Franco et al v. Wexford Health Sources, Inc. et al
Filing
78
OPINION: The Motion to Dismiss 71 is DENIED. Defendants shall file an Answer on or before April 13, 2015. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 3/26/2015. (GL, ilcd)
E-FILED
Friday, 27 March, 2015 10:09:43 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LAURA BRITO, as Independent
Administrator of the Estate of
ALFONSO FRANCO, Deceased
Plaintiff,
v.
WEXFORD HEALTH SOURCES,
INC., a Florida Corporation doing
business in the State of Illinois;
PATRICIA SMITH, in her
individual and official capacities;
DIANE ZUCCO, in her individual
and official capacities; MEGAN
EGIMANN, in her individual and
official capacities; MARY WALSH,
in her individual and official
capacities; REBECCA PASSONI,
in her individual and official
capacities; UNKNOWN WEXFORD
NURSES JOHN DOE AND JANE
DOE 1-25, in their individual and
official capacities; ROSALINA
GONZALEZ, in her individual and
official capacities; and HEALTH
PROFESSIONALS, LTD., an
Illinois Corporation,
Defendants.
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No. 14-3282
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause comes before the Court on the Motion to Dismiss
(d/e 71) filed by Defendants Rebecca Passoni, Diane Zucco,
Patricia Smith, Mary Walsh, and Megan Eggimann (these
defendants collectively referred to as the Nurse Defendants);
Wexford Health Sources, Inc. (Wexford); and Health Professionals,
Ltd. (Health Professionals). Defendants seek to dismiss the state
law claims against them on the ground that Plaintiff Laura Brito,
as Independent Administrator of the Estate of Alfonso Franco,
deceased, failed to file a sufficient written report as required by
735 ILCS 5/2-622(a)(1). Because the written report is sufficient,
the Motion to Dismiss is DENIED.
I. BACKGROUND
In February 2015, Plaintiff Laura Brito, as Independent
Administrator of the Estate of Alfonso Franco, deceased, filed a
Third Amended Complaint (d/e 68) alleging claims under 42 U.S.C.
§ 1983, 740 ILCS 180/2 (the Illinois Wrongful Death Act), and 755
ILCS 5/27-6 (the Illinois Survival Act). The claims arise out of the
Page 2 of 16
medical care Franco received during his incarceration at the
Taylorville Correctional Center.
Specifically, Plaintiff alleges that in October 2010, while
housed at the Taylorville Correctional Center, Franco began
complaining to medical staff about his physical condition.
Between October 2010 and July 2012, Franco repeatedly
complained to medical staff that he suffered various symptoms,
including constipation, pain upon movement, back pain, nausea,
inability to urinate, blood in his stools, rectal bleeding, rectal pain,
dizziness, abdominal pain, and leaking stool. Compl. ¶¶ 20, 24,
26, 28, 30, 31, 32, 35, 36, 38, 39, 41, 43, 44, 45, 48, 52, 55, 56,
58, 59, 62, 67, 72. He also experienced significant weight loss. Id.
¶¶ 35, 53, 57. Between October 2010 and July 2012, various
Defendants at various times failed to provide medical workups or
diagnostic studies (¶¶ 23, 25, 27, 29, 30, 53, 60, 68 ); failed to
order a colonoscopy (¶¶ 27, 33, 35, 37, 42, 47, 50, 54, 58, 65 );
failed to provide a referral for a physician evaluation (¶¶ 28, 31);
and failed to make note of the ongoing symptomology that was
indicative of anal carcinoma (¶ 47). In July 2012, no significant
pain medication was provided to Franco despite his excruciating
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pain. Id. ¶ 73. Ultimately, in July 2012, Franco was transported
to Taylorville Memorial Hospital, where an extensive CT
radiological examination revealed metastatic disease of the liver,
tumors in the rectum, and metastatic lesions of the left lung field.
Id. ¶¶ 75, 79. Franco was transferred to St. John’s Hospital and
diagnosed with Stage 4 rectal cancer. Id. ¶¶ 80, 81. Over 70% of
Franco’s liver had been replaced by an invasive tumor. Id. ¶ 82. A
colonoscopy revealed a 20-centimeter polyp in the sigmoid colon.
Id. ¶ 84. On August 8, 2012, Franco passed away from Stage 4
colorectal cancer. Id. ¶ 85.
The Third Amended Complaint contains two federal claims
and 40 state law claims. The state law claims against the Nurse
Defendants, Wexford, and Health Professionals are at issue here.
