093_HB0246

 
                                     LRB093 02632 WGH 02642 b

 1        AN ACT in relation to civil procedure.

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

 4        Section 5.  The Code of Civil  Procedure  is  amended  by
 5    changing Section 2-622 as follows:

 6        (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
 7        (Text  of  Section WITHOUT the changes made by P.A. 89-7,
 8    which has been held unconstitutional)
 9        Sec. 2-622.  Healing art malpractice.
10        (a)  In  any  action,  whether  in  tort,   contract   or
11    otherwise,  in which the plaintiff seeks damages for injuries
12    or death by reason of medical, hospital, or other healing art
13    malpractice, the plaintiff's attorney or  the  plaintiff,  if
14    the  plaintiff is proceeding pro se, shall file an affidavit,
15    attached to the original and all  copies  of  the  complaint,
16    declaring one of the following:
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) is qualified by experience
25        or demonstrated competence in the subject  of  the  case;
26        that  the reviewing health professional has determined in
27        a written report, after a review of  the  medical  record
28        and  other  relevant  material involved in the particular
29        action that there is a reasonable and  meritorious  cause
30        for  the  filing of such action; and that the affiant has
31        concluded  on  the  basis   of   the   reviewing   health
 
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 1        professional's  review  and  consultation that there is a
 2        reasonable and  meritorious  cause  for  filing  of  such
 3        action.   If the affidavit is filed as to a defendant who
 4        is a physician licensed to treat human  ailments  without
 5        the  use  of  drugs  or  medicines  and without operative
 6        surgery, a dentist, a podiatrist, a  psychologist,  or  a
 7        naprapath,  the  written  report  must  be  from a health
 8        professional licensed in the same  profession,  with  the
 9        same  class of license, as the defendant.  For affidavits
10        filed as to all other defendants, the written report must
11        be from a physician licensed to practice medicine in  all
12        its  branches.   In  either  event,  the  affidavit  must
13        identify   the   profession   of   the  reviewing  health
14        professional. A  copy  of  the  written  report,  clearly
15        identifying   the  plaintiff  and  the  reasons  for  the
16        reviewing  health  professional's  determination  that  a
17        reasonable and meritorious cause for the  filing  of  the
18        action  exists,  must  be  attached to the affidavit, but
19        information which would  identify  the  reviewing  health
20        professional may be deleted from the copy so attached.
21             2.  That   the   affiant  was  unable  to  obtain  a
22        consultation required by paragraph 1 because a statute of
23        limitations would impair the action and the  consultation
24        required  could  not be obtained before the expiration of
25        the statute of limitations.  If an affidavit is  executed
26        pursuant  to  this paragraph, the certificate and written
27        report required by paragraph 1 shall be filed  within  90
28        days  after  the  filing of the complaint.  The defendant
29        shall be excused from  answering  or  otherwise  pleading
30        until  30  days  after  being  served  with a certificate
31        required by paragraph 1.
32             3.  That a request has been made by the plaintiff or
33        his attorney  for  examination  and  copying  of  records
34        pursuant  to Part 20 of Article VIII of this Code and the
 
                            -3-      LRB093 02632 WGH 02642 b
 1        party required to comply under those Sections has  failed
 2        to  produce such records within 60 days of the receipt of
 3        the request.  If an affidavit  is  executed  pursuant  to
 4        this   paragraph,  the  certificate  and  written  report
 5        required by paragraph 1 shall be  filed  within  90  days
 6        following   receipt   of   the  requested  records.   All
 7        defendants except those whose failure to comply with Part
 8        20 of Article VIII of this  Code  is  the  basis  for  an
 9        affidavit  under  this  paragraph  shall  be excused from
10        answering or otherwise pleading until 30 days after being
11        served with the certificate required by paragraph 1.
12        (b)  Where a certificate and written report are  required
13    pursuant  to  this Section a separate certificate and written
14    report shall be filed as to each defendant who has been named
15    in the complaint and shall be  filed  as  to  each  defendant
16    named at a later time.
17        (c)  Where  the plaintiff intends to rely on the doctrine
18    of "res ipsa loquitur", as defined by Section 2-1113 of  this
19    Code,  the certificate and written report must state that, in
20    the opinion of the reviewing health professional,  negligence
21    has occurred in the course of medical treatment.  The affiant
22    shall certify upon filing of the complaint that he is relying
23    on the doctrine of "res ipsa loquitur".
24        (d)  When the attorney intends to rely on the doctrine of
25    failure  to  inform of the consequences of the procedure, the
26    attorney shall certify upon the filing of the complaint  that
27    the  reviewing  health  professional has, after reviewing the
28    medical record and other relevant materials involved  in  the
29    particular   action,   concluded  that  a  reasonable  health
30    professional  would  have  informed  the   patient   of   the
31    consequences of the procedure.
32        (e)  Allegations  and  denials  in  the  affidavit,  made
33    without  reasonable  cause  and  found  to  be  untrue, shall
34    subject the party pleading them or his attorney, or both,  to
 
