After Daughter’s Overdose, Mother’s Case Against Doctor Dismissed for Failure to File Required Affidavit

In a recent case, a mother sued her daughter’s doctor after her daughter overdosed on a combination of prescription and non-prescription pills. The daughter died on May 18, 2013 after she took a lethal combination of pills. On May 15, 2015, the mother filed the claim against her daughter’s doctor, alleging that the doctor negligently prescribed her daughter a combination of opiates and sedatives, causing her death. The claim was filed three days before the claim’s two-year statute of limitations expired.

Random PillsThe doctor argued that the complaint should be dismissed because the woman failed to file a certificate of merit along with the complaint. State law requires plaintiffs in medical malpractice claims to file a certificate of merit at the time the complaint is filed. The certificate of merit has to state that the attorney or the plaintiff certifies that the person has consulted with a qualified health care provider, and the health care provider described the standard of care required, indicated that it was reasonably likely that the plaintiff would be able to show the defendant failed to meet that standard, and indicated that it was reasonably likely that the plaintiff would be able to show that the defendant’s failure to meet the standard caused the plaintiff’s injury. Since the mother did not file the certificate of merit at the time she filed the complaint, the mother subsequently filed a motion to amend the complaint to add a certificate of merit. However, the trial court rejected her motion and dismissed the case.

The woman appealed, but the state supreme court upheld the court’s decision. It found it was too late to amend the complaint because the statute of limitations had run and because the complaint could only be amended to add a party or a claim—not to add a certificate of merit. The court looked at the language of the statute requiring the certificate and the intent behind the statute in making its decision.

The court decided that the purpose of the statute was to ensure that claims against health care providers have been adequately investigated and determined to have merit by a qualified expert before they are filed. Thus, the mother could not amend her complaint to add a certificate after the statute of limitations had passed, when she had failed to file one along with her complaint.

Affidavits in Illinois Medical Malpractice Claims

Similar to the law at issue in Vermont, under Illinois law, a plaintiff who files a medical malpractice claim must also file an affidavit along with the complaint. Illinois statute 735 ILCS 5/2-622 states that the affidavit must state that either:

  • The plaintiff consulted with a health care professional who the plaintiff believes is reasonably knowledgeable about the issues involved, has practiced or taught in the last six years in the medical field at issue in the case, is qualified in the field, and has determined that the basis of the lawsuit is reasonable;
  • The plaintiff could not consult with a professional before the expiration of the statute of limitations, and the affidavit will be filed within 90 days; or
  • The plaintiff requested records that were not produced within the required time period, and the affidavit will be filed within 90 days of the receipt of the requested records.

Failing to file the required affidavit will normally result in the dismissal of the case, as was the case above.

Contact a Medical Malpractice Attorney

If you believe you or a loved one has been injured as a result of negligent medical care, you need to act quickly. Failing to file your claim, along with the required documents, within the statute of limitations could result in the dismissal of your claim. The Chicago attorneys at Moll Law Group can advise people who have suffered from a misdiagnosis, a birth injury, a surgical error, or another form of medical malpractice. Contact us through our online form or call us at 312-462-1700 to set up a free initial consultation.

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The Continuing Danger of Lead Paint in Chicago-Area Homes, Illinois Injury Lawyer Blog, March 10, 2017.