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SECOND DIVISION

December 29, 2000

No. 1-99-1461

JUSTICE McBRIDE delivered the opinion of the court:

This appeal arises from the dismissal of plaintiff's complaintfor failure to file a physician's report as required by 735 ILCS5/2-622 (West 1998). Plaintiff's complaint alleged numerous actsof medical negligence committed by defendants that resulted in thedeath of Irma Ratcliffe ("Decedent"). Plaintiff-Appellants areSherry and Glen Ratcliffe who are husband and wife (collectivelyreferred to as "Ratcliffe"). Decedent was Sherry Ratcliffe'smother. Sherry Ratcliffe filed this action on behalf of Decedentand was later appointed Special Administrator of Decedent's Estateby the trial judge. Ratcliffe has not retained counsel and isrepresenting Decedent's interests in the matter pro se as she didbelow.

The Defendants-Appellees are Dr. Frank Apantaku ("Apantaku");Trinity Hospital ("Trinity"); University of Chicago Hospital("UCH"); and Illinois Home Health Care, Inc. ("Home")(hereinaftercollectively referred to as "Defendants"). We state only thosefacts necessary for disposition of this appeal. Ratcliffe'scomplaint alleges that Apantaku's negligent treatment of Decedentresulted in her death due to urosepsis. According to Ratcliffe,the urosepsis developed because of an un-checked urinary tractinfection which both Apantaku and Trinity negligently failed todetect and promptly treat. Ratcliffe also alleges that Trinity andHome failed to acknowledge and respond to complaints made byRatcliffe concerning the negligent care administered to Decedent byApantaku. Because of Apantaku and Trinity's alleged negligenceconcerning Decedent's care, Ratcliffe brought Decedent into theemergency room at UCH. Ratcliffe further asserts that UCH was alsonegligent in failing to administer proper care and effectivelyhastened the death of Decedent. Based on the above allegations,Ratcliffe, on behalf of Decedent's estate, sought monetary damagesin excess of fifty-thousand dollars against each Defendant

Ratcliffe filed her complaint in the circuit court on April10, 1998. On July 6, 1998, Trinity filed a motion to dismissRatcliffe's complaint and UCH was granted leave by the trial courtto join in that motion. Apantaku also filed a motion to dismissthe complaint on August 13, 1998. One of the grounds alleged inthe Defendants' motion to dismiss was Ratcliffe's failure to filea physician's report as required by 735 ILCS 5/2-622. Section 2-622 states in relevant part:

"(a) In any action, *** in tort *** in whichthe plaintiff seeks damages for injuries ordeath by reason of medical, hospital oranother healing art malpractice, theplaintiff's attorney or the plaintiff, if theplaintiff is proceeding [pro se], shall filean affidavit, attached to the original and allcopies of the complaint, declaring one of thefollowing:

1. That the affiant has consulted andreviewed the facts of the case with a healthprofessional who the affiant reasonablybelieves: (i) is knowledgeable in the relevantissues involved in the particular action; (ii)practices or has practiced within the last 6years or teaches or has taught within the last6 years in the same area of health care ormedicine that is at issue in the particularaction; and (iii) is qualified by experienceor demonstrated competence in the subject ofthe case; that the reviewing healthprofessional has determined in a writtenreport, after a review of the medical recordand other relevant material involved in theparticular action that there is a reasonableand meritorious cause for filing such action;and that the affiant has concluded on thebasis of the reviewing health professional'sreview and consultation that there is areasonable and meritorious cause for filingsuch action.

***

(g) The failure to file a certificate required by this section shall be grounds for dismissal underSection 2-619." 735 ILCS 5/2-622 (West 1998).

On September 18, 1998, the trial court granted Ratcliffe untilNovember 9, 1998, to file a physicians report pursuant to 735 ILCS5/2-622. On November 9, 1998, Ratcliffe was appointed specialAdministrator of Decedent's estate and she complained that she hadyet to receive medical records from Trinity and, thus, could notfile her physician's report as required under the above statute.

In a variety of different orders, the trial court instructedthe Defendants to produce copies of Decedent's records toRatcliffe. Based upon a review of the orders and Defendants'allegations, it appears that Ratcliffe received UCH's records onOctober 7, 1998; Trinity's records on November 30, 1998; and Home'srecords on February 17, 1999. Additionally, Apantaku representedto the court on September 28, 1998, that he possessed noindependent office letters concerning the Decedent and wouldindicate so in a letter to Ratcliffe. Ratcliffe admits receivingall of Defendants' records by February 18, 1999.

