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Public Act 097-1145
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| HB5151 Enrolled | LRB097 18657 AJO 63891 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 1. Purpose. |
(a) In
Best v. Taylor Machine Works, 179 Ill.2d 367 (1997), |
the Illinois Supreme
Court held
that Public Act 89-7 was void |
in its entirety.
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In Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 |
(2010), the Illinois Supreme Court held that Public Act 94-677 |
was void in its entirety. |
(b) The purpose of this Act
is to re-enact
and repeal
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statutory provisions so the text of those provisions conforms |
to the decisions
of the Illinois
Supreme Court in Best v. |
Taylor Machine Works and Lebron v. Gottlieb Memorial Hospital.
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(c) Except as explained in subsection (h) of this Section |
1, this Act is not intended to supersede any Public Act of
the |
97th General
Assembly that
amends the text of a statutory |
provision that appears in this Act.
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(d) If Public Act 89-7 or Public Act 94-677 amended the |
text of a
Section included in this Act, the text of
the Section |
is shown in this Act with the changes made by those Public Acts |
omitted, as existing text
(without striking and underscoring), |
with the exception of changes of a substantive nature.
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(e) Provisions that were purportedly added to the statutes |
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by Public Act 89-7
and Public Act 94-677 are
repealed in this |
Act to conform to the decisions of the
Illinois Supreme Court.
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(f) If Public Act 89-7 or Public Act 94-677 purportedly |
amended the text of a
Section of
the statutes and that Section |
of the statutes was later repealed by another Public Act, the |
text of
that
Section is not shown in this Act. |
(g) This Act is intended to re-enact and repeal only those |
statutory provisions affected by Public Act 89-7 or Public Act |
94-677 which concern civil procedure for medical malpractice |
cases. |
(h) This Act also makes substantive changes to the Code of |
Civil Procedure unrelated to Public Act 89-7 or Public Act |
94-677, specifically by amending Sections 2-622 and 2-1114 and |
by adding Section 2-1306.
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Section 5. Section 2-622 of the Code of Civil Procedure is |
re-enacted and amended and Sections 8-1901 and 8-2501 of the |
Code of Civil Procedure are re-enacted as follows:
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(735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
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Sec. 2-622. Healing art malpractice.
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(a) In any action, whether in
tort, contract or otherwise, |
in which the plaintiff seeks damages for
injuries or death by |
reason of medical, hospital, or other healing art
malpractice, |
the plaintiff's attorney or the plaintiff, if the plaintiff is
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proceeding pro se, shall file an affidavit, attached to the |
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original and
all copies of the complaint, declaring one of the |
following:
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1. That the affiant has consulted and reviewed the |
facts of the case
with a health professional who the |
affiant reasonably believes: (i) is
knowledgeable in the |
relevant issues involved in the particular action;
(ii) |
practices or has practiced within the last
6 years or |
teaches or
has taught within the last
6 years in the same |
area of health care or
medicine that is at issue in the |
particular action; and (iii)
is qualified
by experience or |
demonstrated competence in the subject of the case; that
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the reviewing health professional has determined in a
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written report, after a review of the medical record and |
other relevant
material involved in the particular action |
that there is a reasonable and
meritorious cause for the |
filing of such action; and that the affiant has
concluded |
on the basis of the reviewing health professional's review |
and
consultation that there is a reasonable and meritorious |
cause for filing of
such action.
If the affidavit is filed |
as to a defendant who is a physician
licensed to treat |
human ailments without the use of drugs or medicines and
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without operative surgery, a dentist, a podiatrist, a |
psychologist, or a
naprapath,
the written report must be |
from a health professional
licensed in the same profession, |
with the same class of license, as the
defendant. For
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affidavits filed as to all other defendants, the written
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report must be from a physician licensed to practice |
medicine in all its
branches. In either event, the
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affidavit must identify the profession of
the reviewing |
health professional. A copy of the written report, clearly
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identifying the plaintiff and the reasons for the reviewing |
health
professional's determination that a reasonable and |
meritorious cause for
the filing of the action exists, must |
be attached to the affidavit, but
information which would |
identify the reviewing health professional may be
deleted |
from the copy so attached.
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2.
That the affiant was unable to obtain a consultation |
required by
paragraph 1 because a statute of limitations |
would impair the action and
the consultation required could |
not be obtained before the expiration of
the statute of |
limitations. If an affidavit is executed pursuant to this
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paragraph, the
certificate and written report required by |
paragraph 1 shall
be filed within 90 days after the filing |
of the complaint. The defendant
shall be excused from |
answering or otherwise pleading until 30 days after
being |
served with
a certificate
required by paragraph 1.
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3.
That a request has been made by the plaintiff or his |
attorney for
examination and copying of records pursuant to |
Part 20 of Article VIII of
this Code and the party required |
to comply under those Sections has failed
to produce such |
records within 60 days of the receipt of the request. If an
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affidavit is executed pursuant to this paragraph, the
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certificate and
written report required by paragraph 1 |
shall be filed within 90 days
following receipt of the |
requested records. All defendants except those
whose |
failure to comply with Part 20 of Article VIII of this Code |
is the
basis for an affidavit under this paragraph shall be |
excused from answering
or otherwise pleading until 30 days |
after being served with the
certificate
required by |
paragraph 1.
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(b)
Where
a certificate and written report are required |
pursuant to this
Section a separate
certificate and written |
report shall be filed as to each
defendant who has been named |
in the complaint and shall be filed as to each
defendant named |
at a later time.
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(c)
Where the plaintiff intends to rely on the doctrine of |
"res ipsa
loquitur", as defined by Section 2-1113 of this Code, |
the
certificate and
written report must state that, in the |
opinion of the reviewing health
professional, negligence has |
occurred in the course of medical treatment.
The affiant shall |
certify upon filing of the complaint that he is relying
on the |
doctrine of "res ipsa loquitur".
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(d)
When the attorney intends to rely on the doctrine of |
failure to
inform of the consequences of the procedure, the |
attorney shall certify
upon the filing of the complaint that |
the reviewing health professional
has, after reviewing the |
medical record and other relevant materials involved
in the |
particular action, concluded that a reasonable health |
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professional
would have informed the patient of the |
consequences of the procedure.
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(e)
Allegations and denials in the affidavit, made without |
reasonable
cause and found to be untrue, shall subject the |
party pleading them or his
attorney, or both, to the payment of |
reasonable expenses, actually incurred
by the other party by |
reason of the untrue pleading, together with
reasonable |
attorneys' fees to be summarily taxed by the court upon motion
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made within 30 days of the judgment or dismissal. In no event |
shall the
award for attorneys' fees and expenses exceed those |
actually paid by the
moving party, including the insurer, if |
any. In proceedings under this
paragraph (e), the moving party |
shall have the right to depose and examine
any and all |
reviewing health professionals who prepared reports used in
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conjunction with an affidavit required by this Section. |
(f)
A reviewing health professional who in good faith |
prepares a report
used in conjunction with an affidavit |
required by this Section shall have
civil immunity from |
liability which otherwise might result from the
preparation of |
such report.
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(g)
The failure
to file a certificate required by
this |
Section shall be
grounds for dismissal
under Section 2-619.
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(h) (Blank) This Section does not apply to or affect any |
actions pending
at the time of its effective date, but applies |
to cases filed on or
after its effective date.
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(i) (Blank) This amendatory Act of 1997 does not apply to |
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or affect any actions
pending at the time of its effective |
date, but applies to cases filed on or
after its effective |
date.
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(Source: P.A. 86-646; 90-579, eff. 5-1-98.)
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(735 ILCS 5/8-1901) (from Ch. 110, par. 8-1901)
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Sec. 8-1901. Admission of liability - Effect. The providing |
of, or payment
for, medical, surgical,
hospital, or |
rehabilitation services, facilities, or equipment by or on
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behalf of any person, or the offer to provide, or pay for, any |
one or
more of the foregoing, shall not be construed as an |
admission of any
liability by such person or persons. |
Testimony, writings, records,
reports or information with |
respect to the foregoing shall not be
admissible in evidence as |
an admission of any liability in any action of
any kind in any |
court or before any commission, administrative agency,
or other |
tribunal in this State, except at the instance of the person or
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persons so making any such provision, payment or offer.
