93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB3046

 

Introduced 2/6/2004, by David Luechtefeld, Frank C. Watson, Kirk W. Dillard, John O. Jones

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 5/2-101.5 new
735 ILCS 5/2-622   from Ch. 110, par. 2-622
735 ILCS 5/8-2501   from Ch. 110, par. 8-2501
745 ILCS 49/26 new

    Amends the Code of Civil Procedure. Provides that every medical malpractice action must be commenced in the country where the medical care that is the subject of the cause of action took place. Changes the standards to determine if a witness qualifies as an expert witness. Provides that an expert witness shall provide proof of active practice, teaching, or engagement in university-based research and must provide, if retired, proof of continuing education. Provides that an expert who has not actively practiced, taught, or been engaged in university-based research within the 10 years previous to giving testimony may not be qualified as an expert witness. Provides that an affidavit from a reviewing health professional must contain his or her name, address, profession, and professional license number. Provides that, to qualify as a reviewing health professional for purposes of giving an affidavit for a petitioner in a pro se action, the professional must meet the expert witness standards. Provides that a reviewing health professional who provides a frivolous or improper review of a case is liable to the parties for the reasonable costs and attorneys' fees expended in resolving the case. Provides that a review is frivolous if it is substantially lacking in factual support, is based upon a standard of care or practice that lacks substantial use in the relevant specialty or field of practice, or is made for an improper purpose, such as to harass or cause needless increase in the cost of litigation. Amends the Good Samaritan Act. Provides that a licensed physician and a licensed hospital and the hospital's employees, agents, apparent agents, and independent contractors who in good faith provide emergency care or services to a person who is in need of emergency medical treatment and has presented to a hospital for emergency medical care is not liable for civil damages as a result of acts or omissions, except for willful or wanton misconduct in providing the care. Effective July 1, 2004.


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A BILL FOR

 

SB3046 LRB093 21021 LCB 47034 b

1     AN ACT concerning 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 Sections 2-622 and 8-2501 and by adding Section
6 2-101.5 as follows:
 
7     (735 ILCS 5/2-101.5 new)
8     Sec. 2-101.5. Medical malpractice. Every medical
9 malpractice action must be commenced in the county where the
10 medical care that is the subject of the cause of action took
11 place.
12     This amendatory Act of the 93rd General Assembly applies to
13 causes of action filed on or after its effective date.
 
14     (735 ILCS 5/2-622)  (from Ch. 110, par. 2-622)
15     (Text of Section WITHOUT the changes made by P.A. 89-7,
16 which has been held unconstitutional)
17     Sec. 2-622. Healing art malpractice.
18     (a) In any action, whether in tort, contract or otherwise,
19 in which the plaintiff seeks damages for injuries or death by
20 reason of medical, hospital, or other healing art malpractice,
21 the plaintiff's attorney or the plaintiff, if the plaintiff is
22 proceeding pro se, shall file an affidavit, attached to the
23 original and all copies of the complaint, declaring one of the
24 following:
25         1. That the affiant has consulted and reviewed the
26     facts of the case with a health professional who the
27     affiant reasonably believes: (i) is knowledgeable in the
28     relevant issues involved in the particular action; (ii)
29     practices or has practiced within the last 6 years or
30     teaches or has taught within the last 6 years in the same
31     area of health care or medicine that is at issue in the

 

 

