Dawson v. Sohn et al

Filing 64

ORDER GRANTING WITH LEAVE TO AMEND 50 Motion to Dismiss counts II and V. Plaintiff is GRANTED seven (7) days or until August 7th, 2017 to file Second Amended Complaint in compliance with 735 ILCS 5/2-622. Signed by Judge David R. Herndon on 7/31/2017. (kmb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERI DAWSON,
Plaintiff,
v.

No. 3:16-cv-00827-DRH-SCW

UNITED STATES OF AMERICA,
SOUTHERN ILLINOIS HEALTHCARE
d/b/a MEMORIAL HOSPITAL OF
CARBONDALE, and INTUITIVE SURGICAL,
INC.,
Defendants.

ORDER
HERNDON, District Judge:
Before the Court is defendant Southern Illinois Healthcare d/b/a Memorial
Hospital of Carbondale’s (“SIH”) Motion to Dismiss counts II and V (Doc. 50) of
plaintiff Teri Dawson’s (“plaintiff”) Amended Complaint. Plaintiff opposes (Doc.
57). Based on the following, the Motion to Dismiss is GRANTED WITH LEAVE
TO AMEND.
I. BACKGROUND
On March 14, 2017, this Court entered an order granting plaintiff leave to
file an amended complaint, affidavit, and medical report in accordance with 735
ILL. COMP. STAT. 5/2-622 (Doc. 45). 1 On April 4, 2017, plaintiff filed an amended
complaint (Doc. 46) with an attached attorney affidavit (Doc. 46-1) and medical
1

The Court held that the initial complaint did not comply with Illinois’ statutory requirements for
filing a medical malpractice action, and subsequently granted plaintiff 21-days to cure defects. See
Doc. 45.

report (Doc. 46-2). Thereafter, SIH filed the instant motion to dismiss count II—
common law negligence, and count V—negligent infliction of emotional distress,
pursuant to Rule 12(b)(6) (Doc. 50). SIH argues that plaintiff’s claim again fails to
affirmatively state the author of the medical report is currently licensed to
practice medicine, and was licensed to practice at the time the medical report was
authored (Doc. 51). As a result, SIH contends plaintiff failed to state a cause of
action for medical negligence under Illinois law, and requests dismissal of counts
II and V with prejudice (Id.).
In response, plaintiff argues that affirmatively stating a doctor’s credentials
is not the legal standard; and moreover, it would not be appropriate to dismiss
claims over a mere stylistic dispute (Doc. 57).

Further, plaintiff points to an

attached Proposed Second Amended Complaint (Doc. 57-1) which contains
amended copies of the medical report and affidavit in effort to resolve any
perceived misunderstandings. Plaintiff requests the Court deny SIH’s Motion to
Dismiss and accept the amended medical report and affidavit copies in the
interest of justice (Doc. 57).
II. ANALYSIS
The analysis here is straightforward and turns solely on plaintiff’s
compliance with 735 ILCS 5/2-622. See Buechel v. United States, 646 F.Supp.2d
1038, 1039 (S.D. Ill. 2009) (Illinois medical malpractice plaintiff must file
complaint, attorney’s affidavit, and medical report written by health professional).
“For affidavits . . ., the written report must be from a physician licensed to

practice medicine in all its branches.” 2 See 5/2-622 (emphasis added). Illinois
does not define or regulate medical specialties of physicians; therefore “a
physician licensed to practice in Illinois is ‘qualified to practice medicine in all of
its branches.’ ” See Ingold v. Irwin, 302 Ill.App.3d 378, 705 N.E.2d 135, 140
(1998). “When construing a statute, [the] court’s primary objective is to ascertain
and give effect to the intent of the legislature.” Valfer v. Evanston Nw. Healthcare,
2016 IL 119220, ¶ 22.
A. Physician-Author Must Be Licensed in IL
In this case, it is clear the legislature intended to ensure the physicianauthor of the medical report is in fact licensed to practice medicine in Illinois. In
an attempt to justify, plaintiff points to the second amended medical opinion and
affidavit—which were filed as an attachment to plaintiff’s response to SIH’s
motion to dismiss—in order to argue that the authoring physician is licensed to
practice medicine; and that “[t]he absence of strict technical compliance with the
statute is one of form and not of substance.

[Therefore] [t]he technical

requirements of the statute should not be mechanically applied to deprive the
plaintiff of her substantive rights.” Ingold, 705 N.E.2d at 140.
Plaintiff is correct in that “[t]he purpose of the enactment was not to burden
the plaintiff with insurmountable hurdles prior to filing but to reduce the number
of frivolous law suits.”

Id.

However, ensuring the medical report is actually

authored by a physician licensed to practice medicine in the state of Illinois is a

2

The language used in the statute must be given its plain and ordinary meaning. See Gillespie

Cmty. Unit Sch. Dist. v. Wight & Co., 2014 IL 115330.

far cry from an “insurmountable hurdle.”

Nothing written within plaintiff’s

amended attorney affidavit and/or medical report suggests the reviewing physician
is licensed to practice medicine in Illinois.

“Thus, although he may be

knowledgeable on the subject of [gynecology and robotic-assisted laparoscopic
surgery], he is not, by definition, qualified to author the written report required by
section 2-622(a)(1) of the Code.” Id.
B. Plaintiff Granted Leave to Amend
Stated again, the central purpose of section 5/2-622 is to thwart frivolous
medical malpractice lawsuits.
N.E.2d 229, 232 (2009).

See Cookson v. Price, 393 Ill.App.3d 549, 914

Defendants have not argued nor has the Court

determined plaintiff’s complaint was frivolous, or that the amended attorney
affidavit and medical report were filed in bad faith to delay litigation. Therefore,
the Court GRANTS WITH LEAVE TO AMEND SIH’s Motion to Dismiss.

See

Hahn v. Walsh, 762 F.3d 617, 634 (7th Cir. 2014) (explaining although district
court believed plaintiff’s counsel should have known to submit affidavit and
medical report in compliance with 5/2-622, it is error for court to refuse to permit
plaintiff to amend complaint in absence of bad faith).
Plaintiff’s proposed Second Amended Complaint (Doc. 57-1)—attached as
an exhibit to plaintiff’s response to the motion to dismiss—will not be accepted; it
must be file separately.
III. CONCLUSION
Based on the foregoing, SIH’s Motion to Dismiss counts II and V (Doc. 50)
of plaintiff’s amended complaint is GRANTED WITH LEAVE TO AMEND.

Plaintiff is GRANTED seven (7) days or until August 7th, 2017 to file a Second
Amended Complaint.

IT IS SO ORDERED.
Signed this 31st day of July, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.07.31
13:43:14 -05'00'
UNITED STATES DISTRICT JUDGE