Cargill Challenges to Plaintiff s Complaint in Medical Malpractice Actions:

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1 Cargill Challenges to Plaintiff s Complaint in Medical Malpractice Actions: A Primer for the Defense Attorney By: Douglas J. Pomatto and Jill Rogers-Manning Heyl, Royster, Voelker & Allen Rockford No case in recent months has generated more legal activity by medical malpractice attorneys, plaintiff and defense lawyers alike, than the Fourth District Appellate Court case of Cargill v. Czelatdko, 353 Ill. App. 3d 654 (4th Dist. 2004). A flurry of motions to dismiss have been filed by defense counsel based on the Cargill decision, and each challenge to a plaintiff s complaint has been met by the plaintiff s counsel s creative arguments opposing the applicability and/or effect of the ruling. What follows is an attempt to outline rapidly changing developments in this area of the law and to provide the medical malpractice defense attorney with tools to support a Cargill motion to dismiss. Introduction On November 12, 2004, in Cargill v. Czelatdko, the Fourth District Appellate Court ruled that the Legislature s 1998 amendments to Section of the Illinois Code of Civil Procedure, otherwise known as P.A , resurrected the amendments to that section that had previously been found unconstitutional on the basis that the Section provisions were nonseverable from other code changes and therefore held unconstitutional by the Illinois Supreme Court in Best v. Taylor Machine Works, 179 Ill. 2d 367, 471 (1997). With P.A , Section of the Code of Civil Procedure continued to prescribe specific procedures that had to be adhered to by plaintiffs when filing a complaint alleging healing art malpractice, to wit: the filing of an attorney s affidavit and a report authored by a qualified reviewing health professional stating that the action is meritorious and setting forth the bases for that determination. Additionally, in what appeared to be clear language in the 1998 amendment, Section required that the report shall include the name and address of the health professional. 735 ILCS 5/2-622(a)(1) (West 2005). (Emphasis added.) Cargill confirmed that Section 2-622, as passed in P.A , meant what it said and upheld these requirements. The impact of the Cargill ruling is significant to healing art malpractice plaintiffs because many plaintiff attorneys have refused to comply with the plain language requirements of Section since the enactment of P.A Prior to Cargill, trial courts rarely enforced the plain language of Section 2-622, particularly the provision requiring the disclosure of the name and address of the reviewing health professional. The Fourth District Appellate Court in Cargill was not the first appellate court to comment on this issue. In 2002, the Second District Appellate Court, in Giegoldt v. Condell Medical Center, 328 Ill. Page 1 of 13

2 App. 3d 907 (2d Dist. 2002), stated that a plaintiff s report and affidavit would be insufficient in part if it failed to contain the health professional s address. And now, subsequent to the holding in Cargill, the Fourth District Appellate Court has upheld a trial court s dismissal with prejudice for a plaintiff s failure to comply with Section 2-622, citing, among other things, that the plaintiff s affidavit failed to contain the name and address of the health professional as required by Section 2-622(a)(1) of the Procedure Code. Cothren v. Thompson, 356 Ill. App. 3d 279 (4th Dist. 2005). Further, the First District has recently indicated in dicta, that Section requires the disclosure of the name and address of the consulting physician. In Beauchamp v. Zimmerman, the First District overturned the lower court s grant of a Section petition, in part, because the Plaintiff failed to comply with the requirements of Section by failing to file a physician s certificate of merit when he refiled his case after a voluntary dismissal. This was despite previously filing an unsigned certificate of merit in his initial action, explaining, because the report failed to include the name and address of the consulting physician, plaintiff s affidavit and report were insufficient to satisfy Section ILCS 5/2-622(a)(1) (West 2002) (The report shall include the name and address of the health professional.) Beauchamp v. Zimmerman, 2005 WL (Ill. App. 1st Dist, June 30, 2005). (Opinion published, but not yet officially released). In addition, just prior to the press date of this article, one trial court judge in Winnebago County ruled that the disclosure requirements of Section conflict with Supreme Court Rule 201. Further, there has been a motion to reconsider filed at the trial court level in the original Cargill action, following the dismissal with prejudice granted in that case, arguing that the legislation recently passed by both houses to amend Section (SB 475, discussed below) is evidence of the legislature s intent. Both prior to and after Cargill, plaintiff attorneys have argued that the legislative history of P.A fails to document the legislative intent of the General Assembly to resurrect the language struck down by Best, and thus the language was never resurrected. Other arguments submitted against finding that P.A resurrected the pre-best language include: (1) challenges to the constitutionality of Section 2-622; (2) the decision of Cargill is obiter dictum; (3) the Legislature, in passing P.A , failed to follow its own rules; (4) proposed legislation should be given weight; (5) the health professional is a Supreme Court Rule 201 consultant (a colorful variation of the separation of powers constitutional challenge); and (6) any relief sought by the defendant under Section for plaintiff s failure to comply should be less than an actual dismissal. Each of these arguments is discussed more fully below. The Cargill