Justice SCHOSTOK delivered the judgment of the court, with opinion.
¶ 1 At issue in this appeal is whether the medical malpractice complaint that plaintiff, Cameron Stoelting, filed against defendant, Steven J. Betzelos, was properly dismissed with prejudice when plaintiff's attorney failed to file an attorney affidavit as required by section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1994))
¶ 2 On June 1, 2011, plaintiff filed her medical malpractice complaint, alleging that defendant, a dentist, committed various acts and omissions that constituted medical malpractice. Specifically, plaintiff alleged that defendant misdiagnosed plaintiff's condition, broke an endodontic file in plaintiff's first molar, failed to evaluate a post-operative radiograph, failed to timely refer plaintiff to a specialist when such a referral was needed, failed to appropriately treat plaintiff's condition, and failed to obtain proper informed consent. Plaintiff alleged that, as a proximate result of these acts and omissions, she suffered economic and noneconomic damages. Attached to plaintiff's complaint was the report of Dr. James S. Wasilewski, a dentist who attested that defendant was negligent in treating plaintiff. Although plaintiff's complaint is signed by plaintiff's attorney, her attorney did not file with plaintiff's complaint an attorney affidavit as required by section 2-622 of the Code.
¶ 3 On November 16, 2011, defendant moved to dismiss plaintiff's medical malpractice complaint (see 735 ILCS 5/2-619 (West 2010)). Citing section 2-622(g) of the Code (735 ILCS 5/2-622(g) (West 1994)), which provides that "[t]he failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619,"
¶ 4 In answer to defendant's motion to dismiss, plaintiff claimed that she attempted in good faith to comply with the requirements of section 2-622 of the Code, that her attorney's signature on the complaint satisfied the attorney affidavit requirement of section 2-622, and that, if an attorney signature on the complaint was not sufficient, then the court should allow her to file an attorney affidavit. No attorney affidavit was attached to plaintiff's answer.
¶ 5 Defendant filed a reply, stating that plaintiff's counsel's mere signature on the medical malpractice complaint was not sufficient to meet the attorney affidavit requirement of section 2-622 of the Code. Moreover, defendant asserted that, even if it were, the attorney affidavit requirement still was not satisfied, as neither the complaint nor the doctor's report contained the information that needed to be contained in an attorney affidavit. Because plaintiff failed to establish good cause for why she did not file an attorney affidavit along with her complaint and the doctor's report, defendant reiterated, plaintiff's complaint should be dismissed with prejudice.
¶ 6 Plaintiff did not appear at the hearing on the motion to dismiss, and the trial court granted the motion to dismiss with prejudice. Plaintiff moved to reconsider, arguing that her counsel could not appear at the hearing on the motion to dismiss because counsel was in another courtroom attending to another matter. Attached to her motion to reconsider was an attorney affidavit.
¶ 7 At the hearing on the motion to reconsider, a new attorney appeared for
¶ 8 The trial court denied the motion to reconsider. In doing so, the court stated:
¶ 9 Later, after counsel further urged the court to dismiss the complaint without prejudice, the court ruled:
¶ 10 This timely appeal followed.
¶ 11 Ordinarily, this court reviews de novo the dismissal of a complaint under section 2-619 of the Code. Porter v. Decatur Memorial Hospital, 227 Ill.2d 343, 352, 317 Ill.Dec. 703, 882 N.E.2d 583 (2008). Where, as here, the issue is whether a dismissal with prejudice is appropriate, this court generally considers whether the trial court abused its discretion. Razor Capital v. Antaal, 2012 IL App (2d) 110904, ¶ 8, 362 Ill.Dec. 205, 972 N.E.2d 1238. In this case, however, the trial court dismissed with prejudice because it believed that, in light of plaintiff's failure to file an attorney affidavit within 90 days after filing her complaint, dismissal with prejudice was required by section 2-622 of the Code. Issues of statutory interpretation are reviewed de novo. Deutsche Bank National Trust Co. v. Gryc, 2012 IL App (2d) 111015, ¶ 10, 365 Ill.Dec. 605, 978 N.E.2d 1108. Accordingly, we determine that a de novo standard of review applies here. See Knight, 404 Ill.App.3d at 215-16, 344 Ill.Dec. 395, 936 N.E.2d 1152.
¶ 12 In addressing whether the statute required the trial court to dismiss plaintiff's complaint with prejudice, we begin by examining the statute itself. Sections 2-622(a)(1) and (a)(2) of the Code provide that, when a plaintiff files a medical malpractice complaint, the plaintiff shall attach to the complaint either (1) a doctor's report and an attorney affidavit supporting and attesting to the merit of the plaintiff's claims or (2) an attorney affidavit that explains that the plaintiff has not yet consulted with a doctor who would
¶ 13 In interpreting sections 2-622(a)(1) and (a)(2) of the Code, we are guided by the well-settled rules of statutory construction. "The fundamental objective of statutory construction is to ascertain and give effect to the legislature's intent." In re Marriage of Earlywine, 2012 IL App (2d) 110730, ¶ 18, 362 Ill.Dec. 215, 972 N.E.2d 1248. "The most reliable indicator of legislative intent is the statutory language, which must be given its plain and ordinary meaning." Id. "When the statutory language is clear and unambiguous, it must be applied as written without resorting to extrinsic aids of construction." Id. "In interpreting a statute, we will not depart from the plain statutory language by reading into that language exceptions, limitations, or conditions that conflict with the expressed intent of the legislature." Id.
