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Is Section 2-622 a Dead Letter After Gauto?




by:
Jason K. Winslow
Hinshaw & Culbertson LLP - Belleville Office

 
December 19, 2013

Previously published on December 17, 2013

Fox v. Gauto, 995 N.E.2d 1026, 2013 WL 4768410 (Ill.App.5th Dist.)

Introduction

On September 5, 2013, the Illinois Appellate Court, Fifth District, published a written opinion in Rickie Fox and Ruth Fox v. Suzanne Gauto, Executor of the Estate of Nelson Gauto, deceased, a medical malpractice case. The Gauto Court grappled with the issue of what standard applies when considering whether to grant relief to a Plaintiff in a medical malpractice case who is unable to achieve compliance with the Illinois Healing Arts Malpractice Act, 735 ILCS 5/2-622 (the Act). The Act requires that the attorney for Plaintiff in a medical malpractice suit attach an affidavit to the Complaint at the time it is filed certifying, under oath, that he or she has consulted with a qualified expert who deems the lawsuit meritorious. The attorney must also attach a report of the reviewing health professional stating the reasons for that professional's determination of merit. The Act imposes explicit deadlines by which these documents must be filed, if not attached to the Complaint at the time of filing. The Act does not, however, provide a procedural mechanism by which Plaintiffs may seek relief from those deadlines. Reviewing courts in the State of Illinois have handled such requests for relief inconsistently.

While some courts have likened such requests to motions for extension of time, to which the "good cause" standard applies, other courts analogize them to motions to amend the pleadings, to which the "prejudice to defendant" standard applies. On the facts at issue in Gauto, the Fifth District Appellate Court determined that Plaintiffs, who had failed to achieve compliance with the Act before expiration of the deadlines set forth therein, were seeking an amendment to the pleadings, rather than an extension of time, and that the "prejudice to defendant" standard applied. Because Defendant could not prove prejudice if the amendment was allowed, the Court determined that the Plaintiffs' failure to comply with the Act was excusable. As set forth more fully below, this decision represents a significant development in the law regarding pleadings standards in Illinois medical malpractice cases.

Trial Court Decision

To understand the Gauto Court's decision, a brief summary of the trial court proceedings is necessary. At the time of filing the subject lawsuit, attached thereto was a report authored by Dr. A, Plaintiffs' reviewing health professional. The report concluded that, "By the review of the pathology reports and the surgical procedure records, I cannot see any management problems in this case." (Emphasis added). In other words, the report of the reviewing health professional actually certified that the lawsuit did not have merit. Accordingly, the Defendant sought dismissal of the suit for failure to comply with the Act.

In response, Plaintiffs sought leave to amend the Complaint, to attach a new report from a different physician, fifty-five (55) days after filing the original Complaint. This new reviewing health professional, Dr. K, opined that Plaintiffs had a meritorious cause of action. The trial court denied Plaintiffs' request for leave to amend, stating that the "defendant in the instant case would clearly be prejudiced if the amended complaint were allowed." The trial court also granted Defendant's motion to dismiss and dismissed the Complaint with prejudice.

Plaintiffs then filed a motion to reconsider, in which they explained a number of circumstances surrounding the filing of the report from Dr. A. Plaintiffs' attorney inadvertently filed Dr. A's report, which he believed to be consistent with his initial consultation with Dr. A, in which it was suggested that "there was a violation of the standard of care." Apparently, Dr. A's finding that the case lacked merit was based upon an incomplete review of the medical records. When Dr. A reviewed the entirety of the record, at some point after the lawsuit was filed, he deemed the case to be meritorious. In an affidavit attached to Plaintiffs' motion to reconsider, Dr. A confirmed his opinion that a meritorious cause of action existed against Dr. G. The trial court granted Plaintiffs' motion to reconsider and deemed the reviewing health professional's report filed instanter. The trial court then approved Defendant's Rule 308 request and certified questions for appeal.

Appellate Court Decision

On appeal, the Fox Court premised its analysis on tension it identified among Illinois reviewing courts in handling requests for relief from the requirements set forth in the Act. While some courts have likened such requests to motions for extension of time, to which the "good cause" standard applies, others analogize them to motions to amend the pleadings, to which the "prejudice to defendant" standard applies. In tracing Illinois law on this issue, the Fifth District identified four cases supporting its interpretation that requests for relief from the requirements of the Act that can be characterized as motions for extension of time are treated under the "good cause" standard. Stoelting v. Betzelos, 2013 IL App (2d) 120651, para 17, 983 N.E.2d 543 (2013); Knight v. Van Matre Rehabilitation Center, LLC, 404 Ill.App.3d 214, 217, 936 N.E.2d 1152, 1155 (2010); Simpson v. Illinois Health Care Services, Inc., 225 Ill.App.3d 685, 588 N.E.2d 471 (1992); Premo v. Falcone, 197 Ill.App.3d 625, 630, 554 N.E.2d 1071, 1075 (1990)(trial court has to consider good cause). Under this standard, the Plaintiff must show good cause as to why compliance with the Act was not met within the times frames set forth therein. The Gauto court also identified three cases supporting its interpretation that requests for relief from the deadlines set forth in the Act that can be characterized as motions for leave to amend are governed by the "prejudice to defendant standard." Cookson v. Price, 393 Ill.App.3d 549, 552, 914 N.E.2d 229, 231 (2009); Laesk v. Hinrichs, 232 Ill.App.3d 332, 339, 595 N.E.2d 1343, 1347 (1992); Apa v. Rotman, 288 Ill.App.3d 585, 587, 680 N.E.2d 801, 802 (1997). Under that standard, the Defendant must prove that allowing the amendment would cause prejudice beyond mere delay or inconvenience. Apa, 288 Ill.App.3d at 591, 680 N.E.2d at 805). Instead, Defendant must show that the delay must operate to hinder the defendant's ability to present his case on the merits. Banks v. United Insurance Co. of America, 28 Ill.App.3d 60, 64, 328 N.E.2d 167, 171 (1975).

