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Cargill v. Czelatdko11/12/2004
PUBLISHED
In July 2003, plaintiffs, Mark Cargill and Rebecca Renee Cargill, refiled a complaint against defendants, Thomas Czelatdko, E. David Jones, and Sarah Bush Lincoln Health Center, alleging healing art malpractice. In September 2003, defendants filed a motion to dismiss, which the trial court denied. In March 2004, the court granted defendants' motion to certify the following questions for interlocutory review pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)):
"1. Did P.A. 90-579 resurrect the amendments to section 2-622 of the Code of Civil Procedure (inserted by P.A. 89-7) which had been found unconstitutional by the Illinois Supreme Court's decision in Best v. Taylor Machine Works, 179 Ill. 2d 367?
2. If the response to the first question listed above is in the affirmative, then in a refiled healing art malpractice case does the circuit court have discretion pursuant to section 2-622(a)(2) to 'waive' the requirement found at 735 ILCS 5/2-622(a)(2) that a plaintiff's attorney certify that he 'has not previously voluntarily dismissed an action based on the same or substantially the same acts, omissions, or occurrences?'
3. Assuming an answer in the affirmative to question o. 1 above, and assuming that the circuit court does not have discretion to waive this certification requirement mandated by section 2-622(a)(2), does the laintiff's attorney's failure to provide the certification mandate dismissal of an action with prejudice under section 2-622(g)?"
We answer yes to the first and third questions, no to the second question, and remand this case for further proceedings.
I. BACKGROUND
In March 2000, plaintiff Mark Cargill became a patient of defendants at the Sarah Bush Lincoln Health Center in Mattoon, Illinois . In March 2002, plaintiff filed a healing art malpractice action in Coles County case No. 02-L-29. Plaintiffs' attorney attached to the complaint an affidavit, indicating no physician's certificate was filed to support the complaint as required by section 2-622 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-622 (West 2002)) as counsel was unable to procure a certificate before the statute of limitations would otherwise impair the action. After a 90-day extension, plaintiffs moved to voluntarily dismiss the action. In July 2002, the trial court granted the dismissal motion.
In July 2003, plaintiffs refiled their complaint in case No. 03-L-44, alleging healing art malpractice. Plaintiffs' counsel again filed an affidavit, stating he had been unable to obtain a consultation as required by section 2-622 of the Procedure Code because such a consultation could not be obtained before the expiration date of the statute of limitations.
In September 2003, defendants filed a motion to dismiss pursuant to section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2002)), claiming section 2-622 does not allow for the filing of an action without a physician's certificate of merit to be followed by a voluntary dismissal and the subsequent refiling of the action without a certificate.
In December 2003, the trial court denied defendants' motion to dismiss. Thereafter, defendants filed an answer to plaintiffs' complaint. In March 2004, the court granted defendants' motion to certify questions for interlocutory appeal pursuant to Rule 308(a) (155 Ill. 2d R. 308(a)). This appeal followed.
II. ANALYSIS
A. Standard of Review
This appeal requires us to interpret section 2-622 of the Procedure Code. Statutory construction is a matter of law, and appellate review is de novo. People v. Slover, 323 Ill. App. 3
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