## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Fox v. Gauto , 2013 IL App (5th) 110327

Appellate Court Caption RI CKI E FOX and RUTH FOX
, Plaintiff-Appellee s, v. SUZ ANNE GAUTO
, Ex ecutor of the Estate of Nelson Gauto, Dec ease d, DefendantAppellant.

District & N o. Fifth District Docke t No. 5-11-0327

Filed September 5, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an appea l involving three cer tified quest i o n s ar ising from a medical malprac tice action i n which plaintiffs initially filed a complaint and a

cer tificate of merit stating that there was no meritorious basi s for the claim, and six month s l at er soug ht to file an amende d complaint and

cer tificate, the appellate court answe red the questions by first stating that the “pre judice to the o p p o s i n g party” standard, rathe r than the “g ood

cause ” standard, s h o u ld be applied in deter mining whether the amendments should be allowed, then stating that t he question as to whether the trial court had the discr etion to find “g ood cause ” for filing

a late amende d cer

tificate was ren d er ed m oot by the finding that the “pre judice to the oppos in g p a

r ty” standard applied, and thirdly stating that the trial court had the discretion to find “no prejudice ” to defe ndant from the late a mendments.

Dec ision Under Review Appea l from the Circuit Court of Wil liamson County
, No. 10-L -122; the Hon. B rad K . Ble yer, Judge , presiding

.J udg ment Certified que stions answere d; cause rema nded.

Counsel on Appea l Charles E. Schmidt, of Br andon, Schmidt & Goffine t, of Carbondale
, for appellant.

J ohn Womi ck, of Womick L aw F irm, Chtrd., of Her rin, for a ppellees.

Panel J USTI CE STEWAR T delivere d the judgme nt of the court, with opinion.
J ustices Wex stten and Cates c oncurr ed in the judgment and opinion.

OP INION

¶ 1 This interlocutory appea l, brought pursuant to I llinois Supreme Court Rule 308 (ef f. Fe b. 26, 2010), arises from a medical malprac tice case filed by the plaintiffs, Rickie Fox and Ruth Fox. The questions cer

tified by the circ uit court are related to the statutory require ment that

a medical malprac tice complaint include an aff idavi t of merit and a doctor’s repor t. Specifica lly
, section 2-622(a)(1) of the Code of Civil Procedur e (the Code) require s that in
any action alleg ing medical malprac tice, the plaintiffs must file an aff idavit a ttached to the complaint that states that they have or their attorney has consulted with a health profe ssional in whose opinion there is a “re asonable and meritorious cause ” for the fil ing of the action. 735 I L CS 5/2-622(a) (1) (West 2010). In addition, section 2-622(a )(1) require s the plaintiffs
to file the written repor

t of the health profe ssional along with the complaint and aff idavit of merit. ¶ 2 T h e circ uit court cer tified three questions of law related to section 2-622 on which i t found that there wer e substantial grounds for a differ ence of opinion and that the answe rs to the questions might materia lly advanc e the termination of the lit i gat ion. The cer tified questions are as follows:
“A. Where plaintiff files a Complaint with Certificate of Merit stating there is n o meritorious basis for filing a medical malprac tice claim, and then nearly six (6) months lat er seeks to file an Amended Complaint and an Amended Certificate of Merit disclosing the basis for the ‘e rroneous’ cer tificate, should the Court apply the ‘g ood

cause ’ st andar d for late fi l i n g o f a cer tificate pursuant to Section 2-622 of the C ode of Civil Procedur e, or the ‘pre judice to opposing party ’ standard for amending a Complaint in d eter mining whether to allow the filing of the Amended Complaint and the new Certificate of Merit?
B. Where plaintiff files a Complaint with Certificate of Merit s t ating there is no meritorious basis for filing a medical malprac tice claim, and then nearly six (6) months

-2-later, seeks to file an Amended Complaint and a new Certificate o f M erit asser ting a meritorious claim, does the Trial Court have discretion to find ‘g ood cause ’ to permit the late filing of a new Certificate of Merit under the provisions of the Co d e o f Civil Procedur e, Section 2-622?
C. Where plaintiff files a Certificate of Merit stating there is no meritorious basis for filing a medical malprac tice claim, and then ne arly six (6) months later se eks to file an Amended Complaint and Amended Certificate of M er i t asser ting a meritorious claim, does the Court have discretion to find ‘no prejudice ’ to the defe ndant to permit the filing of an a mendment under

those circ umstances? ” (Empha sis in original.) ¶ 3 We grante d the defe ndant’s reque st f or an interlocutory appea l f or this c ourt to addre ss the cir cu it court’s cer

tified questions of law. We beg in our discussion of the cer tified questions with a brief outline of th e proce dural history leading up to the circ uit court

cer tifying the questions.

