June 1, 2023

Defining the Term “Licensed” for Section 2-622 Purposes

The Illinois Appellate Court recently upheld the dismissal of a medical malpractice complaint, with prejudice, against two Illinois-licensed podiatrists, pursuant to Section 2-622 (Illinois Code of Civil Procedure). Section 2-622 requires that a plaintiff, or plaintiff’s attorney, file an affidavit of merit, with a medical malpractice 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 decedent in Christmas v. Hugar died, two weeks after undergoing foot surgery performed by the defendant podiatrists. Ill.App.Ct., 1st Dist. (2nd Div. 2011). Her estate alleged medical malpractice that resulted in her death. The expert who supported the plaintiff’s medical malpractice claim was not licensed to practice podiatry in the State of Illinois when the suit was filed. He was, however, licensed to treat feet under his Wisconsin physician’s license. The expert witness had graduated as a doctor of podiatric medicine in 1986, and although he had been licensed to practice podiatry at one time, he had allowed his license to lapse, without renewal, in 1990.

Section 2-622 requires that the medical report be authored by a health-care professional licensed in the same profession as the accused healthcare professional. The majority in this case strictly interpreted the term “licensed,” within the context of a medical malpractice, to mean licensed in the same profession and same class as the defendant. The Court in Christmas held that the expert report was not a “mere technical error,” and warranted dismissal, with prejudice.

Unfortunately, the defective expert report in this case was only discovered several months prior to trial, after four years of litigation. Medical malpractice attorneys should take care to ensure that their Section 2-622 reports comply with all requirements, to avoid undesirable results down the road, after significant time and costs have already been expended. Attorneys must be especially cautious in choosing out of state expert witnesses, as it will be more difficult to qualify an out of state expert in a medical malpractice action in light of this recent ruling.

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