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FOURTH DIVISION

FILED: 9/30/98

No. 1-97-2986

DENISE MUELLER, ) APPEAL FROM THE

) CIRCUIT COURT OF

Plaintiff-Appellant, ) COOK COUNTY

)

v. )

)

NORTH SUBURBAN CLINIC, LTD., HUMANA )

HOSPITAL OF HOFFMAN ESTATES, n/k/a )

HOFFMAN ESTATES MEDICAL CENTER, PETER )

PALERMO, M.D., JEFFREY LINDAHL, M.D., )

MANUEL PEREZ, M.D., )

)

Defendants-Appellees )

)

and )

)

ELLEN JANSYN, M.D., ) HONORABLE

) ROBERT J. QUINN,

Defendant. ) JUDGE PRESIDING.

JUSTICE HOFFMAN delivered the opinion of the court:

The trial court dismissed this medical negligence action afterfinding that the physician's report filed in support of theplaintiff's complaint failed to comply with the requirements ofsection 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1994)). Thereafter, the plaintiff's motion forreconsideration and for leave to file an amended section 2-622report was denied, and this appeal followed. For the reasons whichfollow, we affirm in part, reverse in part, and remand this actionfor further proceedings.

On March 1, 1995, the plaintiff, Denise Mueller, filed theinstant action against 14 physicians, North Suburban Clinic Ltd.(North Suburban), and Humana Hospital of Hoffman Estates (Humana). The plaintiff sought recovery against the physician-defendants forinjuries she allegedly sustained as a consequence of their medicalnegligence. The liability of North Suburban and Humana waspremised on the doctrine of respondeat superior in that thephysician-defendants are alleged to have been their employees oragents at the time of the acts and omissions set forth in theplaintiff's complaint.

When her complaint was originally filed, the plaintiffattached her attorney's affidavit stating that he was unable toconsult with a health care professional as required by section 2-622 prior to the expiration of the applicable statute oflimitations. Thereafter, on May 30, 1995, the plaintiff filed herattorney's section 2-622 affidavit, attesting, inter alia, that hehad consulted with a physician he believed to be knowledgeable inthe issues relevant to the case who determined that there was areasonable and meritorious cause for the filing of this action. Attached to the attorney's affidavit was a copy of the reportissued by the physician with whom he had consulted. A number ofthe defendants filed motions to dismiss the plaintiff's complaintarguing that the physician's report did not comply with therequirements of section 2-622 of the Code. On September 8, 1995,prior to a hearing on the defendants' motions, the plaintiffvoluntarily dismissed 10 of the physician-defendants and wasgranted until October 6, 1995, to file an amended section 2-622affidavit and physician's report as to the remaining defendants. The plaintiff failed to file an amended affidavit and reportwithin the time allowed in the court's order of September 8,prompting several of the defendants to again move for dismissal byreason of her failure to comply with the requirements of section 2-622 of the Code. On November 17, 1995, the plaintiff filed heramended section 2-622 affidavit and a "superseding" physician'sreport. Thereafter, certain of the defendants again moved fordismissal citing inadequacies in the physician's report. OnFebruary 6, 1996, the court struck the physician's report filed onNovember 17, and ordered the plaintiff to file a second amendedreport by March 12, 1996, which date was extended to April 9, 1996,by a subsequent order.

When the plaintiff failed to file the second amended report byApril 6, the defendant, Peter Palermo, again moved for dismissal byreason of the plaintiff's failure to comply with section 2-622 ofthe Code. On the date that Palermo's motion came on for hearing,the plaintiff moved for and was granted leave to file her secondamended physician's report. On that same date, Palermo's motionwas denied and the defendants were ordered to answer or otherwiseplead to the plaintiff's complaint.

The defendants, Manuel Perez, Palermo, and North Suburban,again moved for dismissal citing deficiencies in the plaintiff'slatest section 2-622 report. The trial court granted the motionson August 15, 1996, but again granted the plaintiff leave to filean amended report.

After the plaintiff failed to file an amended report bySeptember 26, 1996, the date specified in the court's order ofAugust 15, Perez again moved to dismiss this action by reason ofthe plaintiff's failure to comply with section 2-622 of the Code. All remaining defendants, with the exception of Ellen Jansyn whowas never served with summons, joined in Perez's motion.

