Hines v. Sunrise Senior Living Management, Inc. et al

Filing 35

ORDER Signed by the Honorable Manish S. Shah on 10/17/2014: Defendant's motion to dismiss 29 is granted in part, denied in part. Count II is dismissed, Count I is not dismissed. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHIRLEY HINE,
Plaintiff,

No. 14 CV 5817

v.

Judge Manish S. Shah

SUNRISE SENIOR LIVING MANAGEMENT,
INC.,
Defendant.
ORDER
Defendant’s motion to dismiss [29] is granted in part, denied in part. Count II
is dismissed, Count I is not dismissed.
STATEMENT
Plaintiff was living at defendant’s assisted living facility when she was
attacked by a fellow resident. According to plaintiff, defendant knew or should have
known that the attack was likely to occur, and so defendant’s failure to reasonably
protect her amounted to negligence and medical malpractice. Defendant now moves
to strike plaintiff’s negligence claim and to dismiss her malpractice claim. For the
following reasons, defendant’s motion is granted in part and denied in part.
Legal Standard
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on
which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.
2012). Under Rule 8(a)(2), a complaint must include “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of
what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). In reviewing the sufficiency
of a complaint, I accept the well-pleaded facts as true. Alam v. Miller Brewing Co.,
709 F.3d 662, 665-66 (7th Cir. 2013).
Federal Rule of Civil Procedure 12(f) provides that on a party’s motion, I may
“strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous

matter.” Fed. R. Civ. P. 12(f). Motions to strike are ordinarily disfavored because
they often function only to delay resolution of a case, but “where . . . motions to
strike remove unnecessary clutter from the case, they serve to expedite, not delay.”
Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir.
1989).
Background
Plaintiff Shirley Hine resided at an assisted living facility owned and
operated by defendant Sunrise Senior Living Management, Inc. Dkt. 25 ¶¶ 5-6. On
July 17, 2012, she was assaulted by a fellow resident. Dkt. 25-1 at 3. Plaintiff’s
attacker had already attacked her at least once while the two were living at
defendant’s facility. Id. Despite defendant’s knowledge of the “serious risk for injury
that this resident posed to [plaintiff] and other residents, [defendant] failed to take
the necessary actions[,] assessments[,] procedures[,] and monitoring required by the
standard of care.” Id.
Plaintiff’s first amended complaint alleges counts for “Negligence” and
“Medical Malpractice.” See Dkt. 25 at 1-3. In support of the latter, and pursuant to
735 ILCS 5/2-622, plaintiff attached an “Affidavit” and “Health Professional’s
Report” to her complaint. Dkt. 25-1 at 2-3. The report provides plaintiff’s reviewing
health professional’s qualifications and describes his or her familiarity with the
case. Id. The physician sets forth the entirety of his or her analysis of the case’s
merit in the report’s last three paragraphs:
8.

Upon Shirley Hine’s admission to Sunrise Assisted Living of
Palos Park she had macular degeneration, hypothyroidism and
dementia. She was legally blind.

9.

On July 17, 2012[,] Ms. Hine was assaulted by another resident
at the facility. That resident also had a history of dementia and
had previously assaulted Ms. Hine. Despite Sunrise Assisted
Living of Palos Park’s awareness and knowledge of the serious
risk for injury that this resident posed to Ms. Hein and other
residents, they failed to take the necessary actions[,]
assessments[,] procedures[,] and monitoring required by the
standard of care.

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10.

The assault physical [sic] and cognitive trauma including
fracture of her shoulder were all foreseeable and avoidable.
Based upon my experience, training, knowledge and review of
the medical records in this case, I believe that that [sic] there is
a reasonable and meritorious basis for filing suit against
Sunrise Assisted Living of Palos Park.

