appellant we're here to discuss a statute that the trial court and appellate court have never seen as my fact no one's seen it it's never been printed anywhere we had to assemble this all on our own  and i'm a little bit uncomfortable with that i'm also uncomfortable with the notion that the reasons that this court relied upon in granting our petition for all we know may no longer exist now the appellate court second district just recently just a few weeks ago addressed a similar case somewhat similar under section two to six twenty two trial court dismissed the case because the plaintiff had violated the ninety day deadline it went up on appeal the appellate court said well the law during the pendency of this appeal le bron came down to that the laws changed we declined to address the merits we're going to remand this to the circuit court to find out if there was just reason for the delay in filing the health professionals report now that would be one possible solution in this case right here i submit however what we've come a long way expended a considerable amount of thought and resources and i would hate to see an opportunity pass for coming up with something some enunciate or reaffirm certain fundamental principles that will apply not only to the current one nine hundred eighty nine version of today are six twenty two but would potentially assist i think there's that possibility a no no as matter of fact i would not say that it would be advisory if there was no statute in effect right now but right now you are called upon to interpret the nine hundred ninety nine modified version encourage them to reenact statutes that had been voided by that decision nevertheless i think that there are certain fundamental principles that apply to all versions of today or six twenty two now before we even get there though we have to determine whether or not our case is moot if the two thousand and five version of the entire basis of our suit here relies on a provision in today's six twenty two that required the plaintiff to file a report of a health professional licensed in the same profession as the defendant and in this case the defendant is a physical rehabilitation ist now now we're under the one nine hundred eighty nine version modified under the one nine hundred eighty nine version you are required only you are only required to file that specific type of health professionals report where the defendant is a physician licensed to treat ailments without the use of drugs or medicines and without operative surgery a dentist a podiatrist a psychologist or a napper path now plaintiff counsel pointed out accurately that the medical practice act defines those eighteen words as meaning one thing and means chiropractor and that's it and if we view this statute naturally extremely narrowly well it applies to chiropractors what we do not confess is that though that the statute should be read so narrowly the you look at code words code words are supposed to give you a way of describing something lengthy in a very short way here we have the opposite situation chiropractor is being described in eighteen words in question is why would anyone do that what possible purpose could that serve how it's been done in the medical practice act is there anything anything out there that suggests that the legislature intended that to apply to section two days six twenty two and i would submit that there is not i think that if the legislature intended to say chiropractor they would have said chiropractor they would say them's the statute is already as long as my arm why would they need to add further statutory construction stating that the particular words indicate the class of the general words extend the statute to anything within that class and we think that this is a reasonable interpretation of today's six twenty two that makes sense a that actually that interpretation well then the physical therapists are certainly included within this class physical therapist treat human ailments without operative surgery or or medicines now finally we have one last argument which is is there any substantive difference between a napper path and a physical therapist i've been to and happier path i don't know if any of you have anyone who's been to an i will submit that they i defy them to come up with any substantive difference between a physical therapist and an average fatha i think that to find this case move on these grounds  does us all a disservice only because it just simply doesn't make sense now and there's nothing in the record about napper path as it wasn't argued under that the trial court level isn't that correct no that's correct your honor of matter of fact at the trial court level it was anytime you make a claim against a individual you need to file a report with some from by someone with the same class of license dentist i i just don't see any other reasonable way of viewing the statute the and i think that we do a disservice by our if we go ahead and do this are we doing this before there's section six day two twenty two prior to the brom yes your honor and i think that you can take the facts and circumstances of this case and apply them to the pre liberal version i think that this court is capable of doing that the trial court has made its ruling as i pointed out it's certainly possible for this court to remain and to have the court review this in the first instance under the new statute the new quote old statute but it's certainly within this court's power to of rule in the first instance and i believe that  it can do so in should do so now the determination as to whether or not this case is moot is a issue of statutory interpretation it's reviewed under the standard of