       least five separate opportunities to comply with section 2-622. Id. at 705. Three of these
       opportunities came after a dismissal with prejudice. Id. The circuit court in Horlacher also
       provided the plaintiff in that case multiple opportunities to comply with section 2-622. 2017 IL
       App (1st) 162712, ¶ 2. The first and second dismissals of plaintiff’s complaint were without
       prejudice. Id. ¶¶ 12, 19. Unlike Tucker and Horlacher, the first dismissal in this matter was
       with prejudice and denied appellant a reasonable opportunity to comply with section 2-622.
¶ 20        Based on the above, we conclude the circuit court abused its discretion when it granted
       appellees’ motion to dismiss with prejudice. The dismissal should have been without prejudice
       to afford appellants an opportunity to refile their complaint against appellees with the section
       2-622 report and affidavit. We therefore reverse the order of the circuit court that granted the
       dismissal with prejudice as to Dr. Cobo and Rush Oak.
¶ 21        Since we have determined it was error for the circuit court to grant the dismissal with
       prejudice, we decline to review appellants’ second issue regarding the motion to reconsider.
       The issue is moot. We also decline to address appellees’ alternative argument that the attorney
       affidavit and section 2-622 report attached to appellants’ motion to reconsider is insufficient as
       a matter of law. The record demonstrates the circuit court never addressed the sufficiency of
       either. “The determination of the sufficiency of the documentation is initially a question for the
       trial court.” Simpson v. Illinois Health Care Services, Inc., 225 Ill. App. 3d 685, 691 (1992)
       (citing Cato v. Attar, 210 Ill. App. 3d 996, 1000 (1991)). In declining to review them, we make
       no determination regarding the sufficiency of either the attorney affidavit or the medical
       report.

¶ 22                                         CONCLUSION
¶ 23       For the reasons stated above, the order of the circuit court dated November 29, 2016, which
       granted appellees’ motion to dismiss with prejudice, is reversed. We remand this case for
       further proceedings consistent with this decision.

¶ 24       Reversed and remanded.




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