State of Illinois
90th General Assembly
Legislation

   [ Search ]   [ Legislation ]   [ Bill Summary ]
[ Home ]   [ Back ]   [ Bottom ]


[ Introduced ][ House Amendment 001 ]

90_HB0568eng

      735 ILCS 5/2-622          from Ch. 110, par. 2-622
          Amends the "Civil Practice" Article of the Code of  Civil
      Procedure.   Provides  that  in  a  healing  art  malpractice
      action,  if  an  affidavit  of  consultation  with  a  health
      professional  is  filed as to a defendant who is a naprapath,
      the written report determining that there is  reasonable  and
      meritorious  cause  for  filing  the  action  must  be from a
      licensed  naprapath.   Makes  this  provision  applicable  to
      pending actions.  Effective immediately.
                                                     LRB9002737DJcd
HB0568 Engrossed                               LRB9002737DJcd
 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.
 9        (a)  In   any   action,  whether  in  tort,  contract  or
10    otherwise, in which the plaintiff seeks damages for  injuries
11    or death by reason of medical, hospital, or other healing art
12    malpractice,  the  plaintiff's  attorney or the plaintiff, if
13    the plaintiff is proceeding pro se, shall file an  affidavit,
14    attached  to  the  original  and all copies of the complaint,
15    declaring one of the following:
16             1.  That the affiant has consulted and reviewed  the
17        facts  of  the  case  with  a health professional who the
18        affiant reasonably believes: (i) is knowledgeable in  the
19        relevant  issues  involved in the particular action; (ii)
20        practices or has practiced within the  last  6  years  or
21        teaches or has taught within the last 6 years in the same
22        area  of  health care or medicine that is at issue in the
23        particular action; and (iii) is qualified  by  experience
24        or  demonstrated  competence  in the subject of the case;
25        that the reviewing health professional has determined  in
26        a  written  report,  after a review of the medical record
27        and other relevant material involved  in  the  particular
28        action  that  there is a reasonable and meritorious cause
29        for the filing of such action; and that the  affiant  has
30        concluded   on   the   basis   of  the  reviewing  health
31        professional's review and consultation that  there  is  a
HB0568 Engrossed            -2-                LRB9002737DJcd
 1        reasonable  and  meritorious  cause  for  filing  of such
 2        action. If the affidavit is filed as to a  defendant  who
 3        is  a  physician licensed to treat human ailments without
 4        the use of  drugs  or  medicines  and  without  operative
 5        surgery, a dentist, a podiatrist, or a psychologist, or a
 6        naprapath,  the  written  report  must  be  from a health
 7        professional licensed in the same  profession,  with  the
 8        same  class of license, as the defendant.  For affidavits
 9        filed as to all other defendants, the written report must
10        be from a physician licensed to practice medicine in  all
11        its  branches.   In  either  event,  the  affidavit  must
12        identify   the   profession   of   the  reviewing  health
13        professional. A  copy  of  the  written  report,  clearly
14        identifying   the  plaintiff  and  the  reasons  for  the
15        reviewing  health  professional's  determination  that  a
16        reasonable and meritorious cause for the  filing  of  the
17        action  exists,  must  be  attached to the affidavit. The
18        report shall include the name  and  the  address  of  the
19        health professional.
20             2.  That    the   plaintiff   has   not   previously
21        voluntarily dismissed an action based upon  the  same  or
22        substantially  the  same  acts, omissions, or occurrences
23        and that the affiant was unable to obtain a  consultation
24        required  by paragraph 1 because a statute of limitations
25        would impair the action  and  the  consultation  required
26        could  not  be  obtained  before  the  expiration  of the
27        statute of limitations.   If  an  affidavit  is  executed
28        pursuant  to  this paragraph, the certificate and written
29        report required by paragraph 1 shall be filed  within  90
30        days  after  the  filing of the complaint.  The defendant
31        shall be excused from  answering  or  otherwise  pleading
32        until  30  days  after  being  served  with a certificate
33        required by paragraph 1.
34             3.  That a request has been made by the plaintiff or
HB0568 Engrossed            -3-                LRB9002737DJcd
 1        his attorney  for  examination  and  copying  of  records
 2        pursuant  to Part 20 of Article VIII of this Code and the
 3        party required to comply under those Sections has  failed
 4        to  produce such records within 60 days of the receipt of
 5        the request.  If an affidavit  is  executed  pursuant  to
 6        this   paragraph,  the  certificate  and  written  report
 7        required by paragraph 1 shall be  filed  within  90  days
 8        following   receipt   of   the  requested  records.   All
 9        defendants except those whose failure to comply with Part
10        20 of Article VIII of this  Code  is  the  basis  for  an
11        affidavit  under  this  paragraph  shall  be excused from
12        answering or otherwise pleading until 30 days after being
13        served with the certificate required by paragraph 1.
14        (b)  Where a certificate and written report are  required
15    pursuant  to  this Section a separate certificate and written
16    report shall be filed as to each defendant who has been named
17    in the complaint and shall be  filed  as  to  each  defendant
18    named at a later time.
19        (c)  Where  the plaintiff intends to rely on the doctrine
20    of "res ipsa loquitur", as defined by Section 2-1113 of  this
21    Code,  the certificate and written report must state that, in
22    the opinion of the reviewing health professional,  negligence
23    has occurred in the course of medical treatment.  The affiant
24    shall certify upon filing of the complaint that he is relying
25    on the doctrine of "res ipsa loquitur".
26        (d)  When the attorney intends to rely on the doctrine of
27    failure  to  inform of the consequences of the procedure, the
28    attorney shall certify upon the filing of the complaint  that
29    the  reviewing  health  professional has, after reviewing the
30    medical record and other relevant materials involved  in  the
31    particular   action,   concluded  that  a  reasonable  health
32    professional  would  have  informed  the   patient   of   the
33    consequences of the procedure.
34        (e)  Allegations  and  denials  in  the  affidavit,  made
HB0568 Engrossed            -4-                LRB9002737DJcd
 1    without  reasonable  cause  and  found  to  be  untrue, shall
 2    subject the party pleading them or his attorney, or both,  to
 3    the  payment of reasonable expenses, actually incurred by the
 4    other party by reason of the untrue pleading,  together  with
 5    reasonable attorneys' fees to be summarily taxed by the court
 6    upon motion made within 30 days of the judgment or dismissal.
 7    In  no event shall the award for attorneys' fees and expenses
 8    exceed those actually paid by the moving party, including the
 9    insurer, if any. In proceedings under this paragraph (e), the
10    moving party shall have the right to depose and  examine  any
11    and  all  reviewing health professionals who prepared reports
12    used in  conjunction  with  an  affidavit  required  by  this
13    Section.
14        (f)  A  reviewing  health  professional who in good faith
15    prepares a report  used  in  conjunction  with  an  affidavit
16    required  by  this  Section  shall  have  civil immunity from
17    liability which otherwise might result from  the  preparation
18    of such report.
19        (g)  The  failure  to file a certificate required by this
20    Section shall be grounds for dismissal under Section 2-619.
21        (h)  This amendatory Act of 1995 does  not  apply  to  or
22    affect any actions pending at the time of its effective date,
23    but applies to cases filed on or after its effective date.
24        (i)  This  amendatory  Act  of  1997 does not apply to or
25    affect any actions pending at the time of its effective date,
26    but applies to cases filed on or after its effective date.
27    (Source: P.A. 89-7, eff. 3-9-95.)
28        Section 99.  Effective date.  This Act takes effect  upon
29    becoming law.

[ Top ]