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1     particular action; and (iii) is qualified by experience or
2     demonstrated competence in the subject of the case; that
3     the reviewing health professional has determined in a
4     written report, after a review of the medical record and
5     other relevant material involved in the particular action
6     that there is a reasonable and meritorious cause for the
7     filing of such action; and that the affiant has concluded
8     on the basis of the reviewing health professional's review
9     and consultation that there is a reasonable and meritorious
10     cause for filing of such action. If the affidavit is filed
11     as to a defendant who is a physician licensed to treat
12     human ailments without the use of drugs or medicines and
13     without operative surgery, a dentist, a podiatrist, a
14     psychologist, or a naprapath, the written report must be
15     from a health professional licensed in the same profession,
16     with the same class of license, as the defendant. For
17     affidavits filed as to all other defendants, the written
18     report must be from a physician licensed to practice
19     medicine in all its branches. In either event, the
20     affidavit must identify the profession of the reviewing
21     health professional's name, address, profession, and
22     professional license number. Any reviewing health
23     professional under this Section must satisfy the expert
24     witness standards of Section 8-2501 of this Code
25     professional. A copy of the written report, clearly
26     identifying the plaintiff and the reasons for the reviewing
27     health professional's determination that a reasonable and
28     meritorious cause for the filing of the action exists, must
29     be attached to the affidavit, including but information
30     which would identify the reviewing health professional and
31     the reasons this health professional satisfies the expert
32     witness conditions of Section 8-2501 of this Code may be
33     deleted from the copy so attached. Any reviewing health
34     professional that provides a frivolous or improper review
35     of a case shall be liable to each of the parties for the
36     reasonable costs and attorneys' fees the parties expended

 

 

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1     in resolving the case. A review shall be found frivolous if
2     it is substantially lacking in factual support, is based
3     upon a standard of care or practice that lacks substantial
4     use in the relevant specialty or field of practice, or is
5     made for an improper purpose, such as to harass or cause
6     needless increase in the cost of litigation.
7         2. That the affiant was unable to obtain a consultation
8     required by paragraph 1 because a statute of limitations
9     would impair the action and the consultation required could
10     not be obtained before the expiration of the statute of
11     limitations. If an affidavit is executed pursuant to this
12     paragraph, the certificate and written report required by
13     paragraph 1 shall be filed within 90 days after the filing
14     of the complaint. The defendant shall be excused from
15     answering or otherwise pleading until 30 days after being
16     served with a certificate required by paragraph 1.
17         3. That a request has been made by the plaintiff or his
18     attorney for examination and copying of records pursuant to
19     Part 20 of Article VIII of this Code and the party required
20     to comply under those Sections has failed to produce such
21     records within 60 days of the receipt of the request. If an
22     affidavit is executed pursuant to this paragraph, the
23     certificate and written report required by paragraph 1
24     shall be filed within 90 days following receipt of the
25     requested records. All defendants except those whose
26     failure to comply with Part 20 of Article VIII of this Code
27     is the basis for an affidavit under this paragraph shall be
28     excused from answering or otherwise pleading until 30 days
29     after being served with the certificate required by
30     paragraph 1.
31     (b) Where a certificate and written report are required
32 pursuant to this Section a separate certificate and written
33 report shall be filed as to each defendant who has been named
34 in the complaint and shall be filed as to each defendant named
35 at a later time.
36     (c) Where the plaintiff intends to rely on the doctrine of

 

 

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1 "res ipsa loquitur", as defined by Section 2-1113 of this Code,
2 the certificate and written report must state that, in the
3 opinion of the reviewing health professional, negligence has
4 occurred in the course of medical treatment. The affiant shall
5 certify upon filing of the complaint that he is relying on the
6 doctrine of "res ipsa loquitur".
7     (d) When the attorney intends to rely on the doctrine of
8 failure to inform of the consequences of the procedure, the
9 attorney shall certify upon the filing of the complaint that
10 the reviewing health professional has, after reviewing the
11 medical record and other relevant materials involved in the
12 particular action, concluded that a reasonable health
13 professional would have informed the patient of the
14 consequences of the procedure.
15     (e) Allegations and denials in the affidavit, made without
16 reasonable cause and found to be untrue, shall subject the
17 party pleading them or his attorney, or both, to the payment of
18 reasonable expenses, actually incurred by the other party by
19 reason of the untrue pleading, together with reasonable
20 attorneys' fees to be summarily taxed by the court upon motion
21 made within 30 days of the judgment or dismissal. In no event
22 shall the award for attorneys' fees and expenses exceed those
23 actually paid by the moving party, including the insurer, if
24 any. In proceedings under this paragraph (e), the moving party
25 shall have the right to depose and examine any and all
26 reviewing health professionals who prepared reports used in
27 conjunction with an affidavit required by this Section.
28     (f) A reviewing health professional who in good faith
29 prepares a report used in conjunction with an affidavit
30 required by this Section shall have civil immunity from
31 liability which otherwise might result from the preparation of
32 such report.
33     (g) The failure to file a certificate required by this
34 Section shall be grounds for dismissal under Section 2-619.
35     (h) This Section does not apply to or affect any actions
36 pending at the time of its effective date, but applies to cases

