In Illinois, to file a medical malpractice action, the plaintiff’s attorney must file an affidavit and written report pursuant to Section 2-622 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-622. Because it often takes months to secure the relevant medical records, locate a qualified medical expert, and obtain an affidavit and written report from the expert, this requirement stresses the importance of contacting an experienced Chicago medical malpractice lawyer as soon as possible regarding a potential cause of action.
Section 2-622 requires the plaintiff’s attorney (or the plaintiff herself, if she is proceeding pro se) to file an affidavit declaring the following:
- That the affiant has consulted with a medical professional who the affiant believes is knowledgeable in the relevant issues involved in the action, has practiced or taught within 5 years in the same area of health care or medicine that is at issue in the particular action, and meets the standards required of all medical expert witnesses set forth in section 8-2501;
- That the medical expert has reviewed the medical records and determined in a written report that there is a “reasonable and meritorious cause for filing of such action”, and that the affiant has concluded based on the health professional’s review and consultation that there is a reasonable and meritorious cause for filing the action;
The written report of the medical professional(s), attached to the affidavit, must adhere to the following:
- A single written report must be filed to cover each defendant, including defendants who are named at a later time;
- For individual defendants, the written report must be from a medical professional licensed in the same profession, within the same class of license, as the defendant;
- For non-individual defendants (i.e. hospitals, practice groups, etc.), the written report must be from a licensed doctor qualified to testify regarding the standard of care applicable in the case;
- Must identify the profession of the reviewing doctor, as well as the doctor’s name, address, current license number, and state of licensure;
- Must identify the “reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists”.
If the plaintiff’s attorney is unable to secure an affidavit from a doctor within the two-year statute of limitations period, the attorney must do the following:
- File an affidavit stating that the affiant was unable to obtain a consultation from a medical professional before the expiration of the statute of limitations and therefore the statute of limitations would impair the action;
- In such a case, the plaintiff attorney receives a 90-day extension after the filing of the complaint to file an affidavit and written report from the medical professional as described above
Or, if the plaintiff’s attorney has requested copies of plaintiff’s medical records, which have not been produced within 60 days of the receipt of the request, the plaintiff can get a 90-day extension to file an affidavit and written report pursuant to section 2-622(a)(3).
Additionally, special rules apply where the plaintiff is relying on the doctrines of “res ipsa loquitur” or “failure to inform” as part of her medical malpractice lawsuit. See 735 ILCS 5/2-622(c), (d).
The failure of the plaintiff to file an affidavit and medical report in compliance with section 2-622 is grounds for dismissal of her cause of action.