dissenting:
The majority concludes plaintiff would not be able to prove any set of facts demonstrating that her amended complaint against Valika was timely under section 13 — 212 of the Code (735 ILCS 5/13 — 212 (West 1994)). I freely admit that upon remand plaintiff probably would not be able to demonstrate her amended complaint was timely. In terms of the ultimate result in the present case, there is scant difference between my position and that of the majority. However, the gulf of our disagreement and its ramifications for injured persons in future medical negligence cases are immense. In its affirmance of the trial court’s grant of summary judgment — despite the fact the trial court itself apparently failed to determine the date on which the statute of limitations ran — the majority creates the potential that plaintiffs will inequitably be denied the possibility of redress despite the reasonableness of the manner in which they inquire into the wrongful cause of injury or death. Therefore, I respectfully dissent.
My disagreement with the majority turns on our differing views of the interaction between section 2 — 622 of the Code (735 ILCS 5/2— 622 (West 1994)) and the discovery rule announced by the Illinois Supreme Court in Witherell v. Weimer, 85 Ill. 2d 146 (1981). In Witherell our supreme court stated the statute of limitations in medical negligence actions "starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” (Emphasis added.) Witherell, 85 Ill. 2d at 156. Assuming that an injured person knows or reasonably should know of his injury, the emphasized portion of this quotation sets forth two triggers that commence the statute of limitations: (1) actual knowledge that the injury was wrongfully caused; or (2) information and/or circumstances that would put a reasonable person on notice, i.e., constructive notice, that the injury was wrongfully caused.
I believe that the majority’s application of section 2 — 622 precludes any examination of reasonableness. This is contrary to the above-quoted language from Witherell and section 13 — 212 of the Code (see 735 ILCS 5/13 — 212(a) (West 1994) (medical negligence action must be brought within two years "after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the injury or death”)). The majority states "[bjecause plaintiff’s knowledge of the contents of Lindemann’s August 21, 1992, report was undisputed, no relevant issue of fact was presented.” 284 Ill. App. 3d at 287. Therefore, the majority apparently believes the mere fact that a section 2 — 622 investigation has been conducted is sufficient to put any and all injured persons on constructive notice under almost all possible circumstances. Such a per se rule forecloses — once a section 2 — 622 report and affidavit are filed — any examination of the reasonableness or unreasonableness of an injured party’s assertion that he did not know his injury was wrongfully caused.
I respectfully submit that a section 2 — 622 investigation should not serve as a substitute for making a factual determination whether an injured party reasonably should have known his injury was wrongfully caused. There is nothing magical about a section 2 — 622 investigation. Its validity, accuracy, and comprehensiveness may be affected by numerous factors completely beyond the control of the injured party. Among these factors are (1) the misconduct by defendants delaying the discovery of the wrongful cause of injury or death (see Neade v. Engel, 277 Ill. App. 3d 1004, 1005-06, 1009 (1996) (holding that the statute of limitations did not commence — despite the filing of a prior complaint against another physician — until the defendant’s deposition made the plaintiff aware of the defendant’s involvement in the decedent’s death, where the plaintiff failed to discover the defendant’s involvement because of the defendant’s misstatement, concealment, or fraud)); (2) the negligent maintenance or preparation of the medical record by defendants or their employees or agents (see Steinberg v. Dunseth, 276 Ill. App. 3d 1038, 1049 (1995) (stating a "worst case situation, medical records personnel might be involved in a cover-up” (emphasis added), thereby implying such personnel might also innocently fail to provide the section 2 — 622 expert with all incriminating records)); (3) the causal connection between the potential defendant’s conduct and the injury or death is so complex it might be reasonable for a section 2 — 622 expert to fail to identify a potential defendant; and (4) the negligence of the section 2 — 622 reviewing health professional. In terms of the fourth factor, I highlight the legislature’s decision to make section 2 — 622 health professionals immune from civil liability, provided they prepare their reports in good faith. 735 ILCS 5/2 — 622(f) (West 1994). Therefore, it is all the more inequitable and unjust to make an injured person bear the consequences of such an expert’s failure. I would be more circumspect than the majority in applying section 2 — 622.
All the above factors present valid potential factual problems with a section 2 — 622 investigation that might render reasonable an injured person’s failure to continue to inquire and learn a defendant’s conduct was a wrongful cause of injury or death. I would not close off consideration of these factors by way of a per se rule.
