Public Act 097-1145
 
HB5151 EnrolledLRB097 18657 AJO 63891 b


  
    AN ACT concerning civil law.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  


 
    Section 1. Purpose. 
    (a) In
Best v. Taylor Machine Works, 179 Ill.2d 367 (1997), 
the Illinois Supreme
Court held
that Public Act 89-7 was void 
in its entirety.


    In Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 
(2010), the Illinois Supreme Court held that Public Act 94-677 
was void in its entirety.
    (b) The purpose of this Act
is to re-enact
and repeal

statutory provisions so the text of those provisions conforms 
to the decisions
of the Illinois
Supreme Court in Best v. 
Taylor Machine Works and   Lebron v. Gottlieb Memorial Hospital.

    (c) Except as explained in subsection (h) of this Section 
1, this Act is not intended to supersede any Public Act of
the 
97th General
Assembly that
amends the text of a statutory 
provision that appears in this Act.


    (d) If Public Act 89-7 or Public Act 94-677 amended the 
text of a
Section included in this Act, the text of
the Section 
is shown in this Act with the changes made by those Public Acts 
omitted, as existing text
(without striking and underscoring), 
with the exception of changes of a substantive nature.



    (e) Provisions that were purportedly added to the statutes 
by Public Act 89-7
and Public Act 94-677 are
repealed in this 
Act to conform to the decisions of the
Illinois Supreme Court.


    (f) If Public Act 89-7 or Public Act 94-677 purportedly 
amended the text of a
Section of
the statutes and that Section 
of the statutes was later repealed by another  Public Act, the 
text of
that
Section is not shown in this Act.
    (g) This Act is intended to re-enact and repeal only those 
statutory provisions affected by Public Act 89-7 or Public Act 
94-677 which concern civil procedure for medical malpractice 
cases.
    (h) This Act also makes substantive changes to the Code of 
Civil Procedure unrelated to Public Act 89-7 or Public Act 
94-677, specifically by amending Sections 2-622 and 2-1114 and 
by adding Section 2-1306.
 
    Section 5. Section 2-622 of the Code of Civil Procedure is 
re-enacted and amended and Sections 8-1901 and 8-2501 of the 
Code of Civil Procedure are re-enacted as follows:
 



    (735 ILCS 5/2-622)  (from Ch. 110, par. 2-622)




    Sec. 2-622. Healing art malpractice. 

    (a) In any action, whether in
tort, contract or otherwise, 
in which the plaintiff seeks damages for
injuries or death by 
reason of medical, hospital, or other healing art
malpractice, 
the plaintiff's attorney or the plaintiff, if the plaintiff is

proceeding pro se, shall file an affidavit, attached to the 
original and
all copies of the complaint, declaring one of the 
following:


        1. That the affiant has consulted and reviewed the 
    facts of the case
with a health professional who the 
    affiant reasonably believes: (i) is
knowledgeable in the 
    relevant issues involved in the particular action;
(ii) 
    practices or has practiced within the last
6 years or 
    teaches or
has taught within the last
6 years in the same 
    area of health care or
medicine that is at issue in the 
    particular action; and (iii)
is qualified
by experience or 
    demonstrated competence in the subject of the case; that

    the reviewing health professional has determined in a

    written report, after a review of the medical record and 
    other relevant
material involved in the particular action 
    that there is a reasonable and
meritorious cause for the 
    filing of such action; and that the affiant has
concluded 
    on the basis of the reviewing health professional's review 
    and
consultation that there is a reasonable and meritorious 
    cause for filing of
such action.
If the affidavit is filed 
    as to a defendant who is a physician
licensed to treat 
    human ailments without the use of drugs or medicines and

    without operative surgery, a dentist, a podiatrist, a 
    psychologist, or a
naprapath,

the written report must be 
    from a health professional
licensed in the same profession, 
    with the same class of license, as the
defendant.  For

    affidavits filed as to all other defendants, the written

    report must be from a physician licensed to practice 
    medicine in all its
branches.   In either event, the

    affidavit must identify the profession of
the reviewing 
    health professional. A copy of the written report, clearly

    identifying the plaintiff and the reasons for the reviewing 
    health
professional's determination that a reasonable and 
    meritorious cause for
the filing of the action exists, must 
    be attached to the affidavit, but
information which would 
    identify the reviewing health professional may be
deleted 
    from the copy so attached.




