Crull v. Sriratana

NO. 4-06-0952 Filed 10/11/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

DAN CRULL, Special Administrator of ) Appeal from
the Estate of NOVALENE CRULL, ) Circuit Court of
Deceased, ) Livingston County
Plaintiff-Appellant, ) No. 04L36
v. )
PRAMERN SRIRATANA, M.D.; MID-ILLINOIS )
HEMATOLOGY & ONCOLOGY ASSOCIATES, )
LTD., an Illinois Corporation; KENNETH )
N. JORDAN, D.O.; and MADISON STREET )
CLINIC, P.C., an Illinois Professional ) Honorable
CORPORATION, ) Harold J. Frobish,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:
In December 2004, plaintiff, Dan Crull, as special

administrator of the estate of Novalene Crull, filed a medical-

malpractice complaint against defendants, Pramern Sriratana,

M.D.; Mid-Illinois Hematology & Oncology Associates, Ltd.;

Kenneth N. Jordan, D.O.; and Madison Street Clinic, P.C.
In October 2006, the trial court dismissed plaintiff's

complaint with prejudice, upon learning that the reviewing

health-care professional's report, which was required by section

2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West

2004)), had been written by a person not licensed to practice

medicine.

Plaintiff appeals, arguing that the trial court erred

by (1) ordering him to reveal the identity of the author of the

section 2-622 report and (2) dismissing the case with prejudice.
We disagree and affirm.

I. BACKGROUND

When plaintiff filed his December 2004 medical-malprac-

tice complaint, he failed to attach a report of a reviewing

health-care professional and, instead, invoked the automatic

statutory 90-day extension under section 2-622(a)(2) of the Code

(735 ILCS 5/2-622(a)(2) (West 2004)). However, plaintiff did not

file a report of any reviewing health-care professional before

the automatic 90-day stay expired on March 17, 2005. The statute

of limitations expired on December 19, 2004.

In early March 2005, Sriratana, a specialist in hema-

tology and oncology, and his corporation prematurely filed a

motion to dismiss plaintiff's complaint based on plaintiff's

failure to file a section 2-622 report from a qualified reviewing
health-care professional. On March 21, 2005, Jordan, a special-

ist in orthopedics and muscular osteopathic medicine, and his

corporation filed a motion to dismiss, alleging that plaintiff

failed to comply with section 2-622, in that he failed to submit

an attorney affidavit, health-care professional's report, or a

motion for an extension of time to file the report within the 90-

day period.

The next day, the trial court held a hearing on defen-

dants' motions to dismiss. At the start of the hearing, plain-

tiff's counsel, Guy Geleerd, moved for leave to file three

identical section 2-622 affidavits and health-care professional's

reports instanter and tendered the affidavits and reports he

- 2 -
sought to submit. Each of Geleerd's affidavits stated that he

had consulted and reviewed the facts of this case with a health-

care professional whom he believed (1) to be knowledgeable in the

relevant issues involved in this cause of action, (2) had prac-

ticed within the last six years in the same area of health care

or medicine at issue in this cause of action, and (3) was quali-

fied by experience and demonstrated competence in the subject of

this case. Each affidavit also stated that a copy of the health-

care professional's report was attached, clearly identifying the

reasons for the professional's determination that a reasonable

and meritorious cause for filing of this cause of action existed.

The health-care professional's reports, dated March 18,

2005, stated that the author was a "physician licensed to prac-

tice medicine in all of its branches, residency trained and board
certified in [the] specialty of internal medicine/nephrology."

The report was not signed and did not reveal the reviewing

health-care professional's name and address, as required by

section 2-622(a)(1) of the Code (735 ILCS 5/2-622(a)(1) (West

2004)).

The trial court recognized that the health-care reports

were not signed. When the court asked Geleerd why the health-

care reports did not reveal the author's identity, Geleerd

responded that "Illinois law does not require that we tender

signed [section] 2-622 reports along with our [section] 2-622

affidavit." Sriratana's counsel objected, and the following

colloquy between the court and Geleerd occurred:

- 3 -
 "THE COURT: Well, aside from what the

law requires, give me the name of your ex-

pert.

MR. GELEERD: I don't want to do that.

THE COURT: Well, you may regret that.

I want to know from you, as an officer of

this court, that you have got somebody. I

want to know who he is, and I want to know

why his name is not on here.

MR. GELEERD: I have two experts. One

is a board[-]certified internal medicine and

nephrologist [expert]; and one is a board[-]

certified internal medicine and infectious

disease expert. And until the Cargill [v.
Czelatdko, 353 Ill. App. 3d 654, 818 N.E.2d

898 (2004),] decision is reviewed by either

an [a]ppellate [c]ourt or the [s]upreme

[c]ourt, it is our understanding that the

Best v. Taylor [Machine Works, 179 Ill. 2d

367, 689 N.E.2d 1057 (1997),] decision over-

rides the previously stricken [section] 2-622

that requires the plaintiff to identify his

or her expert.

