Crull v. Sriratana

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 4th District Appellate » 2007 » Crull v. Sriratana

Crull v. Sriratana

State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0952 Rel

Case Date: 10/11/2007

Preview:NO. 4-06-0952 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Filed 10/11/07

DAN CRULL, Special Administrator of ) Appeal from the Estate of NOVALENE CRULL, ) Circuit Court of Deceased, ) Livingston County Plaintiff-Appellant, ) No. 04L36 v. ) PRAMERN SRIRATANA, M.D.; MID-ILLINOIS ) HEMATOLOGY & ONCOLOGY ASSOCIATES, ) LTD., an Illinois Corporation; KENNETH ) N. JORDAN, D.O.; and MADISON STREET ) CLINIC, P.C., an Illinois Professional ) Honorable CORPORATION, ) Harold J. Frobish, Defendants-Appellees. ) Judge Presiding. _________________________________________________________________ PRESIDING JUSTICE STEIGMANN delivered the opinion of the court: In December 2004, plaintiff, Dan Crull, as special administrator of the estate of Novalene Crull, filed a medicalmalpractice complaint against defendants, Pramern Sriratana, M.D.; Mid-Illinois Hematology & Oncology Associates, Ltd.; Kenneth N. Jordan, D.O.; and Madison Street Clinic, P.C. In October 2006, the trial court dismissed plaintiff's complaint with prejudice, upon learning that the reviewing health-care professional's report, which was required by section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2004)), had been written by a person not licensed to practice medicine. Plaintiff appeals, arguing that the trial court erred by (1) ordering him to reveal the identity of the author of the section 2-622 report and (2) dismissing the case with prejudice.

We disagree and affirm. I. BACKGROUND When plaintiff filed his December 2004 medical-malpractice complaint, he failed to attach a report of a reviewing health-care professional and, instead, invoked the automatic statutory 90-day extension under section 2-622(a)(2) of the Code (735 ILCS 5/2-622(a)(2) (West 2004)). However, plaintiff did not

file a report of any reviewing health-care professional before the automatic 90-day stay expired on March 17, 2005. of limitations expired on December 19, 2004. In early March 2005, Sriratana, a specialist in hematology and oncology, and his corporation prematurely filed a motion to dismiss plaintiff's complaint based on plaintiff's failure to file a section 2-622 report from a qualified reviewing health-care professional. On March 21, 2005, Jordan, a specialThe statute

ist in orthopedics and muscular osteopathic medicine, and his corporation filed a motion to dismiss, alleging that plaintiff failed to comply with section 2-622, in that he failed to submit an attorney affidavit, health-care professional's report, or a motion for an extension of time to file the report within the 90day period. The next day, the trial court held a hearing on defendants' motions to dismiss. At the start of the hearing, plain-

tiff's counsel, Guy Geleerd, moved for leave to file three identical section 2-622 affidavits and health-care professional's reports instanter and tendered the affidavits and reports he - 2 -

sought to submit.

Each of Geleerd's affidavits stated that he

had consulted and reviewed the facts of this case with a healthcare professional whom he believed (1) to be knowledgeable in the relevant issues involved in this cause of action, (2) had practiced within the last six years in the same area of health care or medicine at issue in this cause of action, and (3) was qualified by experience and demonstrated competence in the subject of this case. Each affidavit also stated that a copy of the health-

care professional's report was attached, clearly identifying the reasons for the professional's determination that a reasonable and meritorious cause for filing of this cause of action existed. The health-care professional's reports, dated March 18, 2005, stated that the author was a "physician licensed to practice medicine in all of its branches, residency trained and board certified in [the] specialty of internal medicine/nephrology." The report was not signed and did not reveal the reviewing health-care professional's name and address, as required by section 2-622(a)(1) of the Code (735 ILCS 5/2-622(a)(1) (West 2004)). The trial court recognized that the health-care reports were not signed. When the court asked Geleerd why the health-

care reports did not reveal the author's identity, Geleerd responded that "Illinois law does not require that we tender signed [section] 2-622 reports along with our [section] 2-622 affidavit." Sriratana's counsel objected, and the following

colloquy between the court and Geleerd occurred: - 3 -

"THE COURT:

Well, aside from what the

law requires, give me the name of your expert. MR. GELEERD: THE COURT: I don't want to do that. Well, you may regret that.

I want to know from you, as an officer of this court, that you have got somebody. I

want to know who he is, and I want to know why his name is not on here. MR. GELEERD: I have two experts. One

is a board[-]certified internal medicine and nephrologist [expert]; and one is a board[-] certified internal medicine and infectious disease expert. And until the Cargill [v.

