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1 | AN ACT concerning civil procedure.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Code of Civil Procedure is amended by | |||||||||||||||||||
5 | changing Section 2-622 as follows:
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6 | (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
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7 | (Text of Section WITHOUT the changes made by P.A. 89-7, | |||||||||||||||||||
8 | which has been held
unconstitutional)
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9 | Sec. 2-622. Healing art malpractice.
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10 | (a) In any action, whether in
tort, contract or otherwise, | |||||||||||||||||||
11 | in which the plaintiff seeks damages for
injuries or death by | |||||||||||||||||||
12 | reason of medical, hospital, or other healing art
malpractice, | |||||||||||||||||||
13 | the plaintiff's attorney or the plaintiff, if the plaintiff is
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14 | proceeding pro se, shall file an affidavit, attached to the | |||||||||||||||||||
15 | original and
all copies of the complaint, declaring one of the | |||||||||||||||||||
16 | following:
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17 | 1. That the affiant has consulted and reviewed the | |||||||||||||||||||
18 | facts of the case
with a health professional who the | |||||||||||||||||||
19 | affiant reasonably believes: (i) is
knowledgeable in the | |||||||||||||||||||
20 | relevant issues involved in the particular action;
(ii) | |||||||||||||||||||
21 | practices or has practiced within the last 6 years or | |||||||||||||||||||
22 | teaches or
has taught within the last 6 years in the same | |||||||||||||||||||
23 | area of health care or
medicine that is at issue in the | |||||||||||||||||||
24 | particular action; and (iii) meets the minimum | |||||||||||||||||||
25 | requirements set forth in Section 8-2501; and (iv) is | |||||||||||||||||||
26 | qualified
by experience or demonstrated competence in the | |||||||||||||||||||
27 | subject of the case; that
the reviewing health professional | |||||||||||||||||||
28 | has determined in a
written report, after a review of the | |||||||||||||||||||
29 | medical record and other relevant
material involved in the | |||||||||||||||||||
30 | particular action that there is a reasonable and
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31 | meritorious cause for the filing of such action; and that | |||||||||||||||||||
32 | the affiant has
concluded on the basis of the reviewing |
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1 | health professional's review and
consultation that there | ||||||
2 | is a reasonable and meritorious cause for filing of
such | ||||||
3 | action. If the affidavit is filed as to a defendant who is | ||||||
4 | a physician
licensed to treat human ailments without the | ||||||
5 | use of drugs or medicines and
without operative surgery, a | ||||||
6 | dentist, a podiatrist, a psychologist, or a
naprapath, the | ||||||
7 | written report must be from a health professional
licensed | ||||||
8 | in the same profession, with the same class of license, as | ||||||
9 | the
defendant. For affidavits filed as to all other | ||||||
10 | defendants, the written
report must be from a physician | ||||||
11 | licensed to practice medicine in all its
branches. In | ||||||
12 | either event, the affidavit must identify the profession of
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13 | the reviewing health professional. A copy of the written | ||||||
14 | report, clearly
identifying the plaintiff and the reasons | ||||||
15 | for the reviewing health
professional's determination that | ||||||
16 | a reasonable and meritorious cause for
the filing of the | ||||||
17 | action exists, must be attached to the affidavit , but
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18 | information which would identify the reviewing health | ||||||
19 | professional may be
deleted from the copy so attached . The | ||||||
20 | report shall include the name and address of the reviewing | ||||||
21 | health professional and documentation of compliance with | ||||||
22 | requirements set forth in Section 8-2501. Any reviewing | ||||||
23 | health professional that provides a frivolous or improper | ||||||
24 | review of a case shall be liable to each of the parties for | ||||||
25 | the reasonable costs and attorneys' fees the parties | ||||||
26 | expended in resolving the case. A review shall be found | ||||||
27 | frivolous if it is substantially lacking in factual | ||||||
28 | support, is based upon a standard of care or practice that | ||||||
29 | lacks substantial use in the relevant specialty or field of | ||||||
30 | practice, or is made for an improper purpose, such as to | ||||||
31 | harass or cause needless increase in the cost of | ||||||
32 | litigation.