THE COURT: You are conceding that

Cargill requires identification?

MR. GELEERD: Oh, yes. No question

- 4 -
about that.

THE COURT: Do you have any authority

other than Cargill that speaks to the issue

that would excuse you from identifying the

expert?

MR. GELEERD: There is a Rule 23 order

[(166 Ill 2d. R. 23)] that was issued by the

First District Appellate Court that we have

been trying to get a copy of, that we have

been unable to get a copy of. But there is a

Rule 23 order by the First District Appellate

Court that did not follow Cargill. And now

we are kind of waiting.

THE COURT: Cargill is out of what Dis-
trict?

MR. GELEERD: Cargill is out of I be-

lieve it is the Fifth District, Your Honor.

MR. GUNN: I believe it is the Fourth,

Your Honor.

THE COURT: Fourth District, that might

be correct.

***

THE COURT: I am going to give you an

opportunity, Mr. Geleerd, for you to state

who it is that your experts are today. Give

me their names and their physical locations.

- 5 -
 MR. GELEERD: Can I do that in camera?

THE COURT: No.

MR. GELEERD: Can I do that outside the

presence of the defense counsel?

THE COURT: No.

MR. GELEERD: I feel I am in a very ***

THE COURT: I am not going to order you

to. I am going to give you the opportunity

to provide some assurance to the court by

identification of these people that you actu-

ally have them.

MR. GELEERD: Oh, I will be more than

happy to state on the record.

THE COURT: I am not interested in that.
There is a test here. I will know if you

have got them if you give me their names and

addresses. And then they are deposed at a

particular point in time, and they will say

yes, I was on board with Mr. Geleerd on March

22, 2005; or, yes, this man had talked to me,

but I didn't really know what was going on.

No, you know, whatever. I want to be as-

sured. I want the [a]ppellate [c]ourt to be

assured that you have someone on board right

now that has seen this opinion letter to you

and has said, Mr. Geleerd, I will sign that.

- 6 -
 Let me ask this question. Have these

experts signed these opinion letters already?

MR. GELEERD: One has not. The board[-]

certified internist with the specialty in

infectious disease has not. And the board[-]

certified internal medicine [physician] with

the specialty in nephrology has reviewed the

records. And he is the one who gave me a

draft of the letter that I attached to the

[section] 2-622. The actual [section] 2-622

is what I sent down to him on March 18, which

I have not received a copy of them.

THE COURT: As you sit there now, there

is not in your possession a signed opinion
letter by anyone. Would that be true or not

true?

MR. GELEERD: No, that is not true. I

do have a signed opinion letter of a consul-

tant who is an internal[-]medicine physician.

However, I am happy to disclose to this

[c]ourt the names of the two experts that I

would put on the stand in front of the jury.

I just would ask not to do that in front of

defense counsel, unless this [c]ourt is or-

dering me to do so, then, I would be happy to

do so. But both of the individuals who I

- 7 -
 will disclose at this point in time will come

on board as experts for the plaintiff to

testify in this case.

THE COURT: Well, you represent the

plaintiff. I am going to let you decide what

it is that you have to do. I am not going to

order you to. If you are going to be sued

for malpractice, this will be a call that you

made that subjected yourself to liability. I

am not saying how I am going to rule. But I

want the record clear that you have an oppor-

tunity today to give the identification of

these two experts. You are either going to

do that, or you are not going to do that.
And that is your call. And you live with

your decision."

Geleerd then asked for an opportunity to consult with the benefi-

ciaries of the estate "so they are made aware of the [c]ourt's

request that I go against what the plaintiff's bar is considering

a wrong decision, that being Cargill." Geleerd wanted to let

them know what was going on "since there is a split in the law

between the plaintiff's bar and the defense bar." Geleerd

indicated he was proceeding under Best, the pre-Cargill case.

The court then stated no split in the law existed, to which

Geleerd responded that he was of the opinion there was a split

between the First District and the Fourth District Appellate

- 8 -
Courts. The court then asked Geleerd if he was aware that they

were in the Fourth District, and Geleerd responded that he was.

Later, at the same hearing, the trial court and Geleerd

had the following discussion:

"THE COURT: What is your reason that

you don't want to disclose them as you sit

there today? Are you afraid you are going to

besmirch their reputation? What's your con-

cern?

MR. GELEERD: No, not at all. I feel

that as a member of the plaintiff's bar, and

recognizing--

THE COURT: Well, forget the club. But

you have clients. Why don't you just want to
say, these are the names of doctors, this is

what they say. I don't understand your rea-

soning. Be clear because we have got a re-

cord here.

MR. GELEERD: My only reason, as you

said, being a member of the club. I don't

want to put my club, as you say, the Illinois

Trial Lawyers Association, into a position

where I have conceded to Cargill where I know

that there is a Rule 23 order from the First

District Appellate Court that is trying to

get its way up to the [s]upreme [c]ourt so

- 9 -
 the [s]upreme [c]ourt can look at Cargill.

