SB3046 93RD GENERAL ASSEMBLY

LRB093 21021 LCB 47034 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB3046

Introduced 2/6/2004, by David Luechtefeld, Frank C. Watson, Kirk W. Dillard, John O. Jones

SYNOPSIS AS INTRODUCED:

735 ILCS 5/2-101.5 new
735 ILCS 5/2-622	from Ch. 110, par. 2-622
735 ILCS 5/8-2501	from Ch. 110, par. 8-2501
745 ILCS 49/26 new

Amends the Code of Civil Procedure. Provides that every medical malpractice action must be commenced in the country where the medical care that is the subject of the cause of action took place. Changes the standards to determine if a witness qualifies as an expert witness. Provides that an expert witness shall provide proof of active practice, teaching, or engagement in university-based research and must provide, if retired, proof of continuing education. Provides that an expert who has not actively practiced, taught, or been engaged in university-based research within the 10 years previous to giving testimony may not be qualified as an expert witness. Provides that an affidavit from a reviewing health professional must contain his or her name, address, profession, and professional license number. Provides that, to qualify as a reviewing health professional for purposes of giving an affidavit for a petitioner in a pro se action, the professional must meet the expert witness standards. Provides that a reviewing health professional who provides a frivolous or improper review of a case is liable to the parties for the reasonable costs and attorneys' fees expended in resolving the case. Provides that a review is frivolous if it is substantially lacking in factual support, is based upon a standard of care or practice that lacks substantial use in the relevant specialty or field of practice, or is made for an improper purpose, such as to harass or cause needless increase in the cost of litigation. Amends the Good Samaritan Act. Provides that a licensed physician and a licensed hospital and the hospital's employees, agents, apparent agents, and independent contractors who in good faith provide emergency care or services to a person who is in need of emergency medical treatment and has presented to a hospital for emergency medical care is not liable for civil damages as a result of acts or omissions, except for willful or wanton misconduct in providing the care. Effective July 1, 2004.

A BILL FOR

AN ACT concerning civil procedure.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by changing Sections 2-622 and 8-2501 and by adding Section 2-101.5 as follows:

(735 ILCS 5/2-101.5 new)

Sec. 2-101.5. Medical malpractice. Every medical malpractice action must be commenced in the county where the medical care that is the subject of the cause of action took place.

This amendatory Act of the 93rd General Assembly applies to causes of action filed on or after its effective date.

(735 ILCS 5/2-622) (from Ch. 110, par. 2-622)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 2-622. Healing art malpractice.

(a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, a psychologist, or a naprapath, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional's name, address, profession, and professional license number. Any reviewing health professional under this Section must satisfy the expert witness standards of Section 8-2501 of this Code professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit, including but information which would identify the reviewing health professional and the reasons this health professional satisfies the expert witness conditions of Section 8-2501 of this Code may be deleted from the copy so attached. Any reviewing health professional that provides a frivolous or improper review of a case shall be liable to each of the parties for the reasonable costs and attorneys' fees the parties expended in resolving the case. A review shall be found frivolous if it is substantially lacking in factual support, is based upon a standard of care or practice that lacks substantial use in the relevant specialty or field of practice, or is made for an improper purpose, such as to harass or cause needless increase in the cost of litigation.

2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.

3. That a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to Part 20 of Article VIII of this Code and the party required to comply under those Sections has failed to produce such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. All defendants except those whose failure to comply with Part 20 of Article VIII of this Code is the basis for an affidavit under this paragraph shall be excused from answering or otherwise pleading until 30 days after being served with the certificate required by paragraph 1.

(b) Where a certificate and written report are required pursuant to this Section a separate certificate and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.

(c) Where the plaintiff intends to rely on the doctrine of "res ipsa loquitur", as defined by Section 2-1113 of this Code, the certificate and written report must state that, in the opinion of the reviewing health professional, negligence has occurred in the course of medical treatment. The affiant shall certify upon filing of the complaint that he is relying on the doctrine of "res ipsa loquitur".

(d) When the attorney intends to rely on the doctrine of failure to inform of the consequences of the procedure, the attorney shall certify upon the filing of the complaint that the reviewing health professional has, after reviewing the medical record and other relevant materials involved in the particular action, concluded that a reasonable health professional would have informed the patient of the consequences of the procedure.

(e) Allegations and denials in the affidavit, made without reasonable cause and found to be untrue, shall subject the party pleading them or his attorney, or both, to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with reasonable attorneys' fees to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal. In no event shall the award for attorneys' fees and expenses exceed those actually paid by the moving party, including the insurer, if any. In proceedings under this paragraph (e), the moving party shall have the right to depose and examine any and all reviewing health professionals who prepared reports used in conjunction with an affidavit required by this Section.

(f) A reviewing health professional who in good faith prepares a report used in conjunction with an affidavit required by this Section shall have civil immunity from liability which otherwise might result from the preparation of such report.

(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619.

(h) This Section does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.

(i) This amendatory Act of 1997 does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.

(j) This amendatory Act of the 93rd General Assembly does not apply to or affect any actions pending at the time of its effective date, but does apply to cases filed on or after its effective date.

(Source: P.A. 86-646; 90-579, eff. 5-1-98.)

(735 ILCS 5/8-2501) (from Ch. 110, par. 8-2501)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 8-2501. Expert Witness Standards. In any case in which the standard of care given by a medical profession is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.

(a) Whether the witness is board-certified or board-eligible in the same medical specialties as the defendant and is familiar with Relationship of the medical specialties of the witness to the medical problem or problems and the type of treatment administered in the case;

(b) Whether the witness has devoted 75% a substantial portion of his or her time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains;

(c) whether the witness is licensed by any state or the District of Columbia in the same profession as the defendant; and

(d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State.

An expert shall provide proof of active practice, teaching, or engagement in university-based research. If retired, an expert must provide proof of attendance and completion of continuing education courses for 3 years previous to giving testimony. An expert who has not actively practiced, taught, or been engaged in university-based research within the 10 years previous to giving testimony may not be qualified as an expert witness.

This amendatory Act of the 93rd General Assembly applies to causes of action filed on or after its effective date.

(Source: P.A. 84-7.)

Section 10. The Good Samaritan Act is amended by adding Section 26 as follows:

(745 ILCS 49/26 new)

Sec. 26. Preservation of emergency medical care.

(a) The General Assembly acknowledges that many hospitals and physicians provide great benefits to the citizens of Illinois by operating emergency departments and trauma centers and providing services to individuals in need of emergency care throughout the State, without regard to their ability to pay for the care and often without payment for services. The General Assembly also acknowledges that many hospitals and physicians are discontinuing their status as trauma centers or reducing the scope of their emergency care due to the fear of lawsuits based on claims of medical negligence. The public and society in general will suffer if these trauma centers cease operations or hospital emergency departments reduce their level of emergency care.

(b) Any physician licensed under the Medical Practice Act of 1987 and any licensed hospital and any of the hospital's employees, agents, apparent agents, and independent contractors who in good faith provide emergency care or services to a person who is in need of emergency medical treatment and has presented to a hospital for emergency medical care shall not be liable for civil damages as a result of his, her, or its acts or omissions, except for willful or wanton misconduct on the part of the physician, the hospital, or any of the hospital's employees, independent contractors, agents, or apparent agents, in providing the care.

Section 99. Effective date. This Act takes effect July 1, 2004.