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Cothren v. Thompson3/14/2005
In July 2003, plaintiff, Beverly Y. Cothren, as the special administratrix of the estate of Gerald Cothren, the decedent, filed a medical-malpractice action against defendant, Eric Thompson, M.D. In November 2003, defendant filed a motion to dismiss, which the trial court granted in January 2004. Plaintiff then filed a motion to vacate the judgment, which the court granted. In May 2004, defendant filed a motion to reconsider, and the court vacated its order and entered judgment in favor of defendant.
On appeal, plaintiff argues the trial court abused its discretion in dismissing the medical-malpractice complaint. We affirm.
I. BACKGROUND
On July 16, 2003, plaintiff filed a complaint, alleging defendant acted negligently in treating the decedent on July 19, 2001. The complaint included an affidavit from plaintiff's attorney, stating the attorney was unable to obtain the consultation required by section 2-622(a)(1) of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-622(a)(1) (West 2002)) because the cause of action was not brought to his attention with sufficient time to have a qualified physician review the decedent's medical records prior to the running of the statute of limitations. Plaintiff's attorney requested an additional 90 days to have the medical records reviewed and the appropriate certificate and written report filed pursuant to section 2-622(a)(2) (735 ILCS 5/2-622(a)(2) (West 2002)).
On November 3, 2003, defendant filed a motion to dismiss pursuant to section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2002)), stating the complaint should be dismissed because plaintiff had not filed an affidavit and written report within 90 days as required by section 2-622(a)(2). On November 18, 2003, plaintiff's attorney filed an affidavit and attached a letter from a reviewing physician claiming a reasonable and meritorious cause existed for filing the action. The letter did not contain the name or address of the physician.
On December 17, 2003, defendant filed a motion to strike the affidavit of plaintiff's attorney and the attached letter, stating they should be stricken because (1) they were not filed within the time set forth in the statute, (2) plaintiff did not seek or obtain leave of court before filing the affidavit and letter, (3) plaintiff failed to establish good cause to allow the untimely filing, and (4) the letter did not include the name and address of the health professional. The motion also asked the trial court to grant defendant's motion to dismiss with prejudice.
On January 6, 2004, the trial court dismissed the cause with prejudice, finding plaintiff (1) failed to file an affidavit and certificate within 90 days, (2) did not establish good cause for the failure to file the affidavit and certificate, and (3) filed the July 14, 2003, affidavit and letter without leave of court and without good cause to establish why the documents were not filed in a timely manner.
On January 30, 2004, plaintiff filed a motion to vacate the judgment, stating plaintiff's counsel sent the decedent's medical records to Dr. Richard Illes, who was "unfortunately incarcerated" in Pennsylvania and was "difficult to communicate with" while in jail. The motion stated counsel received a July 14, 2003, letter from Dr. Illes suggesting the complaint be amended but the letter was not filed with the trial court. After defendant moved to dismiss, plaintiff filed the letter. The motion alleged defendant's motion to strike was mailed to plaintiff's local counsel "in violation of the rules" and while counsel was on vacation. The motion concluded plaintiff filed an acceptable certificate and report "one month late"
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