Jacobs v. Rush North Shore Medical Center

                                             First Division
                                             November 4, 1996









No. 1-94-2112

BRADLEY JACOBS,                         )    APPEAL FROM THE 
                                        )    CIRCUIT COURT OF
     Plaintiff-Appellant,               )    COOK COUNTY.
                                        )
v.                                      )    
                                        )
RUSH NORTH SHORE MEDICAL CENTER and     )
NORTHWESTERN MEMORIAL HOSPITAL,         )
                                        )
     Defendants-Appellees,              )
                                        )
and                                     )
                                        )
IRVING R. SAVIN, MELVIN J. GOLDSTEIN,   )
DOUGLAS R. NORMAN, JOSE MANUEL VELASCO, )    
AVRUM JOSHUA EPSTEIN, DAVID GREEN,      )
HOWARD SCHACHTER, JOHN STEVEN STRYKER,  )
JAS. T. YAO, and ADRES BLIE,            )                        
                                        )    HONORABLE           
                                        )    KENNETH L. GILLIS,
     Defendants.                        )    JUDGE PRESIDING.
          
     JUSTICE WOLFSON delivered the opinion of the court:
     Plaintiff Bradley Jacobs (Jacobs) appeals from an order of
the circuit court that dismissed, with prejudice, defendants Rush
North Shore Medical Center (Rush) and Northwestern Memorial
Hospital (Northwestern) in Jacobs' medical malpractice action. 
Jacobs asks us to find that the trial court abused its discretion
when it held that the section 2-622 attorney affidavit and
reviewing health professional's report he submitted were
insufficient as to these defendants.  In the alternative, he asks
us to find that the trial court abused its discretion when it
refused to allow him to file a second amended complaint.  For
reasons that follow, we affirm the order of dismissal.
     Section 2-622 of the Illinois Code of Civil Procedure
requires a plaintiff "in any action, whether in tort, contract or
otherwise, in which the plaintiff seeks damages for injuries or
death by reason of medical, hospital or other healing art
malpractice" to attach to the complaint (1) an affidavit from the
plaintiff or his attorney that a qualified health professional
has determined in a written report that there is a meritorious
cause of action, and (2) the health professional's written report
indicating the basis for his determination.  735 ILCS 5/2-622
(West 1994); McCastle v. Sheinkop, 121 Ill. 2d 188, 190, 520 N.E.2d 293 (1988); Tucker v. St. James Hospital, 279 Ill. App. 3d
696, 665 N.E.2d 392 (1996).
     According to the statute, the health professional must be
"knowledgeable in the relevant issues involved in the particular
action * * * and qualified by experience or demonstrated
competence in the subject of the case."  735 ILCS 5/2-622 (West
1994).  The report itself must clearly identify "the reasons for
the reviewing health professional's determination that a
reasonable and meritorious cause for the filing of the action
exists."  735 ILCS 5/2-622 (West 1994).  Failure to comply with
these requirements is grounds for dismissal under section 2-619
of the Code of Civil Procedure.  735 ILCS 5/2-622(g) (West 1994). 
When the trial court dismisses a party because plaintiff has
failed to satisfy the requirements of section 2-622, that ruling
will not be disturbed unless it is clear that the trial court
abused its discretion.  Winters v. Podzamsky, 252 Ill. App. 3d
821, 621 N.E.2d 72 (1993).
     In the present case, Jacobs filed his initial complaint on
January 24, 1992, without a section 2-622 health professional's
report.  Plaintiff sought, and was granted, a 90-day extension
for the filing of the report.  None was filed.  Instead, on June
24, 1992, Jacobs sought and obtained a voluntary dismissal.
     On June 19, 1993, Jacobs refiled the complaint, again
without a section 2-622 report attached, as required.  He was
granted a 90-day extension, but did not file the report until
October 19, 1993.  When the sufficiency of the report was
challenged by the defendants, Jacobs was given until January 3,
1994, to file an amended report.  The amended report was not
ready and Jacobs was given a "final extension" until January 26,
1994, to file the amended report.
