In a sharply divided decision, 4-3, the Illinois Supreme Court held that plaintiffs who are allowed to refile a case after a voluntary nonsuit, would still be allowed 90 days after the refiling to present the required Section 2-622 affidavit of a physician or other medical provider to certify that an Illinois medical negligence complaint has merit.
In Illinois it has been the law that as a prerequisite to filing any Illinois medical malpractice case, the plaintiff’s attorney must include with the complaint a certificate of merit asserting that the case has merit from a physician or medical provider expert in the area of medicine being complained about. Sometimes lawyers find that although they believe the facts support a case for medical malpractice, no medical certificate was available in advance of the running of the statute of limitations.
In Illinois the statute of limitations is two years for most tort/negligence cases with some exceptions. What the statute of limitations does is act as a complete bar from bringing the action at all, i.e. the court would dismiss the case unless it is filed within the time limit.
In the underlying case decided by the Supreme Court, the plaintiff filed suit without the certificate of merit. Facing dismissal of the case by a McLean County judge, the plaintiff voluntarily dismissed her case, refiled within one year and then asked for another 90 days to obtain the required certificate of merit. The circuit court dismissed plaintiff’s case and an appeal ensued to the 4th Appellate District. That appellate court reversed the lower court decision and the case was further appealed to the Illinois Supreme Court.
The Illinois Supreme Court likely took up this issue up is because some appellate court districts in Illinois had differing views on this 90 day rule. While all courts allowed attorneys to file a medical malpractice case without the certificate of merit with the proviso that one must be submitted within 90 days thereafter. And in the absence of the certificate being filed within the time limits, the complaint would be dismissed.
However, some courts also allowed plaintiffs a one time grant of a nonsuit, which is a non-prejudicial dismissal with a right to reinstate the case within one year. What this means is that some judges would allow plaintiff to refile their case after missing the 90-day deadline for filing a certificate of merit, whereas another court might not allow this. There was no consistency between the various courts of Illinois.
Much of the confusion came as a result of the tort reform statute in 1995 that said a certificate of merit needed to be filed within 90 days of the case, which was held to be unconstitutional by our supreme court in 1997. The Illinois legislature amended the statute two months after the supreme court decision. However, this new statute neglected to address the 90-day extension in its then new provisions so that it was at the discretion of individual courts.
In this case the Supreme Court affirmed the appellate court decision, thus clarifying the law on the subject. So as it stands now, a plaintiff who has not submitted the certificate of merit within the initial deadline may dismiss his or her case, refile within one year and have an additional 90 days thereafter to file the professional’s certificate of merit. This standard will be applied to all courts throughout Illinois.
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