author: PRESIDING JUSTICE INGLIS

text:
    KELLY A. SHARPENTER, Indiv. and as Mother and Next Friend of Ami Orava, Plaintiff-Appellant, v. KEVIN F. LYNCH et al., Defendants-Appellees.
    Second District
    No. 2—91—1457
    Opinion filed August 26, 1992.

      Edgar P. Petti, of Geneva, and David S. Acker, of Winston & Strawn, of Chicago, for appellant.
    Caroline A. Mondschean, Joshua G. Vincent, and George W. Spellmire, Jr., all of Hinshaw & Culbertson, and Joyce E. Zupancic, of Broderick & Dunn, both of Chicago, and Rory T. Weiler, of Weiler & Noble, P.C., of Elburn, for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Kelly Sharpenter, appeals after the trial court dismissed with prejudice counts I, III, V, and VII of her legal malpractice complaint against defendants, John Biallas, Kevin Lynch, William Wylie, and Wylie, Wheaton and Associates, P.C., also known as William J. Wylie and Associates, P.C. The dismissed counts related to a loss of consortium claim against David Jenkins, who was involved in an automobile accident with Sharpenter’s ex-husband, John Orava. Sharpenter contends that the trial court erred in dismissing counts I, III, V and VII based on the statute of limitations. We affirm.

On April 30, 1981, John Orava was involved in an automobile accident with David Jenkins. Shortly after the accident, Sharpenter, the former Mrs. Orava, noticed that Orava’s behavior had changed. He was abusive, irritable, mean, devious and perverted. He struck Sharpenter, and he took their daughter to southern Illinois and threatened not to return. Sharpenter suggested to Orava that he see a doctor, but he refused. Orava’s behavior led to their separation and eventual divorce in May 1982.

After eventually seeing a doctor, Orava confirmed that he was injured in the automobile accident. On April 28, 1983, Orava filed a negligence action against Jenkins. He claimed that the accident caused him severe physical injuries, including brain damage. In October 1984, Sharpenter received a subpoena to have her deposition taken in Orava’s personal injury case. Sharpenter claims that this was the first time she knew that Orava had suffered physical injuries as a result of the accident.

On January 28, 1985, Sharpenter filed a petition to intervene in Orava’s case against Jenkins. Sharpenter claimed loss of consortium on behalf of herself as the former spouse and on behalf of her daughter, Ami. Defendants represented Sharpenter in this action. Sharpenter’s petition was denied because the case was close to trial and would prejudice Jenkins.

On April 4, 1985, Sharpenter filed an independent loss of consortium action against Jenkins, with defendants as counsel, after Orava settled his claim against Jenkins for $80,000. Sharpenter’s action was voluntarily dismissed on July 14, 1986, and refiled on July 10, 1987. The case was dismissed for want of prosecution on August 23,1988.

Thereafter, Sharpenter brought this legal malpractice action against defendants. Sharpenter’s original complaint alleged that defendants negligently and fraudulently represented her and her daughter in the loss of consortium proceedings and the proceedings related to the sequestration and division of Orava’s $80,000 settlement with Jenkins. Defendants filed motions to dismiss her complaint pursuant to sections 2—615, 2—619 and 2—619.1 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, pars. 2—615, 2—619, 2— 619.1), arguing, inter alia, that Sharpenter’s loss of consortium action was barred by the statute of limitations.

On November 1, 1991, the trial court dismissed Sharpenter’s complaint because the underlying loss of consortium action was barred by the statute of limitations. The court stated that Sharpen-ter knew of the accident and the possibility of a cause of action at the time of the occurrence. Sharpenter moved to vacate the dismissal and sought leave to file a first amended complaint. The court granted the request to file an amended complaint, and Sharpenter filed an amended eight-count complaint.

Count I of the amended complaint alleged defendants were negligent in representing Sharpenter and her daughter in the loss of consortium action. Count II alleged defendants were negligent in representing Sharpenter and her daughter in proceedings related to the marital property division of Orava’s settlement money. Count III alleged breach of contract in representing Sharpenter and her daughter in the loss of consortium action. Count IV alleged breach of contract in representing Sharpenter and her daughter in the property division proceeding. Count V alleged constructive fraud in representing Sharpenter and her daughter in the loss of consortium action. Count VI alleged constructive fraud in representing Shar-penter and her daughter in the property division proceeding. Count VII alleged fraud and deceit in representing Sharpenter in the loss of consortium action. Count VIII alleged intentional infliction of emotional distress for failing to represent Sharpenter in the loss of consortium action.

On November 26, 1991, the same day the amended complaint was filed, the trial court reconsidered its November 1, 1991, ruling in which it dismissed Sharpenter’s original complaint. The trial court reiterated that the statute of limitations barred the underlying loss of consortium claim, but that only counts I, III, V and VII of the amended complaint are affected by that decision. The court stated:

“[I]t is the court’s position that discovery by the principal is chargeable to a third party who relies in whole or in part upon the incident involving that principal. And even though your argument is it might be a separate cause of action, it is still dependent upon the incident that took place with respect to that principal.”

Thus, the trial court dismissed, with prejudice, counts I, III, V and VII of Sharpenter’s first amended complaint. Sharpenter then filed a timely notice of appeal.

Sharpenter contends that the trial court erred in holding, as a matter of law, that her loss of consortium claim was barred by the statute of limitations. She argues that the “traumatic event” rule does not apply in this situation. Sharpenter also contends that there remains a question of fact as to when she knew or should have known that her ex-husband was injured in the automobile accident. Finally, Sharpenter contends that defendants are equitably estopped from asserting the statute of limitations bar because they previously argued on behalf of Sharpenter that her action was not time barred.

Defendants contend that Orava’s automobile accident was a sudden and traumatic event such that the two-year statute of limitations began running from the time of the accident. Defendants argue that Sharpenter’s derivative action is also subject to the “traumatic event” rule. Defendants also contend that the facts are undisputed that Sharpenter should have reasonably known of Orava’s injuries within days of the accident. Finally, defendants contend that the doctrine of equitable estoppel is inapplicable.

Attorneys are liable for damages in legal malpractice actions only when they fail to exercise a reasonable degree of skill and care. (Barth v. Reagan (1990), 139 Ill. 2d 399, 406.) In an action for legal malpractice, the plaintiff must prove that the attorney owed plaintiff a duty arising from the attorney-client relationship, that the duty was breached, and, as a proximate result, the plaintiff was injured. (Sexton v. Smith (1986), 112 Ill. 2d 187, 193.) A legal malpractice action is a “case within a case,” meaning that the malpractice complaint is dependent on the underlying lawsuit that established the attorney-client relationship. (Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 122.) Thus, no malpractice exists unless the plaintiff proves that, but for the attorney’s negligence, plaintiff would have been successful in the underlying action. Sheppard v. Krol (1991), 218 Ill. App. 3d 254, 257.

Section 2—619.1 of the Civil Practice Law allows combined motions under sections 2—615 and 2—619 (Ill. Rev. Stat. 1991, ch. 110, par. 2—619.1). “A motion to dismiss pursuant to section 2—619 of the Code admits all well-pleaded facts as well as any reasonable inferences which may be drawn from those facts.” (Streams Condominium No. 3 Association v. Bosgraf (1991), 219 Ill. App. 3d 1010, 1013.) The trial court may consider the pleadings, affidavits, and deposition evidence. (Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill. App. 3d 227, 232.) A section 2—619 motion should be granted only if no genuine issue of material fact exists. Bosgraf 219 Ill. App. 3d at 1013-14.