¶ 4 BA CKGROUND ¶ 5 When the plaintiffs filed their medical malprac tice complaint, the complaint included the affidavit of their attorney that is require d by section 2-622 of the Code. The plaintiffs’ attorney stated in his aff

idavit that a health profe ssional “has deter mined in a written repor

t,

a copy of which is attache d, *** that there is a rea sonable and meritorious cause for the filing of such action.” A doctor’s repor t was attache d to the attorney ’s aff idavit that was authore d by Dr. M. V. Altug. Contrary to the attorney ’s aff idavit, howeve r, Dr. Altug conclude d in his
repor t as follows: “B y the revie w of the pathology repor ts and the surg ical proce dure rec ords, Ican not se e any

manag ement proble ms in thi s case .” ¶ 6 The defe ndant moved to dismiss the plaintiffs’ complaint on the ground that Dr. Altug ’s
repor t did not satisfy the requirements of section 2-622 of the C ode because Dr. Altug di d
not op i n e t h at t h ere is a “re asonable and meritorious cause ” for the filing of the action. Instead, he did “not see any manag ement problems in this case .” After the defe ndant moved
to dismiss the plaintiffs’ complaint, the plai n t i ff s fi l ed a motion for leave to amend their complaint. Specifica lly
, the plaintiffs soug ht leave to amend their complaint to attach a new repor t from a differ ent phy sician, Dr. Ralph Kelley

. In his repor t, Dr. Kelley opined that, to

a rea sonable degree of medical cer tainty
, the plaintiffs had a meritorious cause of action. The defe ndant objecte d to the motion for leave to amend the c omplaint with thi s new report. ¶ 7 The circ uit court denied the plaintiffs’ re qu es t to amend their complaint to attach D r. Kelley ’s repor

t and grante d the defe ndant’s reque st to dismiss the plaintiffs’ complaint with prejudice

. In its docket entry dismiss ing the complaint, the cour t wrote that the “def

endant in the instant case would clea rly be prejudice d if the amende d complaint wer e allowed.” The court he ld that section “2-622 is not so broa d as to allow the amendment in this case.” ¶ 8 The plaintiffs filed a motion to rec onsider the dismiss al of their complaint. The plaintiffs’ attorney stated in an aff

idavit attache d to the motion to re co n s i der that he had initially consulted with Dr. Altug concerning the facts of the c ase and that Dr. Altug i ndicated that he believed that “ther e was a violation of the standard of car e.” Ba sed on this c onsultation, the plaintiffs’ attorney submitt ed a draf t of a repor

t to Dr. Altug. Howeve r, when Dr. Altug

-3-revie wed medical records relevant to the pl aintiffs’ claim of m alpra ctice, either he did not

have all of the medical rec ords t hat were relevant to the plaintiffs’ claim or he overlooke d

some of the relevant medical rec ords. Afte r re viewingonly part of the medical recor ds, he conclude d that “ther e had been proper manag ement,” and he p re p ar ed a repor t consistent with this conclusion. The plaintiffs’ attorney stated in his aff i d av i t t h at this repor

t was “ac cidently

filed” w ith the complaint. The plaintiffs’ attorney explained that he was out of
town for depositions in an unre lated ca se whe n Dr. Altug delivere d his r eport to his office

. The attorney , believing that the repor t was consistent with his previous consultation with the doctor, told his ass i s t an t t o file the repor t along with the complaint “base d on the false assumption that the report wa s the one whic h had bee n sent to Dr. Altugin draft f orm.” ¶ 9 Sometime afte r the complaint was filed, Dr. Altug conducte d another revie w of all of the medical rec ords that wer e rele vant to the plaintiffs’ medical malprac tice claim, including the

rec ords he did not previously revie w. He then came to the co n cl u s i on that there was a violation of the appropriate standa rd of c are . The plainti ffs’ motion to rec onsider included the aff idavit of Dr. Altug in which he states, “[A]fter having revie wed all the rec ords it is my opinion, to a rea sonable degree of medical cer tainty
, that a meritorious cause of action exis ts ag ainst Dr. Ga

uto pertainingto the car e he pr ovided to Mr. Fox.” ¶ 10 T h e p l ai n t iffs asked the court to rec onsider the dismiss al with prejudic e. I n t h ei r memorandum of law in support of the motion to rec onsider, the plaintif fs argued that the
court “should rec onsider its order and allow the a

mendment by

the filing of one of the two

corr ect reports of a healthcar e professional.” The circ uit court agree d and entered an order
granting the motion to rec onsider as follows: “The [pl aintiffs’] Motion to Reconsider is here by GRANTED, the Attorn ey Affidavit and Hea lth Professional Report executed in compliance with 735 I L CS 5/ 2-622 ar e her eby filed instanter .” ¶ 11 The defe ndant then filed a motion re questing the circ uit c ourt, pursuant to Rule 308, to

cer tify the three questions of law quoted above. The circ uit court cer tified the questions, and
we grante d the def

endant’ s application for this interlocutory appea l to answe r the ce rtified questions.

