dissenting:
I respectfully dissent.
The trial court abused its discretion in issuing the order of dismissal because it failed to apply the well-established principle that section 2 — 622 is to be liberally construed and that amendments to complaints in medical malpractice actions are to be liberally granted so that cases of this nature are decided based upon the substantive rights of the parties, not pleading technicalities.
Section 2 — 622 does not require that medical reports submitted at the pleading stage to support medical negligence claims against podiatrists be authored by a podiatrist licensed in Illinois. The statute does not define the terms “same profession” or “same class of license.” Those words used in the statute are to be given their generally accepted and ordinary meaning. Webster’s primary definitions for “license” are “permission to act”; “freedom of action”; and “permission granted by competent authority to engage in a business, occupation, or activity otherwise unlawful.” Webster’s Seventh New Collegiate Dictionary 487 (1971). Dr. Wojciehoski, employing these definitions, satisfied the requirements of section 2 — 622.
Dr. Wojciehoski earned his degree as a doctor of podiatry in 1986. In 1990 he earned a degree of doctor of osteopathy and was licensed by the Wisconsin medical examining board. He was permitted to engage in the practice of medicine and surgery. In Wisconsin “podiatry” is a “branch or system” of the practice of medicine and surgery. He was not required to have a separate license to practice podiatry or podiatric medicine, nor was there any prohibition against his referring to himself as a “podiatrist,” “doctor of podiatry” or “D.EM.” Dr. Wojciehoski, as a licensed physician, was both permitted and authorized by the State of Wisconsin to engage in the practice of podiatry and was exempt from any requirement that he have a separate and distinct podiatry license as a condition to do so. The Wisconsin licensure scheme is wholly consistent with Dolan v. Galluzzo, 77 Ill. 2d 279, 285 (1979), where our supreme court recognized that a “physician or surgeon may also be a licensed podiatrist and may be sufficiently qualified to testify as to the standard of care owed by podiatrists.” Wisconsin law does not permit every M.D. or D.O. in Wisconsin to declare themselves to be podiatrists. Wisconsin physicians are permitted to do so, without additional licensure, only if they are also doctors of podiatric medicine. There is no dispute that Dr. Wojciehoski earned his degree as a doctor of podiatry in 1986. If a licensed physician who is also a podiatrist can testify at trial with regard to the standard of care of a podiatrist, this same person is equally qualified to author a section 2 — 622 report. Dr. Wojciehoski, as a D.EM., and the defendants are of the same school of medicine. The section 2 — 622 report was authored by a health care professional who had the same training and professional credentials as defendants, who was judging their conduct based on the standards applicable to podiatrists. Courts of our state have repeatedly articulated that the technical requirements of section 2 — 622 should not interfere with the spirit or purpose of the statute; the absence of strict technical compliance with the statute in this case is one of form, not substance, and should not be applied to deprive the plaintiff a trial on its merits. See, e.g., Comfort v. Wheaton Family Practice, 229 Ill. App. 3d 828, 832 (1992); Apa v. Rotman, 288 Ill. App. 3d 585, 589 (1992).
Notwithstanding my colleagues adopting the trial court’s view that Dr. Wojciehoski’s license was inadequate, the dismissal of the case with prejudice and without leave to file an amended pleading is unreasonable and must be reversed as an abuse of the court’s discretion. The purpose of section 2 — 622 is to discourage frivolous litigation. McCastle v. Sheinkop, 121 Ill. 2d 188, 193 (1987). The record here is absent any suggestion that plaintiff’s survival action and wrongful death claims against these defendants are in any manner frivolous. To the contrary, the complaint sets out a medical malpractice event which allegedly caused the death of plaintiffs decedent. A death case is certainly a serious one and in no way frivolous. It is well settled that a failure to comply with section 2 — 622 does not mandate the dismissal of the case with prejudice. To that end, medical malpractice pleadings should be liberally allowed so that the case may be decided on its merits rather than procedural technicalities. Cato v. Attar, 210 Ill. App. 3d 996, 999 (1991). Sound exercise of discretion mandates that the plaintiff be at least afforded the opportunity to amend her complaint to comply with section 2 — 622 before her complaint is dismissed with prejudice. See Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939, 949-50 (1998) (allowing a plaintiff to amend a medical malpractice complaint where the plaintiff failed to attach the required affidavit and report of a health care professional).
The majority’s reliance on Crull v. Sriratana, 388 Ill. App. 3d 1036 (2009), to affirm the trial court’s dismissal of this case without a trial on its merits is misplaced and easily distinguished. In Crull, the plaintiffs initial complaint contained no affidavit or medical report, and neither was filed within the 90 day extension granted under the statute. Counsel refused to provide the name of the authoring medical professional in later filed reports. Other reports were tendered by a doctor whose license had been revoked. Here, plaintiffs counsel’s affidavit and the medical report upon which he relied were timely filed. There never was an attempt to hide Dr. Wojciehoski’s identity, qualifications, or license from defendants or the court. Most importantly, unlike the consultant in Crull, Dr. Wojciehoski was a fully licensed doctor of osteopathy, practicing medicine and surgery allowed by that licensing which included podiatry, as well as his having earned a podiatry degree.
Upon the plaintiffs filing of her complaint in 2006, the defendants answered and the parties engaged in significant discovery. Over the next four years written interrogatories, requests for production of documents, the issuance of subpoenas to third parties, the tendering of requests to admit, and noticing and taking depositions took place. Shortly before the case trial date of August 23, 2010, the defendants took the deposition of Dr. Wojciehoski and learned of the licensing technicality. He testified that he had a podiatry license in 1986 but in 1990 he obtained his medical licensing and the podiatry license was no longer necessary for his continued practice of podiatry. He also stated that in 2010 he obtained a podiatry license, still valid, as he was retained as an expert by a defense attorney in another matter.
The granting of defendant’s motion to dismiss this case on the eve of trial after years of preparation and both parties ready to try it on its merits was wrong and unreasonable. Denying plaintiff the opportunity to correct the technical defect in the medical report was unreasonable, rash and arbitrary. It ignores the purpose of section 2 — 622 and the rules of liberal construction and amendment which attend it. As such there was an abuse of discretion. We need not give deference to the trial court where its action is unreasonable. The defendant would not have been prejudiced in the slightest if the court had allowed the amendment to the section 2 — 622 affidavit and order the trial to proceed on its merits.
Accordingly, I would remand this case to the trial court to vacate its dismissal order, allow the filing of an amended section 2 — 622 affidavit and proceed to trial on the merits.