Full Text of HB4407 97th General Assembly
HB4407 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB4407 Introduced 1/30/2012, by Rep. Michael J. Madigan SYNOPSIS AS INTRODUCED: |
| 735 ILCS 5/2-622 | from Ch. 110, par. 2-622 |
| Amends the Code of Civil Procedure. Makes a technical change in a Section concerning healing art malpractice.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 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 WITH the changes made by P.A. 89-7, which | 8 | | has been held
unconstitutional) | 9 | | Sec. 2-622. Healing art malpractice.
| 10 | | (a) In any action, whether in
tort, contract or otherwise, | 11 | | in which the
the plaintiff seeks damages for
injuries or death | 12 | | by reason of medical, hospital, or other healing art
| 13 | | malpractice, the plaintiff's attorney or the plaintiff, if the | 14 | | 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 |
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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. A copy of the written report, clearly
| 22 | | identifying the plaintiff and the reasons for the reviewing | 23 | | health
professional's determination that a reasonable and | 24 | | meritorious cause for
the filing of the action exists, must | 25 | | be attached to the affidavit.
The report shall include the | 26 | | name and the address of the health professional.
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| 1 | | 2.
That the plaintiff has not previously voluntarily | 2 | | dismissed an action based upon the same or substantially | 3 | | the same acts, omissions, or occurrences and that the | 4 | | affiant was unable to obtain a consultation required by
| 5 | | paragraph 1 because a statute of limitations would impair | 6 | | the action and
the consultation required could not be | 7 | | obtained before the expiration of
the statute of | 8 | | limitations. If an affidavit is executed pursuant to this
| 9 | | paragraph, the
certificate and written report required by | 10 | | paragraph 1 shall
be filed within 90 days after the filing | 11 | | of the complaint. The defendant
shall be excused from | 12 | | answering or otherwise pleading until 30 days after
being | 13 | | served with
a certificate
required by paragraph 1.
| 14 | | 3.
That a request has been made by the plaintiff or his | 15 | | attorney for
examination and copying of records pursuant to | 16 | | Part 20 of Article VIII of
this Code and the party required | 17 | | to comply under those Sections has failed
to produce such | 18 | | records within 60 days of the receipt of the request. If an
| 19 | | affidavit is executed pursuant to this paragraph, the
| 20 | | certificate and
written report required by paragraph 1 | 21 | | shall be filed within 90 days
following receipt of the | 22 | | requested records. All defendants except those
whose | 23 | | failure to comply with Part 20 of Article VIII of this Code | 24 | | is the
basis for an affidavit under this paragraph shall be | 25 | | excused from answering
or otherwise pleading until 30 days | 26 | | after being served with the
certificate
required by |
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| 1 | | paragraph 1.
| 2 | | (b)
Where
a certificate and written report are required | 3 | | pursuant to this
Section a separate
certificate and written | 4 | | report shall be filed as to each
defendant who has been named | 5 | | in the complaint and shall be filed as to each
defendant named | 6 | | at a later time.
| 7 | | (c)
Where the plaintiff intends to rely on the doctrine of | 8 | | "res ipsa
loquitur", as defined by Section 2-1113 of this Code, | 9 | | the
certificate and
written report must state that, in the | 10 | | opinion of the reviewing health
professional, negligence has | 11 | | occurred in the course of medical treatment.
The affiant shall | 12 | | certify upon filing of the complaint that he is relying
on the | 13 | | doctrine of "res ipsa loquitur".
| 14 | | (d)
When the attorney intends to rely on the doctrine of | 15 | | failure to
inform of the consequences of the procedure, the | 16 | | attorney shall certify
upon the filing of the complaint that | 17 | | the reviewing health professional
has, after reviewing the | 18 | | medical record and other relevant materials involved
in the | 19 | | particular action, concluded that a reasonable health | 20 | | professional
would have informed the patient of the | 21 | | consequences of the procedure.