Czelatdko, 353 Ill. App. 3d 654, 818 N.E.2d 898 (2004),] decision is reviewed by either an [a]ppellate [c]ourt or the [s]upreme [c]ourt, it is our understanding that the Best v. Taylor [Machine Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997),] decision overrides the previously stricken [section] 2-622 that requires the plaintiff to identify his or her expert. THE COURT: You are conceding that

Cargill requires identification? MR. GELEERD: Oh, yes. - 4 No question

about that. THE COURT: Do you have any authority

other than Cargill that speaks to the issue that would excuse you from identifying the expert? MR. GELEERD: There is a Rule 23 order

[(166 Ill 2d. R. 23)] that was issued by the First District Appellate Court that we have been trying to get a copy of, that we have been unable to get a copy of. But there is a

Rule 23 order by the First District Appellate Court that did not follow Cargill. we are kind of waiting. THE COURT: trict? MR. GELEERD: Cargill is out of I beCargill is out of what DisAnd now

lieve it is the Fifth District, Your Honor. MR. GUNN: Your Honor. THE COURT: be correct. *** THE COURT: I am going to give you an Fourth District, that might I believe it is the Fourth,

opportunity, Mr. Geleerd, for you to state who it is that your experts are today. Give

me their names and their physical locations. - 5 -

MR. GELEERD: THE COURT: MR. GELEERD:

Can I do that in camera? No. Can I do that outside the

presence of the defense counsel? THE COURT: MR. GELEERD: THE COURT: to. No. I feel I am in a very *** I am not going to order you

I am going to give you the opportunity

to provide some assurance to the court by identification of these people that you actually have them. MR. GELEERD: Oh, I will be more than

happy to state on the record. THE COURT: I am not interested in that. I will know if you

There is a test here.

have got them if you give me their names and addresses. And then they are deposed at a

particular point in time, and they will say yes, I was on board with Mr. Geleerd on March 22, 2005; or, yes, this man had talked to me, but I didn't really know what was going on. No, you know, whatever. sured. I want to be as-

I want the [a]ppellate [c]ourt to be

assured that you have someone on board right now that has seen this opinion letter to you and has said, Mr. Geleerd, I will sign that. - 6 -

Let me ask this question.

Have these

experts signed these opinion letters already? MR. GELEERD: One has not. The board[-]

certified internist with the specialty in infectious disease has not. And the board[-]

certified internal medicine [physician] with the specialty in nephrology has reviewed the records. And he is the one who gave me a

draft of the letter that I attached to the [section] 2-622. The actual [section] 2-622

is what I sent down to him on March 18, which I have not received a copy of them. THE COURT: As you sit there now, there

is not in your possession a signed opinion letter by anyone. true? MR. GELEERD: No, that is not true. I Would that be true or not

do have a signed opinion letter of a consultant who is an internal[-]medicine physician. However, I am happy to disclose to this [c]ourt the names of the two experts that I would put on the stand in front of the jury. I just would ask not to do that in front of defense counsel, unless this [c]ourt is ordering me to do so, then, I would be happy to do so. But both of the individuals who I - 7 -

will disclose at this point in time will come on board as experts for the plaintiff to testify in this case. THE COURT: plaintiff. Well, you represent the

I am going to let you decide what I am not going to

it is that you have to do. order you to.

If you are going to be sued

for malpractice, this will be a call that you made that subjected yourself to liability. am not saying how I am going to rule. But I I

want the record clear that you have an opportunity today to give the identification of these two experts. You are either going to

do that, or you are not going to do that. And that is your call. your decision." Geleerd then asked for an opportunity to consult with the beneficiaries of the estate "so they are made aware of the [c]ourt's request that I go against what the plaintiff's bar is considering a wrong decision, that being Cargill." Geleerd wanted to let And you live with

them know what was going on "since there is a split in the law between the plaintiff's bar and the defense bar." Geleerd

indicated he was proceeding under Best, the pre-Cargill case. The court then stated no split in the law existed, to which Geleerd responded that he was of the opinion there was a split between the First District and the Fourth District Appellate - 8 -

Courts.

The court then asked Geleerd if he was aware that they

were in the Fourth District, and Geleerd responded that he was. Later, at the same hearing, the trial court and Geleerd had the following discussion: "THE COURT: What is your reason that

you don't want to disclose them as you sit there today? Are you afraid you are going to What's your con-

besmirch their reputation? cern? MR. GELEERD:

No, not at all.

