Johnson v. USA et al

Filing 11

ORDER: COUNT 1 shall remain DISMISSED without prejudice at this time for failure to state a claim upon which relief may be granted, due to lack of compliance with 735 ILL. COMP. STAT. §5/2-622. IT IS ORDERED that Plaintiff shall file the requi red affidavit pursuant to 735 ILL. COMP. STAT. §5/2-622, stating that he has consulted with a qualified health professional who has determined that Plaintiff's legal claim is reasonable and meritorious, within 35 days of the date of this order (on or before November 22, 2017). In addition, Plaintiff shall timely file the required written report/certificate of merit from the qualified health professional, in compliance with §5/2-622. Should Plaintiff fail to timely file the required affidavit or report, this action shall be dismissed, and Plaintiff may be assessed a strike under the provisions of 28 U.S.C. § 1915(g). (Action due by 11/22/2017). Signed by Judge J. Phil Gilbert on 10/17/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT JOHNSON, # 07379-030,
Plaintiff,
vs.
UNITED STATES of AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 17-cv-714-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This case is before the Court for consideration of Plaintiff’s Response (labeled as a “First
Amended Complaint”) (Doc. 10) filed October 13, 2017. On September 7, 2017, this Court
dismissed Plaintiff’s federal tort claim (Count 1) without prejudice, because Plaintiff did not
comply with the requirement under 735 ILL. COMP. STAT. §5/2-622 to provide an affidavit stating
that he has consulted with a qualified health professional who has reviewed his claim, and to
provide the written report of the qualified health professional confirming that the medical
negligence/malpractice claim is reasonable and meritorious. (Doc. 7). Plaintiff was given until
October 13, 2017, to submit his affidavit.

He was further directed to provide the health

professional’s report/certificate of merit within the time limits set forth in § 5/2-622.
Plaintiff’s paperwork filed as Doc. 10 was submitted within the Court’s deadline. He did
include a copy of the final denial of his administrative tort claim (dated November 23, 2016) as
directed. (Doc. 10, p. 4). However, the remaining documents fail to comply with the Court’s
directions or with § 5/2-622. Plaintiff shall be given one more chance to comply with the
provisions of Illinois law with reference to this medical malpractice/negligence claim.

1

The purpose of the § 5/2-622 mandates is to “eliminate frivolous medical malpractice
lawsuits at the pleading stage,” by requiring a medical malpractice case to be prescreened by a
medical professional1 before the complaint is filed. Fox v. Gauto, 995 N.E.2d 1026, 1030-31
(Ill. App. 2013) (citing Walter v. Hill, 509 N.E.2d 804, 806 (Ill. App. 1987); Lyon v. Hasbro
Industries, Inc., 509 N.E.2d 702, 706-07 (Ill. App. 1987)). To comply with § 5/2-622(a)(1), the
plaintiff must “attach to his complaint a report from a health professional stating that the
professional has reviewed the plaintiff's medical records and believes that the plaintiff has a
reasonable and meritorious cause of action.” Fox, 995 N.E.2d at 1030. The plaintiff’s own
affidavit must state that either he or his attorney has “discussed the case with the health
professional and that there is merit to the medical malpractice claim.” Id.
As summarized in this Court’s order at Doc. 7, Sections 5/2-622(a)(2) and 5/2-622(a)(3)
allow for the health professional’s report/certificate of merit to be filed at a later date if the
plaintiff-affiant states that the professional’s report could not be obtained before the expiration of
the statute of limitations, or that a delay in obtaining medical records has hindered the production
of the professional’s report. See Fox, 995 N.E.2d at 1030. The Illinois Appellate Court has
instructed trial courts to liberally allow the amendment of pleadings in malpractice cases, and
noted that a medical malpractice plaintiff should be afforded a “reasonable opportunity to
establish his case.” Fox, 995 N.E.2d at 1031 (quoting Hansbrough v. Kosyak, 490 N.E.2d 181,
188 (Ill. App. 1986)); see also Holloway v. Chicago Heart & Vascular Consultants, Ltd., 81
N.E.3d 1048, 1054-55 (Ill. App. 2017).
1

Section 5/2-622 specifies that the “health professional” who issues the report/certificate of merit should
be a licensed physician, if the medical provider accused of malpractice in the case is a physician. In the
plaintiff’s affidavit, he must state that he consulted with a health professional who the plaintiff-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[.]” 735 ILL. COMP. STAT. 5/2-622(a).

2

Here, Plaintiff states in his response (Doc. 10) that he has submitted the required
affidavits pursuant to this Court’s order. However, he has not done so. No affidavit whatsoever
is included with his documents. An affidavit is a document declaring the truth of the statements
set forth in it under penalty of perjury, signed and dated by the person making the declaration.
See 28 U.S.C. § 1746. In order to comply with § 5/2-622, Plaintiff must actually consult with a
medical doctor regarding the facts of his malpractice/negligence case. Plaintiff must then state in
his affidavit that the doctor concluded that Plaintiff’s legal claim has merit.
Plaintiff must also submit the doctor’s written report stating that in the doctor’s opinion,
based on medical records and any other relevant material, the malpractice/negligence claim is
reasonable and meritorious. See 735 ILL. COMP. STAT. § 5/2-622(a). In his response, Plaintiff
states that he has “provided affidavits” from Dr. David Gelber and from other qualified health
professionals who treated him. (Doc. 10, p. 2). His attached documents, however, are not
certificates of merit as contemplated by § 5/2-622, nor are they affidavits. Instead, they are
medical records documenting medical treatment provided to Plaintiff, including an EMG/nerve
conduction study on December 1, 2016, by Dr. Gelber (Doc. 10, p. 5); a surgical pathology
report from Plaintiff’s January 27, 2016, discectomy (Doc. 10, p. 8); and the records of
Plaintiff’s medical consultation of November 15, 2015, in which a discectomy was
recommended based on the disc herniation at C4. (Doc. 10, pp. 9-11). None of Plaintiff’s
documents include any evaluation by a health professional regarding the merits of Plaintiff’s
medical malpractice/negligence claim against the United States. Medical records do not fulfill
the requirement of § 5/2-622 to provide a reviewing doctor’s report which states that the
malpractice lawsuit is reasonable and meritorious. The reviewing doctor will need to consult the
medical records in making his/her report, but the records alone are not enough to satisfy the law.

3

Disposition
COUNT 1 shall remain DISMISSED without prejudice at this time for failure to state a
claim upon which relief may be granted, due to lack of compliance with 735 ILL. COMP. STAT.
§5/2-622.
IT IS ORDERED that Plaintiff shall file the required affidavit pursuant to 735 ILL.
COMP. STAT. §5/2-622, stating that he has consulted with a qualified health professional who has
determined that Plaintiff’s legal claim is reasonable and meritorious, within 35 days of the date
of this order (on or before November 22, 2017). In addition, Plaintiff shall timely file the
required written report/certificate of merit from the qualified health professional, in compliance
with §5/2-622. Should Plaintiff fail to timely file the required affidavit or report, this action shall
be dismissed, and Plaintiff may be assessed a “strike” under the provisions of 28 U.S.C.
§ 1915(g).
IT IS SO ORDERED.
DATED: October 17, 2017

s/J. Phil Gilbert
United States District Judge

4