dissenting:
In this appeal we are confronted with a situation where no effort has been made to file an affidavit of merit because plaintiff does not deem it necessary. The plaintiff’s position is that his original complaint was filed prior to the effective date of section 2 — 622 and since no affidavit was required then, none would be required when he added an additional party defendant some 11 months after the effective date of section 2 — 622.
This court is confronted with the task of determining the meaning and intent of subsection (h) of section 2 — 622 of the Code of Civil Procedure, which in its entirety states:
“(h) This Section does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 2—622(h).
This provision on its face appears to be clear, yet measured in the light of the circumstances present in the instant case, we find the language somewhat ambiguous. None of the parties to this appeal contend that an affidavit of merit should have accompanied the complaint when filed naming Doctor Roy as the sole defendant. At the time of this filing (August 5, 1985) the statute had not become effective. As noted, subsection (h) consists of a single sentence but contains two clauses. The first clause refers to “pending cases” and the second to “cases filed.” Both clauses are directed at achieving a reduction of the filing of nonmeritorious and frivolous suits. Where an ambiguity is presented, reviewing courts should construe a statute so that no clause is rendered meaningless or superfluous. In re Estate of Mulvaney (1984), 128 Ill. App. 3d 133, 470 N.E.2d 11.
In the instant case the filing of the complaint on August 8, 1985, had the effect of giving birth to an action. Our Code of Civil Procedure provides: “Every action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—201(a). See also Jackson v. Navik (1974), 17 Ill. App. 3d 672, 308 N.E.2d 143.) An action was commenced against the defendant Roy and is still pending. Neither clause of subsection (h) of section 2 — 622 had any impact on the case filed against the defendant Roy since the plaintiff commenced suit prior to the effective date of the Act. However, a different situation presented itself when St. Mary’s Hospital was made a party defendant some 11 months after the Act became effective. Again referring to our Code of Civil Procedure, we find the following in section 2 — 406(c):
“An action is commenced against a new party by the filing of an appropriate pleading or the entry of an order naming him or her party.” Ill. Rev. Stat. 1985, ch. 110, par. 2—406(c).
The case of Rice v. McCaulley (1885), 12 Del. 226, 31 A. 240, though decided by the Delaware Court of Errors and Appeals over 100 years ago, is nevertheless viable in the determination of the appeal before this court. The Delaware court was called upon to construe a clause virtually identical to the first clause in section 2 — 622(h) of our Code of Civil Procedure. The statute in Rice provided as follows:
“Sec. 1. No person shall be incompetent to testify in any civil action or proceeding whether at law or in equity, because he is a party to the record or interested in the event of the suit or matter to be determined, ***.
Sec. 2. The provisions of this act shall not apply to any civil action or proceeding pending at the time of its passage.” 12 Del. 226, 31 A. 240.
In Rice the defendant contended on appeal that he should have the benefit of the above statute, which was quite new. It was defendant’s argument that he should have the benefit of the new statute because an action was not “pending” against him at the time it became effective. Under the then prevailing Delaware procedure and practice rules, the first issuance of summons constituted in law the commencement of an action. We are concerned primarily with the Delaware court’s analysis and interpretation of the word “pending,” which is as follows:
“And in this case, which turns upon the interpretation of a recent statute of our state, and the meaning of the word ‘pending’ merely, as employed in it, we think we are warranted, for a like reason, in holding that it was employed, not in the technical sense of the Latin word ‘pendens’ in the rule, but rather in the sense of the word ‘commenced’ in our language, in which it is more generally understood. For although it is not a statute of limitations, the section of it in question was solely to limit and restrict, according to the meaning of the word ‘pending’ used in it, as we think, the initial operation and application of the act to civil actions or proceedings commenced after the passage of it; or, in other words, that it should not apply to any commenced before the time of the passage of it.” (Emphasis added.) Rice v. McCaulley (1885), 12 Del. 226, 241-42, 31 A. 240, 244.
The first clause of section 2 — 622(h) provides that the section would not apply to or affect any actions pending at the time of its effective date. There was no action pending against St. Mary’s Hospital on the effective date of August 15, 1985; however, upon becoming a defendant 11 months later, an action against the defendant hospital came into esse.
The defendant hospital argues that an affidavit of merit regarding the action against it should have been filed by plaintiff’s attorney. The plaintiff, however, asserts that he complied with the law as it was at the time when he filed a case against defendant Roy and that, even if a new party is added after the law changed, he need not meet the requirements of the new law. To accept the argument of the plaintiff would defeat the intent and purpose of the legislation, which is to discourage frivolous and nonmeritorious suits for medical malpractice.
It should be noted that section 2 — 622(b) of the Code of Civil Procedure provides:
“(b) Where a certificate and written report are required pursuant to this Section a separate certificate and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.” Ill. Rev. Stat. 1985, ch. 110, par. 2—622(b).
The defendant hospital was a defendant named at a time subsequent to the filing of the complaint. The foregoing statutory provision provides that a written report (affidavit of merit) be filed as to each defendant named at a later date. This statutory provision, as well as all other provisions of the Code of Civil Procedure which includes those entitled “healing art malpractice,” became effective August 15, 1985, which was 11 months prior to the date the defendant hospital was added as a party defendant. The failure to file such an affidavit erodes the legislative intent for the enactment of such legislation.
I fail to understand why the filing of the complaint, albeit correctly, serves to excuse the plaintiff from following the regulations concerning medical malpractice when they became effective. That the plaintiff’s complaint met the requirement of the law at the time it was filed does not give to it some magical qualities of a curative nature. I do not deem it to be a lodestar document possessing cosmic rays that would cure defects in subsequent procedural matters in the action which it commenced.