¶ 12 DI SCUS SI ON ¶ 13 Be cause the appea l involves cer tified questions of law pursuant to Supreme Court Rule 308, our revie w is de novo

. In re M.M.D.
, 213 I ll. 2d 105, 113, 820 N.E.2d 392, 398 (2004).

¶ 14 I

. ¶ 15 Section 2-622 of the Code ¶ 16 Section 2-622 of the Code, commonly known as the Hea ling Arts Malprac tice Act, was designed to e liminate frivolous medical malpra ctice lawsuits at the pleading stag e. Lyon v. Hasbro Industries, Inc.
, 156 I ll. App. 3d 649, 655, 509 N.E.2d 702, 706-07 (1 987). It require s that the merits of a plaintiff’s medica l malprac tice case be presc ree ned by another medical profe ssional in the field. W alter v. Hill
, 156 I ll. App. 3d 708, 710, 509 N.E.2d 804, 806 (1987).

-4-¶ 17 In order to promote the purpose of section 2-622, t h e gen er al rule “is that the re quired

consultation with a health profe ssional m u s t o ccur befor e the complaint is filed and the require d documents cer

tif y i n g t he meritoriousness of the action must be filed with the complaint.” Premo v. Falcone
, 197 I ll. App. 3d 625, 631, 554 N.E.2d 1071, 1076 (1990). To achie ve thi s purpose, s ec t i o n 2-622(a )(1) require s the pl aintiff to attach to his complaint a repor t from a health profe ssional stating that the profe ssional has re v i ewe d the plaintiff’s medical rec ords and believes that the plaintiff has a rea sonable and meritoriou s ca u s e o f action. 735 I L CS 5/2-622(a) (1) (West 2010). I n ad dition, the plaintiff must also file an aff idavit that states that he, or his counsel, discussed the case with the health profe ssional and that there is merit to the medical malpra ctice c laim. Id. ¶ 18 Section 2-622 provides two exceptions to this g ener al rule. These two exceptions allow

a plaintiff to file a c omplaint without having first obtained a repor t f rom a phy sician. First,

u n d er section 2-622(a )(2)
, the plaintiff may file an aff idavit along with the complaint th at states that a phy sician’s repor t could not yet be obtained and that the complaint is being filed
any way beca use the statute of limit ations is about to expire. 735 I L CS 5/2-622(a) (2) (West 2010). Unde r these c ircumstance s, the plaintiff then ha s 90 day s in which to file the report and the aff

idavit require d by section 2-622(a )(1)

. Id. Second, under section 2-622(a )(3)
, the plaintiff may file an aff

idavit that indicates that the medical rec ords nece ssary to prepa re the
repor t have been reque sted but not yet rec eived. 735 I L CS 5/2-622(a) (3) (West 2010). Under
t hese circ umstances, the plaintiff then has 90 day s to file the repor t and t h e af

fi d av i t following rec eipt of the reque sted rec ords. These two exceptio n s t o t he g ener al rule have bee n d escribed as “saf

ety valves” that permit the late filing of the aff idavit and repor

t require d by section 2-622(a )(1)

. W hamon d v. McG ill
, 168 I ll. App. 3d 66, 70, 522 N.E.2d 211, 214 (1988). ¶ 19 Section 2-622(g ) states that “[t] he failure to file a cer tificate require d by this Section shall be grounds for dismiss al under Section 2-619.” 735 I L CS 5/2-622(g ) (West 2010). Although the statute allows a dismiss al with prejudice for failure to file a cer tificate, a dismiss al with prejudice is not require d. McCastle v. Mitchell B. Sheinkop, M.D., Ltd.
, 121 I ll. 2d 188, 192, 520 N.E.2d 293, 295 (1987). Instead, a trial court has discre tion in determining whether to dismiss an action due to a plaintiff’s failure to comply with the require ments of section 2-622
or, alternatively
, allow amendments to the pleading s in order to bring them into compliance with the statute. Cammon v. W est Suburban Hospital Medic al Center
, 301 I ll. App. 3d 939, 949, 704 N.E.2d 731, 739 (1998); Premo v. Falcone
, 197 I ll. App. 3d 625, 630, 554 N.E.2d 1071, 1075 (1990) (leg islature “intended to allow the trial court to have th e d i scre tion to permit plai n t i ff t o amend the complaint to add an aff idavit which was inadver tently omitted”). ¶ 20 In discussing a trial court’ s exercise of disc retion in deter mining whether

to dismi ss or allow the plaintiff to amend, revie wing courts have emphasized that the trial court’s exercise of discre t i o n m ust be viewed in relation to the purpose of the statute, which is to deter frivolous medical malprac tice lawsuits at an early stag e. Leask v. Hinrichs
, 232 I ll. App. 3d 332, 339, 595 N.E.2d 1343, 1347 (1992). It is not meant to be a substantive defe nse to a meritorious claim. Cookson v. Price
, 393 I ll. App. 3d 549, 554, 914 N.E.2d 229, 233 (2009). There fore
, “a medical malprac tice plaintiff should be aff orded ever

y rea sonable opportunity

-5-to establish his case .” Hansbrough v. Kosyak
, 141 I ll. App. 3d 538, 549, 490 N.E.2d 181, 188