| 22 | | (e)
Allegations and denials in the affidavit, made without | 23 | | reasonable
cause and found to be untrue, shall subject the | 24 | | party pleading them or his
attorney, or both, to the payment of | 25 | | reasonable expenses, actually incurred
by the other party by | 26 | | reason of the untrue pleading, together with
reasonable |
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| 1 | | attorneys' fees to be summarily taxed by the court upon motion
| 2 | | made within 30 days of the judgment or dismissal. In no event | 3 | | shall the
award for attorneys' fees and expenses exceed those | 4 | | actually paid by the
moving party, including the insurer, if | 5 | | any. In proceedings under this
paragraph (e), the moving party | 6 | | shall have the right to depose and examine
any and all | 7 | | reviewing health professionals who prepared reports used in
| 8 | | conjunction with an affidavit required by this Section. | 9 | | (f)
A reviewing health professional who in good faith | 10 | | prepares a report
used in conjunction with an affidavit | 11 | | required by this Section shall have
civil immunity from | 12 | | liability which otherwise might result from the
preparation of | 13 | | such report.
| 14 | | (g)
The failure
to file a certificate required by
this | 15 | | Section shall be
grounds for dismissal
under Section 2-619.
| 16 | | (h) This amendatory Act of 1995 does not apply to or affect | 17 | | any actions pending
at the time of its effective date, but | 18 | | applies to cases filed on or
after its effective date.
| 19 | | (i) This amendatory Act of 1997 does not apply to or affect | 20 | | any actions
pending at the time of its effective date, but | 21 | | applies to cases filed on or
after its effective date.
| 22 | | (Source: P.A. 86-646; 89-7, eff. 3-9-95 ; 90-579, eff. 5-1-98.) | 23 | | (Text of Section WITH the changes made by P.A. 94-677, | 24 | | which has been held
unconstitutional) | 25 | | Sec. 2-622. Healing art malpractice.
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| 1 | | (a) In any action, whether in
tort, contract or otherwise, | 2 | | in which the plaintiff seeks damages for
injuries or death by | 3 | | reason of medical, hospital, or other healing art
malpractice, | 4 | | the plaintiff's attorney or the plaintiff, if the plaintiff is
| 5 | | proceeding pro se, shall file an affidavit, attached to the | 6 | | original and
all copies of the complaint, declaring one of the | 7 | | following:
| 8 | | 1. That the affiant has consulted and reviewed the | 9 | | facts of the case
with a health professional who the | 10 | | affiant reasonably believes: (i) is
knowledgeable in the | 11 | | relevant issues involved in the particular action;
(ii) | 12 | | practices or has practiced within the last 5 years or | 13 | | teaches or
has taught within the last 5 years in the same | 14 | | area of health care or
medicine that is at issue in the | 15 | | particular action; and (iii) meets the expert witness | 16 | | standards set forth in paragraphs (a) through (d) of | 17 | | Section 8-2501; that
the reviewing health professional has | 18 | | determined in a
written report, after a review of the | 19 | | medical record and other relevant
material involved in the | 20 | | particular action that there is a reasonable and
| 21 | | meritorious cause for the filing of such action; and that | 22 | | the affiant has
concluded on the basis of the reviewing | 23 | | health professional's review and
consultation that there | 24 | | is a reasonable and meritorious cause for filing of
such | 25 | | action. A single written report must be filed to cover each | 26 | | defendant in the action. As to defendants who are |
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| 1 | | individuals, the written report must be from a health | 2 | | professional
licensed in the same profession, with the same | 3 | | class of license, as the
defendant. For written reports | 4 | | filed as to all other defendants, who are not individuals, | 5 | | the written
report must be from a physician licensed to | 6 | | practice medicine in all its
branches who is qualified by | 7 | | experience with the standard of care, methods, procedures | 8 | | and treatments relevant to the allegations at issue in the | 9 | | case. In either event, the written report must identify the | 10 | | profession of
the reviewing health professional. A copy of | 11 | | the written report, clearly
identifying the plaintiff and | 12 | | the reasons for the reviewing health
professional's | 13 | | determination that a reasonable and meritorious cause for
| 14 | | the filing of the action exists, including the reviewing | 15 | | health care professional's name, address, current license | 16 | | number, and state of licensure, must be attached to the | 17 | | affidavit.