                            -4-      LRB093 02632 WGH 02642 b
 1    the  payment of reasonable expenses, actually incurred by the
 2    other party by reason of the untrue pleading,  together  with
 3    reasonable attorneys' fees to be summarily taxed by the court
 4    upon motion made within 30 days of the judgment or dismissal.
 5    In  no event shall the award for attorneys' fees and expenses
 6    exceed those actually paid by the moving party, including the
 7    insurer, if any. In proceedings under this paragraph (e), the
 8    moving party shall have the right to depose and  examine  any
 9    and  all  reviewing health professionals who prepared reports
10    used in  conjunction  with  an  affidavit  required  by  this
11    Section.
12        (f)  A  reviewing  health  professional who in good faith
13    prepares a report  used  in  conjunction  with  an  affidavit
14    required  by  this  Section  shall  have  civil immunity from
15    liability which otherwise might result from  the  preparation
16    of such report.
17        (g)  The  failure  to file a certificate required by this
18    Section shall be grounds for dismissal under Section 2-619.
19        (g-5) If after reasonable notice and  an  opportunity  to
20    respond,  a  party  or  an attorney for a party or parties is
21    determined to  have  willfully  failed  to  comply  with  any
22    requirement  of  this  Section,  appropriate sanctions may be
23    imposed on the party or attorney for the  failure  to  comply
24    with  the  requirement,  in  addition  to any other sanctions
25    authorized under this  Section.   Appropriate  sanctions  for
26    violations  of  this  Section may include an order that (i) a
27    party be barred from presenting a claim or  defense  relating
28    to  any  issue to which refusal or failure to comply with the
29    requirement relates, (ii) judgment be entered on  that  issue
30    as  to the other party, (iii) a dismissal of a party's action
31    as to that issue be entered, or (iv) any portion of a party's
32    brief relating  to  that  issue  be  stricken.  Additionally,
33    sanctions  involving  an order to pay a fine, if appropriate,
34    may also be ordered against any party or attorney for a party
 
                            -5-      LRB093 02632 WGH 02642 b
 1    or parties.
 2        If the court determines that  an  action  to  which  this
 3    Section  applies  is  frivolous,  or  that the action was not
 4    commenced in good faith, or that the action was commenced for
 5    an  improper  purpose,  such  as  to  harass  or   to   cause
 6    unnecessary  delay  or  needless  increase  in  the  cost  of
 7    litigation,  or  that  the manner of prosecuting or defending
 8    the action is for such a purpose, then the court  may  impose
 9    an  appropriate  sanction  on  any  party  or the attorney or
10    attorneys of the party or parties. An action will  be  deemed
11    frivolous  if  it is not reasonably well grounded in fact and
12    not warranted by existing law or a  good-faith  argument  for
13    the  extension, modification, or reversal of existing law. An
14    action will be deemed to have been commenced for an  improper
15    purpose  if  the  primary  purpose of the action is to delay,
16    harass, or cause needless expense.
17        Appropriate sanctions for violations of this Section  may
18    include  an  order  to  pay  to  the  other  party or parties
19    damages, the reasonable costs of prosecuting or defending the
20    action, and any other expenses necessarily  incurred  by  the
21    filing of the action, including reasonable attorney's fees.
22        The court may impose a sanction on a party or an attorney
23    for  a party on the motion of another party or parties, or on
24    the court's own initiative if the court deems it appropriate.
25    If the court initiates the sanction,  it  shall  require  the
26    party or attorney, or both, to show cause why such a sanction
27    should  not  be  imposed before imposing the sanction. When a
28    sanction is imposed, the court shall set  forth  the  reasons
29    and  basis  for  the sanction in its opinion or in a separate
30    written order.
31        (h)  This Section does not apply to or affect any actions
32    pending at the time of its effective  date,  but  applies  to
33    cases filed on or after its effective date.
34        (i)  This  amendatory  Act  of  1997 does not apply to or
 
                            -6-      LRB093 02632 WGH 02642 b
 1    affect any actions pending at the time of its effective date,
 2    but applies to cases filed on or after its effective date.
 3    (Source: P.A. 86-646; 90-579, eff. 5-1-98.)

 4        Section 99.  Effective date.  This Act takes effect  upon
 5    becoming law.