Dkt. 25-1 at 3.
Defendant has moved to strike plaintiff’s negligence count and to
dismiss her medical malpractice count.
Analysis
Illinois law requires a plaintiff “seek[ing] damages for injuries or death by
reason of medical, hospital, or healing art malpractice,” to attach to her complaint
(1) an affidavit from the plaintiff or her attorney stating that a qualified health
professional has determined in a written report that there is a meritorious cause of
action, and (2) the health professional’s written report indicating the basis for that
determination. 735 ILCS 5/2-622(a). Failure to comply with these requirements is
grounds for dismissal. 735 ILCS 5/2-622(g).*
Defendant argues that plaintiff’s physician’s report is deficient because “it
lacks specificity as to what action(s) by [defendant] was/were negligent or fell below
the applicable standard of care.” Dkt. 29 at 6. In particular, defendant says the
report “lacks any specificity as to 1) what the applicable standard of care required;
and/or 2) what particular actions [defendant] took (or failed to take) which was [sic]
a departure from that standard of care.” Id.
In response, plaintiff notes that “[t]he purpose of the enactment [of section 2662 was] not to burden the plaintiff with insurmountable hurdles prior to the filing
but to ensure that plaintiff has a meritorious claim” and that “[t]he technical
requirements for the statute should not interfere with the spirit or purpose of the
statute . . . .” Dkt. 30 at 4 (quoting Apa v. Rotman, 288 Ill. App. 3d 585, 589-90 (5th
Dist. 1997)). More to the point, plaintiff argues that “section 2-622 does not require
a certificate and report to state what care should have been provided that was not.”
Dkt. 30 at 4-5 (quoting Neuman v. Burstein, 230 Ill. App. 3d 33, 39-40 (2d Dist.
1992)).

Subject-matter jurisdiction over this case is based on 28 U.S.C. § 1332(a). Plaintiff is a
citizen of Illinois, while defendant is incorporated and headquartered in Virginia. Because I
exercise diversity jurisdiction, state substantive law applies. Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938). The parties agree that Illinois law controls, including 735 ILCS 5/2-622.
See also Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000).

*

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I agree with defendant that plaintiff’s report is insufficient because it “does
not . . . set forth with any particularity how [defendant] deviated from the standard
of care applicable to [it].” Jacobs v. Rush North Shore Medical Center, 284 Ill. App.
3d 995, 1000 (1st Dist. 1996) (emphasis in original). For example, the reports does
not set forth any of the particulars of (1) how plaintiff was able to be attacked by the
fellow resident, or (2) why defendant is to be blamed for that attack. Instead,
plaintiff’s report generally concludes that defendant “failed to take the necessary
actions[,] assessments[,] procedures[,] and monitoring required by the standard of
care.” Dkt. 25-1 at 3. “These assertions, unsupported by any facts or reasoning, are
insufficient to meet the requirements of section 2-622.” Jacobs, 284 Ill. App. 3d at
1000.
Plaintiff’s report also fails because it does not set forth “the deficiencies in the
medical care given by defendan[t].” Neuman, 230 Ill. App. 3d at 39-40 (emphasis
added). Construing the report liberally, it merely describes the fact that defendant
knowingly allowed plaintiff to be attacked by another resident. However, nothing in
the report, or elsewhere in the complaint, states or suggests that this attack was a
proximate consequence of defendant’s provision of medical care to plaintiff. While it
is certainly true that these events arose in an assisted living facility, that fact alone
does not connect the injury to plaintiff’s medical care. See Heastie v. Roberts, 226 Ill.
2d 515, 551 (2007) (“Not every injury sustained by a patient in a hospital results
from healing-art malpractice. Hospitals also have administrative and managerial
duties toward patients, a breach of which may subject them to liability.”) (citations
omitted). Because plaintiff’s physician’s report does not meet the requirements of
section 2-662, Count II is dismissed.
Defendant’s argument for striking Count I is that it duplicates Count II. But
now that Count II has been dismissed, this argument necessarily fails. Further, I
reject defendant’s undeveloped suggestion that Count I sounds in medical
negligence. The injury alleged in Count I derived from defendant’s “administrative
and management functions, not its delivery of medical care.” Heastie¸ 226 Ill. 2d at
552-53. As such, it is more properly viewed as a claim for ordinary negligence.
Finally, even if I were to construe defendant’s motion as one to dismiss for failure to
state a claim, Count I states a claim for negligence because it plausibly alleges (1) a
duty owed to the plaintiff by the defendant, (2) a breach of that duty, and (3) an
injury proximately caused by the breach. See Garest v. Booth, 2014 IL App (1st)
121845, ¶ 27 (1st Dist. 2014). Count I survives.
ENTER:

___________________________
Manish S. Shah
United States District Judge

Date: 10/17/14

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