     The amended report was filed on January 25, 1994.  But the
defendants again moved to dismiss because the report still failed
to comply with the requirements of section 2-622.  On January 27,
1994, Jacobs was granted leave to file a second amended report
and a brief in response to the motions to dismiss, up to and
including February 4, 1994.
     On February 4, 1994, Jacobs filed with the court a first
amended complaint, to which he attached his affidavit and second
amended report.  At the hearing on February 18, 1994, the court
entered an order allowing Jacobs to file the amended complaint
and second amended report.  The court, however, found that the
report was insufficient as to Rush and Northwestern and dismissed
them from the case.
     The affidavit does not identify the reviewing physician's
qualifications.  It merely tracks the language of the statute,
stating that the affiant has consulted "a health professional who
the affiant reasonably believes is knowledgeable in the relevant
issues * * * and this health care professional has determined * *
* a meritorious cause for filing" the action.
     The report, which is 25 pages in length, does not indicate
the qualifications of the reviewing physician, nor does the
physician claim to be "licensed in all its branches."  The
report does, however, discuss, at length, the reviewer's analysis
of the hospital records for the plaintiff's stay at Rush and
Northwestern.
     According to the report, Jacobs was admitted to the
emergency room at Rush on February 13, 1990, complaining of pain
in his right side, constipation, nausea, vomiting, and a fever. 
Diagnostic tests were performed and Jacobs was admitted to the
hospital due to "liver abnormalities."  More tests were done and
several physicians were brought in for consultation.  Although at
least one doctor hypothesized on February 14 or 15, that Jacobs
was suffering from "hepatic vein thrombosis, i.e. Budd-Chiari
syndrome," a venography (identified by the reviewing physician as
the "gold standard" diagnostic study for this disease) was not
attempted until day five of Jacobs' hospital stay at Rush.
     On February 17, 1990, the venography could not be
accomplished, which should have confirmed the diagnosis of Budd-
Chiari syndrome.  The doctors, however, failed to make this
diagnosis and, accordingly, did not perform a shunt bypass
procedure, which the reviewing physician believed should have
been performed.  Instead, Jacobs was transferred, on February 19,
1990, to Northwestern for "more definitive diagnosis and
treatment."
     At Northwestern, Jacobs was immediately diagnosed as having
Budd-Chiari syndrome.  However, no aggressive interventions were
employed.  The reviewing physician asserted that the physicians
at Northwestern repeated many of the diagnostic tests already
performed at Rush, thereby delaying surgical treatment.  It was
not until February 25, 1990, that a liver transplant specialist
was brought in from the University of Chicago Hospital for a
consult.  On February 27, 1990, Jacobs was transferred to
University of Chicago for a liver transplant.
     A liver transplant was performed on February 28, 1990. 
Jacobs was hospitalized at the University of Chicago through June
7, 1990, during which time he underwent numerous diagnostic and
surgical procedures.  Jacobs ultimately had to have both legs
amputated above the knee.
     It is important to note that, in Jacobs' first amended
complaint, Rush and Northwestern were not alleged to be liable on
a theory of agency or respondeat superior, but instead, were
charged with their own acts of negligence.  The complaint
acknowledged the independent contractor status of the doctors who
treated Jacobs at these facilities.  The complaint assigned
negligence to Rush and Northwestern by 13 different means,
including a failure to properly refer and treat Jacobs, failure
to hire competent doctors; failure to train, manage, and
supervise the doctors; and failure to establish and enforce
proper protocols.  
     Generally speaking, when a hospital is the defendant in a
medical malpractice action, a physician licensed in all its
branches is qualified to be the reviewing health professional. 
735 ILCS 5/2-622(a)(1) (West 1994); Moss v. Gibbons, 180 Ill.
App. 3d 632, 637, 536 N.E.2d 125 (1989).  However, there is
support for the notion that, when allegations of a hospital's
failure to supervise are advanced, the reviewing professional may
be required to demonstrate competence in health care
administration.  Comfort v. Wheaton, 229 Ill. App. 3d 828, 594 N.E.2d 381 (1992).  In any event, the report, to be sufficient,
must discuss the involvement of each defendant in the treatment
of the plaintiff and must be more than a "generalized conclusion"
of malpractice.  Moss v. Gibbons, 180 Ill. App. 3d at 638.