Information regarding the preparation of a | 18 | | written report by the reviewing health professional shall | 19 | | not be used to discriminate against that professional in | 20 | | the issuance of medical liability insurance or in the | 21 | | setting of that professional's medical liability insurance | 22 | | premium. No professional organization may discriminate | 23 | | against a reviewing health professional on the basis that | 24 | | the reviewing health professional has prepared a written | 25 | | report.
| 26 | | 2.
That the affiant was unable to obtain a consultation |
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| 1 | | required by
paragraph 1 because a statute of limitations | 2 | | would impair the action and
the consultation required could | 3 | | not be obtained before the expiration of
the statute of | 4 | | limitations. If an affidavit is executed pursuant to this
| 5 | | paragraph, the affidavit and written report required by | 6 | | paragraph 1 shall
be filed within 90 days after the filing | 7 | | of the complaint. No additional 90-day extensions pursuant | 8 | | to this paragraph shall be granted, except where there has | 9 | | been a withdrawal of the plaintiff's counsel. The defendant
| 10 | | shall be excused from answering or otherwise pleading until | 11 | | 30 days after
being served with an affidavit and a report
| 12 | | required by paragraph 1.
| 13 | | 3.
That a request has been made by the plaintiff or his | 14 | | attorney for
examination and copying of records pursuant to | 15 | | Part 20 of Article VIII of
this Code and the party required | 16 | | to comply under those Sections has failed
to produce such | 17 | | records within 60 days of the receipt of the request. If an
| 18 | | affidavit is executed pursuant to this paragraph, the | 19 | | affidavit and
written report required by paragraph 1 shall | 20 | | be filed within 90 days
following receipt of the requested | 21 | | records. All defendants except those
whose failure to | 22 | | comply with Part 20 of Article VIII of this Code is the
| 23 | | basis for an affidavit under this paragraph shall be | 24 | | excused from answering
or otherwise pleading until 30 days | 25 | | after being served with the affidavit and report
required | 26 | | by paragraph 1.
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| 1 | | (b)
Where an affidavit and written report are required | 2 | | pursuant to this
Section a separate affidavit and written | 3 | | report shall be filed as to each
defendant who has been named | 4 | | in the complaint and shall be filed as to each
defendant named | 5 | | at a later time.
| 6 | | (c)
Where the plaintiff intends to rely on the doctrine of | 7 | | "res ipsa
loquitur", as defined by Section 2-1113 of this Code, | 8 | | the affidavit and
written report must state that, in the | 9 | | opinion of the reviewing health
professional, negligence has | 10 | | occurred in the course of medical treatment.
The affiant shall | 11 | | certify upon filing of the complaint that he is relying
on the | 12 | | doctrine of "res ipsa loquitur".
| 13 | | (d)
When the attorney intends to rely on the doctrine of | 14 | | failure to
inform of the consequences of the procedure, the | 15 | | attorney shall certify
upon the filing of the complaint that | 16 | | the reviewing health professional
has, after reviewing the | 17 | | medical record and other relevant materials involved
in the | 18 | | particular action, concluded that a reasonable health | 19 | | professional
would have informed the patient of the | 20 | | consequences of the procedure.
| 21 | | (e)
Allegations and denials in the affidavit, made without | 22 | | reasonable
cause and found to be untrue, shall subject the | 23 | | party pleading them or his
attorney, or both, to the payment of | 24 | | reasonable expenses, actually incurred
by the other party by | 25 | | reason of the untrue pleading, together with
reasonable | 26 | | attorneys' fees to be summarily taxed by the court upon motion
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| 1 | | made within 30 days of the judgment or dismissal. In no event | 2 | | shall the
award for attorneys' fees and expenses exceed those | 3 | | actually paid by the
moving party, including the insurer, if | 4 | | any. In proceedings under this
paragraph (e), the moving party | 5 | | shall have the right to depose and examine
any and all | 6 | | reviewing health professionals who prepared reports used in
| 7 | | conjunction with an affidavit required by this Section. | 8 | | (f)
A reviewing health professional who in good faith | 9 | | prepares a report
used in conjunction with an affidavit | 10 | | required by this Section shall have
civil immunity from | 11 | | liability which otherwise might result from the
preparation of | 12 | | such report.
