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Public Act 097-1145


 

Public Act 1145 97TH GENERAL ASSEMBLY

  
  
  

 


 
Public Act 097-1145
 
HB5151 EnrolledLRB097 18657 AJO 63891 b

    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by Public Act 89-7 and Public Act 94-677 are repealed in this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of the statutes was later repealed by another Public Act, the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