Despite having UCH and Trinity's records for months, Ratcliffedid not file a physician's report pursuant to 735 ILCS 5/2-622. OnFebruary 16, 1999, prior to hearing Defendants' motions to dismiss,the trial court ordered Ratcliffe to produce a physician's reportby March 22, 1999, or the case would be dismissed in accordancewith the statute. On March 22, 1999, Ratcliffe had not filed thephysician's report and the trial court dismissed Ratcliffe'scomplaint with prejudice. Ratcliffe appeals from the orderdismissing the complaint.

The two main questions raised by this appeal are: (1) whetherthe trial court abused its discretion in granting Defendants'motions to dismiss pursuant to 735 ILCS 5/2-622; and (2) whetherthe trial court's dismissal of the complaint was justified based onthe fact that it was improper for Ratcliffe, a pro se litigant, torepresent Decedent's estate in a wrongful death or survivor action. We apply an abuse of discretion standard of review concerningthe trial court's dismissal of a complaint based on failure tocomply with section 2-622. Mueller v. North Suburban Clinic, Ltd.,299 Ill. App. 3d 568, 572, 701 N.E.2d 246 (1998). As the secondquestion involves a question of law, our standard of review will bede novo. Daley v. American Drug Stores, Inc., 294 Ill. App. 3d1024, 1026, 691 N.E.2d 846 (1998).

Because we conclude that it was improper for Ratcliffe, apro se litigant, to represent the legal interests of Decedent'sestate in the action below and because we find this fact isdispositive of the appeal, we will only address this issue. At acourt hearing on September 18, 1998, in the instant case thetrial judge advised Ratcliffe that under Blue v. People of theState of Illinois, 223 Ill. App. 3d 594, 585 N.E.2d 625 (1992),he did not believe Ratcliffe could represent Decedent's estate ina pro se capacity. The trial judge however did not dismiss theaction at that time and on a subsequent court date appointedRatcliffe as special administrator of Decedent's estate.

In Blue, a pro se plaintiff filed a complaint for an orderof habeus corpus in the name of his minor child alleging that theplaintiff was being held in his mother's custody in violation ofdue process of law. The trial court dismissed the complaintbased on the fact that another action was pending between thesame parties for the same cause under section 2-619(a)(3) of theIllinois Code of Civil Procedure. Plaintiff appealed the trialcourt's dismissal. The appellate court dismissed plaintiff'sappeal and vacated the circuit court's judgment. Blue, 223 Ill.App. 3d at 597.

In Blue, the appellate court noted that under "Ill. Rev.Stat. 1989, ch. 13, par. 1 [now codified as 705 ILCS 205/1],""One not duly authorized to practice law may not representanother in a court of law." Blue, 223 Ill. App. 3d at 596. Further, the court held that:

"Lay people may appear only in their 'properpersons' *** only on their own behalf.[Citation omitted.] *** A pleading signed bya person who is not licensed to practice lawin this State is a nullity even if a dulylicensed attorney subsequently appears incourt. [Citation omitted.] Where one notlicensed to practice law has instituted legalproceedings on behalf of another, the suitshould be dismissed; if the suit hasproceeded to judgment, the judgment is voidand will be reversed. [Citation omitted]." Blue, 223 Ill. App. 3d at 596.

The court then held that plaintiff could not represent theinterests of another, his son, without being authorized topractice law. Thus, although a pro se litigant is entitled torepresent his or her own personal interest, a non-attorney cannotrepresent another's legal interests on behalf of that individual. Part of the rationale behind the court's ruling was that anindividual (a minor) who lacks the capacity to represent himselfis entitled to the protection and expertise of an attorney.