THE COURT: So it is the club, and not

your clients. You asked for a recess to talk

to the clients to get permission. And they

are not going to understand one iota.

MR. GELEERD: You are absolutely right.

But that is the legal[-]malpractice issue.

But I have absolutely no objection, if the

[c]ourt begs my indulgence, I can get these

people."

Sriratana's counsel then objected because the 90-day

statutory deadline had passed and plaintiff had still not offered

a signed section 2-622 report. Counsel for the other defendants

also objected. The court reserved ruling and gave plaintiff time
to file a motion for leave to extend the statutory deadline, but

urged Geleerd to furnish the signed opinion letters as soon as

possible.

At the end of the hearing, Geleerd indicated that on

January 1, 2005, his law partner died unexpectedly of a heart

attack. As a result, Geleerd had to review over 300 files and

overlooked the deadline to file the section 2-622 affidavit and

report.

In April 2005, Geleerd sent a letter disclosing the

name of a physician who Geleerd purported was the reviewing

health-care professional. In this letter, Geleerd stated that

"in accord with the [c]ourt's order, and after having engaged

- 10 -
plaintiff's expert in accord with the [c]ourt's order," he

received the expert's draft letter via e-mail and indicated he

would be forwarding the same to defendants' counsel. Later in

April 2005, plaintiff filed a motion for an extension of time in

which to file the section 2-622 report. Attached thereto was the

report of a reviewing health-care professional identifying Bruce

R. Leslie, M.D., as the author. This report was different in

both format and content from the reports presented at the March

2005 hearing. In his report, Leslie stated that he was board

certified in internal medicine but did not mention a specialty in

either nephrology or infectious disease. Geleerd revealed for

the first time in May 2005 that Leslie was not the author of the

unsigned reports tendered at the March 2005 hearing.

In July 2005, the parties were before the trial court
for a hearing on defendants' motion to dismiss and plaintiff's

motion for an extension of time to file the section 2-622 report.

The court denied defendants' motion to dismiss and, over defen-

dants' objections, granted plaintiff's motion for extension and

allowed the late filing of the section 2-622 report. Sriratana's

counsel pointed out the identity of the original author of the

section 2-622 reports tendered at the March 2005 hearing had not

been disclosed and asked that they be disclosed. Because the

issue had not been briefed to the point the court felt that it

could make an informed decision, the court stated that counsel

could raise the issue later in a new motion and described it as a

"separate[,] very meaty issue."

- 11 -
 In October 2005, Sriratana filed a motion to compel

plaintiff to reveal the identity of plaintiff's reviewing health-

care professionals. At a January 2006 hearing, the trial court

described the issue as whether "plaintiff should be compelled to

identify the individuals that have been described as consul-

tants." Geleerd stated that he had already disclosed one of his

two experts and would be disclosing the other expert, who was an

infectious-disease expert. He then clarified that the only

identity he was "seeking to prohibit from disclosure [was] one

consultant who signed the [section] 2-622 that [Geleerd] tendered

in open court [in March 2005]." Geleerd also stated that the

second expert whose report he would be submitting was Dr. Frank

Rhame.

Geleerd acknowledged that he relied on the undisclosed
author of the March 2005 report as being within the confines of

section 2-622 but stated this was "[u]nder the auspices that he

[was] a nondisclosed expert" under discovery rules. The trial

court asked Geleerd if he wanted "to hide whoever this person was

and prevent [defendants] from really ascertaining whether [he]

had [his] ducks in a row, whether [he] had the solid basis for a

malpractice action." Geleerd denied that he was doing that and

reiterated he was litigating the case under the pre-Cargill state

of law, which, according to Geleerd, did not require the identity

of a section 2-622 health-care professional.

Defendants argued that plaintiff forfeited the right

not to reveal the consultant's identity since plaintiff used the

- 12 -
consultant to defeat defendants' motion to dismiss. The trial

court and Geleerd engaged in a dialogue as to why Geleerd should

not be required to reveal the identity of the consultant who

authored the section 2-622 reports tendered in March 2005.

Geleerd responded, "Why can't they take my word and yours?" and

suggested he could identify the consultant to the court and

defendants could then take the court's word that a medical doctor

had signed the report. Geleerd stated that no law supported the

theory that a plaintiff forfeits the right not to disclose the

consultant's identity by using the consultant to defeat a motion

to dismiss. Geleerd also stated that this argument failed

because the court entered an order extending the time within

which plaintiff could file the section 2-622 report, and Geleerd

filed the report signed by Leslie.
Defendants' counsel then argued that in 1998 the

legislature passed section 2-622 of the Code, which gave defen-

dants the right to know who was certifying the case against them.

Thus, Geleerd's argument that disclosure was not required prior

to the decision in Cargill lacked merit.