been over review the determination as to whether the trial court erred in dismissing a complaint for failure to comply with section two def six twenty two that is an entirely different standard that is abuse of discretion of the trial court's discretion no when talking about abuse of discretion i always refer to it's my favorite quote comes from judge easterbrook on the seventh circuit he was characterizing the ruling in the lower court and he said that was a reasoned and reasonable decision and therefore we will not disturb it had the charge ruled the other way we wouldn't to disturb that either that is what it means to have discretion and i believe that when you look at this case the trial court exercised his discretion he made a reasoned and reasonable determination had judge koori ruled the opposite way denied our motion to dismiss found professionals report to me that's an exercise of discretion and that's the this court opens its deference to i believe that the same principle applies to the decision that he did make he looked at a situation whe said this health professionals report cannot be cured by amendment it can only be cured by substitution an entirely new report and we're way past the deadline on this deadline expired some six months earlier that was a reasoned and reasonable determination entitled to deference if reasonable persons can differ as to the propriety of a trial court's action the rule is  that the reviewing court that that court has not committed an abuse of discretion no there is one other key difference between the statute currently in effect and the statute that we addressed in the lower courts and that's the phrase no further extensions will be allowed now that language is gone now we have a ninety day deadline  the question is this does it matter that the phrase no further no additional extended extensions will be allowed now that that's gone does that change anything i submit that it does not and for this reason  rs council never asked for an extension of time it never even came into play the what players council asked for was to amend his report basically amending his complaint and that is within the trial court's discretion to grant or deny another the court looked at this and said if you were just curing the facts in the complaint we'd have a different story but as it is he said this can only be cured by a wholesale substitution and in it is in its discretion he denied it my main argument here is actually not against plaintiffs counsel by argument as with the appellate court's decision every time i read that decision i come up with the same result is that if you have a potentially meritorious claim and no indication of bad faith the trial court abuses its discretion in refusing to allow an amendment to the health professionals report even if that's  court painted this with too broad a brush there casts to be some limit here the legislature set of ninety day limit it has to have some meaning well i'd like undercut i'm a tad confused but could you just help me maybe you touched on this by could you help me one more time we have a concurrence of course the opinion that said that the affidavit complied there was that there was no need for an additional affidavit correct that i believe so the argument here is that the statute required whatever form it's going to take a report from a health care professional license in the same profession and that's our problem right right now in your opening brief you suggest that price was sued his passes a physical therapist a professional the relationship here is between a nap and a physical therapist so which is it is the physical is he as is your argument that this statute is triggered because he's the same thing is now that or is it designed to delineate a large class of individuals not just dentists not just snap or pass it's anything similar to that and i believe that physical therapist easily fits that we need some kind of fact determination and to figure that out how do we how does a court sit here and determine whether this physical therapist falls into one of these kinds of categories the way you them i think that the statute speaks for itself i think that it's laying out general terms any physician any any health professional who and i stress i'm sorry but i don't have it memorized who treats human elements without the use of drugs medicines or without operative surgery that is a broad class of individuals and i physician licensed to treat human elements right right right that you're saying is that can you read to mean physical therapist yes i do and i do not believe physician should be read to say someone with a medical degree only because within the class are also included psychologists and that purpose neither one of whom have a medical degree i believe that this denotes a large class of which a physical therapist falls within and it is also and in further support of that i find i look at it as an issue of law and not fact i think that every court will be called upon to interpret as circumstances arise the massage therapist might be also fall within this this class are many different types of individuals that can fall within this class and it will be up to the individual courts to rule on that i don't think that it's possible to delineate a specific think of the beginning of your argument with run rant namely that you know this may not even be here anymore in the in the past of why we took the case until we since the iraq look brown decision it's interesting all brown decision came out in the context of the briefs the issue has been raised before this or with respect to the one nine hundred eighty nine birth right i mean i would that's your position yes the issue of