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Cothren v. Thompson3/14/2005
and without leave of court "due to the difficulty that was incurred in obtaining the letter due to Dr. Richard Illes's circumstances" and inadvertently placing the letter in the file rather than filing it with the court.
In February 2004, defendant filed a motion to strike plaintiff's motion to vacate the judgment, stating plaintiff did not present evidence that was not available before the judgment was entered and the affidavits in support of the motion violated Supreme Court Rule 191 (Official Reports Advance Sheet No. 8 (April 17, 2002), R. 191, eff. July 1, 2002). Defendant also filed a response to plaintiff's motion, stating plaintiff failed to show good cause for the failure to timely file the affidavit and written report.
In March 2004, the trial court conducted a hearing on plaintiff's motion to vacate the judgment. In a written order, the court found plaintiff's attorney inadvertently misfiled the letter from Dr. Illes and promptly filed it upon receipt of defendant's motion to dismiss. As defendant did not show substantial prejudice by the delay, the court found good cause to excuse the late filing. The court granted plaintiff's motion to vacate the judgment.
In May 2004, defendant filed a motion to reconsider. In June 2004, the trial court found (1) plaintiff failed to establish good cause pursuant to Supreme Court Rule 183 (134 Ill. 2d R. 183), (2) plaintiff waived the right to vacate the January 6, 2004, order because plaintiff failed to establish good cause for the failure to file the affidavit and written report prior to the entry of that order, and (3) plaintiff's attorney was guilty of a pattern of delay or inadvertence in failing to file the necessary documents within 90 days. The court vacated its March 2004 order and entered judgment in favor of defendant. This appeal followed.
II. ANALYSIS
Plaintiff argues the trial court abused its discretion in dismissing the complaint. We disagree.
The General Assembly passed section 2-622 to discourage frivolous lawsuits for medical malpractice and to eliminate such actions at an early stage. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139, 1142 (1992). Under section 2-622(a)(1), the plaintiff must attach a report from a qualified health professional stating he or she has reviewed the medical records and has determined in a written report "that there is a reasonable and meritorious cause for the filing of such action." 735 ILCS 5/2-622(a)(1) (West 2002). If unable to do so, the plaintiff must provide an affidavit under section 2-622(a)(2), "stating that the report cannot be procured prior to the expiration of the limitations period, in which case the plaintiff is given 90 days to procure and file the required documents." Hobbs v. Lorenz, 337 Ill. App. 3d 566, 569, 786 N.E.2d 260, 263 (2003).
Section 2-622 "should be liberally construed so that plaintiffs do not lose substantive rights merely because they have not strictly complied with the statute." Hobbs, 337 Ill. App. 3d at 569, 786 N.E.2d at 263. A plaintiff's failure to file a certificate shall be grounds for dismissal. 735 ILCS 5/2-622(g) (West 2002). However, a plaintiff's noncompliance with section 2-622 does not require the trial court to dismiss the action with prejudice. Ingold v. Irwin, 302 Ill. App. 3d 378, 383, 705 N.E.2d 135, 139 (1998). Instead, the court has the discretion to dismiss an action with or without prejudice. Ingold, 302 Ill. App. 3d at 383, 705 N.E.2d at 139. The court's decision to dismiss will not be reversed on appeal absent an abuse of discretion. Hobbs, 337 Ill. App. 3d at 569, 786 N.E.2d at 263.
In the case sub judice, plaintiff's July 2003 complai
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