opinion created a multitude of motion filings in the trial courts by defense attorneys seeking dismissal for a plaintiff s failure to comply with the name and address disclosure requirement of Section In many jurisdictions, the term Cargill motion has become a term of art. In Cook County on April 21, 2005, Presiding Judge William D. Maddux entered an order consolidating the pending Cargill motions, challenging the sufficiency of reports on the grounds that the name and address of the health care professionals were missing. Additionally, all Cargill motions filed in Cook County are subject to special procedures to streamline the process, promote judicial economy, and create a system of consistent rulings in Cook County as of the preparation of this article. Given the statutory construction of Section used by the First District in Beauchamp, discussed above, it would seem to follow that the Cook County cases will adopt the same construction as Cargill and Beauchamp. Unlike Cook County, trial courts in northern Illinois have already had fully briefed and have ruled on the Cargill motions, granting those motions, and dismissing plaintiffs complaints but only without prejudice and usually allowing additional time (up to 90 days) to file an amended complaint and to make the necessary 2-622(a)(1) health professional disclosure. Page 2 of 13

3 Historical Background Section of the Illinois Code of Civil Procedure was originally enacted on August 15, It was amended in 1995 as part of the Civil Justice Reform Amendments of 1995 pursuant to the enactment of P.A In pertinent part, P.A amended Section to require the disclosure of the name and address of the health professional and to require the attorney filing the affidavit certify that he has not previously voluntarily dismissed an action based on the same or substantially the same acts, omissions, or occurrences. In 1997, certain core provisions of the Civil Justice Reform Act of 1995 were declared unconstitutional by the supreme court in Best v. Taylor Machine Works, 179 Ill. 2d 367, 471 (1997). The provisions amending Section were not considered by the court in Best but were declared void solely on the grounds of severability, not on their merits. As such, the General Assembly is free to reenact whatever provisions it deems desirable or appropriate. Best, 179 Ill. 2d at 471. The General Assembly once again amended Section in February 1998 by utilizing the pre-best version of Section (i.e., including language struck down by Best) and adding the words or naprapath to Section 2-622(a)(1) when it passed P.A Governor George Ryan signed P.A into law in May The plain language of Section 2-622, pursuant to the amendments of P.A , required the disclosure of the name and address of the health professional as well as the certification that the action has not been previously voluntarily dismissed. After initially passed, motions to dismiss were filed by defense counsel where the plaintiff failed to identify the name and address of the health professional. For some unknown reason, and despite the clear language of Section 2-622(a)(1), these motions were met with a lukewarm response from many judges. Many trial courts would simply not dismiss a plaintiff s complaint for lack of a 2-622(a)(1) disclosure, apparently buying into the various arguments made by plaintiffs counsel, not the least of which was the claim that the Legislature did not really mean to do what it did. Plaintiffs argued that all the trial courts had to do was review the legislative history of the passage of P.A , and they would see that there was no discussion about resurrecting pre-best language. As a result, in many jurisdictions, without any ruling at the appellate level that supported the disclosure provision of 2-622(a)(1), and in the face of numerous unfavorable rulings denying defense counsels motions to dismiss on the basis, these challenges to the lack of disclosure of the name and address of the plaintiff s health care consultant, fell out of favor. Cargill v. Czelatdko Finally, the statutory construction of Section 2-622, and particularly, the issue of whether P.A resurrected the pre-best language, was evaluated by the Fourth District Appellate Court in November 2004 in Cargill v. Czelatdko, 353 Ill. App. 3d 654 (4th Dist. 2004). In Cargill, the plaintiff originally filed a healing art malpractice action with an affidavit stating that counsel was unable to obtain the requisite health professional report as allowed by Section prior to the expiration of the statute of limitations. Based on the affidavit, the plaintiff was granted a 90-day extension to procure the health professional s report. The plaintiff then voluntarily dismissed his case prior to filing any health professional report as required by Section One year later, the plaintiff refiled his action for healing art malpractice without any health professional s report as required by Section 2-622, but his attorney did file an affidavit stating that he was unable to procure the health professional report required by Section The defendants filed Page 3 of 13

