Using Section 2-622 Reports as a Prior Inconsistent Statement for Impeachment

In Iaccino v. Anderson, the Illinois Appellate Court recently held that a medical expert in a medical malpractice case can be impeached with the use of the physician’s Section 2-622 (Illinois Code of Civil Procedure) report as a prior inconsistent statement. 940 N.E.2d 742 (1st Dist. 2010). This issue was one of first impression.

Section 2-622(a)(1) requires that a plaintiff file an affidavit of merit, with the complaint, stating that the affiant has consulted and reviewed the facts of his case with a healthcare professional who, in a written medical report, has determined that there is a “reasonable and meritorious cause” for filing an action.

The plaintiffs in Iaccino brought suit against two doctors and a hospital for a brain injury suffered by their son, allegedly caused by oxygen deprivation during birth. The medical expert had provided the necessary report and testified as one of the plaintiff’s experts. In his report, the expert interpreted decelerations that he saw on a fetal monitor strip as “variable decelerations.” At trial, he testified on cross-examination that the same fetal monitor strip was “late deceleration” or “variable deceleration with a late component.” Defense counsel used the Section 2-622 report as a prior inconsistent statement for impeachment purposes, when plaintiff’s expert provided his contradictory testimony at trial.

On appeal, it was held that the impeachment was permissible, so long as a proper foundation was laid, and so long as the report’s content was materially consistent with the expert’s trial testimony. The appellate court stated, “Section 2-622 does not prevent … the author of such a report from qualifying his opinions to make clear that they are preliminary opinions subject to amendment or supplementation upon the acquisition of additional information such as additional medical records or deposition testimony.” It would, however, be up to the jury to assess the explanation and the credibility of the doctor’s testimony.

If a medical expert’s opinion as to cause of injury has changed after the Section 2-622 report was prepared, it is imperative that an attorney prepare the medical expert to explain this change of opinion in his testimony at trial.