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NO. 4-98-0308

December 31, 1998

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

____________________________________________________________ _____

JUSTICE GARMAN delivered the opinion of the court:

Plaintiffs Anita Ingold and Todd Ingold appeal from the December 9, 1997, order of the circuit court of McLean County dismissing their lawsuit against defendants G.S. Irwin, M.D., and McLean County Orthopedics, Ltd., with prejudice. We affirm.

I. BACKGROUND

Anita fell and sustained multiple fractures to her right ankle on January 26, 1994. She was taken to the emergency room of BroMenn Healthcare (BroMenn) in Bloomington, Illinois, where Dr. G.S. Irwin, an employee of McLean County Orthopedics, performed surgery on her injured ankle.

On January 26, 1996, the Ingolds filed a multiple-count complaint against Dr. Irwin, BroMenn, and McLean County Orthopedics. Anita's claims alleged medical malpractice; specifically, the failure to properly diagnose and treat the postoperative complication of reflex sympathetic dystrophy. Todd's claims were based on loss of consortium. The complaint was accompanied by an affidavit signed by plaintiffs' attorney, Maurice J. Barry, stating that there had been insufficient time to obtain the consultation required by section 2-622(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2-622(a)(1) (West 1996)) and that the statute of limitations on plaintiffs' claims would expire on January 26, 1996, if the complaint were not filed on that date. Further, Barry's affidavit acknowledged that he was required to comply with section 2-622(a) of the Code within 90 days of filing the lawsuit (735 ILCS 5/2-622(a)(2) (West 1996)).

On April 26, 1996, Barry filed an affidavit in which he stated, under oath, that he had consulted with a health care professional who was qualified to author the report required by section 2-622(a)(1) of the Code. The affidavit was accompanied by a written report from David L. Felten, M.D., Ph.D., professor and chair of the Department of Neurobiology and Anatomy at the University of Rochester Medical Center. The report was in the form of a business letter with the salutation, "Dear Mr. Barry." The heading contained the name of Barry's law firm and the correct street address, but did not contain the city, state, or zip code.

Dr. Irwin filed a motion to dismiss on the ground that the section 2-622(a) affidavit had not been filed within 90 days of the filing of the lawsuit. The trial court denied the motion on June 24, 1996, and granted the plaintiffs' motion that a one-day extension be allowed.

Discovery proceeded and the trial court dealt with numerous motions. There were multiple hearings and case management conferences. BroMenn was subsequently dismissed as a defendant after reaching a good-faith settlement with the plaintiffs.

On July 31, 1996, plaintiffs filed their disclosure of opinion witnesses as required by Supreme Court Rule 213(g) (166 Ill. 2d R. 213(g)), listing Drs. Felten and Richard S. Laskin, in addition to other opinion witnesses. On August 6, 1997, Dr. Irwin filed a motion seeking, inter alia, to bar Dr. Felten's testimony as an expert witness on the ground that his curriculum vitae, which was attached to the Rule 213(g) disclosure, "shows that without question that David Felten is not a practicing, board-certified orthopedic surgeon but rather a professor." Thus, Dr. Irwin argued, Dr. Felten was not qualified to testify as to the standard of care for a board-certified orthopedic surgeon. McLean County Orthopedics filed a motion adopting these pleadings on August 27, 1997. After a hearing on October 1, 1997, the trial court ordered that Dr. Felten's testimony be limited to the diagnosis of Anita's condition, the course of treatment, and how the results of treatment might have differed if the condition had been diagnosed or treated sooner.

On October 15, 1997, a discovery deposition was taken of Dr. Felten in Rochester, New York. Dr. Felten testified that he is not a licensed physician, has never held a medical license, has never taken an examination to obtain such a license, and has never treated a patient. He further testified that he had never met plaintiffs' attorney Barry, did not know who he was, and had never consulted with him.

Dr. Irwin filed two motions on November 21, 1997, seeking, in the alternative, dismissal or an order barring Dr. Felten from testifying. The motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)) argued that dismissal with prejudice was appropriate because plaintiffs had failed to comply with the statutory pleading requirements of section 2-622(a)(1) of the Code. On December 5, 1997, McLean County Orthopedics filed a motion to dismiss, adopting the arguments made in Dr. Irwin's motion.

Attached to plaintiffs' December 5, 1997, response to the motion was an affidavit of Michael P. Flomenhaft, who is licensed to practice law in the State of New York and was admitted to this case as cocounsel pro hac vice on February 19, 1997. Flomenhaft stated under oath that he consulted with attorney Barry on this case beginning in January 1994 and that it was he, rather than Barry, who had direct contact with Dr. Felten. Dr. Felten's findings were relayed to Barry through Flomenhaft. Thus, according to Flomenhaft, Barry's affidavit was accurate "except for the fact that there was no direct conversation" between Barry and Dr. Felten. Flomenhaft also stated that this is confirmed "by the fact that the Certificate which was signed by Dr. Felten was made out directly to Maurice J. Barry and sent to him at his address." Plaintiffs also argued that any deficiency in Dr. Felten's credentials could be corrected by adopting the deposition testimony of Dr. Laskin, a board-certified orthopedic surgeon and licensed physician, or by allowing Dr. Laskin to prepare the required written report.

A hearing was held on December 9, 1997, 30 days before the jury trial was scheduled to commence. The trial court made the following docket entry:

"The Court finds that [plaintiffs'] 'health professional,' Dr. Felt[e]n, is not, and never has been, a licensed physician, and thus is not only not 'qualified' under 735 ILCS 5/2-622[(a)] to render an opinion on [defendants'] negligence, but is also not a proper person to make a report under said law to be attached to [plaintiffs'] complaint, and further that [plaintiffs'] counsel, Maurice Barry, in his