 

 

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1 filed on or after its effective date.
2     (i) This amendatory Act of 1997 does not apply to or affect
3 any actions pending at the time of its effective date, but
4 applies to cases filed on or after its effective date.
5     (j) This amendatory Act of the 93rd General Assembly does
6 not apply to or affect any actions pending at the time of its
7 effective date, but does apply to cases filed on or after its
8 effective date.
9 (Source: P.A. 86-646; 90-579, eff. 5-1-98.)
 
10     (735 ILCS 5/8-2501)  (from Ch. 110, par. 8-2501)
11     (Text of Section WITHOUT the changes made by P.A. 89-7,
12 which has been held unconstitutional)
13     Sec. 8-2501. Expert Witness Standards. In any case in which
14 the standard of care given by a medical profession is at issue,
15 the court shall apply the following standards to determine if a
16 witness qualifies as an expert witness and can testify on the
17 issue of the appropriate standard of care.
18     (a) Whether the witness is board-certified or
19 board-eligible in the same medical specialties as the defendant
20 and is familiar with Relationship of the medical specialties of
21 the witness to the medical problem or problems and the type of
22 treatment administered in the case;
23     (b) Whether the witness has devoted 75% a substantial
24 portion of his or her time to the practice of medicine,
25 teaching or University based research in relation to the
26 medical care and type of treatment at issue which gave rise to
27 the medical problem of which the plaintiff complains;
28     (c) whether the witness is licensed by any state or the
29 District of Columbia in the same profession as the defendant;
30 and
31     (d) whether, in the case against a nonspecialist, the
32 witness can demonstrate a sufficient familiarity with the
33 standard of care practiced in this State.
34     An expert shall provide proof of active practice, teaching,
35 or engagement in university-based research. If retired, an

 

 

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1 expert must provide proof of attendance and completion of
2 continuing education courses for 3 years previous to giving
3 testimony. An expert who has not actively practiced, taught, or
4 been engaged in university-based research within the 10 years
5 previous to giving testimony may not be qualified as an expert
6 witness.
7     This amendatory Act of the 93rd General Assembly applies to
8 causes of action filed on or after its effective date.
9 (Source: P.A. 84-7.)
 
10     Section 10. The Good Samaritan Act is amended by adding
11 Section 26 as follows:
 
12     (745 ILCS 49/26 new)
13     Sec. 26. Preservation of emergency medical care.
14     (a) The General Assembly acknowledges that many hospitals
15 and physicians provide great benefits to the citizens of
16 Illinois by operating emergency departments and trauma centers
17 and providing services to individuals in need of emergency care
18 throughout the State, without regard to their ability to pay
19 for the care and often without payment for services. The
20 General Assembly also acknowledges that many hospitals and
21 physicians are discontinuing their status as trauma centers or
22 reducing the scope of their emergency care due to the fear of
23 lawsuits based on claims of medical negligence. The public and
24 society in general will suffer if these trauma centers cease
25 operations or hospital emergency departments reduce their
26 level of emergency care.
27     (b) Any physician licensed under the Medical Practice Act
28 of 1987 and any licensed hospital and any of the hospital's
29 employees, agents, apparent agents, and independent
30 contractors who in good faith provide emergency care or
31 services to a person who is in need of emergency medical
32 treatment and has presented to a hospital for emergency medical
33 care shall not be liable for civil damages as a result of his,
34 her, or its acts or omissions, except for willful or wanton

 

 

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1 misconduct on the part of the physician, the hospital, or any
2 of the hospital's employees, independent contractors, agents,
3 or apparent agents, in providing the care.
 
4     Section 99. Effective date. This Act takes effect July 1,
5 2004.