4 motions to dismiss based on a failure to comply with the language of Section as amended by P.A , which does not allow a plaintiff to file an original action without a physician s certificate of merit, followed by a voluntary dismissal and subsequent refiling without a certificate. The trial court in Cargill denied the defendants motions to dismiss but granted the defendants motion to certify three questions for review pursuant to Supreme Court Rule 308(a). The questions certified were: 1. Did P.A resurrect the amendments to [S]ection 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 [228 Ill. Dec. 636, 689 N.E.2d 1057 (1997)]? 2. If the response to the first question listed above is in the affirmative, then in a refiled healing art malpractice case, does the [c]ircuit [c]ourt have discretion pursuant to [S]ection 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 upon the same or substantially the same acts, omissions, or occurrences? 3. Assuming an answer in the affirmative to question [N]o. 1 above, and assuming that the [c]ircuit [c]ourt does not have discretion to waive this certification requirement mandated by [S]ection 2-622(a)(2), does the [p]laintiff s attorney s failure to provide the certification mandate dismissal of an action with prejudice under [S]ection 2-622(g)? Cargill, 353 Ill. App. 3d at 655. On appeal, the appellate court answered the first and third questions in the affirmative and answered no to the second question. In answering the first question and determining whether Section 2-622, as enacted by P.A , resurrected the amendments inserted by P.A. 89-7, the Fourth District made several presumptions based on prior supreme court rulings. First, the court presumed that the General Assembly knew about the Best ruling when it passed P.A : [W]here statutes are enacted after judicial opinions are published, it must be presumed that the legislature acted with knowledge of the prevailing case law. People v. Hickman, 163 Ill. 2d 250, 262 (1994). This presumption is particularly significant because the provisions of were not found to be independently unconstitutional in Best but were only held infirm on the basis of their nonseverability from the other core provisions that were held unconstitutional. The Cargill court found that the supreme court in Best explicitly emphasized that the General Assembly could reenact any of the provisions it deemed appropriate. Cargill, 353 Ill. App. 3d at 659, citing Best, 179 Ill. 2d at 471. Next, the Cargill court presumed that the Legislature was aware of the construction previously placed upon such law and by its reenactment to have intended that it should have the same effect. Cargill, 353 Ill. App. 3d at 659, citing Svenson v. Hanson, 289 Ill. 242, 248 (1919). Finally, the Cargill court presumed that the statute was constitutional as passed, citing People v. Wright, 194 Ill. 2d 1, 24 (2000). Cargill, 353 Ill. App. 3d at 660. The Cargill court considered the relevance of People v. Reedy, 186 Ill. 2d 1 (1999), which was cited by the plaintiff for the proposition that curative language or evidence that the amendment was intended was necessary to cure or validate defective legislation. The Cargill court promptly distinguished Reedy based on differences in the chronology of the legislative events and court opinions, as compared to the amendments to Section and their relation in time to the Best decision. The Cargill court further distinguished Reedy based upon the supreme court s explicit Page 4 of 13

5 invitation to the Legislature in Best to reenact provisions from P.A and the fact that the Section language at issue was never held unconstitutional in Best. Cargill, 353 Ill. App. 3d at 660. Conversely, the Cargill court agreed with the Second District s holding in Giegoldt v. Condell Medical Center, particularly the implicit recognition that P.A resurrected the portions of Section struck down by Best. Cargill, 353 Ill. App. 3d at 660. Finally, the Cargill court considered the plaintiff s argument that P.A could not have reenacted the language struck down by Best because the pre-best language had not been italicized, and such construction would violate Section 5 of the Statute on Statutes, which states: In construing an amendatory Act printed in any volume of the session laws published after January 1, 1969, matter printed in italics shall be construed as new matter added by the amendatory Act, and matter shown crossed with a line shall be construed as a matter deleted from the law by the amendatory Act. 5 ILCS 70/5. (West 2005). The Cargill Court considered this argument and disposed of it by determining that [S]ection 5 does not require italics for new matters to be valid. Cargill, 353 Ill. App. 3d at 660. The purpose of Section 5 is to clarify the procedures of the legislature, i.e., when italics are used, such items shall be construed as adding new matter by the amendatory act. 353 Ill. App. 3d at 661. In other words, when items are italicized, they are to be construed as new matter, but failure to italicize is not fatal to a legislative act adding new matter, or reenacting old matter. Therefore, the failure of the legislature to italicize the verbiage of the reenacted language does not invalidate the disclosure requirement, or any of the other language reenacted in P.A Life after Cargill Defense Positions Despite the clear and unambiguous ruling in Cargill, as well as the precedent of stare decisis, resistance by plaintiffs counsel continues against the disclosure requirement of Section 2-622(a)(1). With the Cargill decision in hand, defense counsel representing physicians, hospitals, and other healing art malpractice defendants have again taken up filing of challenges to plaintiff s health professional s report by way of a motion to dismiss based upon Section of the Illinois Code of Civil Procedure. In turn, plaintiffs have filed multifaceted responses to Cargill motions reiterating the positions originally argued and disposed of in Cargill and also presenting new arguments, including challenges to the constitutionality of Section What appear to be canned responses (i.e., virtually identical response briefs which propound the same or similar arguments) by plaintiff attorneys are being utilized throughout many jurisdictions in Illinois to attack the Cargill holding. One of defendants main arguments in support of the result in Cargill is that the clear and unambiguous language of Section eliminates the need to examine the legislative history. Plaintiffs have been citing the lack of supporting legislative history in the form of legislative debates as a basis for defying the precedent of Cargill. This argument must fail because the language of Section is clear and unambiguous. The supreme court has clearly set forth the guidelines for statutory construction. The supreme court, in discussing the objective and procedure for statutory construction, stated: Our primary objective in construing Section 1(D)(m) is to give effect to the intent of the legislature. The most reliable indicator of the legislature s intent is the language of the statute, which must be given its plain and ordinary meaning. Where the language is clear and unambiguous, it will be given effect without resort to other aids of construction. (Citations omitted.) In re D.F., et al., Minors (People of the State of Illinois v. Lashawn F.), 208 Ill. 2d 223, 229 (2003). Page 5 of 13