(1986). “[A]m endments to pleadings ar e to be liberally allowed to enable medical malprac tice actions to be decide d on their merits rathe r than on proce dural technica lities. The
test is the further ance of the ends of justice.” Moss v. Gibbons
, 180 I ll. App. 3d 632, 638, 536 N.E.2d 125, 129 (1989). “[T] he leg islature did not intend that sect i o n 2 -622 comprise a further limit ation on actions to the extent that section 2-622 would cut off all rights to relief

. Rather, section 2-622 only puts a require ment of meritoriousness on t h e p ending suit.” W alter , 156 I ll. App. 3d at 710, 509 N.E.2d at 806. ¶ 21 The leg islature enac ted section 2-622 as part of a packa g e of medical malprac tice ref orms in 1985. Christmas v. Dr. Donald W

. Hugar, Ltd.
, 409 I ll. App. 3d 91, 97, 949 N.E.2d 675, 681 (2011). Since the statute was enac ted in 1985, I llinois revie wing courts have articula ted
two differ ent standards for the circ uit courts to utiliz e when exercising their discretion under section 2 -6 22 in deter

mining whether to allow a plaintiff to amend a complaint so that it complies with se ction 2-622 or whe ther to dismiss the complaint with pr ejudice for failure
to comply with section 2-622. When a plai n t i ff reque sts an extension of the deadlines provided in section 2-622, the courts have allowed the plaintiff additional time if the plaintiff

can show “g ood cause ” for his failure to timely comply with the deadlines. Howeve r, when

a plaintiff reque sts leave to amend section 2-622 documents that are alre ady filed, the courts have a llowed the plaintiff to ame nd when ther e is “no pre judice” to the de fenda

nt. ¶ 22 The questions cer tified by the circ uit court in this case requir e u s to deter mine which standard the court should utiliz e to deter mine whether to allow the plaintiffs to amend their complaint so that it complies with section 2-622(a )(1) or dismiss the complaint with prejudice

.

¶ 23 (a) ¶ 24 Good Cause ¶ 25 Courts have applied the “g ood cause ” standard in situations when a plaintiff has not f iled the require d aff

idavit and repor

t within 90 day s afte r the complaint was filed and the plaintiff
soug ht to extend the time for filing the repor t and aff idavit for some period of time afte r the initial 90-day

period. ¶ 26 For example, in Simpson v. Illinois Health Care Servic es, Inc.
, 225 I ll. App. 3d 685, 588 N.E.2d 471 (1992), the plaintiff’s medical malprac tice comp lain t d id n o t include the aff

idavit and repor t require d by 2-622(a )(1)
, but alleg ed in the body of the complaint that the require d

cer tificate and repor

t would be filed within 90 day s as provided in section 2-622(a )(2)

. The defe ndants m o v ed t o d ismiss the complaint when the plaintiff did not file the aff idavit or

re p o rt within 90 day s. The plaintiff responde d to the motion to dismiss by reque s t i n g an extension of time for filing the aff idavit and repor

t, and the reque st for an extension of time included an aff

idavit of the plaintiff’s attorney which detailed the eff orts that had been made
to obtain the re qu i red phy sician’s repor t. Id. at 687, 588 N.E.2d at 473. The trial court dismiss ed the plaintiff’ s complaint with prejudice. Id. at 688, 588 N.E.2d a t 473. ¶ 27 In reve rsing the trial court’s dismiss al with prejudice
, the Simpson court noted that the trial court had discretion to extend the 90-day period provided in section 2-622(a )(2) and that

-6-“[i] n deter mining whether late filing should be allowed, the court may consider whether the plaintiff has demonstrated good causefor f ailure to file timely the documents.” (Emphasis added.) Id. at 689, 588 N.E.2d at 474. The court held that the trial court abused its discretion in dismiss ing the c o mp lain t w it h p r e judic e beca

use the plaintiff had demonstrated g ood cause for he r fa ilure to file the r eport a nd aff idavit within 90 day s. Id. at 690, 588 N.E.2d at 475. The court stated, “While in retrospe ct it might ha ve been better had plaintiff filed a motion for extension of time within the orig inal 90-day extension, this is more akin to a proce dural technica lity
, which should not be the basis for dismiss ing an otherwise alleg edly meritorious complaint.” Id. ¶ 28 Other case s also articula te t h e “go o d cau s e” s t an d ar d i n addre ssing a trial court’ s discretion to extend the 90-day deadline contained in section 2-622( a)( 2) in order to allow

