Williams v. USA et al

Filing 31

MEMORANDUM AND ORDER, The Court REJECTS the Report and Recommendation (Doc. 22 ) in its entirety and reinstates Count 2 medical negligence under the Federal tort Claims Act against defendant United States of America. Signed by Judge J. Phil Gilbert on 6/19/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAUN WILLIAMS,
Plaintiff,
vs.
USA, et al.,
Defendants.

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Case No. 17-cv-00153-JPG-SCW

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) (Doc. 22)
of Magistrate Judge Stephen C. Williams with regard to plaintiff’s affidavit (Doc. 20) filed in
response to this Court’s merits review order (Doc. 11). The merit review order determined that the
plaintiff failed to provide the necessary affidavit and report with regard to Count 2 as required by
Illinois law, to wit:

FTCA claims are governed by the law of the state where the tort occurred. Parrott
v.United States, 536 F.3d 629, 637 (7th Cir. 2008). See also Palay v. United
States, 349 F.3d 418, 425 (7th Cir. 2003). In this case, Illinois law applies. Under
Illinois law, a plaintiff “[i]n any action, whether in tort, contract or otherwise, in
which the plaintiff seeks damages for injuries or death by reason of medical,
hospital, or other healing art malpractice,” must file an affidavit along with the
complaint, declaring one of the following: 1) that the affiant has consulted and
reviewed the facts of the case with a qualified health professional who has
reviewed the claim and made a written report that the claim is reasonable and
meritorious (and the written report must be attached to the affidavit); 2) that the
affiant was unable to obtain such a consultation before the expiration of the
statute of limitations, and affiant has not previously voluntarily dismissed an
action based on the same claim (and in this case, the required written report shall
be filed within 90 days after the filing of the complaint); or 3) that the plaintiff has
made a request (and in this case the written report shall be filed within 90 days
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of receipt of the records). See 735 ILL. COMP. STAT. §5/2-622(a). A separate
affidavit and report shall be filed as to each defendant. See 735 ILL. COMP.
STAT. §5/2-622(b).
The Court dismissed Court 2 without prejudice, but allowed the plaintiff 90 days to file
the required documents. Plaintiff filed an additional letter from Dr. Gina Perri within the 90 day
period; however, the R & R states that the additional correspondence is insufficient to meet the
requirements of Illinois law and recommends that the Court dismiss Count 2 with prejudice.
The Court may accept, reject or modify, in whole or in part, the findings or recommendations
of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court must
review de novo the portions of the report to which objections are made. The Court has discretion to
conduct a new hearing and may consider the record before the magistrate judge anew or receive any
further evidence deemed necessary. Id. “If no objection or only partial objection is made, the district
court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999). In this matter, the Court has received an objection from the plaintiff and

will review the R & R de novo.
A review of the documents indicate that the plaintiff has made a good-faith effort to
comply with the affidavit and certificate of merit requirements. Taking both of Dr. Perri’s letters
in combination, indicate that plaintiff’s claim is “reasonable and meritorious” (Doc. 20 at 3)and
Plaintiff’s affidavit (Doc. 20) is sufficient

The report is not in the required format and the Court

acknowledges that Dr. Perri’s opinion is qualified (i.e. “If such a surgery . . . was available” and
“if conservative measures do not work.”) However, the Court must liberally construe pro se
pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hudson v. McHugh, 148 F.3d 859,
864 (7th Cir. 1998). A pro se complaint is not required to explicitly refer to the proper statute in
order to state a cause of action as long as relief is possible under that statute or theory consistent

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with the facts pled. Kennedy v. National Juvenile Detention Ass’n, 187 F.3d 690, 695 (7th Cir.
1999), cert. denied, 120 S. Ct. 1169 (2000); Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134
(7th Cir. 1992).
This matter is at the pleading stage and the plaintiff is pro se. The Court believes that the
plaintiff’s affidavit and Dr. Perri’s letters are sufficient to satisfy the Illinois law requirement at
the pleading stage.
Therefore, the Court has reviewed the R & R and plaintiff’s objection. Although the
Court does not find that the R & R is clearly erroneous, the Court believes that limited leeway
must be provided where the plaintiff is pro se. Therefore, the Court hereby REJECTS the
Report and Recommendation (Doc. 22) in its entirety and reinstates Count 2 – medical
negligence under the Federal tort Claims Act against defendant United States of America.
IT IS SO ORDERED.
DATE: 6/19/2017
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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