When reviewing a dismissal pursuant to section 2—615, all well-pleaded facts within the four corners of the complaint are regarded as true, together with all reasonable inferences drawn in the light most favorable to the plaintiff. (Bank of Northern Illinois v. Nugent (1991), 223 Ill. App. 3d 1, 9.) A section 2—615 motion must point out specifically the alleged insufficiency in the pleadings. (Ill. Rev. Stat. 1991, ch. 110, par. 2—615(b); Sawko v. Dominion Plaza One Condominium Association No. 1-A (1991), 218 Ill. App. 3d 521, 525.) The trial court lacks discretion to dismiss a complaint if it states a cause of action. (Sawko, 218 Ill. App. 3d at 525.) A dismissal under section 2—615 should be affirmed only where no set of facts can be proven which set forth a cause of action entitling plaintiff to relief. Nugent, 223 Ill. App. at 9.

“Loss of consortium encompasses two basic elements of the marital relationship: loss of support and loss of society, which includes companionship and sexual intercourse.” (Brown v. Metzger (1984), 104 Ill. 2d 30, 34.) Actions for loss of consortium shall be commenced within the same time period as actions for injury to such other person. (Ill. Rev. Stat. 1991, ch. 110, par. 13—203.) Actions for personal injury shall be commenced within two years after, the cause of action accrued. (Ill. Rev. Stat. 1991, ch. 110, par. 13—202.) A cause of action accrues when the plaintiff knows or reasonably should have known of the injury and that it was caused by another’s wrongful acts. Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171.

In the case of a sudden and traumatic event, the cause of action accrues at the time the injury occurred. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 432; Dockery v. Ortiz (1989), 185 Ill. App. 3d 296, 306.) An injury is traumatic in nature if it is immediate and caused by an external force or violence. (Pszenny v. General Electric Co. (1985), 132 Ill. App. 3d 964, 966; Dockery, 185 Ill. App. 3d at 314 (Unverzagt, J., dissenting).) The classification of an injury as traumatic merely aids in determining when plaintiff discovered, or should have discovered, that the injury was caused by the defendant’s wrongful conduct. Pszenny, 132 Ill. App. 3d at 966.

Injuries that have been found to be traumatic in nature include a broken hip from a fall (Walters v. Marion Memorial Hospital (1991), 217 Ill. App. 3d 744); injuries from an automobile accident caused by a defect in the vehicle (Tate v. Beverly Chrysler Plymouth (1989), 182 Ill. App. 3d 830); a stillbirth (Nordsell v. Kent (1987), 157 Ill. App. 3d 274); injuries sustained when pinned under a forklift truck (Bates v. Little Co. of Mary Hospital (1982), 108 Ill. App. 3d 137); injuries suffered from an explosion (LePretre v. Petrie Brothers, Inc. (1983), 113 Ill. App. 3d 484); and a stroke from ingesting birth control pills (Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548).

We find that the court did not err in ruling that Orava’s automobile accident was a sudden and traumatic event and that the running of the statute of limitations began on the day of the accident. Orava testified at his deposition that immediately after the accident he felt dizzy, had a bad headache, and his face was black and blue. Orava was aware that the accident had caused him injury. However, this determination only means that Orava’s action, filed on April 28, 1983, was filed within the applicable limitations period. We must now take the additional step and determine whether Shar-penter’s separate loss of consortium action is also subject to the sudden and traumatic event rule. If so, any legal action she took to obtain loss of consortium damages after April 30, 1983, would be barred by the statute of limitations, and the “but for” requirement in legal malpractice actions would not be met.

A loss of consortium action is not a derivative claim brought by a spouse as a representative of the injured spouse, but is an independent action. (Page v. Hibbard (1987), 119 Ill. 2d 41, 48.) However, the action is independent in the sense that a loss of consortium award will neither be dismissed because the physically injured spouse settled and released the underlying personal injury claim (Brown, 104 Ill. 2d at 37), nor reduced by a worker’s compensation lien against the injured spouse’s settlement proceeds (Page, 119 Ill. 2d at 48). Cf. Blagg v. Illinois F.W.D. Truck & Equipment Co. (1991), 143 Ill. 2d 188, 199 (loss of consortium award is reduced by the physically injured party’s comparative negligence).

Pursuant to section 13—203 of the Civil Practice Law, an action for loss of consortium shall commence within the same period of time as actions for damages by the physically injured spouse. (Ill. Rev. Stat. 1991, ch. 110, par. 13—203.) We have found no case, since this statute took effect in 1977, in which the statute of limitations period for a loss of consortium action began any later than the limitations period for the action of the physically injured party. Further, we have previously ruled that if the physically injured spouse’s cause of action is barred by the statute of limitations, the other spouse’s loss of consortium claim is also barred. Blonder v. Watts (1988), 166 Ill. App. 3d 633, 637.

We interpret section 13—203 to mean that the limitations period for loss of consortium claims mirrors that of the physically injured party’s action. Thus, Sharpenter’s loss of consortium action was barred by the statute of limitations which began running on the day of Orava’s automobile accident, April 30, 1981. Because Sharpenter would not have succeeded in her loss of consortium action “but for” her attorney’s negligence, the trial court properly dismissed counts I, III, V and VII of her amended complaint.

Having determined that, as a matter of law, Sharpenter’s loss of consortium claim was barred due to the traumatic event rule, we need not address whether there was a question of fact as to when Sharpenter knew or should have known of Orava’s injury. However, we believe that there was enough evidence that Sharpenter reasonably should have known within days after the accident that Orava was injured in the automobile accident. Sharpenter was aware of the occurrence and Orava’s peculiar behavior, but was unaware of the nature and extent of the injuries. However, knowledge of the nature and extent of the injuries is not the basis for the discovery rule. We recognize that the facts of this situation, particularly the apparent lack of communication between Sharpenter and Orava, contributed to the delay in Sharpenter’s filing of an action. But, under the discovery rule, Sharpenter had enough knowledge of the situation for the statute of limitations period to begin running.

Sharpenter’s final contention is that defendants are equitably estopped from asserting the statute of limitations as a defense because they previously argued, on behalf of Sharpenter, that her loss of consortium claim was not time barred. Sharpenter relies on Witherell v. Weimer (1981), 85 Ill. 2d 146, to support her argument. However, as all defendants acknowledge, Witherell is distinguishable. There, the plaintiff delayed in filing a lawsuit against her doctor and the manufacturer of contraceptives because her doctor informed her that her problems were not associated with the contraceptives. (Witherell, 85 Ill. 2d at 149.) Here, Sharpenter neither relied nor changed her position based on defendant’s actions. Defendants never advised Sharpenter to delay in filing her intervention action or her subsequent independent loss of consortium action. In fact, defendants were not approached to represent Sharpenter until the statute of limitations had already expired. Thus, defendants were not equitably estopped from raising the statute of limitations.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

McLAREN and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    ADAM PETERSON, a Minor, by his Father and Next Friend, Paige Peterson, et al., Plaintiffs-Appellants, v. HINSDALE HOSPITAL et al., Defendants-Appellees.
    Second District
    No. 2—91—1079
    Opinion filed August 27, 1992.

