The much-publicized 2010 Illinois Supreme Court ruling in LeBron v. Gottlieb Memorial Hospital is most well-known for its impact on Illinois’ efforts at tort reform. However, this decision also served to change, and in some critics’ minds further complicate, Illinois law on the issue of the requirements of 735 ILCS 5/2-622. Recently, in an effort to further clarify the current status of Illinois law on this matter, the First District of the Illinois Appellate Court issued its opinion in Christmas v. Dr. Donald W. Hugar, Ltd., et al. 2011 Ill.App.LEXIS 317.
The stated purpose of 735 ILCS 5/2-622 is to function as a screening device for frivolous medical malpractice lawsuits. Under the statute, in a medical malpractice action "where plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing arts malpractice", the plaintiff’s attorney must file an affidavit declaring that:
- The affiant has consulted with a health professional who the affiant reasonably believes:
a. Is knowledgeable in the relevant issues involved in the particular action;
b. Practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and
c. Meets the expert witness standards set forth in 735 ILCS 5/8-2501;
- That the reviewing health care professional has determined in a written report that there is a reasonable and meritorious cause for the filing of such an action.
A single written report must be filed to cover each defendant. As to defendants who are individuals, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For written reports filed as to all other defendants who are not individuals, such as hospitals and practice groups, the written report must be from a physician licensed to practice medicine in all its branches who is qualified by experience with the standards of care, methods, procedures and treatments relevant to the allegations at issue in the case. In either case, the written health professional’s report must identify the profession of the reviewing health professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for filing of the action exists. The health professional’s report does not need to be signed by or identify the individual physician who authored the report. See 735 ILCS 5/2-622(a)(1). Failure of a plaintiff to file an affidavit and health professional’s report in compliance with the Statute can be grounds for dismissal under 735 ILCS 5/2-619. See 735 ILCS 5/2-622(g).
In Christmas v. Dr. Donald W. Hugar, Ltd., a First District case from April 2011, the Appellate Court considered what constituted the same "class of license" under 5/2-622. 2011 Ill.App.LEXIS 317, *1. In this matter, the plaintiff’s decedent, Tykeesha Christmas, underwent surgery for an ailment in her right foot; the surgery was performed by two licensed podiatrists. Id. at *1. Unfortunately, two weeks after surgery, Ms. Christmas died due to complications from the procedure. Id. The plaintiff filed a medical malpractice action against several parties, including the individual podiatrists who operated on the plaintiff’s decedent. Id.at *2.
As required under 5/2-622, the plaintiff’s attorney provided a signed affidavit stating that he had consulted "with a currently practicing podiatrist physician" who had "determined in a written report that there is a reasonable and meritorious cause for the filing of this action" against the defendants. Id.The author of this health care professional’s report was not named. Id. In his report, this professional stated that, to a reasonable degree of medical/podiatric certainty, the cause of action had merit, and, specifically, that there were "substandard omissions/actions" by the defendant podiatrists that were "deviations from the acceptable standard of care and served as significant contributing factors" in Ms. Christmas’ death. Id.
The case proceeded for the next several years. Approximately three months before trial, defendants, , conducted the deposition of Dr. Randal Wojciehoski, a witness identified by the plaintiff as an expert witness who would testify at trial. Id. It was determined that Wojciehoski was actually the individual who authored the 5/2-622 report in this matter. Id. at *3. Defendants discovered during his deposition that Wojciehoski had not been a licensed podiatrist at the time he authored the report. Id. He graduated as a doctor of podiatric medicine, and later became a doctor of osteopathy. Id. However, Dr. Wojciehoski allowed his podiatric license to lapse, and from that point on, only maintained his professional license as an osteopathic physician and emergency physician. Id.Wojciehoski stated at his deposition that his osteopathic license and corresponding licenses allowed him to "provide a full-scope practice that included podiatric medical services without the need for additional podiatric license." Id. at *3. Less than two weeks before trial, the defendants moved to dismiss the case under 735 ILCS 5/2-619 arguing that the plaintiff had failed to comply with 5/2-622 because the author of the health professional’s report was not a licensed podiatrist when he authored the report. Id. at *3-4.
The Appellate Court agreed, and granted the defendants’ motion to dismiss prior to trial, holding that Dr. Wojciehoski was not qualified to author a 5/2-622 report regarding the standard of care of a podiatrist because, at the time he authored the report, he was not a licensed podiatrist.
Initially, the Appellate Court determined that, in the context of professional regulation, "no person shall practice podiatric medicine in Illinois without a valid existing license to do so." 225 ILCS 100/1 (West 2008); Christmas, 2011 Ill.App.LEXIS 317 at *9. The term "license" as used in 2-622 and as applied to podiatrists, refers to a license that has been obtained from the Department of Financial and Professional Regulation following an examination and satisfaction of other qualifications. Christmas, 2011 Ill.App.LEXIS 317 at *10. It was not disputed that Wojciehoski did not have a license to practice podiatry at the time he authored report.
The ultimate issue in this case, therefore, was whether a physician could legally opine on the standard of care that podiatrists owe to their patients. The Christmas court held that this issue had previously been decided by the Illinois Supreme Court in Dolan v. Galluzzo, 77 Ill.2d 279, 396 N.E.2d 13 (1979). In Dolan, the Court held that a "practitioner of a particular school of medicine is entitled to have his conduct tested by the standards of his school" and "in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein." Id.at 283, 285; see also Gill v. Foster, 157 Ill.2d 304, 626 N.E.2d 190 (1993) (reaffirming Dolan’s holding); Jones v. O’Young, 154 Ill.2d 39, 607 N.E.2d 224 (1992).
Relying largely on Dolan, the Christmas court found that the only health professionals that are legally competent to evaluate the standard of care for podiatric medicine at trial are licensed podiatrists, and physicians who are licensed under a different regulatory regime cannot evaluate whether defendant podiatrists have complied with the standard of care unless they are also licensed podiatrists. Christmas, 2011 Ill.App.LEXIS 317 at *16. Because physicians who are not licensed podiatrists cannot opine on the standard of care for podiatrists, they therefore cannot author 5/2-622 reports that deem a cause of action against defendant podiatrists to be "reasonable and meritorious." Id. Ultimately, the First District Appellate Court held that section 2-622 "requires that the author of a report must hold a current podiatric license when the defendant in the case is a licensed podiatrist, and it is not sufficient for the author to be licensed only as a physician." Id. at *18. As a result, and because Dr. Wojciehoski was not a licensed podiatrist at the time he authored the 2-622 report, the report was defective.
Though questions still remain regarding the current state of the law regarding 735 ILCS 5/2-622 in light of the LeBron decision, the recent Christmas decision clarifies and reestablishes a more stringent requirement for the health professionals reports required for plaintiff’s attorneys to comply with the statute in cases involving podiatrists. It remains to be seen if the court’s reasoning in Christmas will be applicable in cases outside the context of podiatrists, including nursing and other specialized medical licenses. Ultimately, however, the Christmas decision provides a sound basis for further challenges to plaintiffs’ health professional reports as required by 735 ILCS 5/2-622, and the result of these challenges will undoubtedly serve to further clarify this issue.