Public Act 90-0579 of the 90th General Assembly
Public Act 90-0579
SB120 Enrolled LRB9001516RCks
AN ACT to amend the Code of Civil Procedure by changing
Section 2-622.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Code of Civil Procedure is amended by
changing Section 2-622 as follows:
(735 ILCS 5/2-622) (from Ch. 110, par. 2-622)
Sec. 2-622. Healing art malpractice.
(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 proceeding pro se, shall file an affidavit,
attached to the original and all copies of the complaint,
declaring one of the following:
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 the reviewing health professional has determined in
a 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 without operative
surgery, a dentist, a podiatrist, or 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 affidavits
filed as to all other defendants, the written report must
be from a physician licensed to practice medicine in all
its branches. In either event, the affidavit must
identify the profession of the reviewing health
professional. A copy of the written report, clearly
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. The
report shall include the name and the address of the
health professional.
2. That the plaintiff has not previously
voluntarily dismissed an action based upon the same or
substantially the same acts, omissions, or occurrences
and 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 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.
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 affidavit is executed pursuant to
this paragraph, the 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.
(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.
(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".
(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
professional would have informed the patient of the
consequences of the procedure.
(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 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 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.
(g) The failure to file a certificate required by this
Section shall be grounds for dismissal under Section 2-619.
(h) This amendatory Act of 1995 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.
(i) This amendatory Act of 1997 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.
(Source: P.A. 89-7, eff. 3-9-95.)
Section 99. Effective date. This Act takes effect upon
becoming law.