Appellate Court Upholds Strict Compliance Of Section 2-622 Physician Report
Medical practitioners recently won a significant victory that may further reduce the number of frivolous medical malpractice suits. On April 7, 2011, the First District Appellate Court held that the author of a 2-622 report must be licensed to practice in the medical specialty at question at the time the author prepares the report. Christmas v. Hugar, Ill. App. LEXIS 317 (1st Dist. 2011). In Christmas, two podiatrists performed surgery on plaintiff’s decedent’s foot that resulted in death. The 2-622 affidavit attached to the complaint stated that a "currently practicing podiatric physician" determined that the suit was reasonable and meritorious. As is customary, the author of the 2-622 report was not named.
Four years later, and three months before trial, the defendants discovered that although the report’s author was licensed in osteopathic medicine and podiatry, his license in podiatry was expired when the report was drafted. Defendants immediately moved to dismiss the complaint. The trial court dismissed the complaint with prejudice despite plaintiff’s claim that a Wisconsin license of osteopathic medicine permitted the practice of podiatry without a specific podiatric license.
Section 2-622 requires an attorney affidavit declaring that a physician knowledgeable in the issues of the case, that has practiced or taught within the last six years in the same area of health care or medicine at issue in the case, and who is qualified by experience or competence, reviewed the record, and determined the claim to be meritorious. In cases where the defendant is a physician licensed to treat human ailments without medications and without surgery or is a dentist, podiatrist, psychologist, or naprapath, the written report must be authored by a health professional licensed in the same profession and with the same class of license as the defendant.
As the defendants in Christmas were licensed podiatrists, the appellate court held that "the author of a 2-622 report must hold a current podiatric license…and it is not sufficient for the author to be licensed only as a physician." The court reasoned that the purpose behind 2-622 was to reduce the number of frivolous suits where the applicable medical standard of care has not been violated. Since a 2-622 report requires a review of the standard of care, the court relied on analogous case law in Dolan v. Galluzo, 77 Ill. 2d 279 (1979). In Dolan, the Supreme Court held that "in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein." Namely, a physician not licensed in podiatry is not competent to testify about the standard of care applicable to podiatric medicine. The court in Dolan recognized that various schools of medicine have different standards of care and that it would be unfair to measure a practitioner’s actions based on the standards of another school where the standards may be higher.
Interestingly, the court also upheld the dismissal of plaintiff’s complaint with prejudice, even though the case was litigated for four years and was three months from trial. Although failure to comply with section 2-622 is grounds for dismissal, dismissal with prejudice is a harsh result. Here, the court noted that the report was defective, the plaintiff had ample opportunity to inform the court of the error, and that the proposed amendment to the report could not cure the defect. Given that 2-622 authors remain anonymous throughout the litigation process, it is difficult to know for certain whether the author is qualified to render an opinion of merit. For now, the defense bar must rely on the assertions of plaintiff’s counsel for the validity of the 2-622 report. It is critical, however, that in cases where the author is disclosed as an expert witness, the expert’s qualifications must be vigorously vetted from the time the report was authored.
This alert was written by Moses Suarez.