Those claims include state law wrongful death and survival
actions against each of the Nurse Defendants alleging that the
nurses ignored Franco’s serous medical needs, failed to properly
diagnose Franco’s condition, failed to properly treat Franco’s
condition, failed to provide timely access to adequate medical
evaluations and treatment, and otherwise acted negligently toward
Franco. See Compl. Counts 7, 9, 11, 13, 15, 17, 19, 21, 23, 25;
Page 4 of 16
see also Counts 27 and 29 against unknown nurses. Plaintiff also
brings wrongful death and survival actions against Wexford and
Health Professionals on a respondeat superior theory based on the
conduct of Dr. Gonzalez, the named nurses, and the unknown
nurses. See Counts 3, 5, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28,
30 (Wexford); Counts 31-42 (Health Professionals).1
Plaintiff attached to the Third Amended Complaint an
Attorney’s Affidavit (d/e 68-2) and a physician’s written report as
required by Illinois law. See 735 ILCS 5/2-622(a)(1) (requiring, in
any action seeking damages for injuries or death by reason of
medical, hospital, or other healing art malpractice, that the
plaintiff’s attorney attach an affidavit asserting, in part, that the
attorney consulted with a health professional who determined in a
written report that there is a reasonable and meritorious cause for
filing the action). The physician’s written report was provided by
Michael T. Puerini, M.D., a family physician specializing in prison
medicine. See Aff. of Michael T. Puerini (d/e 68-2) (Exhibit A).
Counts 1, 2 and 4 are brought against Dr. Gonzalez, who is not a party to
the Motion to Dismiss. Count 6 is a Monell claim brought against Defendant
Wexford. See Monell v. Dept. of Social Servs. of the City of N.Y., 436 U.S. 658,
691 (1978) (liability based on an unconstitutional policy or practice).
1
Page 5 of 16
The written report specifically names Dr. Gonzalez and also
refers to the “nursing staff.” The report does not mention Health
Professionals at all and only makes a vague reference to a Wexford
administrator. See ¶¶ 19, 20.
In the report, Dr. Puerini states that he reviewed Franco’s
medical records. Puerini Aff. ¶5. The six-page Affidavit details the
contents of the medical records, noting in particular that Franco
repeatedly complained of constipation and suffered from weight
loss. Id. ¶ 10.
Dr. Puerini asserts that, despite Franco’s “classic symptoms
of colon cancer,” Dr. Gonzalez failed to conduct a comprehensive
examination, consider a colonoscopy, or offer a differential
diagnosis. Id. ¶ 9. Dr. Puerini states that, if the early findings had
been acted on, Franco might still be alive today. Id.
Dr. Puerini also notes that Franco was seen by nursing and
medical staff at least 15 times for complaints of constipation.
Puerini Aff. ¶ 10. Despite unexplained weight loss of 25 pounds,
back pain (which was never medically evaluated), and ongoing
complaints of constipation, no serious medical evaluation was ever
done. Id.
Page 6 of 16
Dr. Puerini found that Franco’s medical chart notes were
virtually illegible and found no evidence of a clinical decision
making process. Puerini Aff. ¶ 12. The care delivered at the
Facility was characterized by frequent visits and no significant
evaluation or treatment being delivered for medical complaints. Id.
¶ 12. For example, on May 24, 2012, Franco appeared pale to the
nurse and complained of dizziness. Id. ¶ 18. No significant
evaluation was done. Id.
Dr. Puerini notes that the infirmary is an area of the facility
that is operated for the purpose of providing patients skilled
nursing care. Puerini Aff. ¶ 21. When Franco was in the infirmary
(June 19, 2012 through July 8, 2012), the nurse’s notes state
“continue plan of care,” but there was no skilled nursing care
delivered and no written or understood plan of care for Franco.
Id.
Dr. Puerini states that “[t]he substandard infirmary care
continued in this manner for three weeks.” Puerini Aff. ¶ 22.
Franco remained undiagnosed despite being in the infirmary, an
environment that is specifically designed to diagnose and treat
illness. Id. Dr. Puerini describes the nurses and doctors as
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“apparently oblivious to what should have been obvious to any
neophyte health care student.” Id. He is also critical that a
patient with rectal bleeding, abdominal and rectal pain, firmness
in the right upper quadrant abdomen, and frequent stooling was
provided treatment that consisted only of watching him and
offering diapers, laxatives, and over-the-counter treatment for
supposed hemorrhoids. Id.
Dr. Puerini further notes that, despite Franco’s terrible
complaints of pain while in the infirmary, Franco received no pain
medication. Puerini Aff. ¶ 23. In fact, it did not appear that pain
medication was even considered. Id.