Following more argument, the trial court granted

defendants' motion to compel disclosure of the identity of the

author of the unsigned reports tendered in March 2005. The court

gave Geleerd a short time to reveal the identity of the consul-

tant but indicated if he refused to do so, the court would

dismiss the case. The trial court then stated as follows:

"I am simply requiring--finding that you have

- 13 -
 chosen to use, for good reason, you have

chosen this individual to keep your case

alive. And you have kept your case alive by

using him. And fair play and the right to

enforce the law as contemplated by the

[l]egislature entitles the defense to know

who he is."

In February 2006, plaintiff filed a motion to recon-

sider the trial court's January 2006 ruling requiring disclosure

of the consultant. At an April 2006 hearing on that motion, the

court asked Geleerd if Leslie had been contacted and was "on

board" as of the March 22, 2005, hearing. Geleerd responded that

he had contacted both Leslie and Rhame in November 2004. How-

ever, he acknowledged that as of March 22, 2005, (1) he had not
yet sent Leslie or Rhame all of the medical records in the case,

(2) neither Leslie nor Rhame had sufficient records upon which

they could make an opinion as to whether the case presented a

meritorious cause of action, and (3) the only person who could

make such an opinion was his unnamed consultant. The court

denied plaintiff's motion to reconsider. Later in April 2006,

Geleerd revealed to defendants that plaintiff's consultant was

Dr. Bernard R. Lerner.

During a May 2006 conference call with counsel, the

trial court was advised that a question had arisen as to whether

Lerner was licensed to practice medicine at the time his opinion

was given. Geleerd was to get an affidavit and documentation

- 14 -
regarding that issue. The record does not show that Geleerd ever

produced such an affidavit.

In May 2006, Lerner submitted a letter stating that the

last medical license he held was in New Mexico. He later moved

to Chicago to pursue a career in medical consulting, and because

he was no longer practicing medicine, he did not pay his fees or

dues. After moving to Chicago, he learned that his license to

practice medicine had been suspended.

Defendants provided the trial court with evidence

showing the following. Lerner's Illinois license to practice

medicine was revoked in July 1990 after he was convicted of

felony narcotics-related charges. Lerner's New Mexico medical

license expired in June 1999, and he was not licensed in any

other state when he authored the March 2005 section 2-622 report.
In January 2003, this court recognized that Lerner misrepresented

his licensures and qualifications when authoring a section 2-622

report. See Long v. Mathew, 336 Ill. App. 3d 595, 599, 783

N.E.2d 1076, 1079 (2003). Long was published in the official

advance sheet on April 2, 2003 (Official Reports Advance Sheet

No. 7 (April 2, 2003)), well before Geleerd filed the complaint

in December 2004 and the section 2-622 affidavit and health-care

professional's report in March 2005. Lerner was not board

certified in internal medicine, as the March 2005 section 2-622

report stated, but rather practiced as a neurosurgeon (when he

was licensed).

In October 2006, the trial court ordered that Lerner's

- 15 -
section 2-622 report be stricken because he was not a licensed

physician. The court also ordered that Geleerd's March 2005

affidavit be stricken because it was based on Lerner's report.

The court stated, "It is absolutely clear in this case that the

requirements of [section 2-622] have not been met. Absolutely

clear." The court further stated that, "[i]n a very real sense,

a fraud has been committed upon" defendants, the court system,

and the people of Illinois. The court explained as follows:

"The plaintiff relying on Lerner was never

entitled to have a cause of action pursued.

The plaintiff's case was dead in the water.

Mr. Lerner was not a [licensed] physician.

And the record must be made very clear here.

No one, no one else was on board with the
required opinion on March 17, [2005,] when

the 90-day period expired."

The court also made it clear that while it had found good cause

for the late filing of the section 2-622 report, "it was good

cause for the late filing of a health-care report by a doctor who

was on board by March 17, [2005]." The court then dismissed the

case with prejudice.

This appeal followed.

II. MOTIONS TO STRIKE PLAINTIFF'S REPLY BRIEF

In April 2007, Sriratana and Jordan each filed a motion

to strike plaintiff's reply brief, alleging that it failed to

satisfy the requirements of Illinois Supreme Court Rule 341 (210

- 16 -
Ill. 2d R. 341) because plaintiff (1) did not cite to the offi-

cial record when making statements of fact, (2) referenced

matters not within the record on appeal, and (3) failed to cite

legal authority for legal arguments. We agree and strike plain-

tiff's reply brief.

The rules of procedure concerning appellate briefs are

not mere suggestions, and it is within this court's discretion to

strike the plaintiff's brief for failing to comply with Supreme

Court Rule 341. Niewold v. Fry, 306 Ill. App. 3d 735, 737, 714

N.E.2d 1082, 1084 (1999). Rule 341(j), which authorizes an

appellant to file a reply brief, provides as follows: "The reply

brief, if any, shall be confined strictly to replying to argu-

ments presented in the brief of appellee and need contain only

[a]rgument." 210 Ill. 2d R. 341(j). Rule 341(h)(7) requires
appellants to give reasons for their contentions "with citation

of the authorities and the pages of the record relied on." 210

Ill. 2d R. 341(h)(7). This court has stated that "[s]trict

adherence to the requirement of citing relevant pages of the

record is necessary to expedite and facilitate the administration

of justice." Maun v. Department of Professional Regulation, 299

Ill. App. 3d 388, 399, 701 N.E.2d 791, 799 (1998). A contention

that is supported by some argument but no authority does not meet

the requirements of Rule 341 and is considered forfeited.