In further support of their position that the trial court'sorder dismissing this complaint should be affirmed, defendantsalso rely upon a decision by the Court of Appeals of Nebraskaentitled Waite v. Carpenter, 1 Neb. App. 321, 496 N.W. 2d 1(1992). In Waite, a pro se litigant filed several claims againstdefendants as personal representative of Harriet Waite's estate. The complaints did not state plaintiff's relationship withHarriet Waite but indicated the plaintiff was acting as personalrepresentative of the estate. The court found that:

"As wrongful death actions, [these cases] areof the type which may only be maintained by apersonal representative, and *** a non-lawyermay represent himself or herself, but may notact as the legal representative for anyoneelse. This rule includes a non-attorneypersonal representative acting for an estate.Obviously, the personal representative whobrings a wrongful death suit is bringing itfor the benefit of the other heirs and thosepersons are entitled to have their legalinterests represented by one who is trainedand licensed to do so. This is not to saythat personal representatives must beattorneys, but rather, that one who seeks torepresent the legal interests of the personalrepresentative must be an attorney. Thisrule protects the estate, its heirs, and itscreditors." Waite, 1 Neb. App at 328.

We have reviewed Ratcliffe's complaint and although entitleda "Complaint Of Professional Negligence," it is styled more inthe nature of a wrongful death or survival action. We also notethat during the proceedings below the trial judge appointedRatcliffe as the Special Administrator of Decedent's estate andRatcliffe's complaint seeks money damages.

Because claims for both wrongful death and survival actionsare brought in a representative capacity we find that they maynot be brought pro se. The Wrongful Death Act provides: "Everysuch action shall be brought by and in the names of the personalrepresentatives of such deceased person***." 740 ILCS 180/2(West 1998). The Illinois Survival Statute likewise providesthat such a cause of action shall be brought in a representativecapacity. 755 ILCS 5/27-6 (West 1998).

Thus, we agree with the Waite reasoning and hold thatRatcliffe cannot represent the legal interests of Decedent'sestate in a pro se capacity because she is not an attorneylicensed to practice law. As Waite points out, medicalmalpractice and wrongful death actions are complex cases thatrequire the expertise of an attorney and the dismissal ofRatcliffe's complaint under section 2-622 only reinforces thisproposition. Waite, 1 Neb. App at 330. As a result of ourreading of both Blue and Waite, we believe this appeal should bedismissed.

Although we have determined this appeal should be dismissedbecause Ratcliffe could not represent the legal interests ofDecedent's estate as she is not a licensed attorney, we addressRatcliffe's claim that the trial court erred in not appointingcounsel to represent her in the lawsuit that she filed inviolation of 705 ILCS 205/1 (West 1998).

Ratcliffe contends that the trial court's failure to appointcounsel on her behalf was erroneous and was also abusive is somefashion. We disagree. First, an individual in a civil actionhas no right to counsel under the Illinois Constitution. In reMarriage of Schmidt, 241 Ill. App. 3d 47, 48, 609 N.E.2d 345(1993). Ratcliffe provides us with no authority to the contrary.Moreover, we fail to see how, under these facts, Ratcliffe, aspersonal representative of Decedent's estate, has a right tocounsel. Ratcliffe as much as concedes so in her amended brief.

Further, we are not persuaded by any of the cases cited byRatcliffe in support of her alleged entitlement to counsel. InZarnes v. Rhodes, 64 F.3d 285, 288 (1995), the courtaffirmatively stated that "civil litigants do not have a right,either constitutional or statutory, to counsel [Citation.]" Further, the court determined that the district court did notabuse its discretion in denying Zarnes' request for counsel.Zarnes, 64 F.3d at 288. Thus, the express language of Zarnesdefeats Ratcliffe's argument on this question.

Ratcliffe also relies on Thomas v. Pate, 493 F.2d 151, 156(1974). In Thomas, a federal discrimination case, the court alsostated that, "A plaintiff in a civil action *** has no sixthamendment right to competent counsel." Thomas, 493 F.2d at 157. Thus, Thomas merely reiterates the same proposition expressed inZarnes. As earlier noted, In re Marriage of Schmidt, Zarnes andThomas defeat Ratcliffe's position on this question.

The final case cited by Ratcliffe on this point exclusivelyconcerns a plaintiff's right to self-representation and not theright to appointment of counsel. See O'Reilly v. New York TimesCompany, 692 F.2d 863 (1982). Therefore, the case is not germaneto the question at issue. Accordingly, we dismiss this appealbecause Ratcliffe, a pro se litigant, could not represent thelegal interest of Decedent's estate in the action below.

The appeal is dismissed and the judgment of the circuitcourt is vacated.

Appeal dismissed, judgment vacated.

CAHILL, P.J., and GORDON, J., concur.