the issue at least is in front of us in that route court decision that really didn't happen from i'm thinking about if we agree with you that we reverse the apollo court when their decision may have been sound under the two thousand and five that shoot it we vacate their decision if we agree with you and say well you know we're we're going to we can't even affirm on a different basis because they didn't even have that cases overturned it applies to a completely different statute what i do believe though is that the court can look at the current statute in effect right now compared to the facts of this case and recognize that judge koori made a  reasoned and reasonable decision that was not an abuse of discretion even under the statute as it is today court level at the very beginning under the statute at the time which had been in effect for cases that accrued within sixty days that time period if i file the wrong one i used the wrong author of the report and the attempts to correct it were denied and that's how we worked our way here now as we are here i completely agree with this concept being mind boggling because i have pages of my rate arguing and i didn't even know where this argument was going to go today so the only thing i want to specifically address is looking at this one thousand nine hundred statute the one that lists five categories the statutes very clear it has to fit into one of two things either you're one of the five categories of which the author has to be the same or your all others because it says as to all other defendants so those five categories one is the lengthy one a physician license to treat human ailments without the use of drugs or medicine and without operative surgery and you have dentist  trist psychologist and that propounds the legislature has denoted a specific list here and it consists of only five professionals this first one as i've pointed out in the briefs is the definition of a chiropractor found elsewhere in the statutes and there doesn't seem to be disagreement on and what i disagree on with with my opponent today is that you can use these to create broader categories of people that are not listed here because there is that other category as to all other defendants who are not one of these five now the only argument the defendants of the appellant's have today is just look at the definition itself you're going to have to say one two things you're going to have to call a physical therapist assistant if physicians do that a physician the definition also says ones but they can use them they're licensed to when directed to do so so there's two parts of that definition that a physical therapist the system clearly doesn't fit even if you ignore the fact that they're talking about a chiropractor in the first place now as for a nap or a path that that to me is the same thing this is also a licensed profession in the state of illinois there is a physical therapy act which defines these therapist's napper paths are defined elsewhere they have separate licenses so you can't say that they are part of the same thing or simply call the assistant in the upper path just like you can't call them a chiropractor although you thirtieth move you're ok with both is that a misdemeanor yes absolutely i believe and here's why that's the statute i was trying to comply with when i filed this in the first place i mean if i've reconstructed this hundred times in my mind why didn't i see that why didn't i know that we're sixty days past the date on this accrual that is the new statute i don't know i don't know why but what i did with dr coroner aisha's a report was i was filing the physicians report like you always had to file for someone that isn't one of those five categories i consciously went beyond trying to find a physical therapist assistant because in my mind the rules always the same you got to have a doctor so that's what happened but it was the wrong statute i was applying well i don't know which way the banks were though because now i'm i'm having to say that i didn't mess up in the first place i clearly did but now you know through this the way it's all worked out it wasn't a mistake because of the le bron decision the only thing i'd point out on this is this has been approached through cases before and i cited a few of them no one has ever interpreted this delineation of five professionals as putting a physical therapist in that category and the one case i think was the shanks case specifically addressed that saying yeah this doesn't make sense because then physical therapist you would need a doctor as well it was actually pointed out as one category of person that you wouldn't use another physical therapist sign over on with regard to the big picture here i do believe this is a moot point in the event that the abuse of discretion issue is something to be considered i set out a list of bullet points near the end of his brief suggesting that i had really gone a little bit too harshly on him and i agree i think that when you write a brief you are trying to  represent your client you are trying to build up steam trying to make your point as forcefully as you can and these comments which were interspersed fairly far apart in the brief one put together in a single paragraph really i thought were with much too broad a brush i think that it invites abuse of but in this case the point of bad faith i have no argument on that or no complaint against opposing counsel  whatsoever if there are no further questions from the court thank you very much we ask that you will uphold the trial course missal this case thank you very much thank you for your arguments that case number one zero nine two one down would be cooks and i believe