6 The supreme court elaborated on how legislative intent is to be determined in Benjamin v. Cable Programming Investments, 114 Ill. 2d 150, 157 (1986), stating: In determining legislative intent, consideration must be given to the entire statute, its nature, object, and purpose to be attained, and the evil to be remedied. However, if the intent of the legislature can be ascertained from the language of the statute itself, then that intent will prevail without resort to extrinsic aids for construction. (Citations omitted.) (Emphasis added.) Further, [w]here the language of a statute is plain and unambiguous, a court need not consider its legislative history. Envirite Corp. v. Illinois E.P.A., 158 Ill. 2d 210 (1994) (Emphasis added.). [A] court should not attempt to read a statute other than in the manner in which it was written. In applying plain and unambiguous language, it is not necessary for a court to search for any subtle or not readily apparent intention of the legislature. Envirite, 158 Ill. 2d at 217. Thus, the Cargill court properly followed the procedure set forth for statutory construction by first examining the plain language of the statute, and then and upon finding it to be unambiguous, by ending its inquiry. Aside from the Legislative history argument, plaintiffs have set forth numerous additional arguments in their responses to defendants motions to dismiss pursuant to Section The following are some of the defense responses to these arguments. 1. Section is Constitutional Attacks on the constitutionality of Section include allegations that the section violates due process, equal protection, and special legislation violations of the Constitution. The supreme court has consistently determined that the requirements are rationally related to the legitimate purpose of eliminating frivolous medical malpractice claims at the pleading stage and thus do not violate due process or equal protection. McAlister v. Schick, 147 Ill. 2d 84 (1992); see also DeLuna v. St. Elizabeth s Hospital, 147 Ill. 2d 57 (1992) (2-622 does not burden any fundamental right and does not implicate any suspect or quasi-suspect classification and survives the rational relationship test for due process, equal protection, and special legislation). Special attention is given to the constitutional attack based on separation of powers despite the Illinois Supreme Court s previous determination that the requirement of providing a health professional s report does not violate the separation of powers clause. See, McAlister v. Schick, 147 Ill. 2d 84, (1992); see also, DeLuna v. St. Elizabeth s Hospital, 147 Ill. 2d 57 (1992). To wit, in DeLuna, the court stated: [W]e do not consider that a health care professional performing the functions specified by Section is exercising a judicial function. Here, the health professional who must be consulted under Section does not exercise a judicial power. Rather, the health professional simply certifies that in his opinion the action has reasonable merit. Expression of that opinion does not become a judicial power simply because the failure to comply with the statute by submitting the certification of the health professional may result in dismissal of the action. DeLuna, 147 Ill. 2d at 69. The court in DeLuna found that the legislative enactment of Section did not encroach upon inherent judicial powers or conflict with any of our rules. Id. Based on the foregoing, the additional requirement of disclosing the name and address of the reviewing health professional is not sufficient to invoke a violation of separation of powers, as this requirement does not encroach on the inherent judicial powers and does not conflict with the court s rules. Page 6 of 13

7 Based upon these rulings alone, a trial court should spend little time with and should easily dispense with these constitutional challenges. 2. The Language of Cargill is not Obiter Dictum But Rather, Precedent In addition, allegations abound that the resurrection of the pre-best language in Section 2-622, which requires the disclosure of the health professional s name and address, is merely obiter dictum and is not binding on other courts. This argument is disingenuous. The Illinois Supreme Court, in Nudell v Forest Preserve District of Cook County, 207 Ill. 2d 409 (2003), described that there are two types of dictum: obiter dictum ( a remark or opinion uttered by the way ) and judicial dictum ( an expression of opinion upon a point in a case argued by counsel and deliberately passed upon by the court, though not essential to the disposition of the cause ). In Cargill, the ruling of the Fourth District on the issue of the proper statutory construction of Section as amended by P.A was essential to the disposition of the cause, and thus was not dicta of either variety. The parties in Cargill thoroughly briefed and argued the issue of the proper statutory construction. The Cargill court then determined that [w]hen the legislature passed Public Act , with the same language as in Public Act 89-7, we find the General Assembly intended it to have the same effect and was simply following the supreme court s pronouncement that desirable provisions could be reenacted. Cargill, 353 Ill. App. 3d at 660. Thus, the Cargill court specifically found that P.A resurrected the amendments to Section of the Illinois Code of Civil Procedure (inserted by P.A. 89-7) that had been found unconstitutional by the Illinois Supreme Court s decision in Best. Common sense requires that the holding in Cargill be applied to all of the resurrected portions of Section 2-622, and thus the ruling is not dicta. 