Docke t No. 109321.



### IN TH E SUPREME COURT OF THE STATE OF IL LI NOI S

DONALD B. COOKSON, Appel l ee , v. TODD PRI CE et al. , Appellants.

Opinion filed Dece mber 23, 2010.

J USTI CE KARMEI ER delivere d the judgme nt of the court, with opinion. C h i ef J ustice Kilbride and J ustices Fr eema n, Thomas, Gar

man, Bur ke, and T heis conc urre d in the judgme nt and opinion.

OP INION This court grante d leave to appea l in this case in order to deter mine whether section 2–622 of the Code of Civil Procedur e (735 I L CS 5/2–622 (West 2008)) require s the filing by plaintiff of a health profe ss i o n al ’s repor

t of the exact class as the defe ndant within the first 90 day s afte r the fili ng of the comp l aint

. On October 25, 2007, plaintiff here in, Donald Cookson, filed a two-count complaint alleg ing medical malprac tice on the part of a phy sical therapy assistant, defe ndant Todd Price, and his employer, defe ndant Institut e of Phy sical Medicine and Rehabilitation. Plaintiff’s attorney attache d

an aff idavit to the complaint stating that he was unable to obta in the consul t ati on with a medical profe ssional require d by section 2–622(a) (1), befor e the expiration of t h e s t atut e of limit ations, but would file the written repor t within 90 day s after t h e filing of thecomplaint. See 735 I L CS 5/ 2–622(a) (2) ( West 2008). On J an u ary 28, 2008 plaintiff’s attorney filed an aff idavit and written report including the signature of Dr. J eff rey Kornrie ch, a phy sician specia liz ing in phy sical medicine and rehabilitation. Def enda n t s moved to dismiss , claiming that plaintiff’s health profe ssional repor

t was require d to be authore d by a phy sical thera py assistant like Price, rathe r t han a phy sician. The version of section 2–622 in eff

ect at th e t ime require d: “As to defe ndants who are individuals, the written repor t must be from a health profe s s i o nal licensed in the same profe ssion, with the same class of license, as the defe ndant.” 735 I L CS 5/2–622(a)( 1) (W est 2008). P l ai ntiff i nitially challeng ed the motion to dismiss b u t , u ltimately , on July 18, 2008, filed a motion to file an amende d aff idavit of attorney which included

a new health profe ssional’s repor t writt en by a phy sical thera py assistant, J im Modg lin. De fenda nts obje cted to the motion to file an amende d aff

idavit beca

use it came more than 90 day s afte r the exp ira ti o n o f p lain

ti f f ’ s first 90-day extension. Def endants argued that only one extension is available to a plaintiff pursuant to section 2–622(a) (2). The trial court grante d defe ndants’ motion to dism iss. The appellate court reve rsed, finding , inter alia , that a trial court may grant leave to file an amende d complaint with a n ew af fidavit and health profe ssional’s repor t, and that here the purpose of section 2–622 would not be frustrated by allowing plaintiff to do so. 393 I ll. App. 3d 549. Def

endants filed a petition for leave to appea l from the appellate court’s decision, which this court granted on J anuar y 27, 2010. Howeve r, on Februar y 4, 201 0 , th i s court filed its opinion in Lebron v. Gottlieb Mem orial Hos pital , 237 I ll. 2d 217, 250 (2010), holding Public Ac t 94–677, containing the version of section 2–622 at issue here , unconstitutional on grounds unrelated to section 2–622. Be cause P ub l i c Act 94–677 contained a nonsever ability provision, this court held the Ac t “invalid and void in its entirety .” Id. The eff ect of decla

ring a statute unconstitutional is to reve rt to the statute as it exis ted befor e the amendment. People v. Gersch , 135 I ll. 2d 384, 390 (1990). Thus, following Lebron , section 2–622 reve rted to the p ri o r version that went into eff ect in May 1998, Public Act 90–579. Howeve r, in O’Casek v. Children’s H

ome & Aid Society of Illinois , 229 I ll. 2d 421, 424-25, 450 (2008), this court found that the only eff ect of Public Act 90–579 was to add napra paths to a list o f

-2-health profe ssionals set forth in the pre- 1995 vers i o n o f section 2–622(a) (1). Thus, except for the napra path languag e, the statute now rea ds as it did when amende d in 1989 by Public Act 86–646. Id. ; 735 I L CS 5/ 2–622 (West 1994). Be cause the version of section 2–622 in e ffe ct at the time of this appea l is void, the rea sons upon which this court relied in granting leave to appea l no longe r exis t. See I ll. S. Ct. R. 315(a) (ef f. Oct. 15, 2007). Ac co rd i ng ly , as “a matter of sound judicial discretion,” we now decline to addre ss the merits of the s ub s t an t ive issue raised here in (I ll. S. C t

. R. 315(a) (ef f. Oct. 15, 2007)) and dismiss this appea l. Howeve r, we believe the parties should ha ve an opportunity to argue t h e question of how the curr ent version of section 2–622 applies to the fac ts of this case. There fore , in the exercise of our supervisory authority , the appellate court is direc ted to vacate its judgme nt; this cause is rema nded to the circ uit court of Tazewe ll County to vaca

te its ord er granting defe ndants’ motion to dismiss plaintiff’s complaint, and for further proce eding s to deter mine whether plaintiff’s plea dings meet the curr ent require ments of section 2–622.

Appea l dismi ssed; supervisory

order enter ed.

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