Illinois section 2-622: the affidavit and written report a malpractice complaint must carry

An Illinois medical, hospital or other healing art malpractice complaint does not travel alone. It carries an affidavit from the plaintiff's attorney and, attached to that affidavit, a written report from a reviewing health professional concluding there is "a reasonable and meritorious cause" for the action. A separate set is required for each defendant.

Two escape hatches exist for a plaintiff who cannot get the report in time — one for a limitations crunch, one for records that were not produced — and both buy 90 days. The consequence of having neither the report nor an escape is dismissal under section 2-619.

What the affidavit must say

735 ILCS 5/2-622(a) opens by naming who signs and what they declare:

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:

Three alternatives follow. The first is the ordinary route.

Route 1: the consultation and the report

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.

The reviewer must satisfy three conditions, and the middle one is a hard currency test: practice or teaching within the last 6 years in the same area of health care at issue. A long-retired expert does not qualify.

The standard the report must reach is "a reasonable and meritorious cause" — a lower bar than a prediction of success, and lower than the standard-of-care/breach/causation opinion some states require.

Which profession the reviewer must come from

The same paragraph then matches the reviewer to the defendant:

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 podiatric physician, 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.

Two regimes. For the listed professions — including dentists, podiatric physicians, psychologists and naprapaths — the reviewer must hold the same class of license as the defendant. For everyone else, the reviewer must be a physician licensed to practice medicine in all its branches. Either way the affidavit must identify the reviewer's profession.

The report is attached, but the reviewer can stay anonymous

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.

So the report goes on the record with its reasoning intact, and the reviewer's identity may be redacted.

Route 2: the limitations crunch

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.

Ninety days from filing the complaint, and a matching benefit for the defendant: no obligation to answer until 30 days after service of the certificate.

Route 3: records that were not produced

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.

The trigger is a 60-day failure to produce records after a proper request. The 90 days then runs from receipt of the records, not from filing — an open-ended extension in practice, tied to when the records actually arrive. And the defendant whose non-production caused the problem does not get the pleading reprieve the other defendants get.

One set per defendant

735 ILCS 5/2-622(b) is short and frequently missed:

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.

Each defendant, including any added later. Adding a defendant by amendment triggers a fresh obligation.

Two special theories

Section 2-622(c) covers res ipsa loquitur:

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".

Section 2-622(d) covers informed consent:

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.

Both require a certification at the time of filing, and both change what the report must say.

The sanction for an untrue affidavit

Section 2-622(e) is the enforcement provision, and it comes with a discovery right:

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.

Three features. The motion must be made within 30 days of the judgment or dismissal. The award is capped at what was actually paid, insurer included. And a party pursuing this remedy may depose the reviewing health professionals — the anonymity permitted in subsection (a) does not survive a 2-622(e) proceeding.

Section 2-622(f) protects the reviewer who acted honestly: "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."

What happens if it is missing

Section 2-622(g) is one sentence:

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

Section 2-619 is Illinois's involuntary-dismissal provision, covered alongside 2-615 in Illinois motions to dismiss. Routing the failure through 2-619 rather than making dismissal automatic is what leaves room for the curing that the 90-day routes contemplate.

How Illinois compares to the federal rules

The federal rules have no pre-merits expert gate at all. Illinois's is among the more forgiving of those that exist: the standard is "reasonable and meritorious cause," two routes buy 90 days, and the failure is routed through an ordinary dismissal motion rather than an automatic bar.

A short checklist

• Check the reviewer's currency. Practice or teaching within the last 6 years in the area at issue.
• Match the profession to the defendant. Same class of license for the listed professions; a physician in all branches for everyone else.
• Identify the reviewer's profession in the affidavit, even where the identity is redacted.
• Attach the report with its reasons, not just a conclusion.
• File one set per defendant — and file another when you add a defendant.
• If limitations are about to run, use route 2, and diary 90 days from filing.
• If records were not produced in 60 days, use route 3, and diary 90 days from receipt of the records.
• Certify at filing for res ipsa or informed consent, and make sure the report says what those subsections require.
• If you are challenging an affidavit as untrue, move within 30 days of judgment or dismissal — and remember you may depose the reviewer.

Where these rules live

• 735 ILCS 5/2-619 — Involuntary dismissal based upon certain defects or defenses
• 735 ILCS 5/2-622 — Healing art malpractice
• 735 ILCS 5/2-1113 — Res ipsa loquitur

This page explains what the statute says; it is not legal advice. Whether a particular claim is "healing art malpractice" within section 2-622 is a threshold question this page does not answer.