a plaintiff t o fi l e the documents require d under section 2-622. Knight v. Van Matre Rehabilitation Center, LLC
, 404 I ll. App. 3d 214, 217, 936 N.E.2d 1152, 1155 (2010) (“[I ]f the plaintiff failed to file the aff idavit and repor

t within the 90-day statutory period, the trial
court could gran t t h e plaintiff another extension of time to file them if the plaintiff could establish g ood cause for not filing them within 90 day s.”); Stoelting v. Betzelos
, 2013 I L App (2d) 120651, ¶ 17, 983 N.E.2d 543 (s ec t i o n 2-622(a )(2) allows a trial court to extend the initial 90-day period, “for g ood cause shown, to file the attorney aff idavi t as we l l as the doctor’s repor

t”); Premo
, 197 I ll. App. 3d at 631, 554 N.E.2d at 1076 (“A llowing trial courts to consider whether g ood cause ex i s t s for noncompliance with the deadlines for filing the require d documentation in section 2-622 is consistent with the o b j ectives of that statute beca use it encourag es compliance with the deadlines set forth there in and encour ag es filing
t h e required documentation as expeditious ly as possible in the event compliance is not possible.”). ¶ 29 As furthe r justification for usingthe “g ood cause ” standa rd in extending section 2-622 deadlines, some courts have cited I llinois Supreme Court Rule 183 (ef f. Fe b. 16, 2011). Garland v. Kauten
, 209 I ll. App. 3d 30, 35, 567 N.E.2d 707, 711 (1991). Rule 183 states that the “court, for good c au s e shown on motion afte r not ice to the oppos ite party , may extend the time for f

iling any pleading or the doing of any act which is require d by the rules to be done within a limit ed period, either befor e or afte r the expiration of the time.” I ll. S. Ct. R. 183 (ef f. F eb. 16, 2011).

¶ 30 (b) ¶ 31 Prejudice ¶ 32 I n co n t rast to case s wher e a plaintiff seeks to extend section 2-622(a )( 2 )’ s 9 0 -d ay deadline, the cou rt s h av e u sed a differ ent analy sis in case s involving plaintiffs who have timely filed the aff

idavits and phy sician repor ts require d by section 2-622, but the plaintiffs subsequently moved to file new o r am en ded aff idavits and/or repor

ts beca use the orig inal section 2-622 documents wer e defic ient. Simi lar to extending section 2-622’s deadlines, in these situations, a trial court has discretion to either grant the plaintiffs leave to amend their pleading s so that they comply with section 2-622 or di smiss the complaint with prejudice

. Cookson v. Price
, 393 I ll. App. 3d 549, 552, 914 N.E.2d 229, 231 (2009) (“A plaintiff may

-7-be grante d leave to a mend a complaint to corr ect defe cts resulting from a failure to c omply with section 2-622 or the trial court may dismiss the complaint with or without prejudice .”). The trial court’s discretion includes granting “leave to file an amende d complaint with a new aff idavit and health profe ssional’s repor t.” (Emphasis added.) Id. at 552, 553, 914 N.E.2d at 231-32, 232 (nothing in section 2-622 nece ssitates a differ ence “betwe en amending an exis ting r eport a

nd substitut ing a

repor t by a new author” ). ¶ 33 The circ uit court’s exercise of discretion in a situation wher e a plaintiff moves to amend

or file new section 2-622 documents is not evalua ted under the same “g ood cause ” standard that is used for extending section 2-622 ’s 90-day deadlines. Instead, the trial court’s discretion to allow the plaintiff to amend or substitut e timely filed section 2-622 documents depends on whether the proposed amendments or substitut ions w ould c ause “pre judice” to the def ense. ¶ 34 Fo r example, in Leask
, the phy sician’s repor t attach ed t o t h e p l ai n t i ff’s m ed i ca l malprac tice complaint was inadequate beca use the phy sician was not an appropriate specia list in the are a of medicine that wa s at i s s u e in the case

. The defe ndant moved to dismiss the complaint with prejudice due to this defe ct. In response to the motion to dismiss
, the plaintiff reque sted leave to file a new repor t from another phy sician that would cure the defe ct in the orig inal repor t. I n response , the defe ndant argued that by moving to substitute the orig inal repor

t, the plaintiff conce ded that the orig inal repor t was inadequa

te and that she violated section 2-622 at the time she filed her complaint. Leask
, 232 I ll. App. 3d at 337, 595 N.E.2d at 1346. The trial court agree d with the defe ndant, did not allow the plaintiff to f ile the new r eport, a