      Michael J. Staab, of Steinberg, Polacek & Goodman, and David A. Nov-oselsky, of David A. Novoselsky & Associates, both of Chicago, for appellants.
    D. Kendall Griffith and Alice Kehl Kush, both of Hinshaw & Culbertson, Gail Allyn Omahana, of Landau, Omahana & Kopka, Ltd., and Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., all of Chicago, Douglas J. Esp and Robert G. Black, both of Hinshaw & Culbertson, of Lisle, and Johnson & Bell, of Wheaton, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

On November 2, 1989, the plaintiffs, Adam Peterson, a minor, by his father and next friend, Paige Peterson, and Paige Peterson and Helen Peterson individually, brought a complaint in four counts against Hinsdale Hospital, three of its nurses, and several pediatricians and an orthopedic surgeon. They complained of medical malpractice that allegedly resulted in a broken femur of Adam Peterson. On motion of the defendants, the circuit court of Du Page County dismissed the complaint with prejudice because the plaintiffs had failed to comply with section 2—622 of the Code of Civil Procedure (section 2—622) (Ill. Rev. Stat. 1991, ch. 110, par. 2—622). The court subsequently denied the plaintiffs’ motion for leave to file a first and second amended complaint and a motion to reconsider the court’s previous dismissal. The plaintiffs appeal from both decisions. Additionally, the plaintiffs argue that they were denied equal protection under the law due to disparate treatment of section 2—622 by the Illinois Appellate Court.

The plaintiffs originally filed their cause of action in the circuit court of Cook County. The defendants moved to change the venue to Du Page County pursuant to sections 2—101 and 2—102 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 2—101, 2—102), because all named defendants resided in Du Page County, and all events at issue occurred within Du Page County. On October 9, 1990, the circuit court of Cook County granted all motions to transfer venue and ordered the matter sent to the circuit court of Du Page County. The case was transferred on December 17,1990.

On January 16, 1991, the defendants moved to dismiss the complaint pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—619), due to the plaintiffs’ failure to attach the requisite certificates of merit and affidavit required by section 2—622. The court entered an order requiring the plaintiffs to comply with section 2—622 within 28 days. Pursuant to that order, the plaintiffs filed an attorney affidavit and a physician’s report on February 22, 1991. Several defendants then renewed their motions to dismiss, arguing that the plaintiffs still had not satisfied the requirements of section 2—622.

On April 9, the plaintiffs filed an amended complaint (first amended complaint), without leave of court, which added an additional claim based on res ipsa loquitur as well as an amended affidavit and physician’s report. On May 7, following arguments, the court issued a letter of opinion stating that the plaintiffs had failed to comply with the requirements of section 2—622, that the plaintiffs were still standing on their original affidavit and report, and that more than ample time had transpired for compliance with section 2—622. On May 9, the court entered an order dismissing the plaintiffs’ cause of action with prejudice as against all of the defendants.

On June 7, 1991, the plaintiffs filed a motion for leave to file a second amended complaint instanter, and a motion to reconsider the court’s earlier order dismissing the plaintiffs’ complaint. The court issued an opinion denying relief to the plaintiffs, stating that the plaintiffs did not comply with section 2—622. The court thereafter denied the plaintiffs’ motion to file the first amended complaint that originally was filed on April 9, 1991, without leave of court. The plaintiffs timely appealed these decisions.

The plaintiffs first argue that the trial court erred in dismissing their complaint with prejudice, asserting that the court abused its discretion.

As the plaintiffs correctly note, the purpose of section 2—622 is to deter the filing of frivolous medical malpractice lawsuits and to insure the meritoriousness of those causes which are filed. (Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 949.) Section 2—622(a) requires that a medical malpractice plaintiff or attorney attach an affidavit to the complaint declaring the affiant has consulted with a health care professional who has determined, by written report, “that there is a reasonable and meritorious cause for the filing of such an action.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—622(a)(l).) A copy of the written report, “clearly identifying the plaintiff and the reasons for the reviewing health professional’s determination,” must be attached to the affidavit. (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 110, par. 2—622(a)(l).) A written report shall be filed “as to each defendant” named in the complaint. (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 110, par. 2—622(b).) The failure to file the certificate and written report required by section 2—622 “shall be grounds for dismissal under Section 2—619.” Ill. Rev. Stat. 1991, ch. 110, par. 2—622(g).

Noncompliance with section 2—622 does not require dismissal with prejudice for noncompliance; the trial court has the authority to grant leave to file an amended complaint with new affidavits. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 192-93.) However, the determination of whether to dismiss an action with or without prejudice is within the sound discretion of the trial court. (Cato v. Attar (1991), 210 Ill. App. 3d 996, 999.) Where the court takes the particular facts and unique circumstances of the case into consideration before determining that the complaint should be dismissed with prejudice, the court’s determination is not an abuse of discretion. (Wasielewski, 189 Ill. App. 3d at 950.) Absent a manifest abuse of discretion, the trial court’s determination will not be reversed on appeal. McCastle, 121 Ill. 2d at 194.

The facts in the case at bar reveal that the plaintiffs were given 28 days to file a section 2—622 affidavit and physician’s certificate after the defendants initially moved for a dismissal. The first certificate filed by the plaintiffs stated that the doctor reviewing the case specialized in the field of obstetrics and gynecology. The certificate also contained the following language:

“In connection with medical care and treatment that [the plaintiffs] received at Hinsdale Hospital and by William B. Senica, M.D.; Peggy Supple, M.D.; Kamal Ibrahim, M.D.; Ofelia Barrios Ayuste, M.D.; Betty Grammich, R.N.; K. Carlson, R.N.; and C. Goy, R.N.; ***. A reasonable and meritorious cause for filing of an action for medical negligence exists. My review of the medical records has shown that Adam Peterson was bom in a Frank’s breech position. It was later determined that Adam Peterson suffered bilateral femoral fracture. It is not customary in a breech delivery to have bilateral femoral fracture without a traumatic delivery secondary to inappropriate delivery techniques being used. Furthermore, there was a delayed diagnosis in determining that Adam Peterson suffered bilateral femoral fractures.”

In granting the defendants’ motion to dismiss, the court, on May 7, 1991, stated that the defendants were entitled to separate reports as to each of them, setting forth what they each allegedly did wrong. The judge stated that because the counts were against obstetricians, pediatricians and nurses, there had to be separate certificates for each specialized category of defendant. Additionally, the court agreed with the defendants that they were entitled to doctor certifications which set forth the reasons for the expert’s determination that the suit is meritorious. The judge also determined that the plaintiffs were still standing on the original physician’s report and had ample time to comply with the requirements of section 2—622.

The plaintiffs assert that the basis for the doctor’s determination of meritoriousness was adequately set out in the report. The plaintiffs cite to Alford v. Phipps (1988), 169 Ill. App. 3d 845, 854, for the proposition that a broad conclusion that “malpractice has occurred” is sufficient to satisfy the requirements of section 2—622(c). However, this case is distinguishable because Alford pertained only to the requirements of a res ipsa loquitur malpractice claim. (Alford, 169 Ill. App. 3d at 855.) The plaintiff asserts that the court had before it a first amended complaint which added an additional claim of res ipsa loquitur when it decided the motion. However, as noted by the defendants, there is no motion of record for a leave to file the first amended complaint until September 19, 1991, four months after the motion to dismiss was granted.