3. The Court Cannot Invalidate Legislation Based on the Legislature s Failure to Follow its Own Rules Another argument cited by plaintiffs in opposition to the statutory construction provided by the Cargill court is that the Illinois Senate failed to follow its own rules of amendment when preparing P.A Each of the houses of the legislature has technical rules that are supposed to be followed for the amendment of statutes. For instance, Senate Rule 5-1(e) and House Rule 37(e) both require that amendments to statutes be indicated by underlining the additions and striking out the deletions. In the case of P.A , however, the only language underlined was or naprapaths. No language was stricken. Plaintiffs argue that the failure to strike the old language of Section 2-622, and to underline the reenacted portions of 2-622, is clear evidence of the legislative intent. However, courts do not have the authority to enforce the Illinois Senate Rules, nor can they invalidate legislation because the Senate did not follow its own rules. A court has the authority to invalidate legislation only when it violates a provision of the federal or state statute and cannot handle matters which in effect are attempts to overrule decisions of a legislative body based upon alleged failure to follow requirements imposed by that body itself. Durjak v. Thompson, 144 Ill. App. 3d 594, 596 (1st Dist. 1986), citing Chirikos v. Yellow Cab Co., 87 Ill. App. 3d 569, 574 (1st Dist. 1980). While Durjak dealt with the legislature s failure to follow a different internal rule (i.e., pertaining to the reading and printing of bills as well as other, similar internal procedural rules), the First District rejected the argument that the failure to follow those internal rules could not render the legislation at issue (the Income Tax Act) invalid or otherwise enforceable. Durjak, 144 Ill. App. 3d at 596. Similarly, the Legislature s failure to underline the reenacted portions of P.A or strike any older provisions is insufficient grounds for invalidating Section Page 7 of 13

8 4. Proposed Legislation Not Yet Signed by the Governor does not Invalidate the Clear Language of Section One of the primary arguments presented in the canned briefs by plaintiff s counsel involves utilizing the text of proposed legislation seeking to amend Section Examples of proposed legislation from various legislative sessions since the enactment of are appearing as exhibits attached to responses to Cargill motions. The most recent piece of proposed legislation offered as evidence of legislative intent is Senate Bill 475, which was passed by both houses on May 30, 2005, but which, at the time of this writing, had not been signed by Governor Rod R. Blagojevich. As discussed above, there are rules in the legislature for the amendment of laws. Under those rules, the legislator proposing a change in the law is supposed to take the text of the current law and show the modifications to it by underlining or striking out text to show new and deleted text. In several pieces of proposed legislation which advocate amendments to Section 2-622, the legislation proposed uses a hybrid version of Section 2-622, which includes the verbiage from P.A which includes naprapaths, but also incorporates the original text of the language of Section 2-622, i.e., the text which pre-dates the original amendments made by P.A. 89-7, (i.e. the language adding naprapaths is included, but it is inserted into the pre-p.a version). In addition, some of the legislation proposed attempts to reinsert the disclosure requirement back into this odd, hybrid version of Section The argument being advanced by plaintiff s attorneys is that the legislators themselves believe that the language was not enacted by P.A , as is evidenced by the failure to include the language added by P.A and in the proposed legislation, and further by the new attempts to re-introduce the measures back into the law. However, proposed legislation should not be given any weight because it cannot answer the question of legislative intent of previous General Assemblies. In Matsuda v. Cook County Employees and Officers Annuity and Benefit Fund, 278 Ill. App. 3d 378, 385 (1st Dist. 1996), the court responded to the submission of proposed legislation provided as extrinsic evidence of statutory construction by stating: We refuse to give any weight to proposed legislation that was not passed by Congress. Likewise, the proposed legislation proffered in this instance should be disregarded. Further, stare decisis requires compliance with the holding in Cargill. Simply put, the trial courts must follow the decisions of Cargill, Giegoldt and Cothren. At this point, at least two appellate courts, in three separate opinions, have stated that Section requires the disclosure of the reviewing health professional s name and address. Under the Illinois rule of stare decisis, a circuit court must follow the precedent of the appellate court of its district, if such precedent exists; if no such precedent exists, the circuit court must follow the precedent of other districts. Schramer v. Tiger Athletic Assoc. of Aurora, 351 Ill. App. 3d 1016, 1020 (2d Dist. 2004). The supreme court has indicated that the circuit court has no discretion in following the decision of the appellate courts: It is the absolute duty of the circuit court to follow the decisions of the appellate court. In re A.A., 181 Ill. 2d 32, 36 (1998). Based on the foregoing, it is clear that absent any contrary appellate decision, trial courts must follow the decisions of both the Fourth and Second Appellate Districts and find that P.A amended Section to require the disclosure of the reviewing health professional s name and address; that trial courts should rule the disclosure is mandatory and should dismiss plaintiffs complaints if the disclosure is not made. Page 8 of 13

