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No. 2--01--0007

Plaintiff, Virginia Giegoldt, appeals the circuit court'sorder dismissing her complaint against defendant, Condell MedicalCenter, because she failed to comply with section 2--622 of theCode of Civil Procedure (735 ILCS 5/2--622 (West 2000)). Plaintiffcontends that (1) she did not have to comply with section 2--622because her complaint alleged simple negligence rather than healingart malpractice; (2) the documents she submitted complied with thestatute; and (3) the court erred in denying her leave to amend hercomplaint to allege res ipsa loquitur.

Plaintiff's original complaint alleged that on July 2, 1998,she was a patient at defendant hospital. Plaintiff had justundergone surgery and "was not able to care for herself in anyway." Knowing her condition, defendant undertook her custody andcontrol. Defendant failed to closely monitor plaintiff as apostsurgical patient, failed to put bed rails up while plaintiffwas sleeping, and failed to secure plaintiff with bed straps. Asa result of defendant's negligent acts, plaintiff fell out of bed,fracturing her back.

Defendant moved to dismiss, arguing that plaintiff did notcomply with section 2--622. Thereafter, plaintiff filed an"affidavit of plaintiff's attorney" and a designation of opinionwitnesses pursuant to Supreme Court Rule 213 (177 Ill. 2d Rs.213(f), (g)). The attorney's affidavit states that he consultedwith a health care professional who had determined that "there isa reasonable and meritorious cause for the filing of such action." The affidavit states that the reviewing health professional "is anurse licensed to practice medicine in all branches." The Rule 213notice named as potential opinion witnesses Dr. Marvin Primack andMary Jean Kelley and attached their curricula vitae.

On May 30, 2000, the trial court continued the motion todismiss, giving plaintiff until July 14 to comply with section 2--622. After a further continuance, plaintiff filed the jointaffidavit of her attorney and Kelley, a registered nurse. Theaffidavit stated in essence that Kelley was qualified to render anopinion on the merits of the case and after reviewing relevantmaterials had concluded that plaintiff had a "reasonable andmeritorious cause of action." Defendant renewed its motion todismiss, arguing that section 2--622 required that the reviewinghealth care professional be a physician. On August 10, 2000, thecourt granted the motion and dismissed the cause without prejudice,allowing plaintiff 30 days to replead.

On September 19, 2000, nine days after the court-imposeddeadline, plaintiff filed a purported routine motion for leave tofile an amended complaint. The proposed amended pleading made thesame allegations as the original complaint and had attached an"Affidavit of Merit" from Dr. James Herron. The affidavit statesin its entirety as follows:

"1. That the cause of action is grounded in themalpractice against the agents of Condell Memorial Hospital.

2. That I, Dr. James Herron practice and have practicedwithin the same area of health care that is at issue in thisaction.

3. That I have determined, after review of relevantmaterials, that there is a reasonable and meritorious cause ofaction."

Defendant objected to the motion, so the court continued it. Defendant again moved to dismiss, arguing that the new affidavitwas not only untimely but consisted merely of conclusions. At thehearing on the motion, defense counsel argued that Herron'saffidavit was not filed within the time allowed by the court andthat defense counsel had merely been faxed a copy of the affidavit,without a notary seal, on September 8. The trial court dismissedthe complaint with prejudice on October 3, 2000.

On November 2, 2000, plaintiff filed a motion to vacate theOctober 3 order and for leave to file a count II relying on resipsa loquitur. Plaintiff filed a separate motion to reconsider theOctober 3 order. In it, she contended that she did not need anaffidavit because res ipsa loquitur applied and that the threeaffidavits she had filed were together sufficient to comply withsection 2--622.

Attached to the second motion was another affidavit of Dr.Herron. The affidavit states in relevant part that plaintiff'smental and physical conditions were "seriously deficient" on July1 and 2, 1998, and that it is "common knowledge to everyone" that"such persons are incapable of taking care of themselves." Theaffidavit further states that "they must be watched constantly toprevent them from injuring themselves; that they must be attendedin all their functions; any untoward relenting in watching andtaking care of such persons is obvious negligence, especially anydeficiency in leaving them alone which is an invitation to falls(such as what happened to Mrs. Giegoldt), dangerous eating habits,and every possible adverse result which can and should be preventedand avoided." The affidavit concludes that leaving such a personunattended is a deviation from the standard of care.

The trial court denied plaintiff's motion in all respects. Plaintiff filed a timely notice of appeal.

Section 2--622 prescribes procedures that must be followedwhen filing a complaint alleging healing art malpractice. Specifically, plaintiff's attorney must file an affidavit statingthe following:

"1. That the affiant has consulted and reviewed the factsof the case with a health professional who the affiantreasonably believes: (i) is knowledgeable in the relevantissues involved in the particular action; (ii) practices orhas practiced within the last 6 years or teaches or has taughtwithin the last 6 years in the same area of health care ormedicine that is at issue in the particular action; and (iii)is qualified by experience or demonstrated competence in thesubject of the case; that the reviewing health professionalhas determined in a written report, after a review of themedical record and other relevant material involved in theparticular action that there is a reasonable and meritoriouscause for the filing of such action; and that the affiant hasconcluded on the basis of the reviewing health professional'sreview and consultation that there is a reasonable andmeritorious cause for filing of such action." 735 ILCS 5/2--622(a)(1) (West 2000).

