Illinois Supreme Court Answers Three Certified Questions Regarding the Application of Section 2-622’s Affidavit Requirement in Medical Negligence Cases

people playing footballIn a recent decision from an Illinois appellate court in the Second Division, the plaintiffs filed a lawsuit against a number of defendants, alleging that the defendants were negligent in their failure to diagnose their son’s head trauma symptoms following a high school football game. The plaintiffs filed the action as individuals and as plenary co-guardians of their son, a disabled person.

The plaintiffs specifically alleged that the defendants failed to assess their son for head trauma symptoms immediately after he suffered “a significant blow to the head,” failed to evaluate their son for a concussion until the end of the game, and failed to identify the signs of brain trauma that their son was exhibiting.

The defendants moved to dismiss the complaint on the basis that the complaint sounded in healing arts malpractice and that the plaintiffs were required to comply with certain sections of the Illinois code. Although the trial court denied the defendants’ motion to dismiss, it certified three questions to the Illinois Supreme Court.

First, the trial court asked whether it is necessary for a plaintiff to provide a certificate from a health care professional according to Code of Civil Procedure 2-622 when the complaint alleges that an athletic trainer acted negligently during a high school football game and when the trainer was retained to conduct on-site injury evaluations to ensure the safety and health of the participating athletes.

Second, the trial court asked whether the plaintiff must provide a certificate from a health care professional according to 2-622 when the complaint asserts a negligent conduct claim against a licensed athletic trainer for failing to evaluate an athlete for a concussion after a head trauma was suffered while participating in an athletic program.

Section 2-622 states, in general, that in any action, whether tort, contract, or otherwise, in which the plaintiff is requesting damages for injuries as a result of medical, hospital, or healing art malpractice, the plaintiff must include an affidavit attached to the complaint that provides certain declarations about the alleged negligent conduct.

Finally, if the answer to questions one and two was in the affirmative, the trial court asked whether the health care professional who provides the certificate pursuant to section 2-622 must be an individual from the same profession with the same class of license as the athletic trainer.

The Illinois Supreme Court analyzed the first two questions together due to their similarity and concluded that the plaintiffs were required to comply with section 2-622, which required them to attach an affidavit and a written report from a licensed physician in that practice. In reaching this conclusion, the court also noted that the complaint sounded in healing arts, rather than basic negligence. Accordingly, the Illinois Supreme Court remanded the action, instructing the lower court to allow the plaintiffs an opportunity to comply with section 2-622’s requirements.

If you or someone you love has suffered injuries as the result of another person’s negligence, the diligent and experienced personal injury and medical malpractice lawyers at Therman Law Offices are ready to assist you. We proudly provide legal counsel to victims throughout Chicago and Illinois and understand just how stressful, confusing, and overwhelming an accident can be for your family and you. To schedule your free consultation, call us now at 312-588-1900 or contact us online to get started.

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