If you are considering a birth injury lawsuit in Illinois, you cannot simply file a complaint and let the court sort it out. Before a case can move forward, Illinois law requires an attorney to obtain a sworn written report from a qualified medical professional confirming that your claim has a legitimate basis. This requirement comes from the Illinois 2-622 affidavit of merit statute, and understanding it helps explain why a thorough preparation period is necessary before any lawsuit is filed.
This article provides general legal information; consult a licensed Illinois attorney for advice specific to your situation.
What Is the Certificate of Merit Requirement?
Section 2-622 of the Illinois Code of Civil Procedure (735 ILCS 5/2-622) requires that in any medical malpractice lawsuit — including birth injury cases — the plaintiff’s attorney must attach a written report from a licensed health professional at or within 90 days of filing the complaint. That report must state that the reviewing professional has examined the medical records and has determined there is a reasonable and meritorious cause for filing the action.
The reviewing professional must be licensed in the same or a substantially similar field as the defendant healthcare provider. In a birth injury case involving an obstetrician, that generally means the reviewing expert must be a licensed OB/GYN or maternal-fetal medicine specialist with experience in labor and delivery care.
What Happens If the Report Is Missing?
Illinois courts treat the 2-622 requirement as mandatory, not optional. If a lawsuit is filed without the required report — and the deficiency is not cured within the 90-day grace period — the court must dismiss the case. Illinois appellate courts have consistently upheld dismissals where the affidavit of merit was absent or defective, even in cases involving serious injuries.
This is not a technicality that can be worked around after the fact. A dismissed case may be refiled, but refiling carries its own deadline risks and can create complications if the statute of limitations is approaching. Getting the report right the first time is critical.
Why Cases Take Time to Prepare
The 2-622 process is one of the main reasons that birth injury lawsuits require weeks or months of preparation before anything is filed in court. The steps are straightforward but time-consuming:
First, your attorney must obtain the complete medical records — labor and delivery notes, fetal monitoring strips, nursing records, and any NICU records. These records can run hundreds of pages and may take several weeks to gather from hospitals and clinics.
Second, a qualified physician must review those records carefully. This is not a quick scan. The reviewing doctor is assessing whether the standard of care was met, what the provider did or failed to do, and whether the deviation caused the child’s injury. A thorough review takes time.
Third, the reviewing physician must sign a written report — the affidavit of merit — that complies with the specific requirements of 735 ILCS 5/2-622. The report must include the physician’s qualifications, the records reviewed, and the basis for concluding that a valid claim exists.
Only after all of that is complete can the attorney file the lawsuit. Rushing this process creates real risks.
The Role of Expert Witnesses Beyond the Initial Report
The 2-622 report is a threshold requirement — it gets the case into court, but it is not the same as the expert testimony that will be needed at trial. Birth injury litigation typically requires expert witnesses in birth injury cases who can testify about the standard of care, causation, and the extent of the child’s injuries. The initial reviewing physician may serve as a testifying expert, or additional specialists may be retained as the case develops.
The distinction matters. A physician who signs the 2-622 report is attesting that the case has merit based on a records review. A testifying expert at trial is subject to deposition, cross-examination, and rigorous scrutiny of their opinions. Both roles require qualified professionals, but they serve different functions in the litigation process.
Does the 90-Day Extension Apply Automatically?
Under 735 ILCS 5/2-622, an attorney may file the lawsuit first and attach the report within 90 days afterward — but only if the attorney signs an affidavit stating that the statute of limitations would expire within 90 days and there was not enough time to obtain the report before filing, or that the medical records were not available before filing. This provision exists to protect plaintiffs when deadlines are imminent, not as a routine workaround.
Courts scrutinize these affidavits. If the extension is used without a valid basis, the court may find the use improper. The safer practice is to begin the records-gathering and expert-review process as early as possible, well before any deadline is close.
It is also worth noting that 735 ILCS 5/2-1010 gives courts discretion to impose sanctions where a case is filed without the required 2-622 report and the attorney lacks a good-faith basis for the extension affidavit. This provision is rarely invoked, but it underscores how seriously Illinois courts treat the certificate of merit requirement. Families should understand that their attorney’s careful preparation is not delay — it is compliance with mandatory law designed to screen out claims that have no medical basis while protecting those that do.
Talk to a Chicago Attorney — Free Consultation
If your child suffered a birth injury and you believe a medical error may be responsible, the time to start is now. The process of gathering records, finding a qualified reviewing physician, and preparing the required affidavit of merit takes time — time that cannot be recovered once a deadline passes.
Phillips Law Offices represents families in Chicago and throughout Illinois in birth injury and medical malpractice cases. Call (312) 346-4262 for a free consultation, or visit our contact page to get in touch. There is no fee unless we recover for you.