Court entered order allowing claimant to change expert.

CASE ON POINT: Cookson v. Price, IL-3-08-0669 (8/11/2009)-IL

ISSUE: Can a plaintiff change his expert witness?

CASE FACTS: In October 2007, Donald Cookson filed a two-count medical negligence suit against Todd Price, a physical therapy assistant, and the Institute of Physical Medicine and Rehabilitation (collectively Price), alleging that he was injured by Price's negligent physical therapy services. Specifically, Cookson alleged that Price placed an interferential current (IFC) device on his knee and left him unattended for 40 minutes, resulting in further injury to Cookson's previously damaged knee and necessitating additional surgery on Cookson's prior total knee replacement. Attached to Cookson's complaint was an attorney affidavit averring that Cookson's attorney was unable to obtain the health professional consultation required by law and that the statute of limitations would impair the suit. The trial court allowed Cookson a 90-day extension to file the required documents. In January 2008, Cookson filed a second attorney affidavit and a report written by Dr. Jeffrey Kornreich, a board-certified physician in physical medicine and rehabilitation, in which Dr. Kornreich concluded that Cookson's action was reasonable and meritorious. Price filed motions to dismiss, contending that Dr. Kornreich's report did not comply with the requirements set forth in the law, specifically the requirement that the report be authored by a health professional with the same license as Price, in that Kornreich was a physician specializing in physical medicine and rehabilitation while Price was a physical therapy assistant. Price further contended that the merits of the report were insufficient since Dr. Kornreich discussed an iontophoresis device rather than the IFC current device that was actually used on Cookson. Lastly, Price contended that because the statute of limitations had expired and Cookson had used the 90-day extension allowed him in order to file the consultation report and second attorney affidavit, Cookson should not be allowed to file any additional or supplemental reports. In July 2008, Cookson file a motion to file an amended attorney affidavit and a report authored by Jim Modglin, a physical therapy assistant. Following a hearing on the defendants' motions to dismiss, the trial court granted the motions and dismissed Cookson's complaint "with prejudice." The trial court also denied Cookson's motion for leave to file the amended attorney affidavit and Modglin's report. The trial court held that the defect in the initial report, that the expert was not licensed in the same field as defendant's expert, could not be cured by amendment. Cookson appealed.

COURT'S OPINION: The Court of Appeals of Illinois reversed the judgment of the trial court, which had dismissed the plaintiff's suit after it denied the plaintiff's motion to amend his pleadings by, inter alia, changing his medical expert witness from one expert to another who had the same licensure as the defendants' expert. The court held, inter alia, that to bar a plaintiff from amending his or her affidavits and corresponding report would elevate the pleading requirement to a substantive defense contrary to both the spirit and purpose of the law. The court found that under the facts at bar, the statute's purpose was furthered by allowing Cookson to amend his complaint to include the affidavit and report authored by Modglin. Accordingly, the court concluded that Cookson should have been granted leave to amend and found that the trial court had abused its discretion in denying Cookson's motion to amend. Since the Modglin report cured the defect with the Kornreich report, the court found that the trial court also abused its discretion in dismissing Cookson's complaint with prejudice. Accordingly, the court reinstated Cookson's complaint as amended.

LEGAL COMMENTARY: The court's interpretation of the trial court's ruling suggested that the trial court did not believe it could allow Cookson to file a new report authored by a different health professional. In denying Cookson leave to amend, the trial court noted the "marked difference" between amending an existing report and substituting a report by a new author. However, nothing in the law necessitated the trial court's conclusion. The court noted that Cookson's first was not authored by a health professional with the appropriate license, notwithstanding the fact that it was authored by a licensed M. D. Accordingly, the court found that the trial court had abused its discretion. The court cited several Illinois cases as precedents for the fact that a trial court has discretion to allow a plaintiff to amend affidavits after the exspiration of the 90-day extension. Further, the court noted that neither the cases in question nor the amendments were were preferred involved frivilous claims or frivilous grounds for amending the reports previously filed. A concurring opinion was filed in which the concurring justice agreed with the majority that the trial court had abused its discretion in the case. However, he emphasize that Cookson's attorney was both forthright and consistent in articulating his need and request for the 90-day extension. Consequently, opposing counsel, as well as the court, was aware of exactly what Cookson's attorney was going to do, and he did it!

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A profile writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.