Where res ipsa loquitur is not alleged (see Alford, 169 Ill. App. 3d at 854), the physician’s report must clearly identify the reasons for the health professional’s determination that there is a meritorious cause of action (Premo v. Falcone (1990), 197 Ill. App. 3d 625, 631). In Premo, the physician’s report stated that the reasons for his determination were “based on the inappropriate interpretation of clinical evidence of fetal stress and distress during labor,” and “[inappropriate actions were taken to intervene and to provide appropriate medical care and treatment.” (Premo, 197 Ill. App. 3d at 632.) The Premo court noted that the report never discussed what those appropriate actions were and that it therefore failed to adequately state a basis for the determination of the physician. Premo, 197 Ill. App. 3d at 632.

The first physician’s report in the instant case, similar to the report in Premo, merely stated that “[i]t is not customary in a breech delivery to have a bilateral femoral fracture [sic] without a traumatic delivery secondary to inappropriate delivery techniques being used.” The report also stated that there was a delayed diagnosis in determining that Adam suffered from the fractures. However, the report did not discuss what actions were inappropriate and gave rise to the physician’s opinion. Therefore, we find that the judge’s determination that the report did not adequately set forth the reasons for the physician’s determination was not an abuse of discretion. See McCastle, 121 Ill. 2d at 194.

The plaintiffs also assert that it was not necessary to file separate reports as to each defendant. In a cause of action where charges of negligence are the same as to each defendant, and where they are sufficiently broad, a single report is sufficient to cover several defendants. (Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1040.) However, where confusion would result if the plaintiff failed to file separate physician’s reports, the judge may, within his discretion, require separate reports. (Relaford, 173 Ill. App. 3d at 1040, citing Alford, 169 Ill. App. 3d at 845.) We find that the judge’s determination, as to the original complaint filed, that each defendant was entitled to a separate report was not an abuse of discretion. McCastle, 121 Ill. 2d at 194.

The court determined that the plaintiffs’ claim was deficient because there were not adequate reports and affidavits as required by section 2—622. The court noted that, despite the fact that the case was originally filed in a circuit which had determined that section 2—622 was unconstitutional and unnecessary, the case had been pending in Du Page County in excess of four months and the plaintiffs still had not properly submitted sufficient affidavits and reports.

As the court took the particular facts and circumstances of this case into consideration when it dismissed the claims with prejudice (see Wasielewski, 189 Ill. App. 3d at 950), we cannot find that the court’s determination was a manifest abuse of discretion. McCastle, 121 Ill. 2d at 194.

The plaintiffs next argue that the court abused its discretion in refusing to allow them to file an amended complaint. The plaintiffs assert that, because the amended complaint asserted the theory of res ipsa loquitur, the physician’s report should have been sufficient.

As correctly noted by the plaintiffs, in a medical malpractice case, the plaintiff should be afforded every reasonable opportunity to establish his case. (Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638.) Accordingly, amendments to pleadings are to be liberally allowed to enable medical malpractice actions to be decided on their merits rather than on procedural technicalities. Moss, 180 Ill. App. 3d at 638.

The doctrine of res ipsa loquitur is a method of proving negligence by circumstantial evidence when the knowledge of whether negligence occurred is much more available to the opponent than the proponent (Daly v. Carmean (1991), 210 Ill. App. 3d 19, 25), and it is available to a plaintiff in a medical malpractice action (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 394). In order to invoke the doctrine, a plaintiff must demonstrate, in part, that he was injured: (1) in an occurrence that ordinarily does not happen in the absence of negligence; and (2) by an agency or instrumentality within the defendant’s exclusive control. (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 295.) Proof of an unusual, unexpected or untoward medical result which ordinarily does not occur in the absence of negligence will suffice in the application of the doctrine. See Ill. Rev. Stat. 1991, ch. 110, par. 2—1113.

In the present case, the plaintiffs sought leave to file an amended complaint which contained new counts based on the doctrine of res ipsa loquitur, along with amended affidavits and physician’s reports. The amended complaint contained a separate physician’s report as to each defendant as well as the required language, pursuant to section 2—622(c), that “negligence has occurred in the course of medical treatment.” Ill. Rev. Stat. 1991, ch. 110, par. 2—622(c).

In the court’s opinion letter, the court stated that its refusal to permit the plaintiffs to file the amended complaint was based in part on its determination that the physician’s certificate originally filed was insufficient to support a claim under the doctrine of res ipsa lo-quitur. The court did not discuss why the amended physician’s certificates were not sufficient, but only referred to the original physician's report. The court also stated that the defendants were entitled to separate physician’s reports and reports which state what each defendant did wrong.

We find that the amended complaint, affidavits and physician’s reports sufficiently complied with the requirements of section 2—622 and that the court abused its discretion when it did not allow the plaintiff leave to amend. Because the amended complaint alleged res ipsa loquitur, a broad general conclusion that malpractice has occurred was sufficient to satisfy section 2—622 even without further mention of each defendant’s involvement. (See Alford, 169 Ill. App. 3d at 854.) To require otherwise would be contrary to the legislative intent of deciding malpractice cases on their merits (see Moss, 180 Ill. App. 3d at 638) and would render the doctrine of res ipsa loquitur meaningless in malpractice actions. Under any other analysis, res ipsa loquitur actions, by definition, could never meet the section 2—622 requirement that a plaintiff file a written report including the reasons for the determination that the action is meritorious. Considering that analysis, plus the fact that the plaintiffs’ amended complaint contains separate physician’s reports as to each separate defendant, we find that the court abused its discretion in denying the plaintiffs leave to amend.

Based on our foregoing determination to reverse the decision of the trial court, we need not address the plaintiffs’ last argument that they were denied equal protection under the law.

For the above-stated reasons, we reverse the decision of the circuit court of Du Page County which denied the plaintiffs leave to file an amended complaint and affidavits and physician certificates. We remand for further proceedings consistent with this decision.

Reversed and remanded.

WOODWARD and NICKELS, JJ., concurs.


author: JUSTICE DUNN

text:
      In re JACQUELYN LONG, Found to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Jacquelyn Long, Respondent-Appellant).
    Second District
    No. 2—91—0215
    Opinion filed August 27, 1992.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, Jacquelyn Long, appeals from an order of the circuit court of Kane County which found that she was subject to involuntary admission to a mental health facility. On appeal, she contends that the trial court lacked subject-matter jurisdiction because of noncompliance with certain provisions of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1991, ch. 911/2, par. 1—100 et seq.). Respondent also argues that, even if the court had subject-matter jurisdiction, (1) the State’s failure to comply with the Code requires that the judgment be reversed, and (2) the evidence at trial was insufficient to support the finding that she was subject to involuntary admission.

On November 29, 1990, the circuit court of Cook County determined that respondent was subject to involuntary admission and ordered that she be hospitalized at a facility operated by the Department of Mental Health and Developmental Disabilities (Department). This was the initial hospitalization order for respondent. At the time, the maximum duration of initial orders for hospitalization was 60 days (Ill. Rev. Stat. 1989, ch. 911/2, par. 3—813(a)). Thus, the initial order authorized respondent’s hospitalization until January 27, 1991.