I feel

that as a member of the plaintiff's bar, and recognizing-THE COURT: you have clients. Well, forget the club. But

Why don't you just want to

say, these are the names of doctors, this is what they say. soning. I don't understand your rea-

Be clear because we have got a re-

cord here. MR. GELEERD: My only reason, as you I don't

said, being a member of the club.

want to put my club, as you say, the Illinois Trial Lawyers Association, into a position where I have conceded to Cargill where I know that there is a Rule 23 order from the First District Appellate Court that is trying to get its way up to the [s]upreme [c]ourt so - 9 -

the [s]upreme [c]ourt can look at Cargill. THE COURT: your clients. So it is the club, and not

You asked for a recess to talk And they

to the clients to get permission.

are not going to understand one iota. MR. GELEERD: You are absolutely right.

But that is the legal[-]malpractice issue. But I have absolutely no objection, if the [c]ourt begs my indulgence, I can get these people." Sriratana's counsel then objected because the 90-day statutory deadline had passed and plaintiff had still not offered a signed section 2-622 report. also objected. Counsel for the other defendants

The court reserved ruling and gave plaintiff time

to file a motion for leave to extend the statutory deadline, but urged Geleerd to furnish the signed opinion letters as soon as possible. At the end of the hearing, Geleerd indicated that on January 1, 2005, his law partner died unexpectedly of a heart attack. As a result, Geleerd had to review over 300 files and

overlooked the deadline to file the section 2-622 affidavit and report. In April 2005, Geleerd sent a letter disclosing the name of a physician who Geleerd purported was the reviewing health-care professional. In this letter, Geleerd stated that

"in accord with the [c]ourt's order, and after having engaged - 10 -

plaintiff's expert in accord with the [c]ourt's order," he received the expert's draft letter via e-mail and indicated he would be forwarding the same to defendants' counsel. Later in

April 2005, plaintiff filed a motion for an extension of time in which to file the section 2-622 report. Attached thereto was the

report of a reviewing health-care professional identifying Bruce R. Leslie, M.D., as the author. This report was different in

both format and content from the reports presented at the March 2005 hearing. In his report, Leslie stated that he was board

certified in internal medicine but did not mention a specialty in either nephrology or infectious disease. Geleerd revealed for

the first time in May 2005 that Leslie was not the author of the unsigned reports tendered at the March 2005 hearing. In July 2005, the parties were before the trial court for a hearing on defendants' motion to dismiss and plaintiff's motion for an extension of time to file the section 2-622 report. The court denied defendants' motion to dismiss and, over defendants' objections, granted plaintiff's motion for extension and allowed the late filing of the section 2-622 report. Sriratana's

counsel pointed out the identity of the original author of the section 2-622 reports tendered at the March 2005 hearing had not been disclosed and asked that they be disclosed. Because the

issue had not been briefed to the point the court felt that it could make an informed decision, the court stated that counsel could raise the issue later in a new motion and described it as a "separate[,] very meaty issue." - 11 -

In October 2005, Sriratana filed a motion to compel plaintiff to reveal the identity of plaintiff's reviewing healthcare professionals. At a January 2006 hearing, the trial court

described the issue as whether "plaintiff should be compelled to identify the individuals that have been described as consultants." Geleerd stated that he had already disclosed one of his

two experts and would be disclosing the other expert, who was an infectious-disease expert. He then clarified that the only

identity he was "seeking to prohibit from disclosure [was] one consultant who signed the [section] 2-622 that [Geleerd] tendered in open court [in March 2005]." Geleerd also stated that the

second expert whose report he would be submitting was Dr. Frank Rhame. Geleerd acknowledged that he relied on the undisclosed author of the March 2005 report as being within the confines of section 2-622 but stated this was "[u]nder the auspices that he [was] a nondisclosed expert" under discovery rules. The trial

court asked Geleerd if he wanted "to hide whoever this person was and prevent [defendants] from really ascertaining whether [he] had [his] ducks in a row, whether [he] had the solid basis for a malpractice action." Geleerd denied that he was doing that and

reiterated he was litigating the case under the pre-Cargill state of law, which, according to Geleerd, did not require the identity of a section 2-622 health-care professional. Defendants argued that plaintiff forfeited the right not to reveal the consultant's identity since plaintiff used the - 12 -

consultant to defeat defendants' motion to dismiss.