     In the present case, the reviewing physician's report 
details how several physicians involved in Jacobs' treatment
during his hospitalizations at Rush and Northwestern deviated
from the standard of care.  It does not, however, set forth with
any particularity how the hospitals deviated from the standard of
care applicable to them.  The reviewing physician merely
concludes that the hospitals failed to properly screen the
physician it granted privileges to, failed to properly train and
supervise the doctors assigned to treat Jacobs, and failed to
transfer Jacobs in a timely manner.  These assertions,
unsupported by any facts or reasoning, are insufficient to meet
the requirements of section 2-622.  See Tucker v. St. James
Hospital, 279 Ill. App. 3d 696, 665 N.E.2d 392 (1996) (health
professional's report must fail under section 2-622 if it does
not provide reasoning to support conclusions).
     Under these circumstances, we cannot say that the trial
court abused its discretion when it found that the section 2-622
certificate was insufficient as to these defendants.  Because our
review is limited to an assessment of the trial court's exercise
of discretion, we affirm the order of the circuit court
dismissing Rush and Northwestern.
     Subsequent to dismissal, Jacobs sought leave to file a
second amended complaint in which he alleged that the doctors who
treated him at Rush and Northwestern were the agents or apparent
agents of Rush and Northwestern and that the hospitals, by and
through its agents, were negligent.   This is because the court
in Comfort v. Wheaton, 229 Ill. App. 3d 828, 594 N.E.2d 381
(1992), found that a health professional's report which was
sufficient as to the defendant doctors would also be sufficient
as to the hospital if the complaint alleged agency or respondeat
superior.  The trial court, however, denied Jacobs leave to file
the second amended complaint, saying that the attempt to plead
agency "comes too late."  Jacobs asks us to find that the trial
court abused its discretion.  We do not.
      A trial court has the discretion to vacate an order of
dismissal, as well as the discretion, pursuant to section 2-616
of the Code of Civil Procedure, to allow an amendment any time
before judgment on just and reasonable terms.  Although we might
have ruled differently if we were deciding the matter in the
first instance, we cannot say that the trial court abused its
discretion by refusing to allow amendment.
      As the facts recited earlier make clear, plaintiff had
ample time and opportunity to bring a proper case before the
court.  In 1993, when the matter was refiled after being
voluntarily dismissed in 1992, Jacobs chose to proceed on the
theory that the hospitals acted with independent negligence.  
Plaintiff was unable to obtain a section 2-622 report to support
this theory after being given numerous opportunities to do so. 
We cannot say that the trial court abused its discretion by
refusing to allow Jacobs to amend his complaint to allege the new
theory of agency, especially when Jacobs previously admitted that
the physicians acted as independent contractors.
     We affirm the order dismissing Rush and Northwestern with
prejudice.
     AFFIRMED.
     BRADEN, J., concurs.
     BUCKLEY, J., dissents.

     JUSTICE BUCKLEY dissents:
     I respectfully dissent from the majority decision, as I
believe that plaintiff's section 2-622 reviewing health care
professional's report satisfied the statutory requirements, and
second, that if it did not, the trial court should have allowed
plaintiff's second-amended complaint.  
     A complaint may be dismissed where the section 2-622 written
report does not comply with the statutory standards, but leave to
amend should then be granted.  Steinberg v. Dunseth, 276 Ill.
App. 3d 1038, 1042, 658 N.E.2d 1239, 1244 (1995).  Section 2-622
simply requires that plaintiff's complaint contain (1) an
affidavit stating that a qualified health professional has
determined that plaintiff's cause of action is meritorious, and
(2) a written report indicating the basis for this determination. 
735 ILCS 5/2-622 (West 1994).  As long as minimal compliance is
made, the case should move on to summary judgment or trial. 
