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SECOND DIVISION
September 26, 2000

No. 1-99-2935

Contemnor Roy Olson was the attorney for plaintiff Mary Nissenson in this medicalmalpractice action. Contemnor appeals from an order finding him in contempt for failure to pay$3,220 in attorney fees and expenses incurred by defendant Craig Bradley, M.D. The fees wereassessed as a sanction under Supreme Court Rule 137 (155 Ill. 2d R. 137) for contemnor's failureto withdraw an allegedly false medical report attached to plaintiff's complaint as required bysection 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1998)).

On appeal, contemnor contends: (1) Supreme Court Rule 137 and section 2-622 of theCode only provide for sanctions against the attorney who files a false or fraudulent pleading orpaper; (2) Dr. Fisher's report was not false, fraudulent or inaccurate; and (3) contemnor's conductwas reasonable at all stages of the case.

On September 6, 1996, plaintiffs Mary Nissenson and her husband William Scheer filedthis action, listing Phillip Taxman and Brian Hurst of Phillip Taxman, Ltd., as their attorneys. The complaint alleged medical and professional negligence against defendant Craig Bradley,M.D., and his business, an out-patient surgical clinic. Mary alleged that on February 23, 1995,Dr. Bradley negligently performed facial cosmetic surgery on her after a November 3, 1994,consultation. Brian Hurst signed an affidavit that he had reviewed the case with Dr. Jack Fisher,a health professional reasonably knowledgeable in the relevant practice area. Hurst averred thatDr. Fisher determined, after review of the medical records and other materials, there was areasonable and meritorious basis for filing the action. Also attached to the complaint was thefollowing document:

"MEDICAL REPORT

I am board certified and in active practice in the same specialty as Dr. CraigBradley. I am involved with the teaching of medical students, residents and interns. Ihave reviewed the records provided to me by Mrs. Mary Scheer's attorneys concerningher care by Dr. Craig Bradley in Chicago, Illinois. I have based my opinion on the factthat Dr. Bradley deviated from the appropriate standard of care through the following actsand omissions:

(a) Dr. Bradley failed to do a proper, complete andthorough work-up of Mrs. Scheer, including, but notlimited to failing to consider alternative methods oftreatment and therapy;

(b) Dr. Bradley performed procedures on Mrs. Scheer thatwere unnecessary, not indicated, contraindicated, and whichexposed Mrs. Scheer to an avoidable and unreasonable riskof injury;

(c) Dr. Bradley failed to properly diagnose the condition ofMrs. Scheer;

(d) Dr. Bradley failed to obtain appropriate, proper andrequisite informed consent for procedures performed onMrs. Scheer.

I believe the foregoing deviations directly and proximately resulted in the injuriessuffered by Mrs. Scheer.

My opinions are subject to modification upon the obtaining of additionalinformation through discovery or otherwise."

The document was unsigned, on plain paper, with Dr. Fisher's name and address in San Diegotyped at the bottom. Defendants answered on October 1, 1995, without challenging the medicalreport.

On May 22, 1998, contemnor wrote Dr. Fisher that Mary's prior attorney had withdrawnand that he represented Mary. On August 13, 1998, contemnor wrote to Dr. Fisher and askedthat he review physician reports and depositions. On January 5, 1999, contemnor sent Dr. Fishera copy of Dr. Bradley's deposition for his review. Dr. Fisher replied on January 17, 1999,concluding, "I cannot find a basis for declaring anything that Dr. Bradley did or failed to do torepresent negligence or departure from the recognized standard of care."

On February 24, 1999, Dr. Fisher wrote defense counsel that, several years earlier, he hadseen Mary at the request of Taxman. Dr. Fisher told Taxman that he could not find a basis forconcluding that Dr. Bradley had been negligent. When contemnor later contacted him to reviewadditional records, Dr. Fisher made his position clear to contemnor that his opinion was unlikelyto change. After reviewing the records and Dr. Bradley's deposition testimony, Dr. Fisher wrotecontemnor that he could not find anything negligent in Dr. Bradley's care of Mary and declined toparticipate further. Dr. Fisher wrote, "I have not agreed to serve as an expert witness in this case. If Mr. Olson has listed me as his expert, he is mistaken."

Dr. Bradley moved to withdraw his answer and dismiss the complaint on March 4, 1999,because the "purported" written report attached to the complaint did not contain Dr. Fisher'ssignature, and Dr. Fisher stated in his February 24 letter to defense counsel that it had been hisopinion that Dr. Bradley's care of Mary had not been negligent, contrary to the written report. Dr.Bradley argued that the report was invalid and the complaint was subject to dismissal undersections 2-622 (a) (1) and 2-622 (g) of the Code. 735 ILCS 5/2-622 (a) (1), (g) (West 1998). Ata hearing on March 4, 1999, there was a discussion concerning Dr. Fisher's February 24 letter. The judge stated that it appeared a false medical report was attached to the complaint and orderedthat Dr. Fisher be deposed.

