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JUSTICE STEIGMANN delivered the opinion of the court:

In July 1997, plaintiff, Jason M. Gulley, filed amedical malpractice lawsuit against defendants, Yigal Noy, M.D.and Noy's employer, Emergency Medical Care Incorporated (EMCI). In March 2000, defendants filed a motion to dismiss Gulley'scomplaint, alleging that Gulley failed to file a health professional's report with his complaint in accordance with section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West1998)). In May 2000, the trial court granted defendants' motionand dismissed Gulley's complaint with prejudice.

Gulley appeals, arguing that (1) defendants forfeitedtheir right to a dismissal under section 2-622 of the Code byfailing to object to Gulley's noncompliance in a timely manner;and (2) the trial court abused its discretion by dismissing hiscomplaint with prejudice. Because we agree with Gulley's firstargument, we reverse and remand.

In July 1995, Gulley was treated in the emergency roomof St. Mary's Hospital in Decatur. EMCI had a contract with St.Mary's Hospital to staff the emergency room with physicians. Noyworked for EMCI in St. Mary's Hospital emergency room and provided medical care to Gulley.

In July 1997, Gulley filed this lawsuit, alleging thatdefendants were negligent in providing him medical care at St.Mary's Hospital emergency room in July 1995. Gulley's attorneyattached an affidavit to the complaint, pursuant to section 2-622(a)(2) of the Code, averring that he was unable to obtain ahealth professional's report as required by section 2-622(a)(1)of the Code, before the applicable statute of limitations wouldexpire. (Pursuant to section 2-622(a)(2) of the Code, upon thefiling of such an affidavit, the deadline for filing a healthprofessional's report is extended 90 days, and a defendant is notrequired to file an answer to the complaint until 30 days afterbeing served with the health professional's report. 735 ILCS 2-622(a)(2) (West 1998).)

Gulley still had not filed a health professional'sreport in September 1997, when defendants filed an answer to hiscomplaint. At that time, defendants also served Gulley with adiscovery request for production of documents and a set ofinterrogatories.

In January 1998, Noy moved for a 90-day stay of proceedings because Noy's malpractice insurance company had beenplaced under an order of rehabilitation and consequently could nolonger provide Noy with an attorney. In February 1998, the trialcourt denied Noy's motion.

In January 2000, Gulley complied with defendants'discovery requests.

In March 2000, defendants filed a motion to dismissGulley's complaint for failure to file a health professional'sreport in accordance with section 2-622(a)(1) of the Code (735ILCS 5/2-622(a)(1) (West 1998)). At an April 2000 hearing, thetrial court heard arguments on defendants' motion, and in May2000, the court dismissed Gulley's complaint with prejudice. This appeal followed.

Section 2-622 of the Code provides that in any medicalmalpractice action, the plaintiff's attorney must attach to thecomplaint an affidavit stating that he has consulted with ahealth professional in whose opinion there is a "reasonable andmeritorious cause" for the filing of the action. Attached to theaffidavit, the plaintiff must file a written report prepared bythat health professional indicating the basis for his determination. 735 ILCS 2-622(a)(1) (West 1998). Section 2-622(a)(2) ofthe Code allows for a 90-day extension of time for the filing ofthe affidavit and report if the statute of limitations is nearexpiration. 735 ILCS 5/2-622(a)(2) (West 1998). In addition,section 2-622(g) of the Code provides that "failure to file acertificate required by this [s]ection shall be grounds fordismissal under [s]ection 2-619 [of the Code (735 ILCS 5/2-619(West 1998))]." 735 ILCS 5/2-622(g) (West 1998).

Section 2-622 of the Code is designed to (1) reduce thenumber of frivolous medical malpractice lawsuits, and (2) eliminate such actions at an early stage, before litigation expensesmount. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 65,588 N.E.2d 1139, 1142 (1992). In McCastle v. Sheinkop, 121 Ill.2d 188, 193, 520 N.E.2d 293, 296 (1987), the supreme courtdescribed section 2-622 of the Code as a "pleading requirement,"not a "substantive defense" that would forever bar a plaintiff'scomplaint after an initial failure to comply with that section. In Mueller v. North Suburban Clinic, Ltd., 299 Ill. App. 3d 568,573, 701 N.E.2d 246, 250 (1998), the court described the natureof section 2-622 requirements as follows:

"[Section 2-622 of the Code] was not intendedto deprive plaintiffs with legitimate claimsof their right to a trial on the merits bycreating insurmountable pleading hurdles. See Steinberg v. Dunseth, 276 Ill. App. 3d1038, 1042, 658 N.E.2d 1239[, 1244] (1995);Ebbing v. Prentice, 225 Ill. App. 3d 598,601, 587 N.E.2d 1115[, 1117] (1992). Therequirements of section 2-622 should be liberally construed so that controversies may bedetermined according to the substantiverights of the parties. While the affidavitand report requirements imposed on plaintiffsunder section 2-622 of the Code do not riseto the level of substantive elements of aclaim for medical malpractice, neither shouldthey be viewed as empty formalism."