On December 4, 1996, the trial court granted the plaintiffleave to file her amended section 2-622 report over the defendants'objection, noting, however, that there was no adequate excuse forthe tardy filing. Thereupon, the parties, including the plaintiff,agreed to an immediate hearing as to the adequacy of the report. After entertaining argument on the issue, the trial court foundthat the physician's report failed to comply with the requirementsof section 2-622 of the Code and dismissed the action withprejudice.

On December 30, 1996, the plaintiff filed a motion requestingthat the court reconsider its dismissal order of December 4, or, inthe alternative, grant the plaintiff leave to file yet anotheramended section 2-622 report. The trial court denied theplaintiff's motion, and this appeal followed.

Prior to addressing the merits of this appeal, we find itnecessary to address our standard of review. The defendants arguethat we are to apply an abuse of discretion standard to the trialcourt's determination that the physician's reports filed by theplaintiff failed to comply with the requirements of section 2-622of the Code. To be sure, there are a number of reported decisionswhich so hold. See Jacobs v. Rush North Shore Medical Center, 284Ill. App. 3d 995, 997, 673 N.E.2d 364 (1996); Cuthbertson v.Axelrod, 282 Ill. App. 3d 1027, 1034, 669 N.E.2d 601 (1996);Winters v. Podzamsky, 252 Ill. App. 3d 821, 827, 621 N.E.2d 72(1993); Moss v. Gibbons, 180 Ill. App. 3d 632, 638, 536 N.E.2d 125(1989). We readily acknowledge that such a deferential standardmust be applied to our review of a trial court's determination todismiss an action with prejudice after finding that the plaintiffhas failed to comply with section 2-622 and also to its decision onwhether to permit further amendment. McCastle v. Sheinkop, Ltd.,121 Ill. 2d 188, 192-94, 520 N.E.2d 293 (1987). However, webelieve that our review of the issue of whether a physician'sreport complies with section 2-622 is de novo.

Section 2-622(g) of the Code provides that a plaintiff'sfailure to comply with the pleading requirements of section 2-622(a)(1) shall be "grounds for dismissal under section 2-619 [735ILCS 5/2-619 (West 1994)]." 735 ILCS 5-2-622(g) (West 1994). Anappeal from a section 2-619 dismissal raises the issue of whetherthe trial court's order is proper as a matter of law, and is,therefore, given a de novo review. Kedzie & 103rd CurrencyExchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732(1993).

On the merits of her appeal, the plaintiff argues that thetrial court erred in finding that her physician's reports did notsatisfy the requirements of section 2-622 of the Code. Thedefendants contend that the trial court correctly found that thephysician's reports submitted by the plaintiff failed to complywith the statute because they are vague, conclusory, and fail toidentify the particular conduct of each defendant which is allegedto have been a breach of the medical standard of care owed to theplaintiff.

Section 2-622 of the Code provides that the plaintiff'sattorney or the plaintiff, if proceeding pro se, in any medicalmalpractice action must attach to her complaint both an affidavitcertifying that she consulted with a qualified health careprofessional in whose opinion there is a reasonable and meritoriouscause for the filing of the action, and a copy of that healthprofessional's written report setting forth the reasons for hisdetermination. 735 ILCS 5/2-622(a)(1) (West 1994); McCastle, 121Ill. 2d at 190. In the event that multiple defendants are named ina single medical malpractice action, the statute requires that aseparate health professional's written report shall be filed as toeach defendant. 735 ILCS 5/2-622(b) (West 1994). However, asingle report may satisfy the requirements of section 2-622 of theCode if it is sufficiently broad to cover multiple defendants,adequately discusses the deficiencies in the medical care renderedby each, and contains reasons in support of the conclusion that areasonable and meritorious cause exists for the filing of theaction as against each of the defendants. Comfort v. WheatonFamily Practice, 229 Ill. App. 3d 828, 832, 594 N.E.2d 381 (1992);Premo v. Falcone, 197 Ill. App. 3d 625, 632, 554 N.E.2d 1071(1990); Hagood v. O'Conner, 165 Ill. App. 3d 367, 373-74, 519N.E.2d 66 (1988). Additionally, no report need be filed as to anydefendant whose claimed liability is wholly vicarious. Comfort,229 Ill. App. 3d at 833-34.