Sakellariadis v. Spanos, 163 Ill. App. 3d 1084, 1089, 517 N.E.2d

324, 328 (1987).

Plaintiff's reply brief is 14 pages long, contains

- 17 -
assertions that are either not in the record or are contrary to

the record, and contains no citations to the record. In addi-

tion, instead of being strictly confined to replying to arguments

raised in the appellee brief, plaintiff devotes much of his reply

brief to (1) justifying Geleerd's failure to timely obtain a

health-care professional who met the requirements of section 2-

622 and (2) explaining why Geleerd did not know Lerner did not

have the necessary qualifications to meet section 2-622 require-

ments.

III. ANALYSIS

A. Plaintiff's Claim That the Trial Court Erred By
Ordering Him To Reveal Lerner's Identity

Plaintiff first argues that the trial court erred by

ordering him to reveal Lerner's identity. Specifically, he
contends that the court abused its discretion by applying

Cargill. We disagree.

1. Cargill: What Does Section 2-622 Require?

The legislature enacted section 2-622(a)(1), which

requires a medical-malpractice plaintiff to file an affidavit and

accompanying health-care professional's report with the complaint

(735 ILCS 5/2-622(a)(1) (West 2004)), to minimize frivolous

medical-malpractice suits. Hull v. Southern Illinois Hospital

Services, 356 Ill. App. 3d 300, 304, 826 N.E.2d 930, 933 (2005).

The health professional's report is supposed to demonstrate that

plaintiff has a meritorious claim and reasonable grounds exist

for pursuing the action. Sullivan v. Edward Hospital, 209 Ill.

2d 100, 117, 806 N.E.2d 645, 656 (2004).

- 18 -
 In Cargill, the plaintiffs voluntarily dismissed their

medical-malpractice complaint because they could not obtain the

physician's report required by section 2-622(a)(1). The plain-

tiffs then refiled their complaint and asked for a 90-day exten-

sion (735 ILCS 5/2-622(a)(2) (West 2004)) to obtain the physi-

cian's report. The defendants argued that section 2-622 does not

allow for a 90-day extension for plaintiffs to file a physician's

report when plaintiffs have previously voluntarily dismissed an

action based on the same acts. Cargill, 353 Ill. App. 3d at 656,

818 N.E.2d at 901. This court held that under section 2-

622(a)(2), if a physician's report is not attached to the com-

plaint, the plaintiff must attach an affidavit indicating that

she has not previously dismissed an action based on the same or

substantially the same acts. Cargill, 353 Ill. App. 3d at 661,
818 N.E.2d at 905. In so doing, we discussed the history of

section 2-622 as follows:

"Prior to 1995, section 2-622(a) pro-

vided, in part, as follows:

'In any action *** in which

the plaintiff seeks damages for

injuries or death by reason of

medical, hospital, or other healing

art malpractice, the plaintiff's

attorney *** shall file an affida-

vit, attached to the original and

all copies of the complaint, de-

- 19 -
claring one of the following:

1. That the affiant

has consulted and re-

viewed the facts of the

case with a health pro-

fessional who *** has

determined in a written

report, after a review of

the medical record and

other relevant material

involved in the particu-

lar action that there is

a reasonable and merito-

rious cause for the fil-
ing of such action ***.

*** A copy of the writ-

ten report, clearly iden-

tifying the plaintiff and

the reasons for the re-

viewing health profes-

sional's determination

that a reasonable and

meritorious cause for the

filing of the action

exists, must be attached

to the affidavit, but

- 20 -
 information which would

identify the reviewing

health professional may

be deleted from the copy

so attached.

2. That the affiant

was unable to obtain a

consultation required by

paragraph 1 because a

statute of limitations

would impair the action

and the consultation

required could not be

obtained before the expi-
ration of the statute of

limitations.' 735 ILCS

5/2-622(a)(1), (a)(2)

(West 1994).

Prior to 1995, section 2-622 did not include

a restriction on a plaintiff's right to vol-

untarily dismiss an action and refile the

suit if the plaintiff was unable to obtain

the required consultation at the time of

filing. Further, the name and address of the

reviewing health professional was not re-

quired in the written report.

