Judicial Rulings

Medical malpractice suits: assurance of merit required

The Illinois Supreme Court settled disagreement at the appellate level over the constitutionality of a required preliminary statement of merit in suits for medical malpractice. On February 20 the court ruled on two suits that challenged the provision.

Comprehensive legislation passed in 1985 sought to control costs for medical malpractice insurance. One provision in the Code of Civil Procedure (see Ill. Rev. Stat. 1987, ch. 110, sec. 2-622) aimed at eliminating frivolous suits by requiring a health care professional to determine, via a written report, "after a review of the medical record and other relevant material involved ... that there is a meritorious cause for the filing of such action ... ."

Among the plaintiffs' arguments, the most serious was probably the charge of violation of judicial power: Since a malpractice suit dies without the statement, the statute was seen as granting judicial powers to the health professional making the statement.

The court pointed out that at trial a health professional would make similar expert findings and said, "Clearly, giving such testimony at trial does not constitute the exercise of a judicial function." It also noted that sec. 2-611.1 of the code as well as Supreme Court Rule 137 require attorneys to certify that a suit has merit, and that "obtaining a health professional's review pursuant to section 2-622 would appear, in many cases, to be a necessary concomitant of fulfilling the separate obligation ... requiring that pleadings, motions, and other papers be based on fact and filed in good faith."

The plaintiff also argued that the required statement is a burden not placed on plaintiffs in other injury suits and therefore violates equal protection guarantees by creating a special classification. The court answered that such classification is permitted to further a legitimate governmental interest, namely the elimination of frivolous suits.

Chief Justice Benjamin K. Miller wrote the opinion in DeLuna v St. Elizabeth's Hospital (Docket Nos. 68937 and 68952 cons.). Justices Michael A. Bilandic and Charles E. Freeman did not participate, and Justice William G. Clark dissented. Justice Thomas J. Moran wrote the opinion in McAlister v Schick (Docket No. 71157), which cited DeLuna as precedent, Clark also dissented, citing his dissent in DeLuna for details, but here he was joined by Bilandic and Freeman. Clark said, "A health care professional must first determine the applicable standard of conduct, and then decide whether the defendant's conduct measured up to that standard. The applicable standard of conduct, however, can only be determined by applying the legal test for standard of conduct. ... Therefore ... a health care professional must apply legal principles to the facts of the case." He further distinguished between such a statement and evidence given at trial, since absence of the former can kill the suit, while validity of trial evidence is weighed by the jury.

Clarifying double jeopardy

Some confusion about the tests to be used in determining double jeopardy may have been dispelled by an Illinois Supreme Court decision of January 23.

The defendant had twice been charged under village ordinances with illegally discharging hazardous waste on specific dates. He pleaded guilty the first time and entered into an agreed order the second time. Subsequently the state charged him with violation of the Environmental Protection Act (see Ill. Rev. Stat. 1985, ch. 111 1/2, sec. 1001 et seq.) over the same period.

The court said that the tests to be used in determining double jeopardy are to be found in the U.S. Supreme Court's decision in Grady v Corbin (495 U.S. 508 (1990)). Corbin says there shall be no subsequent prosecution that will prove "conduct that constitutes an offence for which the defendant has already been prosecuted." The Illinois decision ruled that this applied in the present case.

Justice Charles E. Freeman wrote the opinion in People v Stefan (Docket No. 71612).

Shoeprints as evidence

Under certain conditions, a shoeprint found at a crime scene may be sufficient evidence on which to convict, according to an Illinois Supreme Court decision filed January 30. The court found no recent Illinois cases in which shoeprint evidence was sufficient by itself to convict but said that such evidence "has long been admissible as competent evidence in an attempt to identify the accused as the guilty person."

In this case there were muddy shoeprints at the scene of a burglary. One was on an envelope that was found on the floor. A shoe was obtained from a suspect three days later, and a print from it was compared to the one from the crime scene and used in evidence at trial. The prosecution's expert witness noted six points of correspondence between the two prints but failed to note or explain dissimilarities.

The court said, "We believe that where there are significant general and individual characteristics, such as would provide a basis for a positive identification, shoeprint evidence may be as reliable and as trustworthy as any other evidence." Concerning applicability the court said, "We hold that the number of similarities found between a test print and the defendant's shoe goes to the weight of the evidence and, thus, whether there is a sufficient number to make a positive identification is a question for the jury."

Justice Charles E. Freeman wrote the opinion in People v Campbell (146 Ill. 2d 363); Justice James D. Heiple did not participate.

Immunity of school districts

On the question whether school districts have immunity from injury suits, the Illinois Supreme Court strongly suggested in a decision filed February 20 that the protection may be granted under the Tort Immunity Act. The defendant district in this case argued in trial court that the immunity was granted through provisions of the School Code, which the court rejected.

The suit, against the Griggsville School District in Pike County, is on behalf of a boy who was injured when he fell in a rut on a school playground. The suit charged that the district had allowed the rut to go unrepaired even though it had existed for some time and its personnel had to have been aware of it.

The district claimed immunity under provisions of the School Code that have been interpreted as granting immunity from injury suits to "teachers and other certificated educational employees" (see Ill. Rev. Stat. 1989, ch. 122, secs. 24-24 and 34-84a). The code says, "In all matters relating to the discipline in and conduct of the schools and the school children, they [teachers] stand in the relation of parents and guardians to the pupils." In previous cases of vicarious immunity for the district there had been joint action against a teacher and the district. The district argued here that activity of a gym class predicated a teacher's decision to conduct the class on the playground.

The court said, "The statute says nothing about school districts." It laid out two principles that would seem to govern future decisions:

"School districts vicariously benefit from a teacher's immunity when a cause of action is predicated on the negligence of a teacher;" and "When the complaint alleges the independent negligence of the school district rather than liability through the acts of a teacher, the defendant school district is not entitled to vicarious immunity under sections 24-24 or 34-84a."

On appeal the district suggested that the sections of the School Code together with a portion of the Local Governmental and Governmental Employees Tort Immunity Act (see Ill. Rev. Stat. 1989, ch. 85, sec. 3-106) might grant immunity to the district from liability resulting from the use of playgrounds. The court hinted that sec. 3-106 might apply by itself, but it was beyond the scope of this appeal since the district did not plead it at trial.

Chief Justice Benjamin K. Miller wrote for the majority in Sidwell v Griggsville Community School District No. 4 (Docket No. 71565). Justice James D. Heiple's dissent agreed with the majority finding under the School Code but argued for a decision under the Tort Immunity Act. He said, "When the record contains all the factual material necessary to decide an issue, the reviewing court will consider the issue even though it was not previously raised below."

F. Mark Siebert

April 1992/Illinois Issues/27