Respondent was originally admitted to a facility in Chicago. After about a month, the Department transferred her to the Elgin Mental Health Center. On February 7, 1991, the Department filed a petition which it characterized as a petition for the emergency admission of respondent pursuant to section 3—600 of the Code (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—600). The petition was accompanied by two certificates dated February 6, 1991, and signed by psychiatrists. The certificates stated that the psychiatrists had examined respondent that day and believed that she was mentally ill and, as a result of her illness, was unable to provide for her basic physical needs so as to guard against serious harm to herself. A hearing was set on the petition for February 8, 1991. On February 7, 1991, officials of the Elgin Mental Health Center filled out papers discharging respondent, but respondent did not leave the Center. The discharge papers referred to the fact that a petition for readmission had been filed.

At the February 8, 1991, hearing, respondent’s attorney made an oral motion to dismiss the petition on the basis that it was not timely. The attorney argued that, under section 3—813(a) of the Code (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—813(a)), petitions for continued hospitalization must be filed before the expiration of the initial order for hospitalization, or if this was a petition for emergency admission, the patient would have to have been discharged. The State argued that the petition was a valid initial petition for emergency admission. The trial judge denied the motion to dismiss.

The evidence at the hearing included testimony from a psychiatrist that respondent suffers from a bipolar disorder, a type of mental illness that is characterized by extreme changes of mood. As a result, she would sometimes become highly agitated and would sometimes be depressed. She had lost 33 pounds within a few months, would often refuse to eat, and would refuse to take certain medication. Her weight loss was due to her failure to accept medication. The medication acted as a tranquilizer to quiet respondent during periods of agitation. Otherwise, during such periods she would expend great energy thereby contributing to her weight loss problem. The psychiatrist believed that respondent was unable to take care of herself. He further testified that respondent often, as she did at the hearing, carried a cup of orange peels and she refused meals, saying that she had her own food. Respondent’s caseworker, Christina Moore, also testified about incidents involving respondent’s unusual behavior. One such incident involved respondent calling Governor Thompson’s office and informing them that she was the Governor’s wife’s sponsor for Alcoholics Anonymous.

The trial judge found that respondent was subject to involuntary admission and ordered that she be hospitalized. Respondent now appeals from that order.

Respondent first argues that the circuit court lacked subject-matter jurisdiction because the Department and the court failed to comply with the Code in the following respects: (1) although the Department gave written notice of the hearing to respondent, the notice was not given pursuant to valid court direction; (2) the Department failed to file a petition to continue her hospitalization prior to the expiration of her initial period of hospitalization, and it did not discharge her; (3) the judgment order does not reflect that the trial court ordered the least restrictive appropriate disposition; and (4) the judgment order does not specify the period of involuntary hospitalization.

As respondent points out, when a court’s power to act is controlled by statute, the court is governed by the rules of limited jurisdiction, which means that the court’s power is limited by the language of the statute. (DeKing v. Urban Investment & Development Co. (1987), 155 Ill. App. 3d 594, 596-97.) Subject-matter jurisdiction is the power of a particular court to hear the general type of case that is before it. (In re Devine (1991), 214 Ill. App. 3d 1, 3.) Section 3—100 of the Code provides that circuit courts have jurisdiction over persons not charged with a felony who are subject to involuntary admission to a mental health facility. (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—100.) Under this statute, circuit courts are empowered to hear involuntary commitment cases, and this power is not affected by alleged deficiencies in the notice of the hearing given to respondent or the judgment order. (Devine, 214 Ill. App. 3d at 4.) Furthermore, subject-matter jurisdiction is not dependent on the sufficiency of the pleadings or the correctness of the trial court’s decision. (Devine, 214 Ill. App. 3d at 3, citing People ex rel. Scott v. Janson (1974), 57 Ill. 2d 451, 459.) We therefore hold that the challenges raised by respondent do not affect the subject-matter jurisdiction of the court.

Respondent next contends that, even if the circuit court had subject-matter jurisdiction, its judgment must be reversed because of the aforementioned failures to comply with the requirements of the Code. The first alleged error is that notice was not given pursuant to valid court direction. The notice in this case was signed by someone from the medical records department of the Elgin Mental Health Center and was served on respondent on February 7, 1991.

Section 3—611 of the Code provides in part that, “The court shall direct that notice of the time and place of the hearing be served upon the respondent.” (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—611.) Respondent contends that the notice was not court directed and, alternatively, even if it was court directed through a general order entered by the chief judge giving the facility authority to give notice, that general order was invalid. This issue has been raised and rejected by this court previously. (In re Devine (1991), 214 Ill. App. 3d 1, 5-6.) In that case, as here, respondent appeared at the hearing represented by counsel and specifically denied that notice and service were at issue. Also as in that case, respondent here does not make a claim of specific prejudice due to the alleged error. Counsel did not request a continuance and counsel adequately examined the witnesses. Relying on the Illinois Supreme Court case of In re Splett (1991), 143 Ill. 2d 225, this court held that the legislative intent of the notice requirement in section 3—901 was achieved and any defects were harmless. In this case, the notice requirement set forth in section 3—611 is at issue. Since it is similar to section 3—901 in all important respects, this distinction does not require a different result. Accordingly, notice was sufficient in this case, and any defects were harmless.

Respondent next urges this court to reverse the February 8, 1991, order of involuntary admission because the Department failed to comply with section 3—813(a) of the Code. Section 3—813(a) states in part:

“Prior to the expiration of the initial order [for hospitalization] if the facility director believes that the recipient continues to be subject to involuntary admission, a new petition and 2 new certificates may be filed with the court. *** If no petition is filed prior to the expiration of the original order, the patient shall be discharged.” Ill. Rev. Stat. 1991, ch. 911/2, par. 3—813(a).

Respondent contends that on January 27, 1991, the sixtieth day of commitment, the Department had a duty to discharge her since a petition for continued hospitalization had not been filed. She argues that, despite the fact that the second petition was purportedly for immediate hospitalization under section 3—600 of the Code (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—600), it was actually a petition for continued hospitalization under section 3—813. As such, it was not timely filed since it was not filed prior to the expiration of the initial order. Respondent further argues that while she was discharged on February 7, 1991, one day before the new petition for hospitalization occurred, the discharge was on paper only and she was not physically released. Therefore, she concludes that a petition for emergency hospitalization was not appropriate.

A number of cases have held that a petition for continued hospitalization must be filed before the expiration of the initial petition or it is untimely and invalid. (In re Hatala (1990), 200 Ill. App. 3d 163, 166; In re Walker (1990), 200 Ill. App. 3d 159, 162; In re Bloyer (1989), 185 Ill. App. 3d 245, 247; and In re Vancil (1989), 183 Ill. App. 3d 204, 205-06.) Those cases are, in our opinion, distinguishable. In this case, not only was the petition labelled, argued, and treated by the trial court as a new petition for respondent’s immediate hospitalization pursuant to section 3—600 of the Code (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—600), but, more importantly, respondent had been discharged before the petition was filed, thereby making it clear that the petition was a new petition for emergency admission and not a petition to continue involuntary hospitalization.

