Thomas v. Granite Nursing and Rehabilitation Center, LLC et al

Filing 30

MEMORANDUM AND ORDER, The Court DENIES Tara Cares motion to dismiss (Doc. 15 ). Signed by Judge J. Phil Gilbert on 6/3/2014. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES D. THOMAS, Executor of the Estate of
Thelma V. Thomas, Deceased,
Plaintiff,
No. 13-cv-1320-JPG-DGW
v.
GRANITE NURSING AND REHABILITATION
CENTER, LLC, d/b/a Granite Nursing & Rehab Center;
DTD HC, LLC; D&N, LLC; and AURORA CARES, LLC,
d/b/a Tara Cares,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on defendant Aurora Cares, LLC’s (“Tara Cares”)
motion to dismiss Counts VII and VIII pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to include the affidavit of merit required by 735 ILCS 5/2-622 in healing art malpractice
cases (Doc. 17). Plaintiff Charles D. Thomas has responded to the motion (Doc. 22), and Tara
Cares has replied to that response (Doc. 22).
I.

Standard for Dismissal
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all allegations

in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to state a claim, a
complaint must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement is satisfied if the complaint (1)
describes the claim in sufficient detail to give the defendant fair notice of what the claim is and the
grounds upon which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a
speculative level. Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007).
II.

Facts
The written materials submitted establish the following relevant facts for the purposes of

this motion.
At all relevant times, Tara Cares was an owner of defendant Granite Nursing and
Rehabilitation Center, LLC (“Granite Center”). While residing and in the care of Granite Center,
plaintiff’s decedent, Thelma V. Thomas, fell while trying to walk without enough assistance and
was injured. Two days later she died from her injury. Plaintiff Thomas believes her death was
due to Granite Center’s negligence and has sued the defendants, including Tara Cares, under the
Illinois Nursing Home Care Act, 210 ILCS 45/3-601 & 602, the Illinois Survival Statute, 755
ILCS 5/27-6 et seq., and the Wrongful Death Act, 740 ILCS 180/1 et seq. The Illinois Nursing
Home Care Act, 210 ILCS 45/3-601, plainly subjects the owners of nursing homes in Illinois to
liability for the negligence of nursing home employees that injure residents of the nursing home.
Tara Cares asks the Court to dismiss it from this case on the grounds that the plaintiff failed
to submit with his complaint an affidavit of merit as required by 735 ILCS 5/2-622 in healing art
malpractice cases. The plaintiff maintains that no such certificate is required for suits against
nursing home owners under the Illinois Nursing Home Care Act.
III.

Analysis
Illinois’ Healing Arts Malpractice Act requires a plaintiff to file with his complaint an

affidavit from his attorney and a medical report from a health professional. 735 ILCS 5/2-622(a).
The following pertinent part of § 2-622(a) explicitly states what must be included in those
documents:
In any action . . . in which the plaintiff seeks damages for injuries or death by reason
of medical, hospital, or other healing art malpractice, the plaintiff’s attorney . . .
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shall file an affidavit, attached to the original and all copies of the complaint,
declaring one of the following:
1. That the affiant has consulted and reviewed the facts of the case with a health
professional who the affiant reasonably believes: (i) is knowledgeable in the
relevant issues involved in the particular action; (ii) practices or has practiced
within the last 6 years or teaches or has taught within the last 6 years in the same
area of health care or medicine that is at issue in the particular action; and (iii) is
qualified by experience or demonstrated competence in the subject of the case; that
the reviewing health professional has determined in a written report, after a review
of the medical record and other relevant material involved in the particular action
that there is a reasonable and meritorious cause for the filing of such action; and
that the affiant has concluded on the basis of the reviewing health professional’s
review and consultation that there is a reasonable and meritorious cause for filing of
such action. . . .
2. That the affiant was unable to obtain a consultation required by paragraph 1
because a statute of limitations would impair the action and the consultation
required could not be obtained before the expiration of the statute of limitations. . . .
3. That a request has been made by the plaintiff or his attorney for examination and
copying of records pursuant to Part 20 of Article VIII of this Code and the party
required to comply under those Sections has failed to produce such records within
60 days of the receipt of the request.
The purpose of this requirement is to reduce the number of frivolous malpractice suits. Ebbing v.
Prentice, 587 N.E.2d 1115, 1117 (Ill. App. Ct. 1992). It is undisputed that the plaintiff’s
complaint did not contain the affidavit described in 735 ILCS 5/2-622(a). The Illinois Supreme
Court has determined, however, that this requirement does not apply to private causes of action
brought against a nursing home owner under the Nursing Home Care Act. Eads v. Heritage
Enterps., Inc., 787 N.E.2d 771, 777-80 (Ill. 2003).
Tara Cares argues that the plaintiff’s complaint asserts a claim under the Healing Arts
Malpractice Act, not under the Nursing Home Care Act, and is therefore deficient for failing to
attach the affidavit described in 735 ILCS 5/2-622(a). It argues that a cause of action under the
Nursing Home Care Act cannot be brought against anyone but a nursing home licensee, which is

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clearly is not, or a nursing home owner. Tara Cares asserts it is not an “owner” of Granite Center
under the definition set forth in the Nursing Home Care Act:
“Owner” means the individual, partnership, corporation, association or other
person who owns a facility. In the event a facility is operated by a person who
leases the physical plant, which is owned by another person, “owner” means the
person who operates the facility, except that if the person who owns the physical
plant is an affiliate of the person who operates the facility and has significant
control over the day-to-day operations of the facility, the person who owns the
physical plant shall incur jointly and severally with the owner all liabilities imposed
on an owner under this Act.
210 ILCS 45/1-119. Tara Care believes that the plaintiff’s claim against it does not fall under the
Nursing Home Care Act and is not exempt from the affidavit of merit requirement. In support of
this argument, Tara Cares points to affidavits in support of two other defendants’ motion to
dismiss (Doc. 15) asserting that those defendants own the entirety of Granite Center.
Tara Cares misses the mark. First, it refers to matters outside the pleadings, which cannot
be considered without converting the motion to dismiss to a motion for summary judgment, which
the Court declines to do. See Fed. R. Civ. P. 12(d). The plaintiff’s complaint alleges Tara Cares
is an owner of Granite Center facility, so the Court must accept that allegation as true for the
purposes of this motion. Second, even if the Court were to consider the affidavits outside the
pleadings, all they establish is that Tara Cares is not a Granite Center LLC member and does not
own that business entity. The affidavits do not establish that Tara Cares does not qualify as an
owner in any other way such as, for example, as the owner of the facility, the lessor and operator of
Granite Center, or the alter ego of the owner or operator. Thus, Tara Cares has failed to carry its
burden of showing that the plaintiff’s claim is not under the Nursing Home Care Act, that he is
required to file an affidavit of merit with his complaint, and that his complaint is deficient for
failing to do so.

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IV.

Conclusion
For these reasons, the Court DENIES Tara Cares’ motion to dismiss (Doc. 15).

IT IS SO ORDERED.
DATED: June 3, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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