9 5. The Reviewing Health Professional is Not a Consultant Pursuant to Supreme Court Rule 201(b)(3) A new and creative argument that seems to have caught the eye of some trial courts is the argument that the disclosure of the name and address of the health professional violates separation of powers because it encroaches upon the court s authority to supervise litigation, and, in particular, Section conflicts with the provisions of Supreme Court Rule 201(b)(3) with respect to nondisclosure of pure consultants. While a supreme court rule will prevail over a conflicting statutory provision, this is only the case when a statute directly and irreconcilably conflicts with a supreme court rule***. Real Estate Buyer s Agents v. Foster, 234 Ill. App. 3d 257, 260 (2d Dist. 1992). Further, the court must seek to reconcile the legislation with the judicial rule, where reasonably possible. Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 33 (2001). As discussed below, the different chronology of the litigation to which these provisions apply, as well as the supreme court s discussions on the role of the reviewing health professional, make it clear that the provisions can and should be reconciled. The purpose of Section is to require that a plaintiff, or his attorney, confer with a health care professional regarding the basic facts of his case prior to the filing of the case and to further require that the health care professional reviewing the facts submit a report as a prerequisite to filing a medical malpractice claim to discourage and eliminate frivolous healing art malpractice lawsuits in the early stages. Hobbs v. Lorenz, 337 Ill. App. 3d 566 (2d Dist. 2003). Section was clearly designed to act as a filter for frivolous healing art malpractice claims by requiring someone trained in the same branch of health care to review and deem that action meritorious before the action is filed. Section makes clear that it is a pleading requirement. The affidavit and reports must be attached to the original and all subsequent versions of the complaint. Thus, the affidavit and report are considered part of the complaint, not merely in the nature of discovery documents that can be supplemented periodically. Giegoldt v. Condell Medical Center, 328 Ill. App. 3d 907 (2d Dist. 2002). See also, McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill. 2d 188, 193 (1987) (Section is a pleading requirement, not a substantive defense.) Supreme Court Rule 201(b)(3), on the other hand, is part of the General Discovery Provisions of the Illinois Supreme Court Rules. Pursuant to this very supreme court rule, discovery cannot be noticed or otherwise initiated until the time that defendants have appeared or are required to appear unless leave of court is granted upon a showing of good cause. S. Ct. R. 201(d). Therefore, this Rule is not even applicable until after the requirements of Section are met. The basis for the claim is two references to derivations of the word consult in Section 2-622, namely, (1) the language requiring that the plaintiff s attorney, or the plaintiff, if filing pro se, file an affidavit declaring that the affiant has consulted and reviewed the facts of the case with a health professional***, and (2) the language requiring that the attorney certify on the basis of the reviewing health professional s review and consultation that there is a reasonable and meritorious cause for filing. (Emphasis added). 735 ILCS 5/2-622 (West 2005). However, nowhere in Section does the Legislature refer to the reviewing health care professional as a consultant but rather consistently refers to that person as a health professional. The supreme court has expressed that the reviewing health professional does not have to consider all of the evidence contemplated by plaintiff s counsel to be used at trial, nor would most of the evidence be available prior to the start of discovery. Sullivan v. Edward Hospital, 209 Ill. 2d 100 (2004). Further, as set forth in Supreme Court Rule 201(d), discovery is not even permitted until the time for defendants to appear has passed. S. Ct. R. 201(d) (West 2005). In fact, Section 2-622(a)(2) excuses the defendant from answering or otherwise pleading until 30 days after being served with the health care professional s report certifying the action as meritorious. 735 ILCS 5/2-622 (West 2005). Page 9 of 13

