Full Text of HB2012 96th General Assembly
HB2012 96TH GENERAL ASSEMBLY
|
|
|
96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB2012
Introduced 2/18/2009, by Rep. Michael J. Madigan - Barbara Flynn Currie - John A. Fritchey SYNOPSIS AS INTRODUCED: |
|
735 ILCS 5/2-622 |
from Ch. 110, par. 2-622 |
|
Amends the Code of Civil Procedure. Makes a technical change in a Section concerning healing art malpractice.
|
| |
|
|
A BILL FOR
|
|
|
|
|
HB2012 |
|
LRB096 05450 AJO 15516 b |
|
| 1 |
| AN ACT concerning civil law.
| 2 |
| Be it enacted by the People of the State of Illinois,
| 3 |
| represented in the General Assembly:
| 4 |
| Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Section 2-622 as follows:
| 6 |
| (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
| 7 |
| Sec. 2-622. Healing art malpractice.
| 8 |
| (a) In any action, whether in
tort, contract or otherwise, | 9 |
| in which the
the plaintiff seeks damages for
injuries or death | 10 |
| by reason of medical, hospital, or other healing art
| 11 |
| malpractice, the plaintiff's attorney or the plaintiff, if the | 12 |
| plaintiff is
proceeding pro se, shall file an affidavit, | 13 |
| attached to the original and
all copies of the complaint, | 14 |
| declaring one of the following:
| 15 |
| 1. That the affiant has consulted and reviewed the | 16 |
| facts of the case
with a health professional who the | 17 |
| affiant reasonably believes: (i) is
knowledgeable in the | 18 |
| relevant issues involved in the particular action;
(ii) | 19 |
| practices or has practiced within the last 5 years or | 20 |
| teaches or
has taught within the last 5 years in the same | 21 |
| area of health care or
medicine that is at issue in the | 22 |
| particular action; and (iii) meets the expert witness | 23 |
| standards set forth in paragraphs (a) through (d) of |
|
|
|
HB2012 |
- 2 - |
LRB096 05450 AJO 15516 b |
|
| 1 |
| Section 8-2501; that
the reviewing health professional has | 2 |
| determined in a
written report, after a review of the | 3 |
| medical record and other relevant
material involved in the | 4 |
| particular action that there is a reasonable and
| 5 |
| meritorious cause for the filing of such action; and that | 6 |
| the affiant has
concluded on the basis of the reviewing | 7 |
| health professional's review and
consultation that there | 8 |
| is a reasonable and meritorious cause for filing of
such | 9 |
| action. A single written report must be filed to cover each | 10 |
| defendant in the action. As to defendants who are | 11 |
| individuals, the written report must be from a health | 12 |
| professional
licensed in the same profession, with the same | 13 |
| class of license, as the
defendant. For written reports | 14 |
| filed as to all other defendants, who are not individuals, | 15 |
| the written
report must be from a physician licensed to | 16 |
| practice medicine in all its
branches who is qualified by | 17 |
| experience with the standard of care, methods, procedures | 18 |
| and treatments relevant to the allegations at issue in the | 19 |
| case. In either event, the written report must identify the | 20 |
| profession of
the reviewing health professional. A copy of | 21 |
| the written report, clearly
identifying the plaintiff and | 22 |
| the reasons for the reviewing health
professional's | 23 |
| determination that a reasonable and meritorious cause for
| 24 |
| the filing of the action exists, including the reviewing | 25 |
| health care professional's name, address, current license | 26 |
| number, and state of licensure, must be attached to the |
|
|
|
HB2012 |
- 3 - |
LRB096 05450 AJO 15516 b |
|
| 1 |
| affidavit.
Information regarding the preparation of a | 2 |
| written report by the reviewing health professional shall | 3 |
| not be used to discriminate against that professional in | 4 |
| the issuance of medical liability insurance or in the | 5 |
| setting of that professional's medical liability insurance | 6 |
| premium. No professional organization may discriminate | 7 |
| against a reviewing health professional on the basis that | 8 |
| the reviewing health professional has prepared a written | 9 |
| report.
| 10 |
| 2.
That the affiant was unable to obtain a consultation | 11 |
| required by
paragraph 1 because a statute of limitations | 12 |
| would impair the action and
the consultation required could | 13 |
| not be obtained before the expiration of
the statute of | 14 |
| limitations. If an affidavit is executed pursuant to this
| 15 |
| paragraph, the affidavit and written report required by | 16 |
| paragraph 1 shall
be filed within 90 days after the filing | 17 |
| of the complaint. No additional 90-day extensions pursuant | 18 |
| to this paragraph shall be granted, except where there has | 19 |
| been a withdrawal of the plaintiff's counsel. The defendant
| 20 |
| shall be excused from answering or otherwise pleading until | 21 |
| 30 days after
being served with an affidavit and a report
| 22 |
| required by paragraph 1.
| 23 |
| 3.