As stated earlier, the plaintiff's claims against NorthSuburban and Humana are premised solely upon the doctrine ofrespondeat superior. Consequently, no physician's report isrequired as to these defendants provided that the plaintiff hascomplied with section 2-622 in support of her claims against thephysician-defendants alleged to have been their agents or employees. Therefore, the focus of our attention in this appeal isthe adequacy of the plaintiff's section 2-622 reports as theyrelate to the individual physician-defendants.

The purpose of section 2-622 is to "reduce the number offrivolous suits that are filed and to eliminate such actions at anearly stage ***." DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d57, 65, 588 N.E.2d 1139 (1992). The statute was not intended todeprive plaintiffs with legitimate claims of their right to a trialon the merits by creating insurmountable pleading hurdles. SeeSteinberg v. Dunseth, 276 Ill. App. 3d 1038, 1042, 658 N.E.2d 1239(1995); Ebbing v. Prentice, 225 Ill. App. 3d 598, 601, 587 N.E.2d1115 (1992). The requirements of section 2-622 should be liberallyconstrued so that controversies may be determined according to thesubstantive rights of the parties. While the affidavit and reportrequirements imposed on plaintiffs under section 2-622 of the Codedo not rise to the level of substantive elements of a claim formedical malpractice, neither should they be viewed as emptyformalism. See Williams v. Medenica, 275 Ill. App. 3d 269, 273,655 N.E.2d 1002 (1995).

In this case, the plaintiff filed a total of four physician'sreports in an effort to comply with section 2-622 of the Code. Three of the four reports state that the author: 1) is a physicianand surgeon licensed to practice medicine in all of its branches;2) is knowledgeable in the relevant issues and has practiced withinthe past six years; and 3) reviewed "the records, facts and otherrelevant material" pertaining to this case. Consequently, there isno doubt that these reports taken collectively satisfy the healthcare professional's qualification requirements set out in section2-622(a)(1). In each report, the author states that he determinedthat there is a reasonable and meritorious basis for a negligenceaction against each of the defendants. However, the plaintiff didnot file separate reports as to each of the named physician-defendants. All four of the physician's reports name thephysician-defendants, Palermo, Jeffrey Lindahl, Perez, and Jansyn,in an introductory sentence; however, other than Perez, none ofthese individuals is ever again mentioned by name in any of thereports. Because the last of these reports incorporated all of thephysician's opinions from the three previous reports, we haveexamined the reports collectively to determine if the plaintiff'shealth care professional sufficiently set forth his reasons forconcluding that reasonable and meritorious cause exists for thefiling of this action against each of the physician-defendants.

As stated earlier, a plaintiff's failure to comply with therequirements of section 2-622 is a ground for dismissal undersection 2-619 of the Code. On appeal from a section 2-619dismissal, we must accept all well pled facts in the complaint astrue and draw all reasonable inferences from those facts which arefavorable to the plaintiff. Holubek v. City of Chicago, 146 Ill.App. 3d 815, 817, 497 N.E.2d 348 (1986). We believe that the samestandard must be applied to the matters alleged in a reviewinghealth care professional's report, since section 2-622 requires theattachment of such a report to all medical malpractice complaints. However, since section 2-622 neither requires nor contemplates thata health care professional comment on legal principles (seeMcAlister v. Schick, 147 Ill. 2d 84, 97-98, 588 N.E.2d 1151(1992)), we have ignored the legal theories and criticisms ofPerez's pleadings contained in several of the reports filed in thiscase. Our recitation of the content of the reports filed by theplaintiff is limited to the factual basis for her health careprofessional's determination and his opinions as to appropriatemedical standards of care.

The first report states that "[t]he defendants, and each ofthem, negligently cared for the plaintiff from September, 1992through March, 1993." According to the author: the plaintiff"suffered from a viral pericarditis with pericardial effusion";that "[t]his condition was missed by the defendants; and that theplaintiff was "treated with antibiotics and later ineffective dosesof steroids." The author concludes that "the foregoing is not thestandard of care in the treatment of viral conditions." The reportgoes on to state that the effusion was of such an extent thatdrainage was necessary and that the "delay in definitive careoccasioned by the foregoing aggravated the pericardial pathology(increased thickening and scarring of the pericardium) as well asthe plaintiff's clinical status."