10 Therefore, the bulk of information available to any plaintiff for forming the basis of her strategy (i.e., deposition testimony, other extrinsic evidence) is not even available at the time during which plaintiff must consult with a health professional. Section and Supreme Court Rule 201(b)(3) are easily separated. Rule 201(b)(3) explicitly defines the term consultant : A consultant is a person who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial. The identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means. S. Ct. R. 201(b)(3). (West 2005). (Emphasis added). The consultant described above is different than the health care professional described in Section 2-622, whose opinions are mandatorily disclosed by operation of compliance with the statute. Taking plaintiff s argument to its logical (or illogical) end, even the opinions formed by the health professional would not be disclosed due this supposed conflict with Supreme Court Rule 201(b)(3), which in turn would obfuscate the intent and purpose of Section This makes no legal sense. Based on the supreme court s ruling in Sullivan, which requires only a threshold advisory opinion by the health professional, it seems clear that the supreme court does not consider the health care professional referenced in Section to be a consultant. In addition, Section requires the disclosure of the reviewing health professional s reasons for the reviewing health professional s determination that a meritorious cause for filing the action exists, which would, if this court were to accept this argument, also violate the provisions of Supreme Court Rule 201. As discussed in Sullivan, these reasons are not required to rise to the level of a substantive claim for medical malpractice, thus they cannot be held to rise to the level of work product protected by Rule 201. The supreme court explained the role of the health professional in DeLuna v. St. Elizabeth s Hospital: A consideration of the function performed by the health professional under Section in making the required certification demonstrates that his task in that regard is essentially no different from the function he is later called upon to perform at trial. In medical malpractice cases, the applicable standard of care and its breach must normally be established through expert testimony. Clearly, giving such testimony at trial does not constitute the exercise of a judicial function. By the same token, there can be no claim that requiring the submission of similar information when an action is filed operates as a delegation of judicial authority, improper or not. Section merely accelerates the time by which an expert opinion must be obtained. That Section requires the submission of a health professional s report even in cases in which expert testimony might not be necessary at trial merely reflects the Legislature s assessment of the statute s desired scope. DeLuna v. St. Elizabeth s Hospital, 147 Ill. 2d 57, 70 (1992). The supreme court does not refer to the health professional as a consultant but as a health professional, consistent with the language of Section Clearly, the supreme court recognized that a health professional s opinions are analogous to an expert s opinions, rather than a consultant s, due to the fact that it is necessary for the opinions of the health professional, as well as those of any experts, be disclosed at the time of pleading and prior to trial. Therefore, as the two provisions can be reconciled, Supreme Court Rule 201(b)(3) does not conflict with Section 2-622, thus making disclosure of the name of the health professional along with the health professional s reasons for determining that the action is meritorious required under Section 2-622(a)(1). Page 10 of 13

11 6. Granting a Cargill Challenge Requires Dismissal of Plaintiffs Complaint One of the more interesting aspects of the Cargill debate arises in the context of remedies sought by plaintiff attorneys refusing to comply with the disclosure requirement of Section Rather than conceding the remedy provided in the statute itself, or through the judicial interpretations of Section (i.e., dismissal of plaintiff s complaint), plaintiffs are routinely asking courts to design remedies to avoid the remedies at law. However, in a situation, the only remedy available to the court is dismissal pursuant to 735 ILCS 5/2-619, as provided for in 735 ILCS 5/2-622(g). The failure to file a certificate as required by this section shall be grounds for dismissal under Section ILCS 5/2-622(g) (West 2005). The remedy for failing to comply with Section is not discretionary. When the plaintiff fails to satisfy the requirements of Section 2-622(a)(1) of the Code, a dismissal is mandatory. Hull v. Southern Illinois Hospital Services, 356 Ill. App.3d 300 (5th Dist. 2005). While it may be within the discretion of the court to dismiss with or without prejudice, the court should base its decision on the particular circumstances of the case. See, Peterson v. Hinsdale Hospital, 233 Ill. App. 3d 327, 330 (2d Dist. 1992). In the attempt to avoid the reality of Section 2-622(a)(1), a whole generation of urban legends about defense attorneys and insurance companies has been spawned in the imaginations of plaintiff attorneys. Canned briefs and oral arguments are fraught with vague allegations of nameless vicious defense attorneys stalking, harassing, and intimidating poor defenseless reviewing health professionals, and the alleged behaviors are cited as a reason for gaining special court protections, such as submission of disclosures under seal or protective orders. For example, a paragraph in one of the canned briefs reads: If the name and address of Plaintiffs consultant/reviewing health care professional are provided to defendants and their insurance carrier, there is a substantial risk that the information will be used to adversely affect the practice of, and/or intimidate, the consultant physicians and Defendants, their counsel, and Defendants insurance company may use this information to gain undue advantage over Plaintiff s case and harass the reviewing health care professional. (Emphasis added.) Alternatively, anecdotes of evil insurance companies using the names of the health professionals for ill gain have been cited as a basis for orders of confidentiality. Like urban legends, these allegations are unfounded in fact and are lacking in any basis. Another remedy sought is the friendly contempt order. This is a mechanism that allows a party to refuse to comply with a discovery order when they dispute the propriety of that order. Friendly contempt orders are proper for discovery disputes. Upon receiving the friendly contempt order, a party