- 21 -
 With the Civil Justice Reform Amendments

of 1995, the General Assembly amended section

2-622 through the enactment of Public Act 89-

7 (Act) (Pub. Act 89-7, §15, eff. March 9,

1995 (1995 Ill. Laws 284, 291) (amending 735

ILCS 5/2-622 (West 1994))). Following the

1995 amendment, section 2-622 provided, in

pertinent part, as follows:

'1. That the affiant has con-

sulted and reviewed the facts of

the case with a health professional

who *** has determined in a written

report, after a review of the medi-

cal record and other relevant mate-
rial involved in the particular

action that there is a reasonable

and meritorious cause for the fil-

ing of such action ***. *** A copy

of the written report, clearly

identifying the plaintiff and the

reasons for the reviewing health

professional's determination that a

reasonable and meritorious cause

for the filing of the action ex-

ists, must be attached to the affi-

davit. The report shall include

- 22 -
 the name and the address of the

health professional.

2. That the plaintiff has not

previously voluntarily dismissed an

action based upon the same or sub-

stantially the same acts, omis-

sions, or occurrences and that the

affiant was unable to obtain a

consultation required by paragraph

1 because a statute of limitations

would impair the action and the

consultation required could not be

obtained before the expiration of

the statute of limitations.' (Em-
phasis added.) 735 ILCS 5/2-

622(a)(1), (a)(2) (West 1996).

In 1997, the Illinois Supreme Court

issued its opinion in Best v. Taylor Machine

Works, 179 Ill. 2d 367, 689 N.E.2d 1057

(1997). In that case, the court found cer-

tain 'core provisions' of Public Act 89-7

were unconstitutional and 'inseparable' from

the remainder of the Act. Best, 179 Ill. 2d

at 467, 689 N.E.2d at 1104. Thus, the whole

Act was declared void in its entirety. Best,

179 Ill. 2d at 467, 689 N.E.2d at 1104. The

- 23 -
court emphasized that 'all of the remaining

provisions of Public Act 89-7, which were not

challenged in the instant cases, are deemed

invalid in this case solely on grounds of

severability. As such, the General Assembly

is free to reenact whatever provisions it

deems desirable or appropriate.' Best, 179

Ill. 2d at 471, 689 N.E.2d at 1106.

In February 1998, the General Assembly

passed Public Act 90-579 (Pub. Act 90-579,

§5, eff. May 1, 1998 (1998 Ill. Laws 48, 48)

(amending 735 ILCS 5/2-622 (West 1996))). In

May 1998, Governor Ryan signed Public Act 90-

579 into law. Along with adding a subsection
setting forth the effective date of the

amendment, Public Act 90-579 added the empha-

sized language:

'If the affidavit is filed as to a

defendant who is a physician li-

censed to treat human ailments

without the use of drugs or medi-

cines[,] *** a psychologist, or a

naprapath, the written report must

be from a health professional li-

censed in the same profession, with

the same class of license, as the

- 24 -
 defendant.' (Emphasis added.) Pub.

Act 90-579, §5, eff. May 1, 1998

(1998 Ill. Laws at 49).

Public Act 90-579 also contained the same

language requiring the name and address of

the health professional and the affidavit

requirement that a plaintiff had not previ-

ously voluntarily dismissed an action based

on the same or substantially the same acts.

That language remains in the statute. See 735

ILCS 5/2-622 (West 2002)." Cargill, 353 Ill.

App. 3d at 656-58, 818 N.E.2d at 901-03.

The Cargill court concluded that Public Act 90-579 resurrected

the amendments to section 2-622 as inserted by Public Act 89-7,
which the Best court found unconstitutional. Cargill, 353 Ill.

App. 3d at 661, 818 N.E.2d at 905.

2. Application of the Rule in This Case

Accordingly, under Cargill, section 2-622 of the Code

clearly requires that medical-malpractice plaintiffs disclose the

name and address of the physician who prepared the plaintiff's

health-care professional's report. We thus conclude that the

trial court did not abuse its discretion by ordering that plain-

tiff reveal Lerner's identity.

Although Geleerd conceded below that Cargill would

require disclosure of the health-care professional's name, he

argued that Cargill did not necessarily apply because a subse-

- 25 -
quent case decided in the First District Appellate Court called

the Cargill holding into question.

We reject this argument. As all attorneys and circuit

courts in the state are well aware, "A decision of the appellate

court, though not binding on other appellate districts, is

binding on the circuit courts throughout the State." State Farm

Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539, 605 N.E.2d

539, 542 (1992). "[A] circuit court must follow the precedent of

the appellate court of its district, if such precedent exists; if

no such precedent exists, the circuit court must follow the

precedent of other districts." Schramer v. Tiger Athletic Ass'n

of Aurora, 351 Ill. App. 3d 1016, 1020, 815 N.E.2d 994, 996

(2004). In this case, until either the Fourth District or

supreme court holds otherwise, circuit courts are required to
follow Cargill. See People v. Caban, 318 Ill. App. 3d 1082,

1086, 743 N.E.2d 600, 604 (2001). Since the trial court in this

case sat in the Fourth District, it was required to follow

Cargill and any argument by Geleerd to the contrary was without

merit.