Dr. Fisher testified at his deposition on May 5, 1999, that he had no recollection of thereport attached to the complaint and that it was not a product of his writing. After reviewing thereport, he concluded: "So I have not only no recollection of this, but I disagree with much of thecontent." He did not "recognize any sentence" that he "would have phrased or written." Herepeated that he never agreed to be an expert witness.

On May 24, 1999, plaintiff responded that Dr. Fisher had examined her in 1996 andrendered certain criticisms of Dr. Bradley. Plaintiff claimed the report met the requirements ofsection 2-622 of the Code (735 ILCS 5/2-622 (West 1998)), which does not require that thephysician author the report.

On June 24, 1999, the court found that allegations (a), (c) and (d) in Dr. Fisher's medicalreport attached to the complaint did not accurately reflect Dr. Fisher's opinions or observations;that contemnor was on notice that the affidavit filed by plaintiffs' original attorney was "atminimum, inaccurate"; that contemnor did nothing to correct the inaccuracy or notify the court;that contemnor had a duty to notify the court of the problems with the medical report; and thathis failure to withdraw the report was sanctionable under Supreme Court Rule 137 (155 Ill. 2d R.137) and section 2-622(e) of the Code. The court ordered contemnor to pay fees and costsassociated with the motion and Dr. Fisher's deposition. The court found that the pleading wasfalse and that contemnor knew it.

Contemnor filed a motion for reconsideration, arguing that Rule 137 was not applicablebecause contemnor had not authored, signed or filed the pleadings, and he could reasonably relyon predecessor counsel to inform him of the facts. Contemnor maintained that section 2-622 (e)of the Code was not applicable because, even if the affidavit or medical report were untrue, hedid not prepare them. He also maintained that he was not obligated to amend the earlier pleadingwhen additional facts were learned. Contemnor stated that the person who filed the originalpleading should be sanctioned, not the party's subsequent representative, and that he could not besanctioned for not disclosing Dr. Fisher's changes in his opinions. Contemnor also argued thatthe medical report was not fraudulent and not a false pleading. In support he offered the March4, 1999, affidavit of Brian Hurst. Hurst stated that he had learned of Dr. Fisher's opinion in atelephone call with him and from an August 11, 1996, letter from Dr. Fisher to Taxman. ButHurst admitted that the language used by Dr. Fisher in the August 11 letter was different from thelanguage used in the report.

The court found that only subsection (b) of the report may have been authorized by Dr.Fisher, and that contemnor was on notice that the original section 2-622 report was inaccurate,but he did nothing to correct the inaccuracy or notify the court. The court ordered contemnor topay defendant $3,220 for false pleading. The court then found contemnor in contempt when herefused to pay and fined him $100 to facilitate an appeal. Plaintiffs voluntarily dismissed theiraction.

The trial court's ruling on Rule 137 sanctions is entitled to considerable deference andwill not be disturbed on review, absent a showing of an abuse of discretion. Mandziara v.Canulli, 299 Ill. App. 3d 593, 601-02 (1998). Whether Rule 137 has been violated is reviewedunder the manifest weight of the evidence standard. In re Estate of J.M., 287 Ill. App. 3d 110,115 (1997). Contemnor argues that, even if the pleading was fraudulent, he was not responsiblebecause Rule 137 applies only to the attorney who actually filed the pleading. But an attorneyhas a professional duty to promptly dismiss a lawsuit when he learns the client has no case. In reCustody of Caruso, 185 Ill. App. 3d 739, 744 (1989). Dismissal for failure to file the documentsrequired by section 2-622 is designed to reduce the number of frivolous suits filed and eliminatesuch actions at an early stage before litigation expenses have mounted. DeLuna v. St. Elizabeth'sHospital, 147 Ill. 2d 57, 65 (1992).

Contemnor first argues that Rule 137 and section 2-622 sanctions apply only when anuntrue pleading or paper is filed, that section 2-622 (e) of the Code applies only to the attorney'saffidavit, and that he personally did not file the medical report, which was filed long before hebecame involved in the case. He says that Hernandez v. Williams, 258 Ill. App. 3d 318 (1994),supports his argument the court should focus on the facts and circumstances at the time of thesigning or filing of the pleading. Hernandez is inapplicable to the facts of this case. Here, thecourt found that contemnor's failure to promptly notify the court when he discovered the medicalreport was false was sanctionable conduct.

The section 2-622 attorney affidavit is not considered a part of the complaint for allpurposes. Garrison v. Choh, 308 Ill. App. 3d 48, 57 (1999). But section 2-622(e) specificallyprovides: "Allegations and denials in the affidavit, made without reasonable cause and found tobe untrue, shall subject the party pleading them or his attorney, or both, to the payment ofreasonable expenses, actually incurred by the other party by reason of the untrue pleading,together with reasonable attorneys' fees***." 735 ILCS 5/2-622 (e) (West 1998). Both thissection and Rule 137 authorize sanctions in connection with filing a section 2-622 affidavit andmedical report not "well grounded in fact" or based on the belief of an attorney or party formedafter reasonable inquiry (155 Ill. 2d R. 137), or "made without reasonable cause and found to beuntrue" (735 ILCS 5/2-622 (e) (West 1998)). We find no support for the argument that themedical report was not within the purview of the Code.

