Cutler v. Northwest Suburban Community Hospital, Inc.
405 Ill. App. 3d 1052, 939 N.E.2d 1032 (2010)
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Rule of Law:
Under Illinois's medical malpractice pleading statute, a reviewing health professional is qualified if they have practiced within the last six years in the same area of health care at issue, with courts liberally construing this requirement. A deposition of such a professional under section 2-622(e) is only permissible when there is evidence that the professional's report or the attorney's affidavit was made without reasonable cause and is untrue, not merely to challenge their qualifications.
Facts:
- On April 13, 2003, Gary Cutler's sister, the decedent, underwent a Roux-en-y gastrojejunostomy surgery performed by Dr. Vaughn at Northwest Suburban Community Hospital.
- The decedent was discharged on April 20, 2003, despite exhibiting a fever and leukocytosis.
- Drs. Vaughn and Berkowitz provided the decedent's postoperative care at Northwest Suburban.
- After being discharged, the decedent sought additional medical assistance by phone for two days.
- On April 22, 2003, complaining of severe abdominal pain, the decedent went to the emergency room at Proctor Hospital.
- At Proctor Hospital, Dr. DeBord treated the decedent and consulted with Dr. Berkowitz.
- The decedent died at Proctor Hospital on April 24, 2003.
- Dr. Hess had provided preoperative care to the decedent prior to the surgery.
Procedural Posture:
- Gary Cutler filed a medical malpractice complaint on April 11, 2005, in the circuit court of Boone County against Northwest Suburban Community Hospital and several doctors.
- Cutler initially filed an attorney's affidavit in lieu of a physician's report, later supplementing with a report from Dr. Rolland W. Taylor.
- Defendants moved to dismiss, challenging the report's sufficiency and the qualifications of Dr. Taylor.
- The trial court dismissed the complaint without prejudice, granting Cutler leave to file an amended complaint.
- Cutler filed a second amended complaint and subsequently a third amended complaint, both including a report from Dr. Taylor.
- Defendants continued to challenge Dr. Taylor's qualifications, using his deposition testimony from an unrelated case.
- On March 25, 2009, several defendants filed a motion to depose Dr. Taylor pursuant to section 2-622(e) of the Code of Civil Procedure.
- The trial court granted the motion to depose Dr. Taylor, limiting the scope of the deposition to his qualifications.
- Cutler refused to produce Dr. Taylor and requested the court hold him in contempt so he could appeal the deposition order.
- The trial court denied the request for a contempt finding and instead granted the defendants' motions to dismiss the complaint with prejudice as a sanction for Cutler's failure to produce Dr. Taylor.
- The plaintiff, Gary Cutler, appealed the trial court's order of dismissal to the Illinois Appellate Court, Second District.
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Issue:
Does section 2-622(e) of the Illinois Code of Civil Procedure permit a trial court to order the deposition of a plaintiff's reviewing health professional to challenge their qualifications when there is no evidence that the professional's report was made without reasonable cause or is untrue?
Opinions:
Majority - Justice Schostok
No. Section 2-622(e) of the Illinois Code of Civil Procedure does not permit a deposition of a reviewing health professional simply to challenge their qualifications; it is a tool reserved for sanction proceedings where there is evidence the professional's report was made without reasonable cause and is untrue. The court reasoned that the plain language of section 2-622(e) and its legislative history indicate that a deposition is only allowed if the affidavit or report is frivolous or false. In this case, the deposition testimony of the reviewing physician, Dr. Taylor, from an unrelated case did not suggest his report was untrue or made without reasonable cause; it merely provided more detail about his experience. The court found Dr. Taylor was sufficiently qualified under the statute because the allegations concerned postoperative care, and he had recent experience treating postoperative bariatric surgery patients in an emergency room setting. Since the predicate for a section 2-622(e) deposition was not met, the trial court's order compelling the deposition was improper, and therefore, dismissing the case as a sanction for refusing to comply with the improper order was also an error.
Analysis:
This decision clarifies the narrow scope of section 2-622(e), protecting plaintiffs' consulting experts from being easily deposed at the pleading stage of medical malpractice litigation. It reinforces the principle that section 2-622 is a shield against frivolous lawsuits, not a sword for defendants to engage in discovery of a plaintiff's consulting expert before the case progresses. The ruling prevents the pleading stage from devolving into mini-trials over expert qualifications, thereby preserving the statute's purpose as a low-threshold merit screening. Future defendants seeking to depose a reviewing health professional must now make a strong showing of untruthfulness or bad faith, rather than simply raising a dispute over the expert's qualifications.
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