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91_HB2867
LRB9106777DJcd
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 (Text of Section WITHOUT the changes made by P.A. 89-7,
9 which has been held unconstitutional)
10 Sec. 2-622. Healing art malpractice.
11 (a) In any action, whether in tort, contract or
12 otherwise, in which the plaintiff seeks damages for injuries
13 or death by reason of medical, hospital, or other healing art
14 malpractice, the plaintiff's attorney or the plaintiff, if
15 the plaintiff is proceeding pro se, shall file an affidavit,
16 attached to the original and all copies of the complaint,
17 declaring one of the following:
18 1. That the affiant has consulted and reviewed the
19 facts of the case with a health professional who the
20 affiant reasonably believes: (i) is knowledgeable in the
21 relevant issues involved in the particular action; (ii)
22 practices or has practiced within the last 6 years or
23 teaches or has taught within the last 6 years in the same
24 area of health care or medicine that is at issue in the
25 particular action; and (iii) is qualified by experience
26 or demonstrated competence in the subject of the case;
27 that the reviewing health professional has determined in
28 a written report, after a review of the medical record
29 and other relevant material involved in the particular
30 action that there is a reasonable and meritorious cause
31 for the filing of such action; and that the affiant has
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1 concluded on the basis of the reviewing health
2 professional's review and consultation that there is a
3 reasonable and meritorious cause for filing of such
4 action. If the affidavit is filed as to a defendant who
5 is a physician licensed to treat human ailments without
6 the use of drugs or medicines and without operative
7 surgery, a dentist, a podiatrist, a psychologist, or a
8 naprapath, the written report must be from a health
9 professional licensed in the same profession, with the
10 same class of license, as the defendant. For affidavits
11 filed as to all other defendants, the written report must
12 be from a physician licensed to practice medicine in all
13 its branches. In either event, the affidavit must
14 identify the profession of the reviewing health
15 professional. A copy of the written report, clearly
16 identifying the plaintiff and the reasons for the
17 reviewing health professional's determination that a
18 reasonable and meritorious cause for the filing of the
19 action exists, must be attached to the affidavit, but
20 information which would identify the reviewing health
21 professional may be deleted from the copy so attached.
22 2. That the affiant was unable to obtain a
23 consultation required by paragraph 1 because a statute of
24 limitations would impair the action and the consultation
25 required could not be obtained before the expiration of
26 the statute of limitations. If an affidavit is executed
27 pursuant to this paragraph, the certificate and written
28 report required by paragraph 1 shall be filed within 90
29 days after the filing of the complaint. The defendant
30 shall be excused from answering or otherwise pleading
31 until 30 days after being served with a certificate
32 required by paragraph 1.
33 3. That a request has been made by the plaintiff or
34 his attorney for examination and copying of records
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1 pursuant to Part 20 of Article VIII of this Code and the
2 party required to comply under those Sections has failed
3 to produce such records within 60 days of the receipt of
4 the request. If an affidavit is executed pursuant to
5 this paragraph, the certificate and written report
6 required by paragraph 1 shall be filed within 90 days
7 following receipt of the requested records. All
8 defendants except those whose failure to comply with Part
9 20 of Article VIII of this Code is the basis for an
10 affidavit under this paragraph shall be excused from
11 answering or otherwise pleading until 30 days after being
12 served with the certificate required by paragraph 1.
13 (b) Where a certificate and written report are required
14 pursuant to this Section a separate certificate and written
15 report shall be filed as to each defendant who has been named
16 in the complaint and shall be filed as to each defendant
17 named at a later time.
18 (c) Where the plaintiff intends to rely on the doctrine
19 of "res ipsa loquitur", as defined by Section 2-1113 of this
20 Code, the certificate and written report must state that, in
21 the opinion of the reviewing health professional, negligence
22 has occurred in the course of medical treatment. The affiant
23 shall certify upon filing of the complaint that he is relying
24 on the doctrine of "res ipsa loquitur".