nd dismiss ed the c ase w ith prejudice. Id. ¶ 35 The Leask court held that the trial court abused its discretion in dismiss ing the claim with prejudice and not allowing the plaintiff to file the new repor t. Id. at 339, 595 N.E.2d at 1347. The court emphasized that the purpose of section 2-622 is to ensure that the plaintiff has a meritorious claim and that its technica l pleading require ments should not deprive a plaintiff of a trial on the merits. Id. The court explained why dismiss al of the complaint did not serve the purpose of section 2-622 as follows: “Nothingin the rec ord demonstrates that plaintiff is bring ing a frivolous claim, and it appea rs that plaintiff acte d in g ood faith t o s ec u re t he require d medical opinion to support the claim. Moreove r, any undue prejudice to [defendant] from allowing plaintiff to amend her complaint is unclea r at best.” (Emphasis added.) Id. In holding that the trial court abused its discretion, the court also noted that within a month of the defe ndant’s challeng e to the repor t, “plaintiff moved to amend the complaint by adding a deta iled and appa

rently satisfac tory

medical r eport.” Id. at 340, 595 N.E.2d at 1348. ¶ 36 In Apa v. Rotman , 288 I ll. App. 3d 585, 587, 680 N.E.2d 801, 802 (1997) , the plaintiff timely filed an aff

idavit and repor

t, but the defe ndant maintained that the aff idavit and repor

t did not comply with the s tatute’s subst antive requirements. On appea l, the court held t hat, assuming the aff

idavit and written repor

t wer e defici ent, the circ uit court should have aff orded the plaintiff an opportunity to amend his aff idavit and wri t ten repor t befor e dismiss ing the case with pre j u d i ce

. Id

. at 589, 680 N.E.2d at 804. The court noted that “[n] othing in the rec ord indicates that plaintiff is bring ing a frivolous claim, and plaintiff did file the section 2-622 aff

idavit and written repor

t in a timely fashion.” Id. at 590, 680 N.E.2d
at 805. In addition, the court stated, “oth er than additional delay
, we fail to see any undue

-8-prejudice to defe ndants from at least allowing plaintiff the opportunity to attempt to amend

his affidavit and repor

t if and to the extent they

aredefic ient.” (Empha sis added.) Id. ¶ 37 L ikewise, in Cookson
, t h e co u rt h el d that the plaintiff should be allowed to file an amende d attorney aff

idavit a nd a new health profe ssional’s repor t wher e there was nothing in the rec ord to show that the def endant would be prejudice d. Cookson
, 393 I ll. App. 3d at 553, 914 N.E.2d at 232. The court stated, “To bar a plaint i ff from amending his or her aff idavits and corr esponding repor t wou l d el evate the pleading require ments set forth in section 2-622 to a substantive defe nse contra ry to both the spirit and purpose of the statute.” Id. at 554, 914 N.E.2d at 233.

¶ 38 I I

. ¶ 39 Certified Que stion A: ¶ 40 Which St andar d Applies: Good Cause or Pre judice to OpposingParty ¶ 41 The fir st question certified by the circ uit court is as follows: “Where plaintiff files a Complaint wi t h C ertificate of Merit stating there is no meritorious basis for filing a medical malprac tice claim, and then nearly six (6) months later seeks to file an Amended Complaint and an Amended Certificate of Merit disclosing the basis for the ‘er roneous’ cer

t i fi cate, should the Court apply the ‘g ood

cause ’ st andar d for late fil i n g o f a ce rt ificate pursuant to Section 2-622 of the C ode of Civil Procedur e, or the ‘pre judice to opposing party ’ standard for amending a Complaint in d eter mining whether to allow the filing of the Amended Complaint and the new Certificate of Merit? ” ¶ 42 In order to fully discuss this ce rt i fi ed qu estion, we must consider the question in the
context o f t h e proce dural history and surrounding fac ts in which the question arose

. See Unifund CCR Partners v. Shah
, 407 I ll. App. 3d 737, 738, 946 N.E.2d 885, 887 (2011) (“The issues prese nted by the cer tified questions arose in the context of a motion to dismiss under section 2-619 of the Code ***, so fo r t h e p urp ose [of] our discussion of the cer tified questions we will rely

on fac ts alleg ed in the complaint and its attac hed af fidavits.”). ¶ 43 As discussed in the background section above, when the plaintiffs in the prese n t ca s e filed their medical malprac tice complaint, they timely filed an aff idavit and a doctor’s repor t in an attempt to comply with the require ments of section 2-622(a )(1) of the Code. The repor t, howeve r, wa s ineffe ctive bec ause the doctor authoring the section 2-622 re port, Dr. Altug
, either did not have all of the documents rele vant to the plaintiffs’ claim or did not revie w all of the rele vant documents. There fore
, he conclude d in his initial report that he did “ not see any manag ement proble ms in thi s case .” ¶ 44 The defe ndant moved to dismiss t h e p l ai ntiffs’ complaint with prejudice pursuant to section 2-619 of the Code (735 I L CS 5/2-619 (West 2010)) on the basis that the phy sician’s
repor t was inadequate under the require ments of section 2 -6 22(a) (1) of the Code. In response , the plaintiffs moved for leave to amend the complaint to attach a new phy sician’s
repor t from a differ ent doctor, Dr. Kelley