The Gauto Court noted that Plaintiffs timely filed a certificate of merit in an attempt to comply with the requirements of section 2-622(a)(1), despite its shortcomings. The appellate court characterized Plaintiffs' motion to reconsider the trial court's dismissal of the Complaint as one that, in substance, amounted to a request for leave to amend pleadings that were timely filed, not a motion to extend missed deadlines. In that regard, Plaintiffs' attempt to comply with the Act was akin to the facts at issue in Leask, Apa, and Cookson, and distinguishable from Simpson, Knight, Stoelting, and Premo. Accordingly, the appellate court applied the "prejudice to defendant" standard. The appellate court affirmed the trial court's ruling on the motion to reconsider, noting that Defendant did not argue she would suffer prejudice as a result of allowing the amendment.

Analysis

While the result in Fox v. Gauto is arguably correct, the means by which the appellate court achieved that result may prove impactful in future cases, given the potential implications of the ruling.

Ultimately, the attorney representing Plaintiffs in the instant case did not exhibit the sheer inadvertence, lack of diligence, or characteristic "bad faith" underlying cases where reviewing courts have upheld dismissals with prejudice for failure to comply with the Act. In fact, Plaintiffs' counsel arguably demonstrated "diligence" in attempting to correct the shortcomings of the initial report, or at least that type of "diligence" which has merited extensions of time in other cases. For example, the Gauto Court noted that, within fifty-five (55) days of days of filing the original Complaint, Plaintiffs sought leave to amend to file a new report from a different doctor, who provided the requisite certificate of merit. This occurred within the 90-day "safety valve" provisions expressly provided within the language of Section 2-622. Similar efforts proved sufficient to establish "good cause" in Simpson, a case cited by the Gauto Court. Simpson v. Illinois Health Care Services, Inc., 225 Ill.App.3d 685, 588 N.E.2d 471 (1992)(failure to file report until forty-seven (47) days after the 90-day extension of time expired excused as attorney proved "good faith" in diligently pursuing the report from his non-responsive expert). In that regard, Plaintiffs arguably could have demonstrated, and the appellate court could have found, "good faith," or at least the absence of circumstances suggesting that they acted in bad faith.

Nevertheless, the Fox Court treated Plaintiffs' request for relief from the requirements of the Act as a motion for leave to amend and applied the "prejudice to defendant" standard. [1] This aspect of the ruling may prove problematic in future cases. First, the Gauto opinion does not clearly specify whether trial courts in future cases must consider the conduct of the Plaintiff and his or her attorney(s) in ruling on a motion for leave to amend under the Act. In Cookson and Laesk, the court considered whether allowing the amendment would prejudice defendant, but only after making the threshold finding that Plaintiff acted under circumstances exhibiting "good faith". Cookson v. Price, 393 Ill.App.3d 549, 552, 914 N.E.2d 229, 231 (2009); Laesk v. Hinrichs, 232 Ill.App.3d 332, 339, 595 N.E.2d 1343, 1347 (1992). In Apa, whether Plaintiff demonstrated "good faith" was not at issue because Plaintiff actually complied with the Act. Apa v. Rotman, 288 Ill.App.3d 585, 587, 680 N.E.2d 801, 802 (1997)(Plaintiff sought 90-day extension of time pursuant to the Act and filed certificate of merit within deadline, but Defendant did not receive it because certificate was not transferred with file to transferee forum). In these cases, therefore, the courts factored Plaintiff's conduct into their decision-making, in addition to considering whether allowing the amendment would cause prejudice to defendant. The Gauto opinion suggests that lower courts need only consider one element, prejudice to defendant, in considering whether to grant leave to amend in future cases.

Second, while it is true that, as a matter of law, the standards courts apply in considering motions to leave versus motions for extension of time differ, in the context of the Act that distinction might not warrant different legal outcomes. Ultimately, until the requirements of the Act have been met fully, the documents attached to the Complaint could be considered a legal nullity. In that regard, where Plaintiffs have failed to achieve full compliance with the Act's requirements, they are technically always seeking an extension of missed deadlines, as one cannot seek leave to amend something that never existed. But with this distinction governing the standard applied in future cases, this decision might invite litigants to always couch a request for relief from the requirements of the Act as a motion for leave to amend, as opposed to a motion for extension of time, whether they have previously attempted compliance with the Act or not. In doing so, future Plaintiffs can essentially shift the burden to Defendants by improperly elevating form (i.e., simply changing the title of their court filing) over substance.

Finally, the Gauto Court's ruling might invite future Plaintiffs to attempt compliance with the Act by cobbling together any report they can find, whether it complies with the statute or not, to buy additional time to widen or continue their search for a supportive expert. Because in such a case the Court would be required to apply the "prejudice to Defendant" standard in considering whether to allow the amendment, if or when such a favorable consult is obtained, Plaintiffs will undoubtedly preserve this almost guaranteed right to amend in most cases. While in some cases this strategy could save a meritorious claim from being eliminated by the deadlines in the Act, in a vast majority of cases this will serve only to needlessly delay the inevitable. Perhaps the accumulation of lingering cases as a result of this loophole may encourage more stringent judicial enforcement of the Act's requirements.


[1] The trial court ruled that allowing an amendment to the Complaint would result in the Defendant being "clearly prejudiced". In applying that same standard, the Appellate Court reached the opposite result.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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