may appeal the contempt order immediately and request a ruling from the appellate court. Here, the remedy is improper, as Section imposes pleading requirements. Thus, discovery sanctions are not applicable. In new medical malpractice cases filed by plaintiffs since the holding in Cargill and now that the Cargill decision has come down and the petition for leave to appeal has been denied, Cargill v. Czelatdko, 214 Ill. 2d 528 (2005), defense counsel should argue that nothing short of a dismissal with prejudice is warranted. This argument can be made now with the Cargill decision in hand, as the court has discretion to decide whether the dismissal should be with or without prejudice, and it cannot be said that the plaintiff did not have knowledge of the Cargill decision when the plaintiff placed a complaint on file with a health professional s report blatantly lacking the name and address of the health professional. Page 11 of 13

12 Plaintiffs Waiver Arguments and Defense Responses A Cargill challenge could also be filed in a pending case, but the challenge by defense counsel is made more difficult if the defendant has answered the complaint and/or has moved ahead with discovery. This situation was dealt with in the case of Gulley v. Noy, 316 Ill.App3d 861 (4th Dist. 2000). In Gulley, the plaintiff filed a healing art malpractice complaint against the defendant doctor and medical group and attached to it an affidavit stating that the plaintiff was unable to obtain a health professional s report prior to the tolling of the statute of limitations. Defendants filed an answer to the complaint in September The case proceeded in discovery until March 2000, when the defendants filed a motion to dismiss the plaintiff s complaint for failing to file any certificate of merit in compliance with Section The Gulley court ruled that the defendants, by answering the pleadings and proceeding with affirmative acts manifesting an intent to move the case forward, as well as failing to raise their objection for more than two and a half years, forfeited their right to move for dismissal pursuant to Section The Gulley court was quick to point out that merely answering the complaint would not necessarily result in a forfeiture of their rights and was careful not to draw any lines to delineate any specific point at which forfeiture would definitively result. While many plaintiffs are attempting to use the forfeiture argument in Gulley to quash a Cargill challenge on cases filed prior to Cargill, there are some strong defense responses that can be made to these attempts. First, prior to Cargill, many trial court judges were routinely not granting motions to dismiss based on failure to disclose the name and address of the reviewing health professional. At the time, no appellate court had specifically ruled on this issue. Secondly, Gulley makes it clear that merely filing an answer is not sufficient to raise the forfeiture issue. See also, Thompson v. Heydemann, 231 Ill. App. 3d 578, 581 (1st Dist. 1992) (filing an answer does not preclude the filing of a Section Motion to Dismiss unless there is a showing that the plaintiff is unfairly prejudiced). Also, it is important to remember that the Gulley decision was based on the defendants failure to timely object to the plaintiff s noncompliance in providing any report, a report required under every version of the law since its inception. Suffice it to say that the 2-622(a)(1) nondisclosure issue is a different situation than the issue in Gulley, and it is only with the recent and more definitive ruling in Cargill that defense attorneys and trial courts alike can have confidence in what the law requires on the disclosure issue. Conclusion Cargill has finally provided legal justification to the interpretation of Section that many defense attorneys have presented to various trial courts over the past several years. While the issues of legislative intent and constitutionality of Section have been presented as complex by the plaintiffs in these cases, it is clear that the plain and simple language of the amendments of P.A provide the best indicator of legislative intent. Further, Section is clearly a pleading requirement and should not be treated like discovery, nor should discovery provisions of the Supreme Court Rules apply. Section 2-622, as interpreted by Cargill, merely accomplishes the goals of the Legislature, goals that benefit all of society the elimination of frivolous suits against health care providers. Page 12 of 13

13 ABOUT THE AUTHORS: Douglas J. Pomatto is a partner in the Rockford office of Heyl, Royster, Voelker & Allen. He has spent his entire legal career with Heyl Royster, beginning in 1977 in the Peoria office. He became a partner in 1984 and was responsible for opening the firm s Rockford office in 1985 and has since been managing partner for that office. He concentrates his practice on areas of civil litigation. He represents insured and self-insured clients, especially in complex cases in the areas of medical malpractice, products, and professional liability. Mr. Pomatto is a past President of the IDC. He is also a member of DRI, the International Association of Defense Counsel and the Society of Trial Lawyers. Jill Rogers-Manning is with the Rockford office of Heyl, Royster, Voelker & Allen, where she concentrates her practice in the defense of medical malpractice litigation, particularly the defense of physicians. She is registered to practice before the United States Patent and Trademark Office and is a member of the Illinois State, Michigan State and American Bar Associations, Michigan Intellectual Property Association and American Intellectual Property Law Association. She received her B.S. in Chemistry and Biology from Rockford College in 1993 and her J.D.. from Northern Illinois University in Page 13 of 13