Moreover, we are not aware of any case published before

the trial court dismissed this case that did not follow Cargill.

Instead, on July 21, 2005, over a year before the trial court

dismissed this case, the First District cited Cargill and stated

"the provisions of section 2-622 limiting the statute of limita-

tions exception to plaintiffs who have not already voluntarily

dismissed the same or substantially the same claim, as well as

- 26 -
the portion requiring that the consulting physician's name and

address be indicated on the report, apply with full force here."

Beauchamp v. Zimmerman, 359 Ill. App. 3d 143, 149 n.1, 833

N.E.2d 877, 883 n.1 (2005). Accordingly, the First District and

Fourth District were consistent as to a plaintiff's obligation to

reveal the identity of reviewing health-care professionals under

section 2-622.

In so concluding, we recognize that a panel of this

court recently concluded that Cargill wrongly assessed the effect

of Public Act 90-579. See O'Casek v. Children's Home & Aid

Society of Illinois, 374 Ill. App. 3d 507, 511-12, N.E.2d ,

___ (2007). The O'Casek court concluded that amendments to

section 2-622 through Public Act 94-677 (Public Act 94-677, §330,

eff. August 25, 2005 (2005 Illinois Laws 4964, 4995)) made it
clear that Public Act 90-579 did not reenact the civil-reform

language regarding voluntary dismissals. O'Casek, 374 Ill. App.

3d at 508-09, N.E.2d at . This case is distinguishable from

O'Casek in that it does not involve the language in section 2-

622(a)(2) concerning voluntary dismissals. The version of

section 2-622(a)(2) in effect when Cargill was decided did not

allow a 90-day extension to file the reviewing health-care

professional's report if plaintiff had voluntarily dismissed the

case and then refiled it (735 ILCS 5/2-622(a)(2) (West 2002),

while the version of section 2-622(a)(2) in effect when O'Casek

was decided contains no language concerning voluntary dismissals

(735 ILCS 5/2-622(a)(2) (West 2006)) (effective August 25, 2005).

- 27 -
However, the issue in this case is whether section 2-622(a)(1)

required plaintiff to identify the reviewing heath-care profes-

sional who authored the section 2-622 health-care professional's

report used to defeat defendants' initial motion to dismiss in

March 2005.

Although the present case and O'Casek deal with differ-

ent aspects of section 2-622, we need to clarify this court's

position regarding our earlier decision in Cargill, upon which we

rely here, and which the O'Casek court concluded was incorrectly

decided. We disagree with that conclusion and adhere both to

Cargill's result and analysis. To the extent that O'Casek is

inconsistent with Cargill or this case, O'Casek is hereby over-

ruled.

B. Plaintiff's Claim That the Trial Court Erred
By Dismissing the Case With Prejudice

Plaintiff also argues that the trial court abused its

discretion by dismissing the case with prejudice. We disagree.

Under section 2-622(a)(1) of the Code, the plaintiff

must attach a report from a qualified health-care professional

stating that he has reviewed the medical records and has deter-

mined in a written report that a reasonable and meritorious cause

exists for filing a cause of action. 735 ILCS 5/2-622(a)(1)

(West 2004). This court has noted that a health-care profes-

sional must (1) be knowledgeable as to the relevant issues, (2)

be licensed to practice medicine, and (3) practice or teach in

the same medical specialty as the defendants. Ingold v. Irwin,

302 Ill. App. 3d 378, 384, 705 N.E.2d 135, 140 (1998). A plain-

- 28 -
tiff's failure to file a report shall be grounds for dismissal.

735 ILCS 5/2-622(g) (West 2004). However, a plaintiff's noncom-

pliance with section 2-622 does not require the trial court to

dismiss the action with prejudice. Cothren v. Thompson, 356 Ill.

App. 3d 279, 282, 826 N.E.2d 534, 538 (2005), overruled on other

grounds by Vision Point of Sale, Inc. v. Haas, No. 103140, slip

op. at 15 (September 20, 2007), ____ Ill. 2d ___, ___, ___ N.E.2d

___, ___ (2007).

Whether to dismiss an action with or without prejudice

is a matter within the trial court's discretion. On review, we

consider whether the court took the particular facts and unique

circumstances of the case into account before determining that

the case should be dismissed with prejudice. When the court has

done so, we will not reverse the court's determination. Ingold,
302 Ill. App. 3d at 383-84, 705 N.E.2d at 139-40.

In this case, the record clearly shows that Lerner was

not licensed to practice medicine when he authored the March 2005

report. Accordingly, although Lerner may have been knowledgeable

on the relevant subject matter, he was not qualified to author a

section 2-622 report, and the defect could not have been cured by

amending the report. See Ingold, 302 Ill. App. 3d at 386, 705

N.E.2d at 141 (concluding that the plaintiff's physician's lack

of a medical license was a defect that could not be cured by

amending the original section 2-622 report). In addition,

Geleerd's sworn affidavit was based on Lerner's defective report.

