Illinois Appellate Court Reverses Dismissal of Medical Malpractice Case for Abusive Discretion in Denying Health Professional’s Report Within the Time Limit

According to the report of this case, the Illinois Appellate Court has reversed the dismissal of a medical malpractice case. The case had been dismissed by the trial judge on the ground that the plaintiff did not meet the requirement of filing the 90-day certificate of merit, which is required by Section 2-622 of the Illinois Code of Civil Procedure.

A doctor’s affidavit, which was filed late, should not have been enough to reject a medical malpractice lawsuit, the appeals panel ruled.

According to the Illinois Appellate Court opinion, the Cook County Circuit Court judge abused his discretion when he dismissed Earnest and Mildred Lee’s lawsuit against Rush Oak Park Hospital and Dr. Juan Cobo. The circuit court judge dismissed the case because they did not file their Health Professional’s Report within the 90-day window.

The judge granted the Lees two other extensions for filing similar affidavits in their case.
In dismissing the Lees’ lawsuit, the circuit court judge stated that the dismissal was meant “to deter frivolous or non-meritorious medical malpractice claims.”

“The circuit court’s dismissal of the counts against appellees placed form over substance and represented an abuse of discretion,” the appeals panel stated.

The law does make a requirement of the plaintiff in a medical malpractice case who asserts “medical, hospital or other healing art malpractice.” The requirement is that the plaintiff must attach a report from a health professional who can attest to the merits of his or her complaint.

In most cases, the certificate of merit or the medical professional report is filed along with the complaint. However, the law allows plaintiffs to submit the report within 90 days if waiting for the report would mean missing the statute of limitations. The Lees sued Rush Oak Park Hospital and Dr. Cobo and other defendants after Earnest Lee was diagnosed with a blood clot behind his knee and had his leg amputated in 2014.

It was alleged in the lawsuit that Berkshire Nursing & Rehabilitation in Park Forest, Ill., should have acted when he complained about pain in his foot and saw skin discoloration. The Lees filed their amended complaint against Dr. Cobo and Rush Oak Park on Aug. 22, 2016, just three days before the statute of limitations would have run out.

The attorney representing the Lees, Michael B. Gunzburg, filed an affidavit indicating that he needed the 90-day window to get the medical report ready.

On Nov. 23, 2016, 91 days after the plaintiffs filed their lawsuit, Rush and Dr. Cobo filed a motion to dismiss. At a hearing the next week on the defendants’ motion to dismiss, Gunzburg presented a motion for an extension of time. He had believed that the medical records had been sent to a health professional for review, but they had not.

The circuit court judge agreed with defendants and dismissed the plaintiffs’ lawsuit with prejudice. He also rejected Gunzburg’s motion to reconsider, which had the Health Professional’s Report attached to the motion.

“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 requirement into another time limitation that would cut off all relief if appellants failed to comply,” the appellate court ruled. “This is not the legislative intent of the statute.”

Justice Sheldon A. Harris, who wrote the opinion, added, “The record shows the court had no problem granting the appellants’ (the Lees) an extension as to other defendant-doctors,” pointing to two other time-extensions that the court granted the plaintiffs to file their Health Professional’s Report.

Having reversed the dismissal order, the court remanded the case back to the circuit court for further disposition.

Earnest Lee, et al. v. Berkshire Nursing & Rehabilitation Center, LLC, et al., 2018 IL App (1st) 171344.

Kreisman Law Offices has been handling medical negligence lawsuits, hospital negligence cases, physician negligence cases and birth injury lawsuits for individuals, families and loved ones who have been injured, harmed or died as a result of the carelessness or negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Itasca, South Holland, Blue Island, Lake Zurich, Gurnee, Zion, Mundelein, Lake Forest, Forest Park, Chicago (Austin, South Shore, Jackson Park, Washington Park, Irving Park, Jefferson Park, Albany Park, Lakeview, Wicker Park), Waukegan, Melrose Park, Franklin Park and Flossmoor, Ill.

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