That a request has been made by the plaintiff or his | 24 |
| attorney for
examination and copying of records pursuant to | 25 |
| Part 20 of Article VIII of
this Code and the party required | 26 |
| to comply under those Sections has failed
to produce such |
|
|
|
HB2012 |
- 4 - |
LRB096 05450 AJO 15516 b |
|
| 1 |
| records within 60 days of the receipt of the request. If an
| 2 |
| affidavit is executed pursuant to this paragraph, the | 3 |
| affidavit and
written report required by paragraph 1 shall | 4 |
| be filed within 90 days
following receipt of the requested | 5 |
| records. All defendants except those
whose failure to | 6 |
| comply with Part 20 of Article VIII of this Code is the
| 7 |
| basis for an affidavit under this paragraph shall be | 8 |
| excused from answering
or otherwise pleading until 30 days | 9 |
| after being served with the affidavit and report
required | 10 |
| by paragraph 1.
| 11 |
| (b)
Where an affidavit and written report are required | 12 |
| pursuant to this
Section a separate affidavit and written | 13 |
| report shall be filed as to each
defendant who has been named | 14 |
| in the complaint and shall be filed as to each
defendant named | 15 |
| at a later time.
| 16 |
| (c)
Where the plaintiff intends to rely on the doctrine of | 17 |
| "res ipsa
loquitur", as defined by Section 2-1113 of this Code, | 18 |
| the affidavit and
written report must state that, in the | 19 |
| opinion of the reviewing health
professional, negligence has | 20 |
| occurred in the course of medical treatment.
The affiant shall | 21 |
| certify upon filing of the complaint that he is relying
on the | 22 |
| doctrine of "res ipsa loquitur".
| 23 |
| (d)
When the attorney intends to rely on the doctrine of | 24 |
| failure to
inform of the consequences of the procedure, the | 25 |
| attorney shall certify
upon the filing of the complaint that | 26 |
| the reviewing health professional
has, after reviewing the |
|
|
|
HB2012 |
- 5 - |
LRB096 05450 AJO 15516 b |
|
| 1 |
| medical record and other relevant materials involved
in the | 2 |
| particular action, concluded that a reasonable health | 3 |
| professional
would have informed the patient of the | 4 |
| consequences of the procedure.
| 5 |
| (e)
Allegations and denials in the affidavit, made without | 6 |
| reasonable
cause and found to be untrue, shall subject the | 7 |
| party pleading them or his
attorney, or both, to the payment of | 8 |
| reasonable expenses, actually incurred
by the other party by | 9 |
| reason of the untrue pleading, together with
reasonable | 10 |
| attorneys' fees to be summarily taxed by the court upon motion
| 11 |
| made within 30 days of the judgment or dismissal. In no event | 12 |
| shall the
award for attorneys' fees and expenses exceed those | 13 |
| actually paid by the
moving party, including the insurer, if | 14 |
| any. In proceedings under this
paragraph (e), the moving party | 15 |
| shall have the right to depose and examine
any and all | 16 |
| reviewing health professionals who prepared reports used in
| 17 |
| conjunction with an affidavit required by this Section. | 18 |
| (f)
A reviewing health professional who in good faith | 19 |
| prepares a report
used in conjunction with an affidavit | 20 |
| required by this Section shall have
civil immunity from | 21 |
| liability which otherwise might result from the
preparation of | 22 |
| such report.
| 23 |
| (g)
The failure of the plaintiff to file an affidavit and | 24 |
| report in compliance with
this Section shall be
grounds for | 25 |
| dismissal
under Section 2-619.
| 26 |
|
(h) This Section does not apply to or affect any actions |
|
|
|
HB2012 |
- 6 - |
LRB096 05450 AJO 15516 b |
|
| 1 |
| pending
at the time of its effective date, but applies to cases | 2 |
| filed on or
after its effective date.
| 3 |
|
(i) This amendatory Act of 1997 does not apply to or | 4 |
| affect any actions
pending at the time of its effective date, | 5 |
| but applies to cases filed on or
after its effective date.
| 6 |
| (j) The changes to this Section made by this amendatory Act | 7 |
| of the 94th General Assembly apply to causes of action
accruing | 8 |
| on or after its effective date.
| 9 |
| (Source: P.A. 94-677, eff. 8-25-05.)
|
|