¶ 14 Here, at the hearing on plaintiff's motion to reconsider, the trial court found that it had to dismiss plaintiff's complaint with prejudice because plaintiff did not file an attorney affidavit within 90 days and, according to the court, it could not grant plaintiff additional time to file the affidavit because section 2-622 of the Code specifically prohibited the court from doing so. The plain language of section 2-622(a)(2), which contains the 90-day extension provision, says nothing about whether the court can grant a plaintiff additional time to file the necessary documents. Rather, as we noted in Knight, that language comes from a version of the statute that has been declared unconstitutional. Knight, 404 Ill. App.3d at 216, 344 Ill.Dec. 395, 936 N.E.2d 1152; see also 735 ILCS 5/2-622(a)(2) (West 2010) ("No additional 90-day extensions pursuant to this paragraph shall be granted, except where there has been a withdrawal of the plaintiff's counsel.").
¶ 15 Under the version of the statute in effect when plaintiff here filed her complaint, noncompliance with the statute did not require a court to dismiss a complaint with prejudice. Knight, 404 Ill.App.3d at 217, 344 Ill.Dec. 395, 936 N.E.2d 1152. Rather, if a plaintiff failed to comply within the initial 90-day period, the court could grant the plaintiff additional time to file the necessary report and attorney affidavit. Id. The decision whether to grant that additional time would be within the trial court's discretion and would not be disturbed by a reviewing court absent a manifest abuse of discretion. Id. Accordingly, the court here was incorrect when it found that it was without discretion to grant plaintiff additional time to file the attorney affidavit.
¶ 16 Thus, the question this court faces is what remedy, if any, to give plaintiff.
¶ 17 In taking this position, we realize that, unlike in Knight, plaintiff here filed the doctor's report but failed to file the attorney affidavit within 90 days after she filed her complaint. We do not believe that this fact mandates a different outcome, as section 2-622(a)(2) of the Code requires the filing of both an attorney affidavit and a doctor's report within 90 days after the complaint is filed. Thus, by extension, additional time may be granted, for good cause shown, to file the attorney affidavit as well as the doctor's report. Moreover, the fact that plaintiff addressed her reasons for not filing her attorney affidavit only after the initial 90-day period had expired does not, standing alone, warrant dismissing plaintiff's complaint with prejudice. The statute does not mention anything about an extension, let alone when a request for an extension must be made, and requests outside the 90-day period are not unheard of. We note that in Knight, for instance, the plaintiff waited to request an extension until after the 90 days had expired. See, e.g., id. at 215, 344 Ill.Dec. 395, 936 N.E.2d 1152.
¶ 18 Finally, we are aware of the fact that an analogy could be drawn between the facts presented here and those cases where the reviewing courts affirmed dismissals with prejudice of medical malpractice complaints when the plaintiffs filed invalid affidavits. Illustrative of this point is Ingold v. Irwin, 302 Ill.App.3d 378, 235 Ill.Dec. 522, 705 N.E.2d 135 (1998). There, the plaintiff filed an attorney affidavit that indicated that her attorney had spoken with the doctor who prepared the doctor's report attesting to the merit of the plaintiff's medical malpractice claims. Id. at 380, 235 Ill.Dec. 522, 705 N.E.2d 135. In actuality, the plaintiff's attorney had never directly communicated with the doctor. Id. at 381, 235 Ill.Dec. 522, 705 N.E.2d 135. The defendant moved to dismiss the plaintiff's complaint on this basis, among others, and the trial court granted the motion with prejudice. Id. at 381-82, 235 Ill.Dec. 522, 705 N.E.2d 135. On appeal, the appellate court determined that an "invalid [attorney] affidavit is sufficient grounds, standing alone, on which the trial court could have dismissed this action with prejudice." Id. at 388, 235 Ill.Dec. 522, 705 N.E.2d 135.
¶ 19 Likening Ingold to the facts presented here would put the cart before the horse. That is, before a court can conclude that a falsified or nonexistent attorney affidavit is a sufficient basis upon which to dismiss a medical malpractice complaint with prejudice, the court must accurately apply the law regarding the granting of additional time to comply with the requirements of section 2-622. Given that the trial court here was under the
¶ 20 For these reasons, the judgment of the circuit court of McHenry County is reversed, and we remand this cause for further proceedings.
¶ 21 Reversed and remanded.
Justices HUTCHINSON and BIRKETT concurred in the judgment and opinion.