Steinberg, 276 Ill. App. 3d at 1049, 658 N.E.2d  at 1248.  A
single report is adequate if it is sufficiently broad to cover
all defendants.  Relaford v. Kyaw, 173 Ill. App. 3d 1034, 1040,
527 N.E.2d 1328, 1332 (1988).  Most importantly, the purpose of
section 2-622 is to deter frivolous suits rather than to deprive
a plaintiff of a trial on the merits of his claim.  See
Steinberg, 276 Ill. App. 3d at 1042, 658 N.E.2d  at 1244. 
     Plaintiff's section 2-622 report clearly met the statutory
requirements where it set forth six distinct reasons in support
of the health professional's determination that plaintiff's claim
was reasonable and meritorious as against specific physicians as
well as Rush and Northwestern hospitals.  As to the doctors, the
report stated the failure to timely and accurately diagnose
plaintiff's illness, failure to assess the possibility of a
surgical procedure in a timely manner, and failure to take the
appropriate measures to ascertain the reasons for plaintiff's
symptoms.  
     Regarding the fault of the hospitals, the report stated a
significant delay in transferring plaintiff to a care center
where a corrective procedure and/or liver transplant could occur,
failure to screen the physicians to whom the hospitals granted
privileges in order to establish the doctors' competency to deal
with such situations, and failure to properly and adequately
train and supervise physicians, residents and interns.  Given
these clear assertions of liability on the part of both
individual physicians and the hospitals at which they work, I
find that plaintiff's reviewing health care professional's report
met the requirements of section 2-622 as to defendants Rush and
Northwestern.
     The second basis for my dissent is that I believe the trial
court abused its discretion in denying plaintiff's motion to
amend his complaint to add agency allegations.
     A trial court has discretion in determining whether an
amendment should be allowed, but the court's determination should
be reversed where it has abused that discretion.  In re Estate of
Hoover, 155 Ill. 2d 402, 416, 615 N.E.2d 736, 742 (1993).  In
assessing whether an abuse of discretion has occurred, four
factors are considered:  (1) whether the amendment cures the
defects in the pleadings; (2) whether the amendment is timely;
(3) whether the movant had previous opportunities to amend; and
(4) whether other parties would sustain prejudice or surprise by
the amendment.  Loyola Academy v. S. & S. Roof Maintenance, Inc.,
146 Ill. 2d 263, 274-76, 586 N.E.2d 1211, 1216-17 (1992). 
Moreover, in medical malpractice actions, leave to amend may be
granted more freely since "the plaintiff should be afforded every
reasonable opportunity to establish his case."  Peterson v.
Hinsdale Hospital, 233 Ill. App. 3d 327, 332, 599 N.E.2d 84, 89
(1992).  See also Leask v. Hinrichs, 232 Ill. App. 3d 332, 339,
595 N.E.2d 1343, 1347 ("amendments to medical malpractice
pleadings should be liberally allowed so that the case may be
decided on its merits").
     Plaintiff's second-amended complaint adding agency
allegations, certainly cures any of the defects which the trial
court found in dismissing the complaint.  The amendment was
timely in that the request was made a little over nine months
after the complaint had been refiled and before any defendants
had filed an answer to the pending first-amended complaint. 
Moreover, plaintiff's request to amend was only his second
request to amend in this multi-count, multi-party, complex
medical malpractice action.  Finally, neither Rush nor
Northwestern could claim prejudice or surprise at plaintiff's
request to amend or by the allegations contained therein.  The
amendment did not contain new causes of action so much as it
stated more clearly the cause of action (agency) which had been
suggested by the allegations in the earlier complaint. 
Furthermore, this request was necessitated only by the trial
court's improper dismissal of plaintiff's first complaint on the
grounds that plaintiff's section 2-622 report was insufficient. 
Finding that all four factors are satisfied, I believe the trial
court abused its discretion in refusing to allow plaintiff's
second request to amend.
     For the reasons stated herein, I would reverse the trial
court's dismissal with prejudice of defendants Rush and
Northwestern from plaintiff's lawsuit and remand for further
proceedings.