Christmas v. Hugar

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Christmas v. Hugar

State: Illinois

Court: 1st District Appellate

Docket No: 1-10-1743 Rel

Case Date: 04/05/2011

Preview:SECOND DIVISION April 5, 2011 No. 1-10-1743 TYKEESHA CHRISTMAS, Special Administrator ) of the Estate of Vernice Christmas, ) ) Plaintiff-Appellant, ) ) v. ) ) DR. DONALD W. HUGAR, LTD., RONALD W. ) HUGAR, LORETTO HOSPITAL, and T. ) MACK, ) ) Defendants-Appellees. ) Appeal from the Circuit Court of Cook County

No. 06 L 5624

Honorable Eileen Mary Brewer Judge Presiding.

JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Karnezis concurred in the judgment and opinion. Justice Harris dissented, with opinion. OPINION Plaintiff Tykeesha Christmas appeals from the dismissal with prejudice of her medical malpractice complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2619 (West 2008)) on the ground that the physician who authored a report in support of her complaint as required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1998)) was not properly licensed. We affirm. I. BACKGROUND As relevant to this appeal, the facts of this case are straightforward. In 2004, Vernice Christmas underwent surgery for an ailment in her right foot. The surgery was performed by defendants Dr. Hugar and Dr. Mack, both Illinois-licensed podiatrists. Unfortunately, Vernice died about two weeks after the surgery, allegedly due to complications from the operation. Plaintiff, as administrator of Vernice's estate, filed the instant medical malpractice action against defendants in 2006.

No. 1-10-1743 As required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1998)), plaintiff's complaint included an affidavit by her attorney stating that the attorney had consulted "with a currently practicing podiatric physician," who had "determined in a written report *** that there is a reasonable and meritorious cause for the filing of this action" against defendants. A copy of the report was also attached, but the author of the report was not named. The author of the report stated that it was his "professional opinion *** based on a reasonable degree of medical/podiatric certainty" that the cause of action against defendants had merit. Specifically, the author identified "substandard omissions/actions" by defendants that were "deviations from acceptable standard of care and served as significant contributing factors" in Vernice's death. After the complaint was filed, the parties proceeded to discovery and litigated the case for about four years. However, in 2010, about three months before the trial was scheduled to begin, defendants conducted the deposition of Dr. Randal Wojciehoski, whom plaintiff had identified as an expert witness expected to testify at trial. As it turned out, Dr. Wojciehoski was the author of the 2006 report. However, defendants discovered during the deposition that Dr. Wojciehoski had not been licensed as a podiatrist at the time that he authored the report. Dr. Wojciehoski graduated as a doctor of podiatric medicine in 1986, and he later became a doctor of osteopathy in 1989. However, Dr. Wojciehoski allowed his podiatric license to lapse sometime around 1990, and from that point on he maintained only his professional licenses as an osteopathic physician and emergency physician. Dr. Wojciehoski mentioned during his deposition that his Wisconsin osteopathic license, as well as the corresponding licenses that he held in other states, allowed him to provide a full-scope practice that included podiatric medical 2

No. 1-10-1743 services without the need for the additional podiatric license. Dr. Wojciehoski did not obtain a new podiatric license until shortly before the deposition in 2010, when he was retained as a defense expert for a podiatrist in a case unrelated to this one. Less than two weeks after the deposition, defendants moved to dismiss the complaint under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)), arguing that plaintiff had failed to comply with section 2-622 because Dr. Wojciehoski was not a licensed podiatrist when he authored the report. Because a valid section 2-622 report is a statutory requirement for filing a medical malpractice action, defendants asserted that plaintiff's complaint must be dismissed. Plaintiff argued that Dr. Wojciehoski's license as an osteopathic physician satisfied the requirements of section 2-622 because under Wisconsin law, according to plaintiff, licensed osteopaths may practice podiatric medicine without obtaining a podiatric license. Following full briefing and extensive oral arguments, the trial court found that plaintiff had not complied with section 2-622 and dismissed the complaint with prejudice. Plaintiff timely filed a notice of appeal, and this case is now before us. II. ANALYSIS This appeal presents two issues: (1) whether plaintiff complied with the statutory requirements for pleading a medical malpractice claim under section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2006)); and (2) if not, whether dismissal of the complaint with prejudice was warranted under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2619 (West 2008)). A. Compliance with Section 2-622 3