Ordinarily a section 2-619 motion to dismiss is reviewed de novo. Hapag-Lloyd (America), Inc. v. Home InsuranceCo., 312 Ill. App. 3d 1087, 1090, 729 N.E.2d 36, 39 (2000). InMcCastle, however, the court held that whether to dismiss acomplaint pursuant to section 2-622 of the Code with or withoutprejudice is a matter for the trial court's discretion. McCastle, 121 Ill. 2d at 194, 520 N.E.2d at 296. Likewise,whether to grant parties leave to amend their pleadings is also adiscretionary call on the part of the trial court. Savage v.Pho, 312 Ill. App. 3d 553, 556, 727 N.E.2d 1052, 1055 (2000). InPremo v. Falcone, 197 Ill. App. 3d 625, 630, 554 N.E.2d 1071,1075-76 (1990), this court held that a trial court could considerwhether a plaintiff could show "good cause" for a late filing ofdocuments pursuant to section 2-622 of the Code. In Ingold v.Irwin, 302 Ill. App. 3d 378, 384, 705 N.E.2d 135, 139 (1998),this court explained that we will consider whether the trialcourt took the particular facts and unique circumstances of thecase into consideration before determining that a complaintshould be dismissed with or without prejudice for failure to meetthe requirements of section 2-622 of the Code. Therefore, inlight of the discretion that trial courts employ under 2-622 ofthe Code, we will apply an abuse of discretion standard of reviewhere.

Gulley argues that defendants have forfeited theirright to dismissal under section 2-622 of the Code by waitingover 2 1/2 years to raise the issue. We agree.

Whether a defendant's right to dismissal under section2-622 of the Code can be forfeited is a question of first impression. To support his argument that forfeiture can apply, Gulleyfirst emphasizes that section 2-622's purpose is to eliminatefrivolous lawsuits at the pleadings stage. While none of themany decisions applying section 2-622 of the Code have addressedforfeitability, in other legal contexts courts have held thatforfeiture of a legal right arises when conduct of the personagainst whom forfeiture is asserted is inconsistent with anintent to enforce that right. See, e.g., Wells v. Minor, 219Ill. App. 3d 32, 45, 578 N.E.2d 1337, 1346 (1991) (one party to acontract may not lull another into a false assurance that strictcompliance with a contract duty will not be required and then suefor noncompliance); Chimerofsky v. School District No. 63, 121Ill. App. 2d 371, 374, 257 N.E.2d 480, 482-83 (1970) (in thispersonal injury case, the court stated the general rule that"objections to a pleading may be waived by failure to urge theobjection at the proper time and in the proper manner or by anyact which, in legal contemplation, implies an intention tooverlook it").

Gulley also cites a line of cases in which defendantshave sought dismissal by attacking the plaintiff's pleadingsafter filing an answer. In sum, those cases hold as follows:

"Generally, where a complaintsubstantially[,] although imperfectly[,]alleges a cause of action, the defendantwaives any defect by answering it withoutobjection. [Citations.] The only exceptionto this rule is where the complaint whollyfails to state a cause of action." BurksDrywall, Inc. v. Washington Bank & Trust Co.,110 Ill. App. 3d 569, 572, 442 N.E.2d 648,651 (1982).

Accord Pieszchalski v. Oslager, 128 Ill. App. 3d 437, 444, 470N.E.2d 1083, 1088 (1984). This general rule is especiallyapplicable when the defect in the pleadings can be remedied byamendment. Meadows v. State Farm Mutual Automobile InsuranceCo., 237 Ill. App. 3d 240, 253, 603 N.E.2d 1314, 1322 (1992).

Thus, Gulley concludes that since the Supreme Court ofIllinois has established that section 2-622 requirements arepleading requirements, we should apply the rule of law set forthin these pleadings cases to the present case.