In an analogous case, People v. Read (1992), 228 Ill. App. 3d 664, respondent was admitted for involuntary hospitalization pursuant to a petition for judicial admission. (Ill. Rev. Stat. 1989, ch. 911/2, par. 4—400 et seq.) The initial petition was dismissed because respondent was not examined by a clinical psychologist or physician within 24 hours pending admission as required by the Code. (Ill. Rev. Stat. 1989, ch. 911/2, par. 4—402.) Later that day, a second petition was filed. Respondent was discharged on paper, but never physically left the mental health facility. In holding the second petition was valid, the court stated that physical discharge was not necessary to comply with the statutory definition of discharge. See Ill. Rev. Stat. 1989, ch. 911/2, par. 1—109; Read, 228 Ill. App. 3d at 667.

Just as in Read, here the second petition was timely filed as it was not a petition for continued treatment. Even if the facility’s failure to release respondent on January 27, 1991, was error, that failure to discharge does not invalidate an otherwise valid subsequent proceeding such as the one here. Read, 228 Ill. App. 3d at 668; In re Shaw (1987), 153 Ill. App. 3d 939, 945; see also In re Clark (1991), 220 Ill. App. 3d 1024, 1028 (wherein the court held that an improper second petition for admission should have no bearing on a proper third petition).

Respondent next argues that the judgment order does not reflect that the trial court ordered the least restrictive appropriate disposition as required by section 3—811 of the Code (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—811) and the trial court failed to specify a determinate period of involuntary hospitalization as required by section 3—813 of the Code (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—813).

Similar arguments were considered and rejected by this court in the case of In re Devine (1991), 214 Ill. App. 3d 1, 7. In that case, respondent argued that the order committing him to the Department must be overturned because it did not specify a determinate period of hospitalization and because it did not set out the least restrictive alternative treatment. The court held that the failure of the order to set a time period and to refer to the restrictiveness of the treatment was not fatal. According to the court, the absence of a time period does not affect the validity of the order because the statute itself sets a determinate period of time for initial hospitalizations. Further, the statute directs the court to order the least restrictive alternative treatment, but does not order the court to make a specific showing of doing so.

We conclude that the trial court need not set a determinate time since its failure to do so only means that the respondent can be held up to 180 days. (See Ill. Rev. Stat. 1991, ch. 911/2, par. 3—813(a).) Respondent suggests that the case of In re Sneed (1978), 72 Ill. 2d 326, in which the court held that under the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701—1 et seq.) a minor must be placed on probation for a definite period of time, is controlling. We disagree. The statutory purpose and language of section 3—813(a) are not comparable to that in the statute interpreted in Sneed. We decline to hold that the order of involuntary hospitalization must set forth a determinate time.

Furthermore, contrary to respondent’s assertions, the record amply reflects a consideration and rejection of less restrictive alternatives. Dr. Fernando Santaella, who had performed a psychiatric examination on respondent, testified that respondent suffered from mood swings as a result of a mental illness, bipolar disorder. In his opinion, respondent was unable to take care of herself, and she had lost 33 pounds in six months, leading him to conclude that she was in physical danger. Dr. Santaella testified that respondent had no home and, if released, she would be unable to work. It was Santael-la’s opinion that the Elgin Mental Health Center was the least restrictive environment. Santaella related that if her symptoms subsided and she was able to cooperate with staff in taking her medication, respondent could be released to a halfway house, but if as in the past she stopped taking medication at the halfway house, the staff there could no longer handle her. Santaella stated that if respondent started to cooperate and take her medication she could progress in one or two months. This testimony was uncontradicted. It is clear that Santaella’s testimony provided sufficient basis upon which the court could find that involuntary hospitalization at the El-gin mental health facility was the least restrictive alternative.

Finally, respondent argues that the trial court’s order for involuntary admission must be reversed because it was not supported by clear and convincing evidence. A person is subject to involuntary admission if he is mentally ill and because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm. (Ill. Rev. Stat. 1991, ch. 911/2, par. 1—119(2).) No respondent may be found subject to involuntary admission unless that finding has been established by clear and convincing evidence. (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—808.) Here, the psychiatrist who treated respondent testified that respondent had no home, would be unable to work, would not take her medication so that a halfway house could care for her, and ate so sporadically that she had lost 33 pounds in approximately six months and had to be forced to take medication for a five-day period to allow her condition to improve. Furthermore, a caseworker corroborated much of the psychiatrist’s testimony regarding respondent’s weight loss and failure to take nourishment. While respondent in her brief argues that her own testimony established that she did have sources available to her upon release to ensure that she would receive food and that she did not eat because the hospital food did not taste good, respondent’s outbursts and at times bizarre testimony lend little credence to her assertions. A trial court’s determination that a person is subject to involuntary admission will not be disturbed unless that determination is manifestly erroneous. (People v. R.C. (1988), 175 Ill. App. 3d 163, 167.) We conclude that the trial court correctly found respondent to be a person subject to involuntary admission.

The judgment of the trial court is affirmed.

Affirmed.

INGLIS, P.J., and BOWMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NANCY J. SMITH, Defendant-Appellee.
    Second District
    No. 2— 90—0342
    Opinion filed September 1, 1992.

      Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers, John X. Breslin, and Judith Z. Kelly, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

The State appeals from the order of the circuit court which dismissed two indictments against defendant, Nancy J. Smith. (See 134 Ill. 2d R. 604(a)(l).) The original indictments against defendant were dismissed by the prosecutor in exchange for defendant’s cooperation in assisting undercover police officers to make purchases of cocaine in Ogle County. The trial court dismissed the new indictments on the basis that the reinstatement of the charges against defendant following a dismissal based on her cooperation with the police violated defendant’s due process rights. On appeal, the State contends that the trial court abused its discretion in dismissing the latter indictments. We affirm.

On May 11, 1988, the grand jury returned two indictments against defendant, each charging one count of the unlawful delivery of marijuana (Ill. Rev. Stat. 1991, ch. 561/2, par. 705(d)). On June 14, 1988, defendant appeared in court, and her attorney and the prosecutor presented to the trial court an agreement whereby defendant would cooperate with the State’s Attorney’s office and the Department of Criminal Investigation of the State Police to provide them with information leading to the purchase of cocaine from a third-party source. In exchange for defendant’s cooperation, the State’s Attorney would dismiss the charges against defendant. The parties intended the transcript to serve as the written document of the agreement.

According to the facts set forth in People v. Lambrecht (1992), 231 Ill. App. 3d 426, defendant approached Mark Lambrecht during June 1988 about helping her get some cocaine. On July 1, 1988, defendant arranged for Ronald Vandergrift, the undercover officer with whom she was working, to meet with Lambrecht to purchase a quarter ounce of cocaine. Following several telephone calls between Lambrecht, defendant and Vandergrift, Vandergrift and defendant again met Lambrecht to purchase cocaine on July 8. Vandergrift purchased one-half ounce of cocaine from Lambrecht. The final sale of cocaine was transacted without defendant, and Lambrecht was arrested on August 26, 1988. Lambrecht, 231 Ill. App. 3d at 430-32.

On August 30, 1988, the State’s Attorney filed a motion to dismiss the charges against defendant. According to the motion, “defendant has cooperated with the Illinois State Police which has assisted *** with arresting one, Mark Lambrecht, with delivery of two ounces of cocaine.” The court dismissed the indictments.