25 (d) When the attorney intends to rely on the doctrine of
26 failure to inform of the consequences of the procedure, the
27 attorney shall certify upon the filing of the complaint that
28 the reviewing health professional has, after reviewing the
29 medical record and other relevant materials involved in the
30 particular action, concluded that a reasonable health
31 professional would have informed the patient of the
32 consequences of the procedure.
33 (e) Allegations and denials in the affidavit, made
34 without reasonable cause and found to be untrue, shall
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1 subject the party pleading them or his attorney, or both, to
2 the payment of reasonable expenses, actually incurred by the
3 other party by reason of the untrue pleading, together with
4 reasonable attorneys' fees to be summarily taxed by the court
5 upon motion made within 30 days of the judgment or dismissal.
6 In no event shall the award for attorneys' fees and expenses
7 exceed those actually paid by the moving party, including the
8 insurer, if any. In proceedings under this paragraph (e), the
9 moving party shall have the right to depose and examine any
10 and all reviewing health professionals who prepared reports
11 used in conjunction with an affidavit required by this
12 Section.
13 (f) A reviewing health professional who in good faith
14 prepares a report used in conjunction with an affidavit
15 required by this Section shall have civil immunity from
16 liability which otherwise might result from the preparation
17 of such report.
18 (g) The failure to file a certificate required by this
19 Section shall be grounds for dismissal under Section 2-619.
20 (g-5) If after reasonable notice and an opportunity to
21 respond, a party or an attorney for a party or parties is
22 determined to have willfully failed to comply with any
23 requirement of this Section, appropriate sanctions may be
24 imposed on the party or attorney for the failure to comply
25 with the requirement, in addition to any other sanctions
26 authorized under this Section. Appropriate sanctions for
27 violations of this Section may include an order that (i) a
28 party be barred from presenting a claim or defense relating
29 to any issue to which refusal or failure to comply with the
30 requirement relates, (ii) judgment be entered on that issue
31 as to the other party, (iii) a dismissal of a party's action
32 as to that issue be entered, or (iv) any portion of a party's
33 brief relating to that issue be stricken. Additionally,
34 sanctions involving an order to pay a fine, if appropriate,
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1 may also be ordered against any party or attorney for a party
2 or parties.
3 If the court determines that an action to which this
4 Section applies is frivolous, or that the action was not
5 commenced in good faith, or that the action was commenced for
6 an improper purpose, such as to harass or to cause
7 unnecessary delay or needless increase in the cost of
8 litigation, or that the manner of prosecuting or defending
9 the action is for such a purpose, then the court may impose
10 an appropriate sanction on any party or the attorney or
11 attorneys of the party or parties. An action will be deemed
12 frivolous if it is not reasonably well grounded in fact and
13 not warranted by existing law or a good-faith argument for
14 the extension, modification, or reversal of existing law. An
15 action will be deemed to have been commenced for an improper
16 purpose if the primary purpose of the action is to delay,
17 harass, or cause needless expense.
18 Appropriate sanctions for violations of this Section may
19 include an order to pay to the other party or parties
20 damages, the reasonable costs of prosecuting or defending the
21 action, and any other expenses necessarily incurred by the
22 filing of the action, including reasonable attorney's fees.
23 The court may impose a sanction on a party or an attorney
24 for a party on the motion of another party or parties, or on
25 the court's own initiative if the court deems it appropriate.
26 If the court initiates the sanction, it shall require the
27 party or attorney, or both, to show cause why such a sanction
28 should not be imposed before imposing the sanction. When a
29 sanction is imposed, the court shall set forth the reasons
30 and basis for the sanction in its opinion or in a separate
31 written order.
32 (h) This Section does not apply to or affect any actions
33 pending at the time of its effective date, but applies to
34 cases filed on or after its effective date.
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1 (i) This amendatory Act of 1997 does not apply to or
2 affect any actions pending at the time of its effective date,
3 but applies to cases filed on or after its effective date.
4 (Source: P.A. 86-646; 90-579, eff. 5-1-98.)
5 Section 99. Effective date. This Act takes effect upon
6 becoming law.