Watch out for the fatal flaw! Expert deposition testimony serves as a crucial cornerstone in unraveling the complexities of medical malpractice cases. However, relying solely on this testimony might prove to be fatal for your case.

That is exactly what happened in Cherkassky v. Tsipursky, where the Appellate Court of Illinois affirmed the circuit court’s dismissal of several counts based on plaintiff’s failure to comply with section 2-622 of the Code of Civil Procedure.[1]

Facts of the Case

On April 10, 2019, Georgiy Cherkassky, acting as Lena Cherkasskaya’s (“plaintiff”) power of attorney, filed suit against Dr. Tsipursky and Advanced Eye Care, Ltd., for medical malpractice.[2] Plaintiff did not attach a section 2-622 report to the initial complaint and instead filed an affidavit claiming that he was unable to acquire a report prior to the expiration of the statute of limitations.[3]

On July 9, 2019, plaintiff filed a section 2-622 affidavit and a report by an expert ophthalmologist exclusively addressing the actions of Dr. Tsipursky.[4] On October 13, 2021, after having deposed Drs. Tsipursky, Faier, and Garcia-Valenzuela, plaintiff filed a second amended complaint, adding Dr. Faier, FVAA, and Surgicare as defendants. [5] This second amended complaint raised “one count of medical malpractice against Dr. Faier; one count of medical malpractice against FVAA through Dr. Faier acting as its agent; two counts of medical malpractice against Surgicare through Drs. Faier and Tsipursky acting as its agents; and one count against Surgicare for failing to obtain Lena’s informed consent, through Dr. Tsipursky acting as its agent.”[6]

“[A]lthough each [count against Dr. Faier] was titled as a ‘Medical Malpractice Survival Action,’ [plaintiff] alleged that Dr. Faier’s conduct amounted to gross negligence and that expert testimony and a section 2-622 report were, therefore, not necessary.”[7] Plaintiff again attached the same section 2-622 affidavit and report even though it only included Dr. Tsipursky’s care and did not mention or discuss Dr. Faier’s actions.[8]

The Motion to Dismiss Under Section 2-619

On April 18, 2022, Dr. Faier filed a motion to dismiss because plaintiff failed to comply with the requirements of section 2-622 for its claims against her.[9] Plaintiff responded to the motion, asserting that the depositions of Drs. Faier, Tsipursky, and Garcia-Valenzuela together satisfied the section 2-622 requirement because their testimonies identified the reasons why a reasonable and meritorious cause for the action existed.[10]

The Ultimate Decision Regarding the Expert Depositions

The circuit court and Appellate Court of Illinois did not agree with plaintiff.[11] The lower “court explained that over the course of three complaints the [plaintiff] had ‘failed to name any of the three moving [d]efendants in a Section 622 Report, either stating what standard of care was required of each or what breaches of such standards were committed by each,’ and that ‘[f]ailing to so file a proper 622 Report after three separate [c]omplaint filings indicates that [p]laintiff does not have good cause to name these entities as defendants, and the dismissals are thus with prejudice.’”[12] Further, the court refused to accept plaintiff’s argument that the physicians’ deposition testimonies could take the place of a section 2-622 report, and the court found that the testimonies also did not establish a meritorious cause of action against Dr. Faier, FVAA, or Surgicare.[13]

The appellate court added, “[t]he depositions lack that crucial aspect of a section 2-622 report, which is the opinion from a qualified expert determining that the plaintiff has a meritorious claim.”[14] The court continued to explain that because courts are not physicians or experts in the various fields of medicine, section 2-622 exists so qualified medical professionals can tell the court whether a plaintiff has a meritorious claim.[15]

Additionally, the appellate court found plaintiff’s failure to comply with section 2-622 warranted dismissal with prejudice because the lack of compliance was substantive and not technical in nature.[16] Citing to plaintiff’s own complaint, the court found that—even with ample time to do so—plaintiff deliberately chose not to file a section 2-622 report.[17]

Furthermore, the Appellate Court of Illinois held plaintiff’s claim that the anesthesiologist acted negligently in not allowing Lena to undergo surgery under general anesthesia was medical in nature and therefore, could not proceed as an ordinary negligence claim.[18]

The Takeaway

Litigants must comply with statutory provisions or run the risk of the dismissal of their claim. 735 ILCS 5/2-622 is a threshold pleading requirement mandating the submission of a health professional’s report “[i]n any action in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice.”[19] The Cherkassky court articulated the specific exception for when a “622-report” in not required:

“there are three types of negligence suits against providers of medical services: (1) malpractice suits requiring expert testimony; (2) malpractice cases not requiring expert testimony; and (3) negligence suits, essentially common-law in character, that happen to be directed against health care providers.”[20]

Only the last of those three does not require compliance with section 2-622.[21] The allegations against Dr. Faier in this case do not fall under that third category. The issue is whether Dr. Faier acted negligently in refusing to allow the ninety-two-year-old Lena to be placed under general anesthesia after Lena’s lungs had become congested. This is plainly a medical question outside of the ken of an average lay juror and not a common-law negligence issue.”

In this case, the plaintiff’s failure to procure the 622-report setting forth the reasonable and meritorious bases for adding Dr. Faier proved fatal to the amended pleading. 

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Sources

[1] Cherkassky v. Tsipursky, 2024 IL App (1st) 230553-U, ¶ 2.

[2] Id. at ¶ 3.

[3] Id.  at ¶ 5.

[4] Id.

[5] Id. at ¶ 7.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at ¶ 8.

[10] Id. at ¶ 10.

[11] Id. at ¶ 12..

[12] Id.

[13] Id.

[14] Id. at ¶ 19.

[15] Id. See DeLuna v. St. Elizabeth’s Hospital, 147 Ill.2d 57, 75 (1992) (“By requiring litigants to obtain, at an early point, the opinion of an expert who agrees that a meritorious cause of action exists, the statute will help ensure that only claims with some merit are presented.”).

[16]  Id. at ¶ 21.

[17] Id. at ¶1.

[18] Id.

[19]  735 ILCS 5/2-622 (West 2020).

[20] Woodard v. Krans, 234 Ill. App. 3d 690, 705 (1992).

[21] Id.