concurring in part and dissenting in part:
While I concur with my colleagues that the contempt rulings against Dr. Vest and attorneys Montroy and Cremeens should be vacated, I dissent as to the majority’s construction of Rule 224 (134 Ill. 2d R. 224).
Determining the scope of Rule 224 is central to this appeal. From the clear language of the rule, I conclude the majority’s reading of Rule 224 is too restrictive and works to defeat its intent. In essence, the majority reads Rule 224 to allow discovery of identity alone, while the rule and its procedural context indicate otherwise.
Rule 224 reads as follows in its parts relevant to this appeal:
“Rule 224. Discovery Before Suit to Identify Responsible Persons and Entities
(a) Procedure.
(1) Petition.
(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.
(ii) The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask for an order authorizing the petitioner to obtain such discovery. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify each person and the time and place of the deposition.” (Emphasis added.) 134 Ill. 2d R. 224.
The majority quotes the same rule with this emphasis:
“(a) Procedure.
(1) Petition.
(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.
(ii) The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask for an order authorizing the petitioner to obtain such discovery. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify each person and the time and place of the deposition.” (Emphasis added.) (134 Ill. 2d R. 224.)
The majority then claims: “The language of the rule clearly limits discovery under it to the identity of those who may be responsible in damages.” (Emphasis in original.) (241 Ill. App. 3d at 413.) This interpretation flies in the face of the plain language of the rule.
The clear intent of Rule 224 is to establish a discovery mechanism to identify parties who may be responsible in damages in a subsequent civil suit; it is not merely to identify a participant in the underlying transaction. The majority overemphasized identity while deemphasizing the responsibility aspect of those identified:
“The language of the rule clearly limits discovery under it to the identity of those who may be responsible in damages. Once the identity of such persons or entities has been ascertained, the purpose of the rule has been accomplished and the action should be dismissed.” (Emphasis in original.) (241 Ill. App. 3d 413.)
“The rule does not say it is to be used for ‘ascertaining who may be responsible’; it provides that it is for ‘the sole purpose of ascertaining the identity of one who may be responsible.’ (Emphasis added.)” (241 Ill. App. 3d at 413.)
“Without the phrase ‘of one who may be responsible,’ the reader might not know whose identity was being sought, but that does not change the ‘sole purpose’ of the rule from a search for identity to a search for responsibility.” 241 Ill. App. 3d at 414.)
“ ‘The order *** will limit discovery to the identification of responsible persons ***.’ (Emphasis added.) (134 Ill. 2d R. 224.)” (241 Ill. App. 3d at 414.)
“Again, the focus is on a determination of identity and not on the determination of the responsibility of those identified.” (241 Ill. App. 3d at 414.)
Grammatically, responsibility modifies identity in both the rule and committee comments. The majority, however, reads identity alone rather than the phrase as a whole.
The majority further claims the trial court was wrong in its analysis in five different ways; four of those allegations of error are themselves in error.
First, the majority has misread Rule 224, as I have discussed above. The majority similarly misconstrues the committee comments to Rule 224. Its added emphasis and commentary after the comments highlight identity while failing to consider its modifier of responsibility.
The majority has also misconstrued the two cases dealing with the rule. The Guertin case (Guertin v. Guertin (1990), 204 Ill. App. 3d 527, 561 N.E.2d 1339) is clearly distinguishable from the instant appeal. In Guertin, both the identity of the potential defendants and the circumstances that could make her responsible in damages were known. There were two theories of liability on which the plaintiffs could proceed in Guertin. One was that Hazel and her husband exerted undue influence over decedent Wilfred, and a second was that Wilfred did not know he was adding Hazel and her husband as joint tenants on certificates of deposit. At the time of appeal, the plaintiffs knew the identity of Hazel and enough about the underlying transaction that they could responsibly determine Hazel should be made a defendant in a subsequent suit. (See Malmberg v. Smith (1993), 241 Ill. App. 3d 428, 433 (Goldenhersh, J., dissenting).) In the instant case, the identity of Dr. Vest is known, but the majority does not consider whether information concerning his possible responsibility in damages is also known.
Shutes v. Fowler (1991), 223 Ill. App. 3d 342, 584 N.E.2d 920, did not deal with the questions before this court. Shutes dealt with Rule 224’s constitutionality and the justiciability of a Rule 224 petition. The majority reads both Shutes and Guertin with an eye toward identity, while those courts recognized that the identified party must also be a potential defendant or responsible in damages. The assertion that when the trial court ruled, two other districts of the appellate court “had recognized that Rule 224 was to be used to ascertain only the identities of potential defendants” is not supported by those cases. (Emphasis in original.) 241 Ill. App. 3d at 416.
The majority’s claim that this case actually did not warrant the use of Rule 224 is, again, a result of misreading Rule 224 as restricted to identities only. While petitioner’s counsel knew the doctors’ identities, under the clear language of Rule 224 the trial court could order limited discovery to determine if any of those identified “may be responsible in damages.”
What is the proper scope of Rule 224 inquiry, and what guidelines should the trial court use? Answering these questions requires consideration of the context of Rule 224 discovery in a medical malpractice action.
Petitioner claims she was using Rule 224 discovery so she could comply with the affidavit requirements of section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 622). Section 2 — 622 requires an affidavit of a qualified health professional that she has “determined, in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 622(a)(1).) Section 2 — 622 further provides for payment of reasonable expenses and attorney fees if allegations in the affidavit are found to be without reasonable cause and untrue. The purpose of section 2 — 622 is to encourage the filing of meritorious suits and deter the filing of frivolous malpractice actions; it compels reasonable investigation of the basis for an action so that pleadings are based on fact and made in good faith. (De Luna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57, 588 N.E.2d 1139.) Rule 224 (137 Ill. 2d R. 224), which allows “ascertaining the identity of one who may be responsible in damages,” is a logical complement to section 2 — 622 and a vital part of deterring frivolous lawsuits. (See also Supreme Court Rule 137 (134 Ill. 2d R. 137) (under which an attorney’s signature warrants “that to the best of his knowledge, information, and belief formed after reasonable inquiry [the pleading] is well grounded in fact”); De Luna, 147 Ill. 2d 57, 588 N.E.2d 1139.) Rule 224 is clearly limited in scope; given the context just discussed, its scope should be such that leads to a section 2 — 622 affidavit based on fact or a determination that one cannot obtain a section 2 — 622 affidavit. The overly restrictive reading of Rule 224 by the majority renders the rule almost useless in reaching this goal. I would instead read Rule 224 broadly enough so it plays a part in ensuring that malpractice actions and other suits filed in our courts are “reasonable and meritorious.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 622(a)(1).) This appears to be the intent of our supreme court in promulgating Rule 224.
Based on the above analysis, I would vacate the finding of contempt and imposition of sanctions and remand this cause for further proceedings not inconsistent with the clarifications of Rule 224.
While dissenting from the narrow reading of Rule 224, I also dissent from the broad condemnation of the trial judge in this case. It fails to take into account the context of hotly contested issues, the clash of strong-willed advocates and the lack of clear standards for these Rule 224 issues from a court of review. It is appropriate that we disagree with a trial judge on the law or an exercise of discretion. It is not appropriate that we condemn a good-faith decision. We should not forget that trial judges are often called upon to make hard and lonely judgments. When we review those decisions, we should contribute understanding guidance, not condemnation.