A podiatrist is asking Madison County Circuit Judge Nicholas Byron to dismiss a medical malpractice suit against him because the plaintiff attorney failed to file a written report from a health care professional detailing the cause for filing suit.

Shelia Kelly filed the suit against Alan Gitersonke, D.P.M. on Nov. 2, 2007, alleging she had to have her right leg amputated below the knee because of an infection after a bunionectomy Gitersonke performed.

Represented by Charles Armbruster and Michael Blotevogel of the Lakin Law Firm in Wood River, Kelly claims Gitersonke performed the procedure on Jan. 22, 2007, in order to treat a bunion on her right foot.

A bunion is a painful enlargement of bone or tissue around the joint at the base of the big toe.

According to Kelly, Gitersonke violated his duty to possess and employ knowledge and use the degree of skill and care necessary in the proper diagnosis, care, and treatment that is ordinarily used by members of his profession and specialty.

She also claims he negligently failed to use appropriate diagnostic tools to properly diagnose her condition, failed to identify and treat in a timely fashion an infection which causally related to the amputation of her foot and leg.

But Gitersonke wants Byron to dismiss the suit arguing that under 735 ILCS 5/2-622 a plaintiff must file a copy of the written report from the reviewing health care professional which identifies the professional's name, address, current license numbers, and states of the license numbers.

"This report must also clearly identify the plaintiff and state the reasons why the health care professional believes there is a basis for filing the action," the motion to dismiss states.

Gitersonke is represented by Mark Bauman of Hinshaw Culbertson in Belleville.

Gitersonke also claims the report is necessary to ensure that the health care professional is licensed within the same profession and carries the same class of license as the defendant.

"Plaintiff's failure to file an affidavit and report in compliance with this stature is grounds for dismissal," the motion states. "As such, Plaintiff's complaint should be dismissed for failure to comply with the Illinois Statutes."

Seeking damages in excess of $100,000, Kelly also alleges Gitersonke failed to furnish her with appropriate care following the procedure despite the fact of her diabetic condition, failed to use proper methods and equipment in performing the bunionectomy to decrease the likelihood of infection and failed to properly respond to her complaints of pain and complications after the procedure.

Kelly also claims she has incurred hospital and medical expenses and suffered a disability.

Byron has yet to schedule a hearing in the matter.

07 L 952

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