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The Requirements of Section 2-622 Should Be Liberally Construed

The First District Appellate Court in Lee v. Birkshire Nursing & Rehab Center, LLC, et. al., reversed the trial court’s decision to dismiss certain parties with prejudice due to Plaintiff’s failure to file the requisite attorney affidavit and physician’s report pursuant to 735 ILCS 5/2-622(a)(2) within 90 days of the commencement of Plaintiff’s lawsuit. When a plaintiff cannot file the affidavit at the time suit is filed due to statute of limitations concerns, he/she can so state by affidavit that they require an additional 90 days. In this matter, the 90 days came and went, and on the 91st day, the Defendant filed a motion to dismiss. Despite the fact that the Plaintiff arrived at the hearing with a motion for an extension of time, the trial court construed the section 2-622(a)(2) strictly and dismissed the complaint with prejudice. The appellate court reversed.

Relying on lonstanding precedent, the appellate court noted that “a party’s failure to comply
with section 2-622 does not automatically require a dismissal with prejudice [internal citations omitted] and a circuit court has the discretion to grant a plaintiff additional time to comply with section 2-622’s requirements.” Indeed, the appellate court adhered to the principle that section 2-622 is “not a substantive defense which may be employed to bar plaintiffs who fail to meet its terms.” Rather, the court continued, “section 2-622 only puts a requirement of meritoriousness on the pending suit. Accordingly, “a medical malpractice plaintiff should be afforded every reasonable opportunity to establish his case,” and “amendments to pleadings are to be liberally allowed to enable medical malpractice actions to be decided on their merits rather than on procedural technicalities. The test is the furtherance of the ends of justice.”

But in this matter, and in the face of contrary precedent, the trial court dismissed the case with prejudice. The appellate court found the trial court’s decision arbitrary and fanciful, especially considering the fact that it allowed the Plaintiff extensions to file the requisite affidavits and physicians’ reports as to other defendants later named in the suit.

This case helps solidify the notion that form should not reign over substance. “In granting the dismissal with prejudice, filed one day after the expiration of the 90-day period, the circuit court wrongly converted the 90-day period into another time limitation that would cut off all relief if appellants failed to comply. This is not the legislative intent of the statute.”

A full copy of the opinion can be found at: