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| [ Engrossed ] | [ House Amendment 001 ] |
90_HB0568
735 ILCS 5/2-622 from Ch. 110, par. 2-622
Amends the "Civil Practice" Article of the Code of Civil
Procedure. Provides that in a healing art malpractice
action, if an affidavit of consultation with a health
professional is filed as to a defendant who is a naprapath,
the written report determining that there is reasonable and
meritorious cause for filing the action must be from a
licensed naprapath. Makes this provision applicable to
pending actions. Effective immediately.
LRB9002737DJcd
LRB9002737DJcd
1 AN ACT to amend the Code of Civil Procedure by changing
2 Section 2-622.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Code of Civil Procedure is amended by
6 changing Section 2-622 as follows:
7 (735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
8 Sec. 2-622. Healing art malpractice.
9 (a) In any action, whether in tort, contract or
10 otherwise, in which the plaintiff seeks damages for injuries
11 or death by reason of medical, hospital, or other healing art
12 malpractice, the plaintiff's attorney or the plaintiff, if
13 the plaintiff is proceeding pro se, shall file an affidavit,
14 attached to the original and all copies of the complaint,
15 declaring one of the following:
16 1. That the affiant has consulted and reviewed the
17 facts of the case with a health professional who the
18 affiant reasonably believes: (i) is knowledgeable in the
19 relevant issues involved in the particular action; (ii)
20 practices or has practiced within the last 6 years or
21 teaches or has taught within the last 6 years in the same
22 area of health care or medicine that is at issue in the
23 particular action; and (iii) is qualified by experience
24 or demonstrated competence in the subject of the case;
25 that the reviewing health professional has determined in
26 a written report, after a review of the medical record
27 and other relevant material involved in the particular
28 action that there is a reasonable and meritorious cause
29 for the filing of such action; and that the affiant has
30 concluded on the basis of the reviewing health
31 professional's review and consultation that there is a
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1 reasonable and meritorious cause for filing of such
2 action. If the affidavit is filed as to a defendant who
3 is a physician licensed to treat human ailments without
4 the use of drugs or medicines and without operative
5 surgery, a dentist, a podiatrist, or a psychologist, or a
6 naprapath, the written report must be from a health
7 professional licensed in the same profession, with the
8 same class of license, as the defendant. For affidavits
9 filed as to all other defendants, the written report must
10 be from a physician licensed to practice medicine in all
11 its branches. In either event, the affidavit must
12 identify the profession of the reviewing health
13 professional. A copy of the written report, clearly
14 identifying the plaintiff and the reasons for the
15 reviewing health professional's determination that a
16 reasonable and meritorious cause for the filing of the
17 action exists, must be attached to the affidavit. The
18 report shall include the name and the address of the
19 health professional.
20 2. That the plaintiff has not previously
21 voluntarily dismissed an action based upon the same or
22 substantially the same acts, omissions, or occurrences
23 and that the affiant was unable to obtain a consultation
24 required by paragraph 1 because a statute of limitations
25 would impair the action and the consultation required
26 could not be obtained before the expiration of the
27 statute of limitations. If an affidavit is executed
28 pursuant to this paragraph, the certificate and written
29 report required by paragraph 1 shall be filed within 90
30 days after the filing of the complaint. The defendant
31 shall be excused from answering or otherwise pleading
32 until 30 days after being served with a certificate
33 required by paragraph 1.
34 3. That a request has been made by the plaintiff or
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1 his attorney for examination and copying of records
2 pursuant to Part 20 of Article VIII of this Code and the
3 party required to comply under those Sections has failed
4 to produce such records within 60 days of the receipt of
5 the request. If an affidavit is executed pursuant to
6 this paragraph, the certificate and written report
7 required by paragraph 1 shall be filed within 90 days
8 following receipt of the requested records. All
9 defendants except those whose failure to comply with Part
10 20 of Article VIII of this Code is the basis for an
11 affidavit under this paragraph shall be excused from
12 answering or otherwise pleading until 30 days after being
13 served with the certificate required by paragraph 1.
14 (b) Where a certificate and written report are required
15 pursuant to this Section a separate certificate and written
16 report shall be filed as to each defendant who has been named
17 in the complaint and shall be filed as to each defendant
18 named at a later time.
19 (c) Where the plaintiff intends to rely on the doctrine
20 of "res ipsa loquitur", as defined by Section 2-1113 of this
21 Code, the certificate and written report must state that, in
22 the opinion of the reviewing health professional, negligence
23 has occurred in the course of medical treatment. The affiant
24 shall certify upon filing of the complaint that he is relying
25 on the doctrine of "res ipsa loquitur".
26 (d) When the attorney intends to rely on the doctrine of
27 failure to inform of the consequences of the procedure, the
28 attorney shall certify upon the filing of the complaint that
29 the reviewing health professional has, after reviewing the
30 medical record and other relevant materials involved in the
31 particular action, concluded that a reasonable health
32 professional would have informed the patient of the
33 consequences of the procedure.
34 (e) Allegations and denials in the affidavit, made
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1 without reasonable cause and found to be untrue, shall
2 subject the party pleading them or his attorney, or both, to
3 the payment of reasonable expenses, actually incurred by the
4 other party by reason of the untrue pleading, together with
5 reasonable attorneys' fees to be summarily taxed by the court
6 upon motion made within 30 days of the judgment or dismissal.
7 In no event shall the award for attorneys' fees and expenses
8 exceed those actually paid by the moving party, including the
9 insurer, if any. In proceedings under this paragraph (e), the
10 moving party shall have the right to depose and examine any
11 and all reviewing health professionals who prepared reports
12 used in conjunction with an affidavit required by this
13 Section.
14 (f) A reviewing health professional who in good faith
15 prepares a report used in conjunction with an affidavit
16 required by this Section shall have civil immunity from
17 liability which otherwise might result from the preparation
18 of such report.
19 (g) The failure to file a certificate required by this
20 Section shall be grounds for dismissal under Section 2-619.
21 (h) This amendatory Act of 1995 does not apply to or
22 affect any actions pending at the time of its effective date,
23 but applies to cases filed on or after its effective date.
24 (i) This amendatory Act of 1997 applies to any actions
25 against a defendant who is a naprapath that are pending at
26 the time of its effective date.
27 (Source: P.A. 89-7, eff. 3-9-95.)
28 Section 99. Effective date. This Act takes effect upon
29 becoming law.