The trial

court and Geleerd engaged in a dialogue as to why Geleerd should not be required to reveal the identity of the consultant who authored the section 2-622 reports tendered in March 2005. Geleerd responded, "Why can't they take my word and yours?" and suggested he could identify the consultant to the court and defendants could then take the court's word that a medical doctor had signed the report. Geleerd stated that no law supported the

theory that a plaintiff forfeits the right not to disclose the consultant's identity by using the consultant to defeat a motion to dismiss. Geleerd also stated that this argument failed

because the court entered an order extending the time within which plaintiff could file the section 2-622 report, and Geleerd filed the report signed by Leslie. Defendants' counsel then argued that in 1998 the legislature passed section 2-622 of the Code, which gave defendants the right to know who was certifying the case against them. Thus, Geleerd's argument that disclosure was not required prior to the decision in Cargill lacked merit. Following more argument, the trial court granted defendants' motion to compel disclosure of the identity of the author of the unsigned reports tendered in March 2005. The court

gave Geleerd a short time to reveal the identity of the consultant but indicated if he refused to do so, the court would dismiss the case. The trial court then stated as follows:

"I am simply requiring--finding that you have - 13 -

chosen to use, for good reason, you have chosen this individual to keep your case alive. And you have kept your case alive by And fair play and the right to

using him.

enforce the law as contemplated by the [l]egislature entitles the defense to know who he is." In February 2006, plaintiff filed a motion to reconsider the trial court's January 2006 ruling requiring disclosure of the consultant. At an April 2006 hearing on that motion, the

court asked Geleerd if Leslie had been contacted and was "on board" as of the March 22, 2005, hearing. Geleerd responded that How-

he had contacted both Leslie and Rhame in November 2004.

ever, he acknowledged that as of March 22, 2005, (1) he had not yet sent Leslie or Rhame all of the medical records in the case, (2) neither Leslie nor Rhame had sufficient records upon which they could make an opinion as to whether the case presented a meritorious cause of action, and (3) the only person who could make such an opinion was his unnamed consultant. denied plaintiff's motion to reconsider. The court

Later in April 2006,

Geleerd revealed to defendants that plaintiff's consultant was Dr. Bernard R. Lerner. During a May 2006 conference call with counsel, the trial court was advised that a question had arisen as to whether Lerner was licensed to practice medicine at the time his opinion was given. Geleerd was to get an affidavit and documentation - 14 -

regarding that issue.

The record does not show that Geleerd ever

produced such an affidavit. In May 2006, Lerner submitted a letter stating that the last medical license he held was in New Mexico. He later moved

to Chicago to pursue a career in medical consulting, and because he was no longer practicing medicine, he did not pay his fees or dues. After moving to Chicago, he learned that his license to

practice medicine had been suspended. Defendants provided the trial court with evidence showing the following. Lerner's Illinois license to practice

medicine was revoked in July 1990 after he was convicted of felony narcotics-related charges. Lerner's New Mexico medical

license expired in June 1999, and he was not licensed in any other state when he authored the March 2005 section 2-622 report. In January 2003, this court recognized that Lerner misrepresented his licensures and qualifications when authoring a section 2-622 report. See Long v. Mathew, 336 Ill. App. 3d 595, 599, 783 Long was published in the official

N.E.2d 1076, 1079 (2003).

advance sheet on April 2, 2003 (Official Reports Advance Sheet No. 7 (April 2, 2003)), well before Geleerd filed the complaint in December 2004 and the section 2-622 affidavit and health-care professional's report in March 2005. Lerner was not board

certified in internal medicine, as the March 2005 section 2-622 report stated, but rather practiced as a neurosurgeon (when he was licensed). In October 2006, the trial court ordered that Lerner's - 15 -

section 2-622 report be stricken because he was not a licensed physician. The court also ordered that Geleerd's March 2005

affidavit be stricken because it was based on Lerner's report. The court stated, "It is absolutely clear in this case that the requirements of [section 2-622] have not been met. clear." Absolutely

The court further stated that, "[i]n a very real sense,

a fraud has been committed upon" defendants, the court system, and the people of Illinois. The court explained as follows:

"The plaintiff relying on Lerner was never entitled to have a cause of action pursued. The plaintiff's case was dead in the water. Mr. Lerner was not a [licensed] physician. And the record must be made very clear here. No one, no one else was on board with the required opinion on March 17, [2005,] when the 90-day period expired." The court also made it clear that while it had found good cause for the late filing of the section 2-622 report, "it was good cause for the late filing of a health-care report by a doctor who was on board by March 17, [2005]." case with prejudice. This appeal followed. II. MOTIONS TO STRIKE PLAINTIFF'S REPLY BRIEF In April 2007, Sriratana and Jordan each filed a motion to strike plaintiff's reply brief, alleging that it failed to satisfy the requirements of Illinois Supreme Court Rule 341 (210 - 16 The court then dismissed the