Dr. Puerini notes that early diagnosis is the key to successful
treatment of rectal cancer. Puerini Aff. ¶ 25. A colonoscopy is
“universally accepted as the test of first choice for the diagnosis of
rectal bleeding.” Id. Yet, a colonoscopy was not performed until
Franco was transferred to St. John’s Hospital in July 2012. See
Id. ¶¶ 9, 10, 24, 25. Dr. Puerini concludes that a meritorious case
exists against Wexford, Dr. Gonzalez, and the nursing staff at the
Taylorville Correctional Facility for deliberate indifference and
professional negligence. Id. ¶ 26.
Page 8 of 16
II. ANALYSIS
Wexford, Health Professionals, and the Nurse Defendants
seek dismissal of the counts against them on the basis that
Plaintiff failed to comply with the written report requirements
contained in 735 ILCS 5/2-622.
Section 2-622 of the Code of Civil Procedure was enacted to
“reduce the number of frivolous suits that are filed and to
eliminate such actions at an early stage.” DeLuna v. St.
Elizabeth’s Hosp., 147 Ill. 2d 57, 65 (1992). Section 2-622(a)(1)
requires that a plaintiff’s attorney (or a pro se plaintiff) in a medical
malpractice action attach an affidavit to the complaint asserting
that the affiant has consulted and reviewed the facts of the case
with a health care professional who has determined in a written
report that there is “a reasonable and meritorious cause for the
filing of such an action.” 735 ILCS 5/2-622(a)(1). The written
report must be attached to the affidavit and must clearly identify
“the plaintiff and the reasons for the reviewing health
professional’s determination that a reasonable and meritorious
cause for the filing of the action exists.” Id. This requirement
applies to medical malpractice actions filed in federal court. Hahn
Page 9 of 16
v. Walsh, 762 F.3d 617, 629 (7th Cir. 2014); Rusinowski v. Village
of Hillside, 835 F. Supp. 2d 641, 652 (N.D. Ill. 2011).
The qualification requirements of the reviewing health care
professional differ depending on the occupation of the defendant
sued. When the defendant is a dentist, podiatrist, or psychologist
(among other listed professions), the written report must be from a
health professional licensed in the same profession. 735 ILCS
5/2-622(a)(1). For “all other defendants,” the written report must
be from a “physician licensed to practice medicine in all its
branches.” Id.; see also Shanks v. Memorial Hosp., 170 Ill. App.
3d 736, 739 (1988) (finding, under the language of the statute, that
a plaintiff must “consult a physician licensed to practice medicine
in all its branches” when the defendant is a nurse); Moyer v. S. Ill.
Hosp. Serv. Corp., 327 Ill. App. 3d 889, 901 (2002) (relying on
Shanks and finding that “hospitals and nurses fall under the
category of ‘all other defendants’”).
The § 2-622 requirements are to be liberally construed and
are not intended to create insurmountable pleading hurdles.
Mueller v. N. Suburban Clinic, Ltd., 299 Ill. App. 3d 568, 573
(1998) (noting that while the affidavit and report requirements “do
Page 10 of 16
not rise to the level of substantive elements of a claim for medical
malpractice, neither should they be viewed as empty formalism”);
Hull v. S. Ill. Hosp. Servs., 356 Ill. App. 3d 300, 305 (2005) (noting
that the statute “is a tool to reduce frivolous lawsuits by requiring
a minimum amount of merit, not a likelihood of success”).
Nonetheless, if the plaintiff fails to satisfy the requirements of § 2622(a)(1), dismissal is mandatory. 735 ILCS 5/2-622(g). The court
has the discretion to dismiss with or without prejudice, but the
court should give a plaintiff an opportunity to amend before the
action is dismissed with prejudice. Cammon v. W. Suburban
Hosp. Med. Ctr., 301 Ill. App. 3d 939, 949-50 (1998); Sherrod v.
Lingle, 223 F.3d 605, 614 (7th Cir. 2000).
Defendants argue that Plaintiff failed to comply with the
requirements of § 2-622 because Plaintiff did not attach a separate
report for each named Defendant. Defendants also argue that the
report attached is inadequate because it contains nothing more
than conclusory allegations and fails to identify specifically the
standard of care required of Defendants and how Defendants
allegedly fell short of that standard.