The plaintiff's second or "superseding" report relates thatthe defendants cared for the plaintiff when she suffered from anupper respiratory infection associated with and followed by chesttenderness. This report fixes the period of care as September1991, but the plaintiff suggests in her brief that the reportshould read September 1992. The report goes on to state that anupper respiratory infection associated with and followed by chesttenderness is very suggestive of pericarditis, but the diagnosiswas not made, nor treatment initiated, for about a monththereafter. The author concludes that "[t]he foregoing was adeviation from the standard of care by all the defendant physicianswho cared for the plaintiff." He also states that the unreasonabledelay of one month in the diagnosis of the plaintiff's pericarditisand effusion aggravated the damage to the pericardium and prolongedthe plaintiff's pain and suffering. As to the medicationadministered to the plaintiff, the report states that "aspirin wasnot used appropriately or a different anti-inflammatory medicationwas necessary, as the pericarditis never really resolved duringthis period of time," and "antibiotics are not indicated for viralinfections."

The plaintiff's third physician's report incorporates theassertions contained in the two previous reports, and supplieslittle by way of additional factual justification for the author'sdetermination that a reasonable and meritorious cause exists forthe filing of this action against Palermo, Lindahl, or Jansyn. This report does, however, contain additional criticisms of thetreatment provided by Perez. The report states that "Dr. Perez didnot use aspirin appropriately or allowed the plaintiff to continueto use it inappropriately" resulting in "a delay in propertreatment of pericarditis because we know that the use of aspirindid not resolve the pericarditis." The author then adds what isdescribed as a "new deviation from the standard of care by Perez." According to the report, "Perez breached the standard of care whenhe told the plaintiff that aspirin would not adversely effect (sic)vaginal bleeding, i.e. that she could take aspirin in the presenceof trans-vaginal hemorrhage." In this respect, the authorarticulates a very specific reason for concluding that Perezbreached the standard of care. He states:

"Aspirin can and within a reasonable degree of medicalcertainty did, adversely effect (sic) plaintiff'sbleeding by prolonging it. This is common medicalknowledge and basic pharmacology. Arguably, extra bloodloss, as suffered by plaintiff, aggravates the resolutionof pericarditis and, again, within a reasonable degree ofmedical certainty, did so in this case."

The plaintiff's fourth physician's report incorporates theprevious reports and goes on to assert that the plaintiff sufferedfrom pericarditis for which the "defendants prescribed aspirin." According to the author, the "[d]efendants breached the standard ofcare in that they failed to prescribe adequate doses of aspirin,failed to properly monitor Plaintiff's clinical status and failedto adjust Plaintiff's aspirin dosage." The report states that,although "[a]spirin is a proper drug for the treatment ofpericarditis if used in a clinically monitored dose," the dosageused in this case "should have been titrated upward when it shouldhave been clinically apparent that the dose being used at the timeof treatment was not sufficient."

We have little difficulty in concluding that the plaintiffcomplied with the requirements of section 2-622 of the Code as toher claim against defendant Perez. The plaintiff's thirdphysician's report, incorporated by reference into the fourth, isquite specific in its allegations against this defendant. In thatreport, the author concluded that Perez breached the standard ofcare when he advised the plaintiff that she could take aspirin inthe presence of trans-vaginal bleeding. He states, within areasonable degree of medical certainty, that the taking of aspirinby the plaintiff prolonged her bleeding and thereby aggravated theresolution of pericarditis. In short, the plaintiff's health careprofessional stated with specificity: 1) what it is that Perez did;2) his reasons why that activity constituted a breach of theapplicable standard of care; and 3) the adverse effects suffered bythe plaintiff as a result of the breach. These statements,standing alone, are more than sufficient to satisfy therequirements of section 2-622 of the Code as to the plaintiff'sclaim against Perez.

We are not unmindful that, when read together, the third andfourth physician's reports filed in this case appear to beinconsistent. As stated, the third report criticizes Perez fortelling the plaintiff that she could take aspirin, while the fourthreport criticizes all of the physician-defendants for not givingher more aspirin. However, our function in this appeal is not todetermine if the facts set forth in the reports are true or if theopinions expressed therein are medically sound. Those issues willbe determined upon a trial of the cause (see McAlister, 147 Ill. 2dat 97) or on a motion for summary judgment (see Austin View CivicAssociation v. Palos Heights, 85 Ill. App. 3d 89, 93, 405 N.E.2d1256 (1980)). We address only the question of whether the reasonsstated in the reports are sufficient to support the author'sultimate determination that a reasonable and meritorious causeexists for the filing of this action against Perez. Having foundthat they are, we reverse the dismissal of the plaintiff'scomplaint against Perez. It also follows that the trial court'sdismissal of this action against North Suburban and Humana must bereversed as well, since the plaintiff has alleged that Perez actedas their employee and agent.