We conclude that contemnor had a duty to notify the court of the false medical report. InWalsh v. Capital Engineering & Manufacturing Co., 312 Ill. App. 3d 910 (2000), the court foundan attorney has a continuing duty of inquiry throughout the pendency of litigation. Whenplaintiff's expert testified at his deposition that six allegations were no longer an issue based onhis review, plaintiff's attorneys should not have claimed to have other evidence to support theseallegations, but should have been "forthcoming" with counsel and the court about the expert'scurrent negative opinion concerning those specific allegations. In reversing a denial of Rule 137sanctions, the Walsh court said:

"Thus, we hold that a litigant cannot expect to avoid all sanctionsunder Rule 137 merely because the pleading was not entirelyfrivolous. Moreover, when the invalidity of an allegation or claimbecomes known to the signing party prior to trial, that party has anobligation to act in good faith with both opposing counsel and thecourt." Walsh, 312 Ill. App. 3d at 919.

We agree with Walsh that an attorney has a duty to update the pleadings. We findcontemnor's argument that he did not personally sign the affidavit unpersuasive. Section 2-622clearly permits sanctions against a litigant who submits a frivolous pleading, even if the pleadingwas signed by the litigant's attorney and not by the litigant herself. Though counsel has a duty tomake reasonable inquiry before filing a pleading, the duty of reasonable inquiry does not endthere. A successor attorney cannot hide behind his predecessor. Just as a party is ultimatelyresponsible for the pleadings filed by his attorney on his behalf, a successor attorney inheritsfrom his predecessor the duty to update. "Rule 137 does not require counsel to amend orwithdraw a paper or pleading if he discovers, after signing, that it is unfounded. An attorneyneed not revise the pleadings to conform with newly discovered information." Walsh, 312 Ill.App. 3d at 916, citing Chicago Title & Trust Co. v. Anderson, 177 Ill. App. 3d 615, 626 (1988). However:

"[C]ounsel cannot simply remain silent when faced with *** newly discoveredinformation, file additional papers with the court that do not reveal the morerecent discoveries, and by such silence allow court and opposing counsel to drawerroneous conclusions or proceed on improper assumptions. Instead, once itappears that the prior factual allegation is in error, this must be broughtforthrightly to the attention of court and opposing counsel, at the least in the nextavailable court filing." Chicago Title, 177 Ill. App. 3d at 626-27 (1988).

In this case, contemnor did not "forthrightly" bring the false medical report to theattention of the court and opposing counsel. Instead, defense counsel was notified by Dr. Fisher,and the trial court was notified when defendant filed his motions to withdraw his answer anddismiss the complaint.

Contemnor claims the medical report was not fraudulent, inaccurate or conclusory. Weagree with the trial court that, by the time of Dr. Fisher's February 24, 1999, letter to defensecounsel, contemnor knew that Dr. Fisher had not found fault with Dr. Bradley's treatment,contrary to the statements attributed to Dr. Fisher in the section 2-622 medical report filed withthe complaint. Consequently, contemnor knew that the medical report was false. We also agreethat contemnor failed to notify the court or correct the false pleading when he became aware of itfrom Dr. Fisher's January 17, 1999, letter, which stated, "I still cannot find a basis for declaringanything that Dr. Bradley did or failed to do to represent negligence or departure from therecognized standard of care." As the trial judge said, "You became aware of a false pleading andyou did nothing."

Contemnor next argues that his conduct was reasonable. He argues, "assuming arguendothat the medical report was fraudulent," the court was obligated to review the reasonableness ofcontemnor's conduct at various stages of the case. Minimizing the importance of the section 2-622 requirement, contemnor argues that Dr. Fisher wrote to Taxman in 1996, criticizingplaintiff's consent to the surgery, but did not state that Dr. Bradley was negligent. Dr. Fishersubsequently made clear to contemnor that he never agreed to be plaintiff's expert. Whilecontemnor argues that none of the specifications in the medical report was unauthorized, weagree with the trial court's analysis that Dr. Fisher's deposition testimony shows he did not concurwith at least three of the four statements. It is a fair inference that these statements were falseand that Dr. Fisher never authorized them. Because contemnor knew the statements were falseand did not inform the court or take other action until prompted by the motion to dismiss, he didnot act reasonably and sanctions were appropriate.

We affirm the order of the circuit court imposing $3,220 as a sanction on contemnor. Because the record shows that contemnor sought the contempt finding merely to facilitate thisappeal, we vacate the contempt order and the $100 fine imposed for contempt. SK HandtoolCorp. v. Dresser Industries, Inc., 246 Ill. App. 3d 979, 1001 (1993).

Affirmed in part and vacated in part.

WOLFSON and BURKE, JJ., concur.