2-622 health professional reports – Cargill no longer good law

In O’Casek v. Children’s Home and Aid Soc. of Ill., the Fourth District of the Appellate Court of Illinois has recently reversed its precedent in Cargill, adding another twist in section 2-622 interpretation. In its decision, the court relied upon the 2005 amendments to the statute. There, the legislature explicitly rejected the controversial portions of the 1995 and 1998 amendments. As a result, the plaintiff who had previously voluntarily withdrawn a medical malpractice claim could later refile with a 90-day affidavit.

Section 2-622 requires medical malpractice plaintiffs to file a health professional’s report that certifies that the lawsuit has merit. This health professional’s report must be submitted at the same time the lawsuit is filed. However, if the statute of limitations is close to running, the statute allows plaintiffs to file an affidavit stating that they will get that health professional’s report within 90 days.

The issue in this case was whether a plaintiff who had voluntarily withdrawn a medical malpractice claim could later refile that claim using a 90-day affidavit. In 1995, amendments to the Illinois Code of Civil Procedure stated that such a plaintiff could not refile, but this preclusion was part of a larger bill that was later held unconstitutional. In 1998, the Illinois legislature again amended the statute – this time to extend the statute to napropaths. Incidentally, the 1998 amendment also re-inserted language from the previously stricken 1995 amendment. However, although Illinois Constitution requires that a bill amending a law specifically indicate proposed changes in the statutory text, the 90-day affidavit preclusion was not appropriately marked.

The case of Cargill v. Czelatdkio in the Second District later faced the issue of whether the unmarked language in the amendments were enacted by the legislature. On the one hand, the amendments were not submitted before the legislature in accordance with the proper procedure. On the other hand, the text of the proposed amendment was not exactly hidden when the legislature passed it. Ultimately, the court in Cargill reasoned that the 90-day affidavit preclusion had been re-enacted, presuming that the legislators were aware of the statute’s history and had approved both the marked and unmarked portions of the amendment.

In 2005, the Illinois legislature again amended 2-622, and this time, the statute did not include any language that would prevent a plaintiff from refiling a previously withdrawn claim with a 90-day affidavit. From this, the Fourth District concluded that the 90-day affidavit preclusion was not a part of the previously enacted law. In addition, the court looked into the legislative history to find that the legislature specifically addressed the issue and considered the disputed language to have been removed from the books when the bill that introduced it into statute was held unconstitutional in 1997.

Therefore, Cargill is no longer good law, and plaintiffs who have previously voluntarily withdrawn a medical malpractice claim can later refile their claim with a 90-day affidavit.

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