| 13 | | (g)
The failure of the plaintiff to file an affidavit and | 14 | | report in compliance with
this Section shall be
grounds for | 15 | | dismissal
under Section 2-619.
| 16 | | (h) This Section does not apply to or affect any actions | 17 | | pending
at the time of its effective date, but applies to cases | 18 | | filed on or
after its effective date.
| 19 | | (i) This amendatory Act of 1997 does not apply to or affect | 20 | | any actions
pending at the time of its effective date, but | 21 | | applies to cases filed on or
after its effective date.
| 22 | | (j) The changes to this Section made by this amendatory Act | 23 | | of the 94th General Assembly apply to causes of action
accruing | 24 | | on or after its effective date.
| 25 | | (Source: P.A. 94-677, eff. 8-25-05 .)
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| 1 | | (Text of Section WITHOUT the changes made by P.A. 89-7 and | 2 | | 94-677, which have been held
unconstitutional) | 3 | | Sec. 2-622. Healing art malpractice.
| 4 | | (a) In any action, whether in
tort, contract or otherwise, | 5 | | in which the plaintiff seeks damages for
injuries or death by | 6 | | reason of medical, hospital, or other healing art
malpractice, | 7 | | the plaintiff's attorney or the plaintiff, if the plaintiff is
| 8 | | proceeding pro se, shall file an affidavit, attached to the | 9 | | original and
all copies of the complaint, declaring one of the | 10 | | following:
| 11 | | 1. That the affiant has consulted and reviewed the | 12 | | facts of the case
with a health professional who the | 13 | | affiant reasonably believes: (i) is
knowledgeable in the | 14 | | relevant issues involved in the particular action;
(ii) | 15 | | practices or has practiced within the last
6 years or | 16 | | teaches or
has taught within the last
6 years in the same | 17 | | area of health care or
medicine that is at issue in the | 18 | | particular action; and (iii)
is qualified
by experience or | 19 | | demonstrated competence in the subject of the case; that
| 20 | | the reviewing health professional has determined in a
| 21 | | written report, after a review of the medical record and | 22 | | other relevant
material involved in the particular action | 23 | | that there is a reasonable and
meritorious cause for the | 24 | | filing of such action; and that the affiant has
concluded | 25 | | on the basis of the reviewing health professional's review | 26 | | and
consultation that there is a reasonable and meritorious |
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| 1 | | cause for filing of
such action.
If the affidavit is filed | 2 | | as to a defendant who is a physician
licensed to treat | 3 | | human ailments without the use of drugs or medicines and
| 4 | | without operative surgery, a dentist, a podiatrist, a | 5 | | psychologist, or a
naprapath,
the written report must be | 6 | | from a health professional
licensed in the same profession, | 7 | | with the same class of license, as the
defendant. For
| 8 | | affidavits filed as to all other defendants, the written
| 9 | | report must be from a physician licensed to practice | 10 | | medicine in all its
branches. In either event, the
| 11 | | affidavit must identify the profession of
the reviewing | 12 | | health professional. A copy of the written report, clearly
| 13 | | identifying the plaintiff and the reasons for the reviewing | 14 | | health
professional's determination that a reasonable and | 15 | | meritorious cause for
the filing of the action exists, must | 16 | | be attached to the affidavit, but
information which would | 17 | | identify the reviewing health professional may be
deleted | 18 | | from the copy so attached.
| 19 | | 2.