Defendants counter that because section 2-622(g) of theCode provides that dismissal for noncompliance shall be pursuantto section 2-619 of the Code, Gulley's cases--all of which reston common-law principles rather than statutory mandates--areinapposite. Defendants cite Thompson v. Heydemann, 231 Ill. App.3d 578, 581, 596 N.E.2d 664, 667 (1992), in which the defendantfiled a motion to dismiss pursuant to section 2-622 of the Codethree months after filing an answer to the complaint. There, thecourt held that filing an answer does not preclude the subsequentfiling of a section 2-619 motion to dismiss unless there is ashowing that the plaintiff would be unfairly prejudiced by theuntimely filing. See also Worner Agency, Inc. v. Doyle, 121 Ill.App. 3d 219, 223, 459 N.E.2d 633, 636 (1984); Outlaw v. O'Leary,161 Ill. App. 3d 218, 220, 514 N.E.2d 208, 210 (1987).

While the two lines of cases cited by the partiesappear to be in direct conflict, section 2-622 and section 2-619actually share a common purpose and our holding here--that amotion to dismiss under section 2-622 can be forfeited if nottimely filed--furthers that purpose. Both sections are designedto streamline litigation at the earliest possible point inproceedings--that is, during the pleadings phase. We recognizethat in some cases the "pleadings phase" is drawn out and asection 2-619 motion to dismiss will be proper even though filedsometime after the lawsuit commenced. Nevertheless, a motion todismiss pursuant to section 2-619 or 2-622 of the Code is intended to be heard and decided before the expense and inconvenience of litigation has been borne by either party or the trialcourt. Although the trial court may entertain a section 2-619motion to dismiss that is filed outside the pleadings phase,whether to do so is left to the court's discretion. See In reCustody of McCarthy, 157 Ill. App. 3d 377, 380-81, 510 N.E.2d555, 557 (1987).

In this case, prior to filing their motion to dismiss,defendants filed an answer, initiated discovery, and filed amotion for a stay of proceedings. By their affirmative acts,which manifested an intent to move the case forward, and theiromission--their failure to raise their section 2-622 objectionfor over 2 1/2 years--defendants manifested an intention tooverlook Gulley's failure to file the health professional'sreport. We therefore conclude that because defendants forfeitedtheir right to seek dismissal under section 2-622 of the Code,the trial court abused its discretion by dismissing Gulley'scomplaint. (As an aside, we note that, as a matter of procedure,defendants should have moved for leave to withdraw their answerbefore filing their section 2-619 motion to dismiss.)

We do not agree with Gulley, however, that by merelyanswering his complaint defendants forfeited their right tosubsequently move for dismissal pursuant to section 2-622 of theCode. We need not say, definitively, at what point a defendanthas forfeited the right to a dismissal under section 2-622 of theCode. On this record, however, wherever that point may be, weare satisfied it has been reached.

Granting a motion to dismiss under the facts of thiscase does nothing to further the goals of section 2-622. Rather,doing so might encourage defendants to sit on their right to seeka dismissal, an outcome precisely opposite to that intended bysections 2-622 and 2-619 of the Code.

We also agree with the Fifth District Appellate Courtthat it would be a complete waste of judicial manpower and courtresources to permit defendants to sit by and acquiesce in aplaintiff's prosecution of his claim, with the attendant expenditure of time and money, and then allow them to later attackpleadings that they contend should be dismissed, even though theground for dismissal was present all along. See Pieszchalski,128 Ill. App. 3d at 444, 470 N.E.2d at 1088.

Finally, concluding that a statutorily mandated pleading requirement can be forfeited is not unprecedented. In In reCustody of Sexton, 84 Ill. 2d 312, 418 N.E.2d 729 (1981), thesupreme court considered whether the affidavit requirement ofsection 610(a) of the Illinois Marriage and Dissolution ofMarriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(a) (now 750ILCS 5/610(a) (West 1998))) was jurisdictional. (That sectionrequires the filing of certain affidavits along with any motionto modify custody that is filed within two years of a custodyjudgment.) The court concluded that even though the affidavitrequirement of section 610(a) was mandatory, the defendantsforfeited the requirement by failing to raise a timely objectionto the plaintiff's failure to produce the affidavits. Sexton, 84Ill. 2d at 321-22, 418 N.E.2d at 733-34; see also Aufox v. Boardof Education of Township High School District No. 113, 225 Ill.App. 3d 444, 449, 588 N.E.2d 316, 320 (1992) (by their conduct,individuals may forfeit their statutory rights); In re Marriageof Fields, 288 Ill. App. 3d 1053, 1059-61, 681 N.E.2d 166, 171-72(1997) (discussion and cases cited therein).

For the reasons stated, we reverse the trial court'sjudgment and remand for further proceedings.

Reversed and remanded.

McCULLOUGH and MYERSCOUGH, JJ., concur.