New Illinois Supreme Court Decision (on Section 2-622)

In O'Casek v. Children's Home and Aid Society of Illinois (filed on June 19, 2008), the Illinois Supreme Court was asked to decide which version of the 2-622 statute applied to a lawsuit filed in 2002 and refiled in 2004, after the case was voluntarily dismissed. The decision is very complicated and hard to follow. In order to understand the decision and its future application, an understanding of the following (simplified to the extent possible) chronologically is critical.

1) Before 1995, section 2-622 did not require that the 2-622 physician be identified; and, the plaintiff was entitled to a 90-day extension for filing a 2-622 report, regardless of whether the plaintiff had previously voluntarily dismissed the lawsuit.

2) On 03/09/95, Public Act 89-7 amended section 2-622 in two ways: (1) the name of the 2-622 physician was now required; and (2) if the plaintiff voluntarily dismissed the lawsuit, the plaintiff had to file a 2-622 report upon refiling. A 90-day extension upon refiling was prohibited.

3) On 12/18/97, the Illinois Supreme Court, in Best v. Taylor Machine Works, held Public Act 89-7 (which encompassed various Tort Reform provisions including section 2-622 changes) void in its entirety. Therefore, section 2-622 reverted back to the pre-1995 version (see #1 above).

4) On 02/04/98, Public Act 90-579 amended section 2-622 by adding naprapaths to the list of covered health professionals. Notably, Public Act 90-579 did not add naprapaths to the pre-1995 version of section 2-622 (see #1 above). Rather, it added naprapaths to the 1995 version struck down by Best (see #2 above).

In Cargill v. Czelatdko, the appellate court held that Public Act 90-579 resurrected the changes in Public Act 89-7 (see #2 above) which had been struck down by the Illinois Supreme Court's decision in Best. In other words, that the name of the 2-622 physician was required and a 90-day extension was prohibited upon refiling.

5) On 08/25/05, Public Act 94-677 amended section 2-622 in various ways (this was part of the Tort Reform bill that was struck down by Judge Larsen in Cook County and a decision on all of Tort Reform including the 2-622 changes is currently pending in the Illinois Supreme Court).

Illinois Supreme Court's Holding: the plaintiff's medical malpractice lawsuit is governed by the pre-1995 version of section 2-622, as amended with the addition of the naprapath language found in Public Act 90-579. In other words, that the name of the 2-622 physician is not required and a 90-day extension is permitted (see #1 above) upon refiling.

Bottom Line: for causes of action accruing before 08/25/05, the 2-622 physician does not need to be identified and the plaintiff is entitled to a 90-day extension for filing a 2-622 report, regardless of whether the plaintiff had previously voluntarily dismissed the lawsuit. This case overrules Cargill, Crull, and the others that are inconsistent with this opinion.

Unanswered Question: as you know, Tort Reform (Public Act 94-677) amended section 2-622 and the identity of the 2-622 physician, among other things, is required (except in Cook County) for causes of action accruing on or after 08/25/05. The Illinois Supreme Court specifically did not address this issue. The Court is presumably saving that decision for its ultimate decision on all of Tort Reform.