As further set forth in Lambrecht, an investigator for Lambrecht’s attorney approached defendant in March 1989 and took a statement from her. In this statement, defendant “indicated that [Lambrecht] never would have done what he did if she had not contacted him and pushed him into it.” (Lambrecht, 231 Ill. App. 3d at 429.) At Lambrecht’s trial, defendant testified for the defense. According to her trial testimony, defendant “decided to involve [Lambrecht] in the setup because she thought he was naive and easy to fool.” (Lambrecht, 231 Ill. App. 3d at 430.) Defendant “heard rumors” that Lambrecht had sold cocaine to someone at a restaurant in Oregon, Illinois, and that he had worked with a person who talked to defendant about selling drugs. However, defendant testified that Lambrecht had not talked to her about selling drugs. Instead, defendant asked Lambrecht to help her buy cocaine because she was in trouble and needed a lot of money. (Lambrecht, 231 Ill. App. 3d at 430-31.) The jury found Lambrecht guilty, and his conviction was affirmed on appeal.

On January 18, 1990, the State again indicted defendant for the two delivery charges. Defendant filed a motion to dismiss the indictments on the following bases: double jeopardy; res judicata-, section 114—l(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 114—l(a)(3)); due process; and specific performance. In her affidavit, defendant averred that, among other things, she contacted the State’s Attorney’s office in December 1989 to determine if it needed her to testify against Lambrecht, that on January 2, 1990, she was subpoenaed to testify, and she testified truthfully.

The court considered the transcript from the hearing on June 14, 1988, but did not review any of the evidence from Lambrecht’s trial. The parties submitted memoranda of law addressing the issues of double jeopardy and res judicata, and the court ruled in a memorandum opinion.

The trial court found that defendant and the State “entered into an agreement that is akin to a plea agreement,” so the court based its decision on due process principles. The court found that, by moving to dismiss the charges, the prosecutor acknowledged the receipt of the benefit from defendant’s performance. The court also found that the prosecutor’s use of the phrase “outright dismissal” indicated that the prosecutor intended the dismissal to be an acquittal, not a nolle prosequi. The court concluded that the reindictment of defendant was a denial of due process. Accordingly, the court dismissed the new indictments with prejudice. The State filed a motion to reconsider, which the court denied. This timely appeal followed.

On appeal, the State first argues that the trial court failed to follow the procedure it proposed, i.e., a bifurcated proceeding in which the court would rule first on whether res judicata or double jeopardy principles barred the refiling of the indictments before considering whether the agreement between the parties was enforceable. According to the State, the trial court was required to hold an evidentiary hearing to determine the latter issue. The State requests that we vacate the dismissal and remand the cause for an evidentiary hearing, citing People v. Starks (1985), 106 Ill. 2d 441, 453.

Remand is unnecessary here because the agreement was set forth in the transcript of the June 14, 1988, hearing, which the court had before it. Thus, unlike the situation in Starks, where it was not apparent that there was an agreement or what its terms were, here the agreement and its terms were before the trial court when it rendered its decision.

However, the State objects to the trial court’s refusal to hold an evidentiary hearing because the trial court considered the terms of the agreement when it ruled on the motion to dismiss. The State argues that the trial court erred in finding that the prosecutor did not intend to nol-pros the charges when the first dismissal was granted in August 1988 and in finding that defendant had fulfilled her obligations under the agreement. The State asserts that the court misinterpreted the transcript of the June 14, 1988, hearing, particularly the prosecutor’s remark about an “outright dismissal.” According to the State, the “outright dismissal” depended on defendant testifying truthfully against Lambrecht and cooperating with the State’s Attorney’s office in the preparation of its case against Lambrecht. Implicit in this argument is the contention that the trial court erred in finding that the agreement did not extend to defendant’s cooperation at Lam-brecht’s trial.

The State’s argument regarding the lack of an evidentiary hearing is without merit. The trial court’s decision was not based on the specific performance theory or a determination that defendant fulfilled her part of the bargain. The trial court found that the reindictments were barred by the principles of res judicata, double jeopardy and due process. Underlying this finding was the court’s conclusion that the prosecutor did not intend to nol-pros the charges when he moved to dismiss them on August 30, 1988. To make that determination, the trial court had to discern the terms of the agreement to ascertain whether the parties intended the dismissal to be a nolle prosequi or an acquittal.

The determination of the terms of the agreement is a factual finding, which we will not disturb unless that determination was clearly erroneous. People v. Navarroli (1988), 121 Ill. 2d 516, 521-22.

At the June 14, 1988, hearing, the prosecutor stated:

“In exchange for the outright dismissal, the minimum expectation from the defendant is that, number one, she will cooperate with the State’s Attorney’s Office and with the Department of Law Enforcement, which means she’ll testify eventually, if necessary, in a courtroom. She’ll testify truthfully, and provide us with the information that we need in preparing for the trial, of course, as a witness would do. Initially, this involves her taking an undercover police officer, here in Ogle County, to some location here in Ogle County, and that there will be a purchase, and it must be actually cocaine, *** at a minimum of two ounces.” (Emphasis added.)

Defense counsel explained that defendant was not admitting to any of the allegations against her, nor was she waiving any defenses. In addition, defense counsel stated that defendant would receive “[complete immunity against prosecution of any existing or possible [sic] existing” charges. Finally, the parties explained:

“MR. FEARER [Defense counsel]: She will fully cooperate with the prosecution, as well as with the activity that leads up to the arrest of any individuals that may be dealt with in this situation, but it also needs to be made clear that her immunity and her dismissal is not contingent on a conviction of these individuals. She will cooperate, but she can’t assure a conviction, that’s up to the State’s Attorney, and the police.
MR. SCHUMACHER [Prosecutor]: That’s true, just the actual delivery occurs.”

The motion for the voluntary dismissal of the charges represented that the State’s Attorney was seeking dismissal because defendant cooperated with the State police in securing the arrest of Lambrecht.

Based on the June 14, 1988, transcript in conjunction with the August 30, 1988, motion for voluntary dismissal, the trial court found that the State’s Attorney’s office agreed to dismiss the charges, not nol-pros them, if defendant agreed to act as a confidential informant and that cooperation resulted in an arrest. The court also found that when the State’s Attorney moved for dismissal of the charges following Lambrecht’s arrest, the State’s Attorney acknowledged that defendant had fulfilled her obligations.

We conclude that the trial court’s findings were not manifestly erroneous. According to the June 14, 1988, transcript, defense counsel recognized that any immunity afforded to defendant would vanish if she did not succeed in procuring a seller for the undercover agents. However, contrary to the State’s assertion, that does not mandate the conclusion that defense counsel anticipated that defendant could be reindicted. Rather, defense counsel understood that if defendant did not successfully procure an arrest, the State would not drop the charges against her. Once the State elected to dismiss the charges, the dismissal was to be absolute. If a nolle prosequi had been intended, it is likely that the charges would have been nol-prossed on June 14, 1988.

The trial court found that the emphasis of the agreement was that defendant would act as a confidential informant to enable the agents to arrest a cocaine seller. When the State moved to dismiss the charges on August 30, 1988, it must have believed that defendant’s cooperation was complete: that she had fulfilled her end of the bargain. It therefore moved for “outright dismissal” pursuant to the agreement.