No. 1-10-1743 We initially examine whether plaintiff complied with the requirements of section 2-622, but we first must mention the current legal status of this section. Section 2-622 has been affected by several judicial decisions and legislative enactments, most recently in Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 250 (2010). See also O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill. 2d 421, 424-25, 450 (2008). See generally Cookson v. Price, 239 Ill. 2d 339, 341-42 (2010) (explaining the effect of the various judicial actions and the legislative amendments to section 2-622). The legislature is in the process of reenacting section 2-622 as it existed before Lebron (see 97th Ill. Gen. Assem., House Bill 2887, 2011 Sess.; 97th Ill. Gen. Assem., Senate Bill 1887, 2011 Sess.), but the legislation has not yet been passed as of the date of this appeal. Despite the convoluted procedural history of section 2-622, the specific language that is at issue in this appeal has never been altered, and so which version of the statute we refer to is immaterial. Although there are some textual differences between the version of section 2-622 as it currently stands and the version that existed prior to Lebron, the phrase "licensed in the same profession, with the same class of license" did not change and presumably will remain the same following reenactment by the legislature. 735 ILCS 5/2-622 (West 2008); 97th Ill. Gen. Assem., House Bill 2887, 2011 Sess. As it currently stands, the portion of section 2-622 that is relevant to this case reads as follows: "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, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the 4

No. 1-10-1743 complaint, declaring one of the following: 1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) 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 (iii) is qualified by experience or demonstrated competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist, or a naprapath, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant." (Emphasis added.) 735 ILCS 5/2-622(a) (West 1998). The individual defendants in this case are podiatrists licensed under Illinois law, and therefore section 2-622 requires plaintiff's attorney to consult with a health professional who is licensed to practice podiatry prior to filing the lawsuit. The disagreement between the parties in this case is over the meaning of the term "license" as it is used in the statute. It is undisputed 5

No. 1-10-1743 that, at the time plaintiff filed her lawsuit in 2006, Dr. Wojchiehoski did not hold a podiatric license. However, plaintiff argues that Dr. Wojchiehoski's Wisconsin license as a doctor of osteopathy is sufficient to satisfy the licensing requirement of section 2-622 because Wisconsin law allows doctors of osteopathy to practice podiatric medicine without additional licensing. Defendants' position is that the statute means that authors of section 2-622 reports must hold a current podiatric license, regardless of any other qualifications they might have. We interpret the meaning of a statute de novo, and the general principles of statutory construction are well known. See Acme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 35 (2009). Our primary objective is to give effect to the legislature's intent, and "[t]he most reliable indicator of the legislature's intent is the language of the statute, given its plain, ordinary, and popularly understood meaning." Gardner v. Mullins, 234 Ill. 2d 503, 511 (2009). When a statute leaves terms undefined, we may consult a dictionary to determine their plain and ordinary meaning. See People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 15 (1991). Additionally, where two statutes deal with the same subject matter, they must be considered together in order to give them a harmonious effect. See People v. McCarty, 223 Ill. 2d 109, 133 (2006). "[W]here an enactment is clear and unambiguous a court is not at liberty to depart from the plain language and meaning of the statute by reading into it exceptions, limitations or conditions that the legislature did not express. [Citations.]" Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). Section 2-622 does not define what it means by the term "license," so we turn to the dictionary. In the context of professional regulation, a license is defined as "a right or permission granted in accordance with law by a competent authority to engage in some business 6

No. 1-10-1743 or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful." Webster's Third New International Dictionary 1304 (1981). In Illinois, the practice of podiatry is controlled by the Podiatric Medical Practice Act of 1987 (225 ILCS 100/1 et seq. (West 2008)). The public policy behind the Act is to ensure that "only qualified persons" practice podiatric medicine, and the Act declares that "no person shall practice podiatric medicine in the State of Illinois without a valid existing license to do so." 225 ILCS 100/1 (West 2008); see also 225 ILCS 100/11 (West 2008) (prohibiting unlicensed practice). The Act designates the Department of Financial and Professional Regulation (DFPR) as the body authorized to issue podiatric licenses, and it promulgates application and examination requirements as well as mandatory qualifications for receiving a license from the DFPR's licensing board. See 225 ILCS 100/8 through 10 (West 2008). When section 2-622 of the Code of Civil Procedure is read in conjunction with the licensing regime described in the Podiatric Medical Practice Act of 1987, it is readily apparent that the term "license," as it is used in section 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. Consequently, someone who holds a current podiatric license satisfies the licensing requirement of section 2-622. The statute does not contain any limiting language that would indicate that it can only be satisfied by an Illinois podiatric license, so we assume without deciding that a current podiatric license from another jurisdiction also satisfies section 2-622. The problem here is that Dr. Wojchiehoski did not hold a podiatric license from any jurisdiction when he wrote the section 2-622 report, and so the question now becomes whether 7

No. 1-10-1743 his Wisconsin license as a doctor of osteopathy satisfies the statute's licensing requirement. Plaintiff has provided us with an extensive analysis of the intricacies of Wisconsin law on this point in her brief. Plaintiff's position rests on the premise that under Wisconsin's podiatry licensing regime a license is not required for someone who is "lawfully practicing within the scope of a license, permit, registration or certification granted by this state or the federal government." Wis. Stat.

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