. At the time the plaintiffs reque sted leave to amend the complaint with Dr. Kelley ’s repor t, only 55 day s had passed since they filed their orig inal

-9-complaint and their origina l section 2-622 docume nts. There fore , they wer e still inside the 90-day “saf ety valve” provisions ex pressly provided within the languag e of se ction 2-622. ¶ 45 The defe ndant objected to the motion for leave to amend the complaint, arg uing that there

was no basis in section 2-622 that would allow the plaintiffs to file a new phy sician’s repor t. For the reasons noted above, this argument lacke d merit. The defenda nt did not claim t hat the new repor

t was inadequa

te or otherwise failed to meet the require ments of section 2-622, did not maintain that the plaintiffs’ claim lacke d arg uable merit, and did not a lleg e that she would suffe r pre

judice as a

result of the pr oposed ame ndment. ¶ 46 Nonethele ss, the circuit court gra nted t he defenda

nt’s motion to dismiss the complaint with prejudice
, stating that the “def endant in the instant case would clea rly be prejudice d if the amende d complaint wer e allowed” and that section “2-622 is not so broad as to allow the amendment in this case .” The plaintiffs then filed a motion to rec ons i d er i n wh i ch they explained why Dr. Altug’ s repor t was mistakenly filed with the complaint and why the repor t did not acc urate ly ref

lect Dr. Altug’ s actua l opinion conce rning the m eritoriousness of the plaintiffs’ claim. The motion to rec onsider included an aff idavit from Dr. Altug in which he opined that the plaintiffs had a meritorious cl ai m aga inst the defe ndant. In their brief in support of their motion to re consider, the plaintiffs argued that the c ourt should allow “the filing of one of the two corr ect repor ts of a healthca

re prof essi onal.” The substance of the plaintiffs’ motion to rec o n s i d er was not a reque st for the court to extend any missed deadlines; it was a

reque st for leave to amend ple ading s that were alre ady filed. ¶ 47 The defe ndant objected to the plaintiffs’ motion to rec onsider, arguing, in part, that “[a] five month delay in prese nting an appropriate aff idavit and cer

tificate of merit is far outside the 90 day s permitted.” In an order enter ed on Marc h 15, 2011, the circ uit court grante d the plaintiffs’ m otion to rec onsider. The court’s order stated that “the Attorney Affidavit and Hea lth Professional Report executed in compliance with 735 I L CS 5/2-622 are hereby filed instanter .” 1 ¶ 48 In answe ring cer tified question A in light of the fac ts and proce dural history of the ca se leading up to the cer

tified question, we hold that the “pre judice to opposing party” standard for a mendinga complaint applies, not the “ g ood cause ” standa rd. ¶ 49 The fac ts of this case do not prese nt a scena rio in which the plaintiffs soug ht an extension of deadlines in order to comply with section 2-622(a )(1)

. Instead, they initially attempted to timely comply with section 2-622(a)(1) when they filed their complaint, but their initial doctor’s repor

t was ineffe ctive. The plaintiffs subsequently attempted to amend their timely filed documents so that they c o mplied with the require ments of section 2-622(a)(1)

. The fac ts and proc edura l history

of this c ase, there fore
, are compar able to Leask
, Apa , and Cookson
, rathe r than Simpson
, Knight
, Stoelting , or Premo

. ¶ 50 In exercising discretion to deter mine whether to allow an amendment to sec tion 2-622

We can not det erm ine fr om the ci rc uit cou rt ’s ord er whet her Dr. Altug’s amended re por t or 1 Dr. K el le y’s re por t was fi le d ins tan te r

. We con cl ude tha t thi s unc erta int y in the re cor d is irre le vant to ans wer ing the cer ti fi e d que st ion s bec aus e we hol d tha t the st and ar d is the same re gardl ess of whic h r epo rtth e c ir cui t c our t a ll owed to be f il ed ins tan te r

.
-10-documents or dismiss with prejudice
, a circ uit court should consider whether the plaintiffs’

reque st to amend the documents wou l d cause the defe ndant any prejudice

. Absent undue
p rejudice to the defe ndant, the circ uit court should aff ord the plaintiffs an opport u n i t y t o amend their aff

idavit and written repor

t befor e dismiss ing their case with prejudice

. Apa
, 288 I ll. App. 3d at 589, 680 N.E.2d at 804. “To refuse to permit new pleading s essential to the
prese ntation of a party ’s [case], when a strong showing has been made as t o t h ei r truth, defe ats justice in the absenc e of a showing of prejudice to the opposing party

. ” B a n ks v. United InsuranceCo. of America , 28 I ll. App. 3d 60, 64, 328 N.E.2d 167, 171 (1975). ¶ 51 W e b el i ev e that applying the prejudice standard in evalua ting a plaintiff’s reque st to amend tim ely filed section 2-622 documents preve nts the t echnic al pl ead i n g require ments imposed by section 2-622 to be utiliz ed t o deprive a plaintiff of a trial on the merits of a medical malpractice claim. Leask
, 232 I ll. App. 3d at 339, 595 N.E.2d at 1347. The int ent of the leg islature with respe ct to section 2-622 would not be further ed by deny ing a meritori o u s cl ai m under such circ umstances absent a showing of undue prejudice to the defe ndant. ¶ 52 Acc ording ly
, our answe r to cer tified question A is th e “p re j u d ice to opposing pa

rty” standard.