The statute further provides that if the defendant practicesone of a number of listed professions, the report must be from aprofessional licensed in the same profession. For "all otherdefendants," the report must be from a physician licensed topractice medicine in all its branches. A copy of the report mustbe attached to the affidavit. 735 ILCS 5/2--622(a)(1) (West 2000).

Plaintiff's first appellate contention is that she was notrequired to file an affidavit and physician's report because hercomplaint alleged ordinary negligence rather than healing artmalpractice. Initially, we agree with defendant that plaintiff haswaived this argument by failing to raise it in the trial court. For more than seven months, plaintiff provided various affidavitsattempting to comply with the statute. She never argued that noaffidavit was necessary because the complaint alleged ordinarynegligence. In her motion to reconsider she argued that noaffidavit was required because she was then attempting to rely onres ipsa loquitur, but this is a separate argument that we discusslater.

In any event, plaintiff's argument is clearly without merit. It is true that not every injury sustained by a patient in ahospital results from healing art malpractice. Kolanowski v.Illinois Valley Community Hospital, 188 Ill. App. 3d 821, 823(1989). Generally, however, a hospital's failure to provideadequate restraints, including bed rails, can only be establishedby expert medical testimony. Therefore, these cases are treated asmedical malpractice cases. Kolanowski, 188 Ill. App. 3d at 824(citing cases); Taylor v. City of Beardstown, 142 Ill. App. 3d 584,594 (1986). Here, plaintiff's complaint alleges that she was apostsurgical patient and was unable to care for herself. Thus, thecomplaint alleges that defendant had a duty to evaluate plaintiff'smedical condition and determine the necessary degree of supervisionor restraint. These were medical judgments and plaintiff had tocomply with section 2--622.

Owens v. Manor Health Care Corp., 159 Ill. App. 3d 684 (1987),on which plaintiff relies, is distinguishable. Plaintiff there wasa nursing home resident who fell out of his wheelchair. Thereviewing court held that plaintiff merely received custodialshelter care, not medical treatment. Plaintiff's injury did notresult from medical diagnosis or treatment. Owens, 159 Ill. App.3d at 688. Here, the complaint's allegations clearly concernedplaintiff's medical treatment.

Plaintiff next contends that the three affidavits she filed--one from nurse Kelley and two from Dr. Herron--in combinationsatisfied the statute. We disagree.

We have no trouble discounting the first two filings. Initially, we note that the statute requires an affidavit fromplaintiff's attorney that he has consulted with a medicalprofessional, which must be accompanied by a doctor's report. Inmost cases, plaintiffs file affidavits by the experts themselves. Were this the only defect in plaintiff's pleadings, we might beinclined to disregard it as inconsequential, but it is not.

Plaintiff initially filed her attorney's affidavit that he hadconsulted with Kelley and, later, an affidavit by Kelley, who is aregistered nurse. However, section 2--622 clearly provides that,with certain exceptions not relevant here, the report must be thatof a physician licensed to practice medicine in all its branches. 735 ILCS 5/2--622(a)(1) (West 2000). Hospitals fall within theclass of "all other defendants" for whom consultation with aphysician is required. Therefore, consultation with a nurse doesnot comply with the statute. Shanks v. Memorial Hospital, 170 Ill.App. 3d 736, 739 (1988).

The first affidavit from Dr. Herron was similarlyinsufficient. That document consists of nothing more than aconclusion that "there is a reasonable and meritorious cause ofaction." However, section 2--622 provides that the report muststate the reasons for the conclusion that the action ismeritorious. 735 ILCS 5/2--622(a)(1) (West 2000). A reportsubmitted pursuant to section 2--622 must specifically discuss theinvolvement of each defendant and must consist of more thangeneralized conclusions of malpractice. Jacobs v. Rush North ShoreMedical Center, 284 Ill. App. 3d 995, 1000 (1996); Woodard v.Krans, 234 Ill. App. 3d 690, 702 (1992); see Premo v. Falcone, 197Ill. App. 3d 625, 631 (1990) (report must clearly identify reasonsfor conclusion that there is good cause for the action).

Plaintiff also cannot rely on Dr. Herron's second affidavit,which was never properly filed with the court. The affidavit wasmerely attached to the motion to reconsider. Plaintiff neverspecifically sought leave to file it. Plaintiff's motion for leaveto file an amended complaint refers only to the res ipsa loquiturcount. In any event, the court denied plaintiff's motion for leaveto file the amended complaint.

Section 2--622 makes clear that it is a pleading requirement. The affidavit and reports must be attached to the original and allsubsequent versions of the complaint. 735 ILCS 5/2--622(a) (West2000). Thus, the affidavit and report are considered part of thecomplaint, not merely in the nature of discovery documents that canbe supplemented periodically.

