Althoff v. Brannon et al

Filing 91

ORDER. The Court DENIES SIHS's Motion to Strike or Dismiss Plaintiff's Negligent Credentialing Claim in Count IV of Plaintiff's First Amended Complaint (Doc. 79 ). Signed by Judge Staci M. Yandle on 2/2/15. (ajr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERESA ALTHOFF,
Plaintiff,
Case No. 14-cv-131-SMY-PMF

vs.
SCOTT BRANNON M.D., CAPE
RADIOLOGY GROUP, P.C., SOUTHERN
ILLINOIS HOSPITAL SERVICES doing
business as Memorial Hospital of Carbondale,
and USA,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on defendant Southern Illinois Hospital Services’
(“SIHS”) Motion to Strike or Dismiss Plaintiff’s Negligent Credentialing Claim in Count IV of
Plaintiff’s First Amended Complaint (Doc. 79). Plaintiff filed a response (Doc. 81) to which
Defendant replied (Doc. 82). For the following reasons, the Court denies the motion
Background
On November 15, 2011, Donald Bishop, M.D., an employee of Shawnee Health Center,
performed a surgical procedure on Plaintiff at Carbondale Memorial Hospital to remove an ovarian
cyst. During the procedure, Plaintiff’s sigmoid colon was perforated and an abscess developed.
Thereafter, on November 23, 2011, defendant Scott Brannan, M.D. performed a percutaneous
drainage procedure on Plaintiff at Carbondale Memorial Hospital during which time Plaintiff’s
sigmoid colon and iliac artery were injured. As a result of the Defendant’s alleged negligence,
Plaintiff has suffered severe, painful, and permanent injures.
Plaintiff’s First Amended Complaint alleges as follows: (1) Count I – Negligence v. United
States of America; (2) Count II – Negligence v. Scott Brannan, M.D.; (3) Count III – Negligence v.
Cape Radiology Group, P.C.; and (4) Count IV – Negligence v. SIHS d/b/a Memorial Hospital of

Carbondale. In Count IV, the count relevant to this Motion, Plaintiff includes a negligent
credentialing cause of action against SIHS alleging as follows:
[SIHS] [n]egligently and carelessly credentialed defendant Scott Brannan, M.D. and
permitted him to render hospital services at their facility, including performance of
vascular and interventional radiology procedures when it knew or in the exercise of
reasonable care should have known that he was incompetent and incapable of doing
so safely and without hazard to patients, including Plaintiff.
Doc. 69, p. 13. Plaintiff’s attached medical report, an Illinois requirement pursuant to 735 ILCS 5/2622, states that
[SIHS], by and through its agents, servants, employees, nurses, physicians, and/or
other healthcare providers, deviated from the acceptable standards of medical
practice, on or about November 15, 2011 and November 23, 2011, by negligently and
carelessly failing to diagnose colon perforation during the laproscopic surgery on
November 15, 2011; negligently and carelessly failing to properly place the catheter
into the abscess during the percutaneous drainage procedure on November 23, 2011;
and negligently and carelessly perforating Teresa Althoff’s iliac artery during the
initial incorrect placement of the catheter during the percutaneous drainage
procedure.
Doc. 15, p. 3.
In its Motion, SIHS argues the negligent credentialing theory should be stricken or dismissed
because Plaintiff did not file a sufficient medical report pursuant to 735 ILCS 5/2-622. While
Plaintiff did file a medical report with her original Complaint, SIHS maintains that report only
supports her claim of medical negligence based on vicarious liability, not her negligent credentialing
claim.
Plaintiff contends that the report she previously filed is sufficient to support her negligent
credentialing claim against SIHS and that Section 2-622(a) does not require her to attach another
affidavit in addition to the one attached to the original complaint.
Analysis
Under Illinois law, when a plaintiff is seeking damages for injuries “by reason of medical,
hospital, or other healing art malpractice” the plaintiff’s attorney must file an affidavit attesting that
the attorney “has consulted and reviewed the facts of the case with a health care professional” who
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“has determined in a written report . . . that there is a reasonable and meritorious cause for the filing
of such action . . . .” 735 ILCS 5/2-622(a). The attorney must attach the health care professional’s
report to the affidavit. Id. Illinois courts liberally construe section 2-622(a) reports in favor of
plaintiffs. See Mueller v. N. Suburban Clinic, Ltd., 701 N.E.2d 246, 250 (Ill. App. Ct. 1998). Where
the claims against a defendant are based on vicarious liability, no report is necessary in addition to an
affidavit detailing the underlying malpractice. Id. Negligent credentialing, however, is not based on
vicarious liability.1 “When allegations of a hospital’s failure to supervise are advanced . . . the
report, to be sufficient, must discuss the involvement of each defendant in the treatment of the
plaintiff and must be more than a ‘generalized conclusion’ of malpractice.” Jacobs v. Rush N. Shore
Med. Ctr., 673 N.E.2d 364, 367 (Ill. App. Ct. 1996).
SIHS cites to Jacobs v. Rush North Medical Center as persuasive authority that Plaintiff’s
attached affidavit does not satisfy Section 622(a) with respect to the negligent credentialing claim. In
Jacobs, the plaintiff’s allegations against the hospital defendant included failure to hire competent
doctors; failure to train, manage, and supervise the doctors; and failure to establish and enforce
proper protocols. Jacobs, 673 N.E.2d at 367. The physician’s report explained how several
physicians caring for the plaintiff at the defendant hospitals deviated from the standard of care. Id.
The court found the report insufficient with respect to the defendant hospitals because it did not set
forth with particularity how the hospitals deviated from their standard of care. Id. Rather, the report
summarily concluded “that the hospitals failed to properly screen the physician it granted privileged
to, failed to properly train and supervise the doctors assigned to treat [plaintiff], and failed to transfer
[plaintiff] in a timely manner.” Id.