The majority makes the commencement of the statute of limitations a question of law. The only question of fact would be the date on which the investigation was completed. Our supreme court has stated that the commencement of the statute of limitations in medical negligence cases is "[i]n many, if not most, cases *** a disputed question to be resolved by the finder of fact.” Witherell, 85 Ill. 2d at 156; see also, e.g., Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 250 (1994) (rule applied in legal negligence cause). This longstanding and often announced rule should not be abandoned on the basis of an unintended interaction among section 13 — 212(a), section 2 — 622, and the discovery rule. This is buttressed by the fact section 2 — 622 is a pleading requirement designed to limit frivolous lawsuits; it is not a substantive defense designed to preempt an injured person’s day in court. See McCastle v. Sheinkop, 121 Ill. 2d 188, 193 (1987); Steinberg, 276 Ill. App. 3d at 1042; Miller v. Gupta, 275 Ill. App. 3d 539, 543 (1995); Moscardini v. Neurosurg, S.C., 269 Ill. App. 3d 329, 334-35 (1994). T agree with the majority that the discovery of a wrongful cause requires plaintiffs to inquire further into any possible causes of action. Witherell, 85 Ill. 2d at 156. However, I part company with my colleagues on whether a plaintiff who has ceased her inquiry into the cause of injury or death — in reliance on the report of a section 2 — 622 expert whose participation is both mandated and immunized by the State — as a matter of law is obligated to continue her inquiry or risk the limitations period running against an undiscovered defendant. According to our supreme court, the statute of limitations commences when "the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” (Emphasis added.) Knox College, 88 Ill. 2d at 416. The majority interprets this passage as creating a one-way rachet: once an injured person’s duty to inquire arises, it cannot abate. I disagree.
The majority states Beasley v. Abusief, 146 Ill. App. 3d 54 (1986), rejected the argument that the opinion of a plaintiff’s first consultant, "which negated a cause of action, should have been considered as tolling the two-year limitations period until the plaintiff received the second consultant’s section 2 — 622 certification of negligence.” (Emphasis added.) 284 Ill. App. 3d at 292. Beasley should not be relied on. First, Beasley did not involve a report by a section 2 — 622 expert. Indeed, it could not. The Beasley complaint was filed on November 28, 1983. Section 2 — 622 was added to the Code of Civil Procedure (735 ILCS 5/1 — 101 et seq. (West 1994)) by Public Act 84 — 7, section 1, on August 15, 1985. Pub. Act 84 — 7 § 1, eff. August 15, 1985. Therefore, section 2 — 622 applies only to cases filed on or after August 15, 1985. See 111. Rev. Stat. 1985, ch. 110, par. 2 — 622, citing Ill. Rev. Stat. 1985, ch. 110, par. 2 — 114 (stating that Public Act 84 — 7 " 'takes effect August 15, 1985, and applies to all cases filed on or after that date’ ”). Understandably, therefore, Beasley does not discuss section 2 — 622 or its effect on the Witherell discovery rule and whether it is reasonable for a plaintiff to suspend inquiries in reliance on a section 2 — 622 report and consequently fail to discover a particular defendant’s conduct was a wrongful cause of injury or death. Second, unlike the present case, the plaintiff in Beasley had an opportunity to present evidence on whether the limitations period had run. Beasley, 146 111. App. 3d at 55-56, 59 (a jury determined when the plaintiff " 'knew, or through the use of reasonable diligence, should have known’ ” her injury was caused by defendant’s treatment). Had plaintiff in the present case been afforded the same opportunity to present evidence as the Beasley plaintiff, I would have no trouble affirming the trial court. My objection is to the per se rule fashioned by the majority that forecloses any examination of the nature, quality, and validity of the State-mandated section 2 — 622 examination and report.
I respectfully suggest that the majority’s per se rule imposes hardships on injured persons far outweighing its benefits. The purpose of a statute of limitations is to balance the hardship to injured persons barred from presenting their issues, against the hardship to defendants based on the increasing difficulty of proof with the passage of time. Nolan v. Johns-Manville Asbestos, 85 Ill. 2d. 161, 167-68 (1981). Medical negligence defendants will not be burdened by increasing difficulties of proof. Medical negligence cases typically turn on opinion witnesses to establish the standard of care and breach of that standard. See DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57, 70 (1992). This testimony, like the section 2 — 622 reports, is premised on medical records. The utility of these records, unlike the memory of occurrence witnesses in traditional negligence cases, is unaffected by the passage of time. Therefore, there is little, if any, hardship to defendants based on increasing difficulty of proof. Conversely, the majority’s per se rule drastically limits the applicability of the discovery rule. This, in conjunction with the good-faith immunity provided to section 2 — 622 health professionals, increases the likelihood injured persons will be left without recourse. Additionally, refusing to adopt a per se constructive notice rule would not, indeed by law it could not, extend an injured person’s time to bring suit beyond section 13 — 212(a)’s absolute four-year date. See 735 ILCS 5/13 — 212(a) (West 1994) (stating that "in no event shall *** [a medical negligence] action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death”).
Therefore, I would reverse the trial court’s order entering summary judgment and remand the cause for either a full evidentiary hearing or a bifurcated trial. The issue to be determined would be whether Lindemann’s investigation or the resulting section 2 — 622 report suffered from any defect sufficient to render reasonable plaintiff’s failure to discover Valika’s conduct was a wrongful cause of decedent’s death.