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90_HB1185ham001
LRB9005039DPcwam
1 AMENDMENT TO HOUSE BILL 1185
2 AMENDMENT NO. . Amend House Bill 1185 by replacing
3 the title with the following:
4 "AN ACT to amend the Code of Civil Procedure by changing
5 Section 2-622."; and
6 by replacing everything after the enacting clause with the
7 following:
8 "Section 5. The Code of Civil Procedure is amended by
9 changing Section 2-622 as follows:
10 (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
11 Sec. 2-622. Healing art malpractice.
12 (a) In any action, whether in tort, contract or
13 otherwise, in which the plaintiff seeks damages for injuries
14 or death by reason of medical, hospital, or other healing art
15 malpractice, the plaintiff's attorney or the plaintiff, if
16 the plaintiff is proceeding pro se, shall file an affidavit,
17 attached to the original and all copies of the complaint,
18 declaring one of the following:
19 1. That the affiant has consulted and reviewed the
20 facts of the case with a health professional who the
21 affiant reasonably believes: (i) is knowledgeable in the
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1 relevant issues involved in the particular action; (ii)
2 practices or has practiced within the last 6 years or
3 teaches or has taught within the last 6 years in the same
4 area of health care or medicine that is at issue in the
5 particular action; and (iii) is qualified by experience
6 or demonstrated competence in the subject of the case;
7 that the reviewing health professional has determined in
8 a written report, after a review of the medical record
9 and other relevant material involved in the particular
10 action that there is a reasonable and meritorious cause
11 for the filing of such action; and that the affiant has
12 concluded on the basis of the reviewing health
13 professional's review and consultation that there is a
14 reasonable and meritorious cause for filing of such
15 action. If the affidavit is filed as to a defendant who
16 is a physician licensed to treat human ailments without
17 the use of drugs or medicines and without operative
18 surgery, a dentist, a podiatrist, or a psychologist, or a
19 naprapath, the written report must be from a health
20 professional licensed in the same profession, with the
21 same class of license, as the defendant. For affidavits
22 filed as to all other defendants, the written report must
23 be from a physician licensed to practice medicine in all
24 its branches. In either event, the affidavit must
25 identify the profession of the reviewing health
26 professional. A copy of the written report, clearly
27 identifying the plaintiff and the reasons for the
28 reviewing health professional's determination that a
29 reasonable and meritorious cause for the filing of the
30 action exists, must be attached to the affidavit. The
31 report shall include the name and the address of the
32 health professional.
33 2. That the plaintiff has not previously
34 voluntarily dismissed an action based upon the same or
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1 substantially the same acts, omissions, or occurrences
2 and that the affiant was unable to obtain a consultation
3 required by paragraph 1 because a statute of limitations
4 would impair the action and the consultation required
5 could not be obtained before the expiration of the
6 statute of limitations. If an affidavit is executed
7 pursuant to this paragraph, the certificate and written
8 report required by paragraph 1 shall be filed within 90
9 days after the filing of the complaint. The defendant
10 shall be excused from answering or otherwise pleading
11 until 30 days after being served with a certificate
12 required by paragraph 1.
13 3. That a request has been made by the plaintiff or
14 his attorney for examination and copying of records
15 pursuant to Part 20 of Article VIII of this Code and the
16 party required to comply under those Sections has failed
17 to produce such records within 60 days of the receipt of
18 the request. If an affidavit is executed pursuant to
19 this paragraph, the certificate and written report
20 required by paragraph 1 shall be filed within 90 days
21 following receipt of the requested records. All
22 defendants except those whose failure to comply with Part
23 20 of Article VIII of this Code is the basis for an
24 affidavit under this paragraph shall be excused from
25 answering or otherwise pleading until 30 days after being
26 served with the certificate required by paragraph 1.
27 (b) Where a certificate and written report are required
28 pursuant to this Section a separate certificate and written
29 report shall be filed as to each defendant who has been named
30 in the complaint and shall be filed as to each defendant
31 named at a later time.
32 (c) Where the plaintiff intends to rely on the doctrine
33 of "res ipsa loquitur", as defined by Section 2-1113 of this
34 Code, the certificate and written report must state that, in
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1 the opinion of the reviewing health professional, negligence
2 has occurred in the course of medical treatment. The affiant
3 shall certify upon filing of the complaint that he is relying
4 on the doctrine of "res ipsa loquitur".
5 (d) When the attorney intends to rely on the doctrine of
6 failure to inform of the consequences of the procedure, the
7 attorney shall certify upon the filing of the complaint that
8 the reviewing health professional has, after reviewing the
9 medical record and other relevant materials involved in the
10 particular action, concluded that a reasonable health
11 professional would have informed the patient of the
12 consequences of the procedure.
13 (e) Allegations and denials in the affidavit, made
14 without reasonable cause and found to be untrue, shall
15 subject the party pleading them or his attorney, or both, to
16 the payment of reasonable expenses, actually incurred by the
17 other party by reason of the untrue pleading, together with
18 reasonable attorneys' fees to be summarily taxed by the court
19 upon motion made within 30 days of the judgment or dismissal.
20 In no event shall the award for attorneys' fees and expenses
21 exceed those actually paid by the moving party, including the
22 insurer, if any. In proceedings under this paragraph (e), the
23 moving party shall have the right to depose and examine any
24 and all reviewing health professionals who prepared reports
25 used in conjunction with an affidavit required by this
26 Section.
27 (f) A reviewing health professional who in good faith
28 prepares a report used in conjunction with an affidavit
29 required by this Section shall have civil immunity from
30 liability which otherwise might result from the preparation
31 of such report.
32 (g) The failure to file a certificate required by this
33 Section shall be grounds for dismissal under Section 2-619.
34 (h) This amendatory Act of 1995 does not apply to or
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1 affect any actions pending at the time of its effective date,
2 but applies to cases filed on or after its effective date.
3 (i) This amendatory Act of 1997 does not apply to or
4 affect any actions pending at the time of its effective date,
5 but applies to cases filed on or after its effective date.
6 (Source: P.A. 89-7, eff. 3-9-95.)
7 Section 99. Effective date. This Act takes effect upon
8 becoming law.".