Even if we were to consider Herron's second affidavit, itwould still be deficient in a number of important ways. As notedpreviously, plaintiff's counsel never filed an affidavit inconjunction with Herron's report. Counsel's affidavit filed withthe original complaint does not refer to Herron, only Kelley. Inaddition, the affidavit does not contain Herron's address, that heis knowledgeable in the relevant issues, that he has practiced ortaught in the same area of health care within the last six years,that he is qualified by experience or demonstrated competence inthe subject, and that he had reviewed the relevant medical records,all of which are specifically required. 735 ILCS 5/2--622(a)(1)(West 2000).

Most significantly, the affidavit does not clearly define theapplicable standard of care or how the hospital allegedly failed tomeet that standard. In elliptical fashion, the affidavit suggeststhat leaving a person such as plaintiff "to attend to herself iscareless and a departure from known and practiced matters of care,"but it fails to state clearly what the hospital should have doneand what it failed to do. Therefore, even if this final affidavitwas properly before the court, plaintiff still did not comply withsection 2--622.

Plaintiff's final contention is that the circuit court abusedits discretion by refusing to allow her to amend her complaint toadd a count for res ipsa loquitur. Amendments to pleadings shouldbe liberally allowed to ensure that medical malpractice claims aredecided on their merits rather than on procedural technicalities. Cuthbertson v. Axelrod, 282 Ill. App. 3d 1027, 1034 (1996). Nevertheless, where the proposed amendments will not cure anysignificant defects the trial court does not abuse its discretionwhen it denies leave to amend. Calamari v. Drammis, 286 Ill. App.3d 420, 435 (1997).

Plaintiff's argument appears to be based on the misconceptionthat alleging res ipsa loquitur dispenses with the need to complywith section 2--622. This premise is clearly refuted by paragraph(c) of section 2--622, which provides:

"(c) Where the plaintiff intends to rely on the doctrineof 'res ipsa loquitur[,]' *** the certificate and writtenreport must state that, in the opinion of the reviewing healthprofessional, negligence has occurred in the course of medicaltreatment. The affiant shall certify upon filing of thecomplaint that he is relying on the doctrine of 'res ipsaloquitur.' " 735 ILCS 5/2--622(c) (West 2000).

Thus, the proposed amendment would not have cured the defectsin plaintiff's pleadings as the complaint still would not satisfythe requirements of section 2--622. In addition, plaintiff'sattorney never sought to file the certification required by section2--622(c). Therefore, the trial court did not abuse its discretionin denying leave to amend.

Unfortunately, this case is all too similar to a number ofrecent cases in which courts have affirmed the dismissals ofcomplaints for failure to comply with section 2--622. That statute is designed to reduce the number of frivolous lawsuits that arefiled and to eliminate such actions at an early stage. Cuthbertson, 282 Ill. App. 3d at 1034. Section 2--622 must beliberally construed so that cases may be quickly and finallydecided according to the substantive rights of the parties. Cuthbertson, 282 Ill. App. 3d at 1034. Whether to dismiss acomplaint for failure to comply with section 2--622 is within thetrial court's discretion. Cuthbertson, 282 Ill. App. 3d at 1034. Nevertheless, a liberal construction of the section does notrequire the trial court to keep a case pending indefinitely whereplaintiff's counsel is either unwilling or unable to comply withthe statutory requirements.

In Jacobs, for example, the reviewing court held that thetrial court did not abuse its discretion in dismissing plaintiff'scomplaint with prejudice. The case had been pending for a total of15 months and was dormant for nearly another year after plaintiffvoluntarily dismissed his first complaint. Plaintiff was allowedto file a total of three reports, none of which fully complied withsection 2--622. The court observed that plaintiff had had "ampletime and opportunity to bring a proper case before the court" andaffirmed the dismissal with prejudice. Jacobs, 284 Ill. App. 3d at1001; see also Premo, 197 Ill. App. 3d at 633 (trial court properlydismissed complaint with prejudice where plaintiff did not showgood cause for filing documents late and the late-filed documentswere still deficient); Wasielewski v. Gilligan, 189 Ill. App. 3d 945 (1989) (dismissal affirmed where plaintiff had numerous chancesto comply with the statute).

The requirements of section 2--622 are neither complex norunduly onerous. Here, plaintiff filed her initial complaint onFebruary 3, 2000. The court dismissed the action with prejudiceexactly eight months later, on October 3, 2000. During this time,plaintiff's attorneys were given several opportunities to file thenecessary documents. It appears at one point that the trial judgeread section 2--622 aloud to clearly show what the statuterequired. However, the documentation filed by plaintiff'sattorneys never came close to complying with the statute'srequirements. Even the affidavit of Dr. Herron submitted with themotion to reconsider on November 2, 2000--nine months after thecase was filed--is still woefully deficient. Plaintiff's argumentson appeal continue to reflect a serious misunderstanding of whatthe statute demands.

The requirements of the statute are clear. The trial courtwas more than fair in giving plaintiff and her attorneys time tocomply with them.

Therefore, we affirm the judgment of the circuit court of LakeCounty.

Affirmed.

McLAREN and BOWMAN, JJ., concur.