The more difficult question is whether the plaintiff compliedwith the requirements of section 2-622 as to defendants Palermo,Lindahl, and Jansyn. When a single section 2-622 report issubmitted in support of a medical negligence complaint againstmultiple physician-defendants, "[t]he report should discuss theinvolvement of each defendant in the treatment of the plaintiff." Moss, 180 Ill. App. 3d at 638; see also Alford v. Phipps, 169 Ill.App. 3d 845, 853-54, 523 N.E.2d 563 (1988). A report which isbroad enough to cover the medical deficiencies in the treatmentrendered by each defendant is sufficient to satisfy the statute. Premo, 197 Ill. App. 3d at 632. However, where confusion as to theinvolvement of each defendant might arise, separate physician'sreports are required. Peterson v. Hinsdale Hospital, 233 Ill. App.3d 327, 332, 599 N.E.2d 84 (1992).

Although the plaintiff's health care professional states thathe reviewed her medical records, none of the physician's reportsfiled in this case discuss the specific involvement of Palermo,Lindahl, or Jansyn in the plaintiff's medical treatment, nor are weadvised as to the medical specialty of any of these doctors. Unlike the report filed in Brems v. Trinity Medical Center, 295Ill. App. 3d 358, 693 N.E.2d 494 (1998), the reports in this casedo not contain separate paragraphs setting forth the specificreasons for the health care professional's conclusion that areasonable and meritorious basis exists for the filing of thisaction against Palermo, Lindahl, or Jansyn. As noted earlier, thenames of these physicians are never mentioned other than in anintroductory sentence in each report. We have no idea which of thephysician-defendants actually prescribed aspirin for the plaintiff,which of them were involved in treating her for pericarditis, orwhen each of them began treating the plaintiff. As they relate toPalermo, Lindahl, and Jansyn, the reports are nothing more than acollection of conclusory phrases unsupported by any facts (seePeterson, 233 Ill. App. 3d at 331-32), and amount to "little morethan a generalized conclusion of medical malpractice" (Moss, 180Ill. App. 3d at 638). Other than the specific criticism of Perezdiscussed earlier, the reports create confusion as to theinvolvement of the particular physician-defendants in the treatmentof the plaintiff and are, therefore, insufficient to satisfy therequirements of section 2-622 of the Code. See Premo, 197 Ill.App. 3d at 631-33.

The plaintiff was granted leave to file three amendedphysician's reports in response to motions contending that she hadfailed to comply with the requirements of section 2-622 of theCode. The transcript of the proceedings held on August 15, 1996,reflects that the trial judge pointed out the very samedeficiencies noted above when he struck the third physician'sreport filed by the plaintiff, yet he granted the plaintiff anotheropportunity to file an amended report. However, when that amendedreport was filed on December 4, 1996, it too suffered from the samedeficiencies. Regarding plaintiff's claims against Palermo,Lindahl, and Jansyn, we agree with the trial court's conclusionthat the plaintiff was granted ample opportunity to file aphysician's report in compliance with section 2-622 of the Codeand, therefore, we find no abuse of discretion in the dismissal ofthe plaintiff's claims against these defendants with prejudice.

When the plaintiff moved for reconsideration of the order ofDecember 4, 1996, she also requested, in the alternative, that shebe allowed to file an amended physician's report authored by a newhealth care professional. That motion was filed on December 30,1996. Yet, when the motion came before the court for hearing onJuly 2, 1997, the plaintiff did not tender any proposed amendedreport or inform the court what such an amended report wouldcontain if she were granted leave to file one. At the time thatthe trial court ruled on the plaintiff's motion forreconsideration, six months had elapsed since the filing of themotion and this action had been pending for over two years. Underthese circumstances, we find no abuse of discretion in the trialcourt's denial of the plaintiff's request to file an amendedphysician's report.

For the reasons stated, we: 1) affirm the trial court'sdismissal of the plaintiff's action against Palermo, Lindahl, andJansyn; 2) reverse the dismissal of Perez, North Suburban, andHumana; and 3) remand this cause to the circuit court for furtherproceedings.

Affirmed in part, reversed in part, and remanded.

THEIS and HOURIHANE, JJ., concurring.