¶ 53 I I I

. ¶ 54 Certified Que stion B: ¶ 55 The Circuit Court’s Discr etion to Find “Good Ca use” ¶ 56 The sec ond question cer tified by the circ uit court is as follows:
“Where pl ai n t i ff files a Complaint with Certificate of Merit stating there is no meritorious basis for filing a medical malprac tice claim, and then nearly six (6) months later, seeks to file an Amended Complaint and a new Certificat e of Merit asser ting a meritorious claim, does the Trial Court have discretion to find ‘g ood cause ’ to permit the late filing of a new C er t ificate of Merit under the provisions of the Code of Civil Procedur e, Section 2-622? ” ¶ 57 As noted above, we answe r the first cer tified question by holding that the “pre judice to opposing p arty” standard applies when the trial court exercises its discretion to allow amendments to section 2-622 documents in order to bring them in compliance with section 2-622(a )(1)

. Certified question B is incorre ctly premised on the conclusion that the “g ood

cause ” st andar d applies t o the ex erci se of the trial court’s discretion. C ertified question B, there fore , is moot i n light of our answe r to ce rtified question A.

¶ 58 IV. ¶ 59 Certified Que stion C: ¶ 60 The Circuit Court’s Discr etion to Find “No Pre judice” ¶ 61 The fina l question certifie d by the circ uit court is as follows: “Where plaintiff files a Certificate of Merit stating there is no meritorious basis for filing

-11-a medical malprac tice claim, and then nearly six (6) months later seeks to file an Am en ded Complaint and Amended Certifica te of Merit asser

ting a meritorious claim, does the Court have discretion to find ‘no prejudice ’ to the defe ndant to permit the filing of an a mendment under

those circ umstances? ” (Empha sis in original.)
We answer

this question in the af

firmative. ¶ 62 No n e o f t h e fa ct s encompa ssed within cer tified question C establish any basis for a finding of prejudice to t h e d ef en se. There fore
, the circ uit court has “discre tion to find ‘no prejudice ’ ” under the fac t sc enario pr esente d by the question. In addition, ne ither the fac ts

nor the proce dural history in which the cer tified question arose indicates any prejudice to the defe ndant in this case

. In fac t, during oral arguments in this appea l, counsel for the defe ndant

corr ectly acknow ledg ed that the defe ndant was not claiming that she wou l d s u ffer undue prejudice as a r esult of an a mendment to the plaintiffs’ se ction 2-622 docume nts. ¶ 63 Inconvenie nce or delay alone is insufficient to establish any prejudice that could justify d en y ing a medical malprac tice plaintiff leave to amend. Apa
, 288 I ll. App. 3d at 591
, 6 8 0 N.E.2d at 805. The denial of leave to file an amende d complaint solely beca use of delay and without a showing of prejudice other than mere inconvenienc e to the defe ndant could be an abuse of discretion. Merrill v. Drazek
, 58 I ll. App. 3d 455, 458, 374 N.E.2d 792, 794 (1978). Instead of mere inconvenienc e, the delay must operate to hinder the defe n d an t’s ability to prese nt his case on the merits. Banks v. United Insurance Co. of America
, 28 I ll. App. 3d 60, 64, 328 N.E.2d 167, 171 (1975)

. ¶ 64 The plaintiffs offe red two alternative amendments to their complaint, a new repor t f rom Dr. Kelley and an amende d repor t from Dr

. Altug. Both repor ts complied with section 2- 622(a) (1), both e stablished that the plaintiffs had a meritorious claim and thus both r eports fulfilled the purpose of section 2-622, and neither proposed repor t hindere d the defe ndant’s ability to prese nt her case on the merits. Acc ording ly
, the circ uit court had discretion to find “n o p rejudice ” and allow the plaintiffs leave to amend the complaint to include ei t h er doctor’s r eport so that the plaintiffs’ claim could be he ard on its merits. ¶ 65 Acc ording ly , we a nswer c ertified que stion C i n the af firmative.

¶ 66 CONCLUSI ON ¶ 67 The cer

tified questions of the circ uit c ourt of Wil liamson County are here by answe red. We remand this matter to the c ircuit court f or fur ther proc eeding s.

¶ 68 Certified que stions answere d; cause rema nded.

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