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90_HB0061
735 ILCS 5/2-622 from Ch. 110, par. 2-622
Amends the Code of Civil Procedure by restoring certain
provisions concerning affidavits in healing art malpractice
actions to the form in which they existed before Public Act
89-7 became law. Effective immediately.
LRB9000699SMdv
LRB9000699SMdv
1 AN ACT to amend the Code of Civil Procedure by changing
2 Section 2-622.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Code of Civil Procedure is amended by
6 changing Section 2-622 as follows:
7 (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
8 Sec. 2-622. Healing art malpractice. (a) In any action,
9 whether in tort, contract or otherwise, in which the
10 plaintiff seeks damages for injuries or death by reason of
11 medical, hospital, or other healing art malpractice, the
12 plaintiff's attorney or the plaintiff, if the plaintiff is
13 proceeding pro se, shall file an affidavit, attached to the
14 original and all copies of the complaint, declaring one of
15 the following:
16 1. That the affiant has consulted and reviewed the facts
17 of the case with a health professional who the affiant
18 reasonably believes: (i) is knowledgeable in the relevant
19 issues involved in the particular action; (ii) practices or
20 has practiced within the last 6 years or teaches or has
21 taught within the last 6 years in the same area of health
22 care or medicine that is at issue in the particular action;
23 and (iii) is qualified by experience or demonstrated
24 competence in the subject of the case; that the reviewing
25 health professional has determined in a written report, after
26 a review of the medical record and other relevant material
27 involved in the particular action that there is a reasonable
28 and meritorious cause for the filing of such action; and that
29 the affiant has concluded on the basis of the reviewing
30 health professional's review and consultation that there is a
31 reasonable and meritorious cause for filing of such action.
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1 If the affidavit is filed as to a defendant who is a
2 physician licensed to treat human ailments without the use of
3 drugs or medicines and without operative surgery, a dentist,
4 a podiatrist, or a psychologist, the written report must be
5 from a health professional licensed in the same profession,
6 with the same class of license, as the defendant. For
7 affidavits filed as to all other defendants, the written
8 report must be from a physician licensed to practice medicine
9 in all its branches. In either event, the affidavit must
10 identify the profession of the reviewing health professional.
11 A copy of the written report, clearly identifying the
12 plaintiff and the reasons for the reviewing health
13 professional's determination that a reasonable and
14 meritorious cause for the filing of the action exists, must
15 be attached to the affidavit, but information which would
16 identify the reviewing health professional may be deleted
17 from the copy so attached. The report shall include the name
18 and the address of the health professional.
19 2. That the plaintiff has not previously voluntarily
20 dismissed an action based upon the same or substantially the
21 same acts, omissions, or occurrences and that the affiant was
22 unable to obtain a consultation required by paragraph 1
23 because a statute of limitations would impair the action and
24 the consultation required could not be obtained before the
25 expiration of the statute of limitations. If an affidavit is
26 executed pursuant to this paragraph, the certificate and
27 written report required by paragraph 1 shall be filed within
28 90 days after the filing of the complaint. The defendant
29 shall be excused from answering or otherwise pleading until
30 30 days after being served with a certificate required by
31 paragraph 1.
32 3. That a request has been made by the plaintiff or his
33 attorney for examination and copying of records pursuant to
34 Part 20 of Article VIII of this Code and the party required
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1 to comply under those Sections has failed to produce such
2 records within 60 days of the receipt of the request. If an
3 affidavit is executed pursuant to this paragraph, the
4 certificate and written report required by paragraph 1 shall
5 be filed within 90 days following receipt of the requested
6 records. All defendants except those whose failure to comply
7 with Part 20 of Article VIII of this Code is the basis for an
8 affidavit under this paragraph shall be excused from
9 answering or otherwise pleading until 30 days after being
10 served with the certificate required by paragraph 1.
11 (b) Where a certificate and written report are required
12 pursuant to this Section a separate certificate and written
13 report shall be filed as to each defendant who has been named
14 in the complaint and shall be filed as to each defendant
15 named at a later time.
16 (c) Where the plaintiff intends to rely on the doctrine
17 of "res ipsa loquitur", as defined by Section 2-1113 of this
18 Code, the certificate and written report must state that, in
19 the opinion of the reviewing health professional, negligence
20 has occurred in the course of medical treatment. The affiant
21 shall certify upon filing of the complaint that he is relying
22 on the doctrine of "res ipsa loquitur".
23 (d) When the attorney intends to rely on the doctrine of
24 failure to inform of the consequences of the procedure, the
25 attorney shall certify upon the filing of the complaint that
26 the reviewing health professional has, after reviewing the
27 medical record and other relevant materials involved in the
28 particular action, concluded that a reasonable health
29 professional would have informed the patient of the
30 consequences of the procedure.
31 (e) Allegations and denials in the affidavit, made
32 without reasonable cause and found to be untrue, shall
33 subject the party pleading them or his attorney, or both, to
34 the payment of reasonable expenses, actually incurred by the
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1 other party by reason of the untrue pleading, together with
2 reasonable attorneys' fees to be summarily taxed by the court
3 upon motion made within 30 days of the judgment or dismissal.
4 In no event shall the award for attorneys' fees and expenses
5 exceed those actually paid by the moving party, including the
6 insurer, if any. In proceedings under this paragraph (e), the
7 moving party shall have the right to depose and examine any
8 and all reviewing health professionals who prepared reports
9 used in conjunction with an affidavit required by this
10 Section.
11 (f) A reviewing health professional who in good faith
12 prepares a report used in conjunction with an affidavit
13 required by this Section shall have civil immunity from
14 liability which otherwise might result from the preparation
15 of such report.
16 (g) The failure to file a certificate required by this
17 Section shall be grounds for dismissal under Section 2-619.
18 (h) This amendatory Act of 1995 Section does not apply
19 to or affect any actions pending at the time of its effective
20 date, but applies to cases filed on or after its effective
21 date.
22 (Source: P.A. 89-7, eff. 3-9-95.)
23 Section 99. Effective date. This Act takes effect upon
24 becoming law.