Ill. 2d R. 341) because plaintiff (1) did not cite to the official record when making statements of fact, (2) referenced matters not within the record on appeal, and (3) failed to cite legal authority for legal arguments. tiff's reply brief. The rules of procedure concerning appellate briefs are not mere suggestions, and it is within this court's discretion to strike the plaintiff's brief for failing to comply with Supreme Court Rule 341. Niewold v. Fry, 306 Ill. App. 3d 735, 737, 714 Rule 341(j), which authorizes an "The reply We agree and strike plain-

N.E.2d 1082, 1084 (1999).

appellant to file a reply brief, provides as follows:

brief, if any, shall be confined strictly to replying to arguments presented in the brief of appellee and need contain only [a]rgument." 210 Ill. 2d R. 341(j). Rule 341(h)(7) requires

appellants to give reasons for their contentions "with citation of the authorities and the pages of the record relied on." Ill. 2d R. 341(h)(7). This court has stated that "[s]trict 210

adherence to the requirement of citing relevant pages of the record is necessary to expedite and facilitate the administration of justice." Maun v. Department of Professional Regulation, 299 A contention

Ill. App. 3d 388, 399, 701 N.E.2d 791, 799 (1998).

that is supported by some argument but no authority does not meet the requirements of Rule 341 and is considered forfeited. Sakellariadis v. Spanos, 163 Ill. App. 3d 1084, 1089, 517 N.E.2d 324, 328 (1987). Plaintiff's reply brief is 14 pages long, contains - 17 -

assertions that are either not in the record or are contrary to the record, and contains no citations to the record. In addi-

tion, instead of being strictly confined to replying to arguments raised in the appellee brief, plaintiff devotes much of his reply brief to (1) justifying Geleerd's failure to timely obtain a health-care professional who met the requirements of section 2622 and (2) explaining why Geleerd did not know Lerner did not have the necessary qualifications to meet section 2-622 requirements. III. ANALYSIS A. Plaintiff's Claim That the Trial Court Erred By Ordering Him To Reveal Lerner's Identity Plaintiff first argues that the trial court erred by ordering him to reveal Lerner's identity. Specifically, he

contends that the court abused its discretion by applying Cargill. We disagree. 1. Cargill: What Does Section 2-622 Require?

The legislature enacted section 2-622(a)(1), which requires a medical-malpractice plaintiff to file an affidavit and accompanying health-care professional's report with the complaint (735 ILCS 5/2-622(a)(1) (West 2004)), to minimize frivolous medical-malpractice suits. Hull v. Southern Illinois Hospital

Services, 356 Ill. App. 3d 300, 304, 826 N.E.2d 930, 933 (2005). The health professional's report is supposed to demonstrate that plaintiff has a meritorious claim and reasonable grounds exist for pursuing the action. Sullivan v. Edward Hospital, 209 Ill.

2d 100, 117, 806 N.E.2d 645, 656 (2004). - 18 -

In Cargill, the plaintiffs voluntarily dismissed their medical-malpractice complaint because they could not obtain the physician's report required by section 2-622(a)(1). The plain-

tiffs then refiled their complaint and asked for a 90-day extension (735 ILCS 5/2-622(a)(2) (West 2004)) to obtain the physician's report. The defendants argued that section 2-622 does not

allow for a 90-day extension for plaintiffs to file a physician's report when plaintiffs have previously voluntarily dismissed an action based on the same acts. 818 N.E.2d at 901. Cargill, 353 Ill. App. 3d at 656,

This court held that under section 2-

622(a)(2), if a physician's report is not attached to the complaint, the plaintiff must attach an affidavit indicating that she has not previously dismissed an action based on the same or substantially the same acts. 818 N.E.2d at 905. Cargill, 353 Ill. App. 3d at 661,

In so doing, we discussed the history of

section 2-622 as follows: "Prior to 1995, section 2-622(a) provided, in part, as follows: 'In any action *** in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney *** shall file an affidavit, attached to the original and all copies of the complaint, de- 19 -

claring one of the following: 1. That the affiant has consulted and reviewed the facts of the case with a health professional who *** 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 ***. *** A copy of the writ-

ten report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit, but - 20 -

information which would identify the reviewing health professional may be deleted from the copy so attached. 2. That the affiant

was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations.' 735 ILCS

5/2-622(a)(1), (a)(2) (West 1994). Prior to 1995, section 2-622 did not include a restriction on a plaintiff's right to voluntarily dismiss an action and refile the suit if the plaintiff was unable to obtain the required consultation at the time of filing. Further, the name and address of the

reviewing health professional was not required in the written report. - 21 -

With the Civil Justice Reform Amendments of 1995, the General Assembly amended section 2-622 through the enactment of Public Act 897 (Act) (Pub. Act 89-7,

Download Crull v. Sriratana.pdf