        2.
That the affiant was unable to obtain a consultation 
    required by
paragraph 1 because a statute of limitations 
    would impair the action and
the consultation required could 
    not be obtained before the expiration of
the statute of 
    limitations.  If an affidavit is executed pursuant to this

    paragraph, the
certificate and written report required by 
    paragraph 1 shall
be filed within 90 days after the filing 
    of the complaint.    The defendant
shall be excused from 
    answering or otherwise pleading until 30 days after
being 
    served with
a certificate
required by paragraph 1.


        3.
That a request has been made by the plaintiff or his 
    attorney for
examination and copying of records pursuant to 
    Part 20 of Article VIII of
this Code and the party required 
    to comply under those Sections has failed
to produce such 
    records within 60 days of the receipt of the request.  If an

    affidavit is executed pursuant to this paragraph, the

    certificate and
written report required by paragraph 1 
    shall be filed within 90 days
following receipt of the 
    requested records.  All defendants except those
whose 
    failure to comply with Part 20 of Article VIII of this Code 
    is the
basis for an affidavit under this paragraph shall be 
    excused from answering
or otherwise pleading until 30 days 
    after being served with the
certificate
required by 
    paragraph 1.

    (b)
Where
a certificate and written report are required 
pursuant to this
Section a separate
certificate and written 
report shall be filed as to each
defendant who has been named 
in the complaint and shall be filed as to each
defendant named 
at a later time.

    (c)
Where the plaintiff intends to rely on the doctrine of 
"res ipsa
loquitur", as defined by Section 2-1113 of this Code, 
the
certificate and
written report must state that, in the 
opinion of the reviewing health
professional, negligence has 
occurred in the course of medical treatment.
The affiant shall 
certify upon filing of the complaint that he is relying
on the 
doctrine of "res ipsa loquitur".

    (d)
When the attorney intends to rely on the doctrine of 
failure to
inform of the consequences of the procedure, the 
attorney shall certify
upon the filing of the complaint that 
the reviewing health professional
has, after reviewing the 
medical record and other relevant materials involved
in the 
particular action, concluded that a reasonable health 
professional
would have informed the patient of the 
consequences of the procedure.

    (e)

Allegations and denials in the affidavit, made without 
reasonable
cause and found to be untrue, shall subject the 
party pleading them or his
attorney, or both, to the payment of 
reasonable expenses, actually incurred
by the other party by 
reason of the untrue pleading, together with
reasonable 
attorneys' fees to be summarily taxed by the court upon motion

made within 30 days of the judgment or dismissal. In no event 
shall the
award for attorneys' fees and expenses exceed those 
actually paid by the
moving party, including the insurer, if 
any. In proceedings under this
paragraph (e), the moving party 
shall have the right to depose and examine
any and all 
reviewing health professionals who prepared reports used in

conjunction with an affidavit required by this Section.
    (f)
A reviewing health professional who in good faith 
prepares a report
used in conjunction with an affidavit 
required by this Section shall have
civil immunity from 
liability which otherwise might result from the
preparation of 
such report.


    (g)
The failure
to file a certificate required by
this 
Section shall be
grounds for dismissal
under Section 2-619.

    (h) (Blank) This Section does not apply to or affect any 
actions pending
at the time of its effective date, but applies 
to cases filed on or
after its effective date.

    (i) (Blank) This amendatory Act of 1997 does not apply to 
or affect any actions
pending at the time of its effective 
date, but applies to cases filed on or
after its effective 
date.

(Source: P.A. 86-646; 90-579, eff. 5-1-98.)
 



    (735 ILCS 5/8-1901)  (from Ch. 110, par. 8-1901)



    Sec. 8-1901. Admission of liability - Effect. The providing 
of, or payment
for, medical, surgical,
hospital, or 
rehabilitation services, facilities, or equipment by or on

behalf of any person, or the offer to provide, or pay for, any 
one or
more of the foregoing, shall not be construed as an 
admission of any
liability by such person or persons. 
Testimony, writings, records,
reports or information with 
respect to the foregoing shall not be
admissible in evidence as 
an admission of any liability in any action of
any kind in any 
court or before any commission, administrative agency,
or other 
tribunal in this State, except at the instance of the person or

persons so making any such provision, payment or offer.

(Source: P.A. 82-280.)
 



