Public Act 097-1145
Public Act 1145 97TH GENERAL ASSEMBLY
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Public Act 097-1145
| | HB5151 Enrolled | LRB097 18657 AJO 63891 b |
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| AN ACT concerning civil law.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 1. Purpose. | (a) In
Best v. Taylor Machine Works, 179 Ill.2d 367 (1997), | the Illinois Supreme
Court held
that Public Act 89-7 was void | in its entirety.
| In Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 | (2010), the Illinois Supreme Court held that Public Act 94-677 | was void in its entirety. | (b) The purpose of this Act
is to re-enact
and repeal
| statutory provisions so the text of those provisions conforms | to the decisions
of the Illinois
Supreme Court in Best v. | Taylor Machine Works and Lebron v. Gottlieb Memorial Hospital.
| (c) Except as explained in subsection (h) of this Section | 1, this Act is not intended to supersede any Public Act of
the | 97th General
Assembly that
amends the text of a statutory | provision that appears in this Act.
| (d) If Public Act 89-7 or Public Act 94-677 amended the | text of a
Section included in this Act, the text of
the Section | is shown in this Act with the changes made by those Public Acts | omitted, as existing text
(without striking and underscoring), | with the exception of changes of a substantive nature.
| (e) Provisions that were purportedly added to the statutes |
| by Public Act 89-7
and Public Act 94-677 are
repealed in this | Act to conform to the decisions of the
Illinois Supreme Court.
| (f) If Public Act 89-7 or Public Act 94-677 purportedly | amended the text of a
Section of
the statutes and that Section | of the statutes was later repealed by another Public Act, the | text of
that
Section is not shown in this Act. | (g) This Act is intended to re-enact and repeal only those | statutory provisions affected by Public Act 89-7 or Public Act | 94-677 which concern civil procedure for medical malpractice | cases. | (h) This Act also makes substantive changes to the Code of | Civil Procedure unrelated to Public Act 89-7 or Public Act | 94-677, specifically by amending Sections 2-622 and 2-1114 and | by adding Section 2-1306.
| Section 5. Section 2-622 of the Code of Civil Procedure is | re-enacted and amended and Sections 8-1901 and 8-2501 of the | Code of Civil Procedure are re-enacted as follows:
| (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
| 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. 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, but
information which would | identify the reviewing health professional may be
deleted | from the copy so attached.
| 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) (Blank) 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) (Blank) 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.
| (Source: P.A. 86-646; 90-579, eff. 5-1-98.)
| (735 ILCS 5/8-1901) (from Ch. 110, par. 8-1901)
| Sec. 8-1901. Admission of liability - Effect. The providing | of, or payment
for, medical, surgical,
hospital, or | rehabilitation services, facilities, or equipment by or on
| behalf of any person, or the offer to provide, or pay for, any | one or
more of the foregoing, shall not be construed as an | admission of any
liability by such person or persons. | Testimony, writings, records,
reports or information with | respect to the foregoing shall not be
admissible in evidence as | an admission of any liability in any action of
any kind in any | court or before any commission, administrative agency,
or other | tribunal in this State, except at the instance of the person or
| persons so making any such provision, payment or offer.
| (Source: P.A. 82-280.)
| (735 ILCS 5/8-2501) (from Ch. 110, par. 8-2501)
| 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)
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
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
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.
| (Source: P.A. 84-7.)
| Section 10. The Code of Civil Procedure is amended by | changing Section 2-1114 and by adding Section 2-1306 as | follows:
| (735 ILCS 5/2-1114) (from Ch. 110, par. 2-1114)
| Sec. 2-1114. Contingent fees for attorneys in medical | malpractice
actions. | (a) In all medical malpractice actions the total contingent | fee
for plaintiff's attorney or attorneys shall not exceed 33 | 1/3% of all sums recovered. the following amounts:
| 33 1/3% of the first $150,000 of the sum recovered;
|
| 25% of the next $850,000 of the sum recovered; and
| 20% of any amount recovered over $1,000,000 of the sum | recovered.
| (b) For purposes of determining any lump sum contingent | fee, any future
damages recoverable by the plaintiff in | periodic installments shall be
reduced to a lump sum value.
| (c) (Blank) The court may review contingent fee agreements
| for fairness. In special circumstances, where an
attorney | performs extraordinary services involving more than usual
| participation in time and effort the attorney may apply to the | court for
approval of additional compensation.
| (d) As used in this Section, "contingent fee basis"
| includes any fee arrangement under which the compensation is to | be
determined in whole or in part on the result obtained.
| (Source: P.A. 84-7.)
| (735 ILCS 5/2-1306 new) | Sec. 2-1306. Supersedeas bonds. | (a) In civil litigation under any legal theory involving a | signatory, a successor to a signatory, or a parent or an | affiliate of a signatory to the Master Settlement Agreement | described in Section 6z-43 of the State Finance Act, execution | of the judgment shall be stayed during the entire course of | appellate review upon the posting of a supersedeas bond or | other form of security in accordance with applicable laws or | court rules, except that the total amount of the supersedeas |
| bond or other form of security that is required of all | appellants collectively shall not exceed $250,000,000, | regardless of the amount of the judgment, provided that this | limitation shall apply only if appellants file at least 30% of | the total amount in the form of cash, a letter of credit, a | certificate of deposit, or other cash equivalent with the | court. The cash or cash equivalent shall be deposited by the | clerk of the court in the account of the court, and any | interest earned shall be utilized as provided by law. | (b) Notwithstanding subsection (a) of this Section, if an | appellee proves by a preponderance of the evidence that an | appellant is dissipating assets outside the ordinary course of | business to avoid payment of a judgment, a court may require | the appellant to post a supersedeas bond in an amount up to the | total amount of the judgment. | (c) This Section applies to pending actions as well as | actions commenced on or after its effective date, and to | judgments entered or reinstated on or after its effective date.
| (735 ILCS 5/2-624 rep.) | (735 ILCS 5/2-1704.5 rep.) | (735 ILCS 5/2-1706.5 rep.) | Section 15. The Code of Civil Procedure is amended by | repealing Sections 2-624, 2-1704.5, and 2-1706.5.
| Section 95. Applicability. The changes made by this |
| amendatory Act of the 97th General Assembly apply to actions | commenced or pending on or after
the effective date of this | amendatory Act of the
97th General Assembly.
| Section 97. Severability. The provisions of this Act are | severable under Section 1.31 of the Statute on Statutes.
| Section 99. Effective date. This Act takes effect upon | becoming law.
|
Effective Date: 01/18/2013
|
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