These factual findings support the trial court’s conclusion that the August 30, 1988, dismissal was with prejudice and operated as an acquittal. Thus, the new indictments violated defendant’s due process rights, violated the prohibition against double jeopardy, and were barred by res judicata. See People v. Creek (1983), 94 Ill. 2d 526, 531-34.

We also affirm the judgment of the trial court on the ground that defendant fulfilled her part of the agreement which the court could enforce as an executed agreement. (See People v. Williams (1991), 143 Ill. 2d 477, 485.) We decide this issue despite the trial court’s failure to hold an evidentiary hearing because, as discussed above, the trial court found that the State’s Attorney admitted that defendant’s cooperation was completed when Lambrecht was arrested. In addition, the State’s Attorney represented, at the June 14, 1988, hearing, that defendant’s cooperation in Lambrecht’s prosecution was conditioned on the prosecution needing defendant’s testimony. Since defendant was not involved in the last transaction between Lambrecht and the undercover officer (People v. Lambrecht, 231 Ill. App. 3d at 429), her assistance was not necessary at trial. This is reflected in the State’s Attorney’s decision not to subpoena defendant to testify. We will therefore address the State’s argument regarding this issue.

The State argues that even if defendant fulfilled her part of the agreement, the agreement was unenforceable and the trial court should not have dismissed the indictments. The State relies on People v. Navarroli (1988), 121 Ill. 2d 516, and People v. Boyt (1985), 109 Ill. 2d 403. In those cases, the court found that the State was not bound to honor its plea agreement because the defendant in each case had not pled guilty, and thus he “still ha[d] the option of pleading not guilty and proceeding to trial.” Navarroli, 121 Ill. 2d at 524; see Boyt, 109 Ill. 2d at 415.

The trial court has the authority to dismiss a criminal indictment where the defendant has been denied due process. (People v. Burrows (1992), 148 Ill. 2d 196, 223.) The agreement at issue here was not a plea agreement, but was instead a “cooperation-immunity” agreement. (See United States v. Johnson (8th Cir. 1988), 861 F.2d 510, 512.) Thus, this cause is distinguishable from the State’s cited authorities, Boyt and Navarroli, which concern plea agreements.

A “cooperation-immunity” agreement differs from a plea agreement in that the detrimental reliance for a plea agreement is the defendant’s waiver of the right to a trial (Navarroli, 121 Ill. 2d at 528), whereas “[w]ith an agreement not to prosecute, parties agree that the defendant’s cooperation is sufficient consideration for the government’s promise of immunity” (Johnson, 861 F.2d at 512). The benefits of a plea agreement include the “prompt and largely final disposition of most criminal cases; *** avoiding] much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; *** protectpng] the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, *** enhancing] whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.” (Santobello v. New York (1971), 404 U.S. 257, 261, 30 L. Ed. 2d 427, 432, 92 S. Ct. 495, 498.) The “cooperation-immunity” agreement, however, is designed, in the context of the illegal drug trade, to enable law enforcement officers to apprehend large-scale drug dealers, “a tactic unequivocally desired by law enforcement and readily accepted by the courts in the never-ending struggle to curb and combat the nefarious enterprise of drug trafficking and usage.” People v. Schmitt (1988), 173 Ill. App. 3d 66, 101, rev’d, on other grounds (1989), 131 Ill. 2d 128.

As a result, the due process implications are different. In the plea agreement scenario, if the defendant has not yet pled guilty, he may still proceed to trial. (Mabry v. Johnson (1984), 467 U.S. 504, 507-08, 81 L. Ed. 2d 437, 442, 104 S. Ct. 2543, 2546.) Here, however, it is the violation of “the right not to be haled into court at all *** [which] operated to deny [defendant] due process of law.” Blackledge v. Perry (1974), 417 U.S. 21, 30-31, 40 L. Ed. 2d 628, 636, 94 S. Ct. 2098, 2104.

A “cooperation-immunity” agreement was the subject of the appeal in Schmitt, where the defendant was arrested for selling drugs to an undercover agent. The arresting agents asked the defendant to cooperate with them in identifying, obtaining evidence against and arresting his drug source. The defendant fully cooperated, and the agents arrested the supplier. The defendant contended that the agents promised that he would not be prosecuted in exchange for his cooperation. The agents testified that they merely promised the defendant that they would notify the State’s Attorney’s office of the defendant’s cooperation. (Schmitt, 173 Ill. App. 3d at 99.) In remanding the cause for an evidentiary hearing on the defendant’s motion to dismiss the indictment, the appellate court held that “[t]he State should be required to fulfill its part of the agreement” because “a contrary holding would constitute judicial approval of the government violating its agreement, a reprehensible aberration.” (Schmitt, 173 Ill. App. 3d at 101.) The court distinguished Navarroli as a post-indictment negotiated plea agreement and because the State’s Attorney in Navarroli denied both the existence of the agreement and its terms as claimed by the defendant. Schmitt, 173 Ill. App. 3d at 103-04.

Navarroli also is distinguishable from the present cause in that here the agreement was not part of a plea bargain. Furthermore, the agreement was approved by the trial court, and the court dismissed the indictments, on the State’s motion, as a part of that “cooperation-immunity” agreement. The facts of this cause more closely resemble those in People v. Starks (1985), 106 Ill. 2d 441. In Starks, the supreme court analyzed the enforceability of an agreement between the State and the defendant which required the State to dismiss charges against the defendant if he took and passed a polygraph examination. The court held that if the defendant fulfilled his part of the agreement, the State must fulfill its part. Starks, 106 Ill. 2d at 452.

The supreme court in Starks quoted from and relied on a Florida case, Butler v. State (Fla. App. 1969), 228 So. 2d 421, in which the prosecutor agreed to drop charges if the defendant passed a polygraph test. If the defendant failed the polygraph test, those results would be admissible at his trial. The defendant passed the test, and the charges were nol-prossed. However, the State subsequently indicted the defendant for the same offense. The Florida Appellate Court held that the State was bound to abide by its agreement with the defendant. Butler, 228 So. 2d at 424.

The trial court here found that the agreement was that, in exchange for procuring a cocaine seller for the undercover police officers, the State would dismiss the charges against defendant and would grant her immunity as to those charges. As in Butler, the State here received the full benefit of its bargain. The trial court determined that the institution of new charges against defendant violated her due process rights and that dismissal of the charges with prejudice was the appropriate remedy. We conclude that the trial court did not err in this regard.

Finally, we affirm the court’s dismissal of the new indictments as a dismissal pursuant to section 114—l(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 114—l(a)(3)). According to section 114—1, the trial court may dismiss an indictment if “[t]he defendant has received immunity from prosecution for the offense charged,” and the State may not return a new indictment if the charge was dismissed for that reason. (Ill. Rev. Stat. 1991, ch. 38, pars. 114—l(a)(3), (e).) The trial court found that the State’s Attorney granted defendant immunity from prosecution on these charges by dismissing the indictments after defendant “cooperated with the Illinois State Police which has assisted *** with arresting *** Mark Lambrecht” for the delivery of cocaine. As we discussed above, this finding is not manifestly erroneous. Thus, the trial court could have properly dismissed the indictments pursuant to section 114—1.

The order of the circuit court is affirmed.

Affirmed.

McLAREN and DUNN, JJ., concur.