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(Source: P.A. 82-280.)
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(735 ILCS 5/8-2501) (from Ch. 110, par. 8-2501)
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Sec. 8-2501. Expert Witness Standards. In any case in which |
the standard of
care
given by a medical
profession is at issue, |
the court shall apply the
following standards to determine if a |
witness qualifies as an expert witness
and can testify on the |
issue of the appropriate standard of care.
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(a)
Relationship of the medical specialties of the witness |
to the medical
problem or problems
and the type of treatment |
administered in the case;
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(b) Whether the witness has devoted
a
substantial portion |
of his or her
time to the practice of medicine, teaching or |
University based research
in relation to the medical care and |
type of treatment at issue which gave
rise to the medical |
problem of which the plaintiff complains;
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(c)
whether the witness is licensed
in the same profession |
as the defendant; and
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(d) whether, in the case against a nonspecialist, the |
witness can
demonstrate a sufficient familiarity with the |
standard of care practiced in
this State.
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(Source: P.A. 84-7.)
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Section 10. The Code of Civil Procedure is amended by |
changing Section 2-1114 and by adding Section 2-1306 as |
follows:
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(735 ILCS 5/2-1114) (from Ch. 110, par. 2-1114)
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Sec. 2-1114. Contingent fees for attorneys in medical |
malpractice
actions. |
(a) In all medical malpractice actions the total contingent |
fee
for plaintiff's attorney or attorneys shall not exceed 33 |
1/3% of all sums recovered. the following amounts:
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33 1/3% of the first $150,000 of the sum recovered;
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25% of the next $850,000 of the sum recovered; and
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20% of any amount recovered over $1,000,000 of the sum |
recovered.
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(b) For purposes of determining any lump sum contingent |
fee, any future
damages recoverable by the plaintiff in |
periodic installments shall be
reduced to a lump sum value.
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(c) (Blank) The court may review contingent fee agreements
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for fairness. In special circumstances, where an
attorney |
performs extraordinary services involving more than usual
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participation in time and effort the attorney may apply to the |
court for
approval of additional compensation.
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(d) As used in this Section, "contingent fee basis"
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includes any fee arrangement under which the compensation is to |
be
determined in whole or in part on the result obtained.
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(Source: P.A. 84-7.)
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(735 ILCS 5/2-1306 new) |
Sec. 2-1306. Supersedeas bonds. |
(a) In civil litigation under any legal theory involving a |
signatory, a successor to a signatory, or a parent or an |
affiliate of a signatory to the Master Settlement Agreement |
described in Section 6z-43 of the State Finance Act, execution |
of the judgment shall be stayed during the entire course of |
appellate review upon the posting of a supersedeas bond or |
other form of security in accordance with applicable laws or |
court rules, except that the total amount of the supersedeas |
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bond or other form of security that is required of all |
appellants collectively shall not exceed $250,000,000, |
regardless of the amount of the judgment, provided that this |
limitation shall apply only if appellants file at least 30% of |
the total amount in the form of cash, a letter of credit, a |
certificate of deposit, or other cash equivalent with the |
court. The cash or cash equivalent shall be deposited by the |
clerk of the court in the account of the court, and any |
interest earned shall be utilized as provided by law. |
(b) Notwithstanding subsection (a) of this Section, if an |
appellee proves by a preponderance of the evidence that an |
appellant is dissipating assets outside the ordinary course of |
business to avoid payment of a judgment, a court may require |
the appellant to post a supersedeas bond in an amount up to the |
total amount of the judgment. |
(c) This Section applies to pending actions as well as |
actions commenced on or after its effective date, and to |
judgments entered or reinstated on or after its effective date.
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(735 ILCS 5/2-624 rep.) |
(735 ILCS 5/2-1704.5 rep.) |
(735 ILCS 5/2-1706.5 rep.) |
Section 15. The Code of Civil Procedure is amended by |
repealing Sections 2-624, 2-1704.5, and 2-1706.5.
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Section 95. Applicability. The changes made by this |