Further, as of March 17, 2005, the day the 90-day extension

- 29 -
expired, neither of plaintiff's other two health-care profession-

als was in a position to author a report that met the require-

ments of section 2-622. Moreover, instead of admitting to the

court that he did not have a qualified health-care professional

on hand, he tried to hide Lerner's identity and lack of qualifi-

cations.

The record shows that the trial court considered these

particular facts and unique circumstances of this case in reach-

ing its decision to dismiss plaintiff's complaint with prejudice.

In our view, not only was the trial court's decision not an abuse

of discretion, the court may have abused its discretion had it

not dismissed the case with prejudice.

As a final matter, we commend the trial court for

asking Geleerd probing questions. Had it not been for the
court's questioning of Geleerd, it is very unlikely that it would

ever have been discovered that the March 2005 section 2-622

affidavit and report did not meet the statutory requirements.

IV. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

KNECHT, J., concurs.

MYERSCOUGH, J., concurs in part and dissents in part.

- 30 -
 JUSTICE MYERSCOUGH, specially concurring in part and

dissenting in part:

I respectfully concur in part and dissent in part. I

concur in the affirmance of the trial court but strenuously

object to the ruminations of the majority attempting to override

O'Casek and resurrect Cargill. However, I agree the legislature

clearly intended to retain the identity of the health-care

professional language.

In Cargill, 353 Ill. App. 3d at 660, 818 N.E.2d at 904,

this court noted that Public Act 90-579 contained the same

language regarding the identity of the health-care professional

and voluntary dismissals that had been contained in Pubic Act 89-

7. The Cargill court concluded that Public Act 90-579 resur-

rected the amendments to section 2-622 of the Code as inserted by
Public Act 89-7. Cargill, 353 Ill. App. 3d at 661, 818 N.E.2d at

905.

As noted in the majority, however, more recently, in

O'Casek, another panel of this court found that the legislative

enactments following Cargill demonstrated that the legislature

never reenacted the civil-reform language regarding voluntary

dismissals contained in Public Act 89-7 but instead continued in

effect the earlier pre-1995 version of section 2-622(a)(2) of the

Code. O'Casek, 374 Ill. App. 3d at 512-13, N.E.2d at .

Because O'Casek did not expressly make any ruling regarding the

"identity of the health-care professional" language in section 2-

622(a)(1), the majority's disagreement herein with O'Casek is at

- 31 -
best inappropriate and mere dicta.

An examination of the history of section 2-622 demon-

strates that, as O'Casek held, the legislature never intended to

reenact the voluntary-dismissal language contained in Public Act

89-7. However, the legislature did intend to reenact the lan-

guage pertaining to the identification of the health-care profes-

sional. This fact distinguishes the instant case from O'Casek.

The following chart details the legislative changes:

- 32 -
 Identity of Health- Voluntary Dismissal
Care Professional-- --section 2-
section 2-622(a)(1) 622(a)(2)
Pre-1995 Allowed identity of No restriction on
health-care profes- right to voluntarily
sional to be deleted dismiss and refile
if plaintiff could
not obtain the re-
quired consultation
Public Act 89-7 Required name and Contained require-
(eff. March 9, 1995) address ment that plaintiff
aver that he/she had
(In 1997, Best, 179 "not previously
Ill. 2d 367, 689 voluntarily dis-
N.E.2d 1057, de- missed an action
clared Public Act based upon the same
89-7 void.) or substantially the
same acts, omis-
sions, or occur-
rences"
Public Act 90-579 Required name and Contained require-
(eff. May 1, 1998) address ment that plaintiff
aver that he/she had
"not previously
voluntarily dis-
missed an action
based upon the same
or substantially the
same acts, omis-
sions, or occur-
rences"

- 33 -
Public Act 94-677 Required name, ad- No restriction on
(eff. August 25, dress, license num- right to voluntarily
2005) ber, and state of dismiss and refile
licensure if plaintiff could
Smith-Hurd Histori- not obtain the re-
cal and Statutory quired consultation
Notes indicate that
(1) Public Act 94-
677 did not include
the changes made by
Public Act 89-7; and
(2) prior to Public
Act 94-677, this
section did not
require the identi-
fication of the
health-care profes-
sional or contain
the voluntary dis-
missal language.
725 ILCS Ann. 5/2-
622, Historical &
Statutory Notes, at
94-95 (Smith-Hurd
Supp. 2007). (Note,
however, the text in
the main volume
shows that the sec-
tion, as amended by
Public Act No. 90-
579 did contain the
voluntary dismissal
language (735 ILCS
Ann. 5/2-622(a)(2),
at 964 (Smith-Hurd
2003)).

Because the legislature clearly intended to retain the

identity of the health-care professional language, this case is

distinguishable from O'Casek, and the majority cannot overrule

O'Casek. For this reason, I dissent insofar as the majority

purports to do so.

- 34 -