That the affiant was unable to obtain a consultation | 20 | | required by
paragraph 1 because a statute of limitations | 21 | | would impair the action and
the consultation required could | 22 | | not be obtained before the expiration of
the statute of | 23 | | limitations. If an affidavit is executed pursuant to this
| 24 | | paragraph, the
certificate and written report required by | 25 | | paragraph 1 shall
be filed within 90 days after the filing | 26 | | of the complaint. The defendant
shall be excused from |
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| 1 | | answering or otherwise pleading until 30 days after
being | 2 | | served with
a certificate
required by paragraph 1.
| 3 | | 3.
That a request has been made by the plaintiff or his | 4 | | attorney for
examination and copying of records pursuant to | 5 | | Part 20 of Article VIII of
this Code and the party required | 6 | | to comply under those Sections has failed
to produce such | 7 | | records within 60 days of the receipt of the request. If an
| 8 | | affidavit is executed pursuant to this paragraph, the
| 9 | | certificate and
written report required by paragraph 1 | 10 | | shall be filed within 90 days
following receipt of the | 11 | | requested records. All defendants except those
whose | 12 | | failure to comply with Part 20 of Article VIII of this Code | 13 | | is the
basis for an affidavit under this paragraph shall be | 14 | | excused from answering
or otherwise pleading until 30 days | 15 | | after being served with the
certificate
required by | 16 | | paragraph 1.
| 17 | | (b)
Where
a certificate and written report are required | 18 | | pursuant to this
Section a separate
certificate and written | 19 | | report shall be filed as to each
defendant who has been named | 20 | | in the complaint and shall be filed as to each
defendant named | 21 | | at a later time.
| 22 | | (c)
Where the plaintiff intends to rely on the doctrine of | 23 | | "res ipsa
loquitur", as defined by Section 2-1113 of this Code, | 24 | | the
certificate and
written report must state that, in the | 25 | | opinion of the reviewing health
professional, negligence has | 26 | | occurred in the course of medical treatment.
The affiant shall |
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| 1 | | certify upon filing of the complaint that he is relying
on the | 2 | | doctrine of "res ipsa loquitur".
| 3 | | (d)
When the attorney intends to rely on the doctrine of | 4 | | failure to
inform of the consequences of the procedure, the | 5 | | attorney shall certify
upon the filing of the complaint that | 6 | | the reviewing health professional
has, after reviewing the | 7 | | medical record and other relevant materials involved
in the | 8 | | particular action, concluded that a reasonable health | 9 | | professional
would have informed the patient of the | 10 | | consequences of the procedure.
| 11 | | (e)
Allegations and denials in the affidavit, made without | 12 | | reasonable
cause and found to be untrue, shall subject the | 13 | | party pleading them or his
attorney, or both, to the payment of | 14 | | reasonable expenses, actually incurred
by the other party by | 15 | | reason of the untrue pleading, together with
reasonable | 16 | | attorneys' fees to be summarily taxed by the court upon motion
| 17 | | made within 30 days of the judgment or dismissal. In no event | 18 | | shall the
award for attorneys' fees and expenses exceed those | 19 | | actually paid by the
moving party, including the insurer, if | 20 | | any. In proceedings under this
paragraph (e), the moving party | 21 | | shall have the right to depose and examine
any and all | 22 | | reviewing health professionals who prepared reports used in
| 23 | | conjunction with an affidavit required by this Section. | 24 | | (f)
A reviewing health professional who in good faith | 25 | | prepares a report
used in conjunction with an affidavit | 26 | | required by this Section shall have
civil immunity from |
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| 1 | | liability which otherwise might result from the
preparation of | 2 | | such report.
| 3 | | (g)
The failure
to file a certificate required by
this | 4 | | Section shall be
grounds for dismissal
under Section 2-619.
| 5 | | (h) This Section does not apply to or affect any actions | 6 | | pending
at the time of its effective date, but applies to cases | 7 | | filed on or
after its effective date.
| 8 | | (i) This amendatory Act of 1997 does not apply to or affect | 9 | | any actions
pending at the time of its effective date, but | 10 | | applies to cases filed on or
after its effective date.
| 11 | | (Source: P.A. 86-646; 90-579, eff. 5-1-98.)
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