    (735 ILCS 5/8-2501)  (from Ch. 110, par. 8-2501)




    Sec. 8-2501. Expert Witness Standards. In any case in which 
the standard of
care
given by a medical
profession is at issue, 
the court shall apply the
following standards to determine if a 
witness qualifies as an expert witness
and can testify on the 
issue of the appropriate standard of care.

    (a)
Relationship of the medical specialties of the witness 
to the medical
problem or problems
and the type of treatment 
administered in the case;

    (b) Whether the witness has devoted
a
substantial portion 
of his or her

 time to the practice of medicine, teaching or 
University based research
in relation to the medical care and 
type of treatment at issue which gave
rise to the medical 
problem of which the plaintiff complains;

    (c)
whether the witness is licensed
 in the same profession 
as the defendant; and

    (d) whether, in the case against a nonspecialist, the 
witness can
demonstrate a sufficient familiarity with the 
standard of care practiced in
this State.

(Source: P.A. 84-7.)
 
    Section 10. The Code of Civil Procedure is amended  by 
changing Section 2-1114 and by adding Section 2-1306 as 
follows:
 



    (735 ILCS 5/2-1114)  (from Ch. 110, par. 2-1114)



    Sec. 2-1114. Contingent fees for attorneys in medical 
malpractice
actions.  
    (a) In all medical malpractice actions the total contingent 
fee
for plaintiff's attorney or attorneys shall not exceed 33 
1/3% of all sums recovered. the following amounts:

    33 1/3% of the first $150,000 of the sum recovered;

    25% of the next $850,000 of the sum recovered; and

    20% of any amount recovered over $1,000,000 of the sum 
recovered.

    (b) For purposes of determining any lump sum contingent 
fee, any future
damages recoverable by the plaintiff in 
periodic installments shall be
reduced to a lump sum value.

    (c) (Blank) The court may review contingent fee agreements

for fairness.  In special circumstances, where an
attorney 
performs extraordinary services involving more than usual

participation in time and effort the attorney may apply to the 
court for
approval of additional compensation.

    (d) As used in this Section, "contingent fee basis"

includes any fee arrangement under which the compensation is to 
be
determined in whole or in part on the result obtained.

(Source: P.A. 84-7.)

 
    (735 ILCS 5/2-1306  new)
    Sec. 2-1306. Supersedeas bonds.
    (a) In civil litigation under any legal theory involving a 
signatory, a successor to a signatory, or a parent or an 
affiliate of a signatory to the Master Settlement Agreement 
described in Section 6z-43 of the State Finance Act, execution 
of the judgment shall be stayed during the entire course of 
appellate review upon the posting of a supersedeas bond or 
other form of security in accordance with applicable laws or 
court rules, except that the total amount of the supersedeas 
bond or other form of security that is required of all 
appellants collectively shall not exceed $250,000,000, 
regardless of the amount of the judgment, provided that this 
limitation shall apply only if appellants file at least 30% of 
the total amount in the form of cash, a letter of credit, a 
certificate of deposit, or other cash equivalent with the 
court. The cash or cash equivalent shall be deposited by the 
clerk of the court in the account of the court, and any 
interest earned shall be utilized as provided by law.
    (b) Notwithstanding subsection (a) of this Section, if an 
appellee proves by a preponderance of the evidence that an 
appellant is dissipating assets outside the ordinary course of 
business to avoid payment of a judgment, a court may require 
the appellant to post a supersedeas bond in an amount up to the 
total amount of the judgment.
    (c) This Section applies to pending actions as well as 
actions commenced on or after its  effective date, and to 
judgments entered or reinstated on or after its effective date.
 
    (735 ILCS 5/2-624 rep.)
    (735 ILCS 5/2-1704.5 rep.)
    (735 ILCS 5/2-1706.5 rep.)
    Section 15. The Code of Civil Procedure is amended by 
repealing Sections 2-624, 2-1704.5, and 2-1706.5.
 
    Section 95. Applicability. The changes made by this 
amendatory Act of the 97th General Assembly  apply to actions 
commenced or pending on or after
the effective date of this 
amendatory Act of the
97th General Assembly.
 
    Section 97. Severability. The provisions of this Act are 
severable under Section 1.31 of the Statute on Statutes.
 

    Section 99. Effective date. This Act takes effect upon 
becoming law.