Page 11 of 16
The statute specifically requires that a separate certificate
and written report be filed as to each defendant named in the
complaint. 735 ILCS 5/2-622(b). However, Illinois courts have
held that a single report can satisfy § 2-622 so long as the report:
(1) is broad enough to cover multiple defendants; 2) adequately
discusses the deficiencies in the medical care rendered by each
defendant; and (3) contains the reasons in support of the health
professional’s conclusion that a reasonable and meritorious cause
exists for the filing of the action as against each of the defendants.
Mueller, 299 Ill. App. 3d at 573. Moreover, when a defendant’s
liability is wholly vicarious, a written report is not required so long
as the report complies with § 2-622 with regard to the agent or
employee on whose acts the vicarious liability is based. Id.;
Comfort v. Wheaton Family Practice, 229 Ill. App. 3d 828, 833
(1992) (involving vicarious liability of a partnership).
Here, the liability of Wexford and Health Professionals is
based solely on a respondeat superior theory. Plaintiff alleges that
Wexford and Health Professionals are liable for the actions of Dr.
Gonzalez and the Nurse Defendants due to an employment or
agency relationship between the corporate entity and the medical
Page 12 of 16
providers. See, e.g., Compl. Count 5 ¶¶ 96, 97. No challenge has
been made to the sufficiency of the written report as to Dr.
Gonzalez. Therefore, no report is needed for Wexford or Health
Professionals because the requirements are met with regard to Dr.
Gonzalez, the employee or agent upon whose acts the vicarious
liability is based. See Avakian v. Chulengarian, 328 Ill. App. 3d
147, 160 (2002) (“a report speaking to the acts of an agent is
sufficient to support a count against the principal, even though the
principal is not specifically named in the report”).
This leaves the issues of whether the report is sufficiently
broad to cover the Nurse Defendants, sufficiently discusses the
deficiencies in medical care given by the Nurse Defendants, and
contains the reasons in support of Dr. Puerini’s conclusion that a
reasonable and meritorious cause exists for filing the action as to
the Nurse Defendants. See, e.g., Mueller, 299 Ill. Ap. 3d at 573.
Defendants also argue that the report attached is inadequate
because it contains nothing more than conclusory allegations and
fails to identify specifically what the standard of care required of
the Nurse Defendants, and how the Nurse Defendants allegedly fell
short of that standard.
Page 13 of 16
Liberally construing the written report, the Court finds the
report sufficient. The recitation of the contents of the report set
forth above shows that the report is broad enough to cover Dr.
Gonzalez and the Nurse Defendants. Moreover, the report
discusses the appropriate standard of care, how the Nurse
Defendants failed to meet that standard of care, and states the
reasons for Dr. Puerini’s conclusion that a reasonable and
meritorious cause of action exists.
The report notes that the Nurse Defendants should have
recognized the classic symptoms of colon cancer and should have
provided skilled nursing care to Franco when he was in the
infirmary. Puerini Aff. ¶¶ 9, 21. However, the Nurse Defendants
did not recognize the classic symptoms of colon cancer, note
Franco’s weight loss, create a plan of care, deliver skilled nursing
care, or provide or even consider providing pain medication. Id. ¶¶
9, 21, 22 (noting the substandard infirmary care), 23. A
colonoscopy was never considered or mentioned as a therapeutic
option. Id. ¶ 22. Dr. Puerini criticizes the treatment of Franco
with diapers, laxatives, and over-the-counter treatment for
hemorrhoids when Franco was suffering from rectal bleeding,
Page 14 of 16
abdominal and rectal pain, firmness in the right upper quadrant
abdomen, and frequent stooling. Id. Dr. Puerini describes the
nurses and doctors as “oblivious to what should have been obvious
to any neophyte health care student.” Id.
Moreover, the fact that the written report refers to “nursing
staff” rather than each individual nurse by name does not change
this conclusion. The report identifies the course of treatment and
the failures of the nursing staff as a whole during the course of
Franco’s treatment. Under the circumstances of this case, where
the treatment extended over a nearly two-year period and involved
many members of the nursing staff, the Court finds the report
sufficient even though it refers to the nursing staff as a whole and
not to each nurse by name. See, e.g., Sherrod, 223 F.3d at 614
(finding a report that referred to the prison nursing and medical
staff, discussed the course of treatment, and concluded that the
medical and nursing staff failed to properly diagnose the plaintiff’s
illness was “not wholly insufficient” and “certainly approached the
borderline of acceptable detail in a physician’s merit review”).
Page 15 of 16
III. CONCLUSION
For the reasons stated, the Motion to Dismiss (d/e 71) is
DENIED. Defendants shall file an Answer on or before April 13,
2015.
ENTER: March 26, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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