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33 | 2. That the plaintiff has not previously voluntarily | ||||||
34 | dismissed an action based upon the same or substantially | ||||||
35 | the same acts, omissions, or occurrences and that the | ||||||
36 | affiant was unable to obtain a consultation required by
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1 | paragraph 1 because a statute of limitations would impair | ||||||
2 | the action and
the consultation required could not be | ||||||
3 | obtained before the expiration of
the statute of | ||||||
4 | limitations. If an affidavit is executed pursuant to this
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5 | paragraph, the certificate and written report required by | ||||||
6 | paragraph 1 shall
be filed within 90 days after the filing | ||||||
7 | of the complaint. No additional 90-day extensions shall be | ||||||
8 | granted. The defendant
shall be excused from answering or | ||||||
9 | otherwise pleading until 30 days after
being served with a | ||||||
10 | certificate required by paragraph 1.
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11 | 3. That a request has been made by the plaintiff or his | ||||||
12 | attorney for
examination and copying of records pursuant to | ||||||
13 | Part 20 of Article VIII of
this Code and the party required | ||||||
14 | to comply under those Sections has failed
to produce such | ||||||
15 | records within 60 days of the receipt of the request. If an
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16 | affidavit is executed pursuant to this paragraph, the | ||||||
17 | certificate and
written report required by paragraph 1 | ||||||
18 | shall be filed within 90 days
following receipt of the | ||||||
19 | requested records. All defendants except those
whose | ||||||
20 | failure to comply with Part 20 of Article VIII of this Code | ||||||
21 | is the
basis for an affidavit under this paragraph shall be | ||||||
22 | excused from answering
or otherwise pleading until 30 days | ||||||
23 | after being served with the certificate
required by | ||||||
24 | paragraph 1.
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25 | (b) Where a certificate and written report are required | ||||||
26 | pursuant to this
Section a separate certificate and written | ||||||
27 | report shall be filed as to each
defendant who has been named | ||||||
28 | in the complaint and shall be filed as to each
defendant named | ||||||
29 | at a later time.
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30 | (c) Where the plaintiff intends to rely on the doctrine of | ||||||
31 | "res ipsa
loquitur", as defined by Section 2-1113 of this Code, | ||||||
32 | the certificate and
written report must state that, in the | ||||||
33 | opinion of the reviewing health
professional, negligence has | ||||||
34 | occurred in the course of medical treatment.
The affiant shall | ||||||
35 | certify upon filing of the complaint that he is relying
on the | ||||||
36 | doctrine of "res ipsa loquitur".
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1 | (d) When the attorney intends to rely on the doctrine of | ||||||
2 | failure to
inform of the consequences of the procedure, the | ||||||
3 | attorney shall certify
upon the filing of the complaint that | ||||||
4 | the reviewing health professional
has, after reviewing the | ||||||
5 | medical record and other relevant materials involved
in the | ||||||
6 | particular action, concluded that a reasonable health | ||||||
7 | professional
would have informed the patient of the | ||||||
8 | consequences of the procedure.
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9 | (e) Allegations and denials in the affidavit, made without | ||||||
10 | reasonable
cause and found to be untrue, shall subject the | ||||||
11 | party pleading them or his
attorney, or both, to the payment of | ||||||
12 | reasonable expenses, actually incurred
by the other party by | ||||||
13 | reason of the untrue pleading, together with
reasonable | ||||||
14 | attorneys' fees to be summarily taxed by the court upon motion
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15 | made within 30 days of the judgment or dismissal. In no event | ||||||
16 | shall the
award for attorneys' fees and expenses exceed those | ||||||
17 | actually paid by the
moving party, including the insurer, if | ||||||
18 | any. In proceedings under this
paragraph (e), the moving party | ||||||
19 | shall have the right to depose and examine
any and all | ||||||
20 | reviewing health professionals who prepared reports used in
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21 | conjunction with an affidavit required by this Section.
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22 | (f) A reviewing health professional who in good faith | ||||||
23 | prepares a report
used in conjunction with an affidavit | ||||||
24 | required by this Section shall have
civil immunity from | ||||||
25 | liability which otherwise might result from the
preparation of | ||||||
26 | such report.
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27 | (g) The failure to file a certificate required by this | ||||||
28 | Section shall be
grounds for dismissal under Section 2-619.
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29 | (h) This Section does not apply to or affect any actions | ||||||
30 | pending
at the time of its effective date, but applies to cases | ||||||
31 | filed on or
after its effective date.
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32 | (i) This amendatory Act of 1997 does not apply to or affect | ||||||
33 | any actions
pending at the time of its effective date, but | ||||||
34 | applies to cases filed on or
after its effective date.
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35 | (j) This amendatory Act of the 93rd General Assembly does | ||||||
36 | not apply to or affect any actions pending at the time of its |
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1 | effective date, but applies to cases filed on or after its | ||||||
2 | effective date.
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3 | (Source: P.A. 86-646; 90-579, eff. 5-1-98.)
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