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To prevail on a negligent credentialing claim, a plaintiff must prove: (1) “the hospital failed to meet the standard of
reasonable care in the selection of the physician it granted medical staff privileges to whose treatment provided the
basis for the underlying medical malpractice claim”; (2) “that, while practicing pursuant to negligently granted
medical staff privileges, the physician breached the applicable standard of care”; and (3) “that the negligent granting
of medical staff privileges was a proximate cause of the plaintiff’s injuries.” Frigo v. Silver Cross Hosp. and Med.
Ctr., 876 N.E.2d 697, 723 (Ill. App. Ct. 2007).

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Plaintiff, in turn, cites to Burns v. Williamson, No. 11-3020, 2012 WL 2872475 (C.D. Ill. July
12, 2012) as persuasive authority that her attached report does satisfy Section 2-622(a)’s report
requirement. In Burns the plaintiff brought both vicarious and direct liability claims against an
ambulance service provider arising from the alleged negligence of its emergency medical technicians
and the ambulance service provider’s failure to adequately train or supervise its personnel. Id. at *5.
The plaintiff’s report did not specifically address the ambulance service provider’s direct negligence.
Id. The court, however, found that the report was sufficient to support plaintiff’s direct liability
claims. Id. Specifically, the court concluded the report was sufficient because the plaintiff had
“minimally complied” with Section 2-622(a). Id. at *6.
This Court agrees with Burns’ reasoning. As explained in Steinberg v. Dunseth, “[t]he
section 2-622 report is a ticket which the plaintiff must possess in order to file his complaint. If
plaintiff has the ticket, if there has been minimal compliance . . . with section 2-622 of the Code, the
case should move on to summary judgment or trial.” 658 N.E.2d 1038, 1049 (Ill. App. Ct. 1995).
Here, Plaintiff has the ticket attesting that there is a reasonable and meritorious claim against SIHS.
As such, there has been minimal compliance with Section 2-622 and Plaintiff’s report is sufficient to
support her negligent credentialing claim against SIHS.
Conclusion
For the foregoing reasons, the Court DENIES SIHS’s Motion to Strike or Dismiss Plaintiff’s
Negligent Credentialing Claim in Count IV of Plaintiff’s First Amended Complaint (Doc. 79).
IT IS SO ORDERED.
DATED: February 2, 2015
s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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