Campbell v. USA

MOTION to Dismiss for Failure to State a Claim

S.D. Ill.December 2, 2016

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS RAINA S. CAMPBELL, ) ) Plaintiff, ) ) v. ) Case No. 16-cv-464-SMY-SCW ) UNITED STATES OF AMERICA, ) ) Defendant. ) THE UNITED STATES OF AMERICA’S MOTION TO DISMISS MEDICAL MALPRACTICE CLAIM Defendant, the United States of America, by and through its attorneys, Donald S. Boyce, United States Attorney for the Southern District of Illinois, and Nicholas J. Biersbach, Assistant United States Attorney, hereby moves to dismiss Plaintiff’s medical malpractice claim. I. BACKGROUND On April 27, 2016, Plaintiff Raina S. Campbell of Thompsonville, Illinois, filed a pro se Federal Tort Claims Act (“FTCA”) Complaint against the United States of America. (See Doc. 1). Plaintiff alleges Veterans Administration (“VA”) medical providers failed to timely diagnose her husband Danny Campbell’s cancer. (See id.). Based on these allegations, the Complaint appears to assert survival and wrongful death actions related to medical negligence that purportedly resulted in injuries to Plaintiff’s husband, and ultimately, his death on January 28, 2013. (See id. 1-20). II. LEGAL STANDARD A motion filed pursuant to Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted. In ruling on a motion to dismiss, the Court must accept as true all well-pleaded factual allegations and draw all reasonable inferences from those Case 3:16-cv-00464-SMY-SCW Document 6 Filed 12/02/16 Page 1 of 5 Page ID #26 2 facts in the plaintiff’s favor. Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); Tricontinental Indus., Inc., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.) cert. denied, 552 U.S. 824 (2007). Nevertheless, the Court is not required to “ignore any facts set forth in the complaint that undermine the plaintiff’s claim . . . .” LeBlang Motors v. Subaru of Am., Inc., 148 F.3d 680, 690 (7th Cir. 1998) (quotations omitted). III. ARGUMENT Plaintiff’s medical malpractice claim brought pursuant to the FTCA should be dismissed for failure to comply with 735 ILCS 5/2-622. In Illinois medical negligence actions, the Illinois Healing Art Malpractice Act requires counsel for plaintiffs, or the plaintiff if she is proceeding pro se, to file an affidavit with the complaint affirming that the attorney or pro se litigant has consulted and reviewed the facts of the case with a health professional who meets certain criteria enumerated in the statute. See 735 ILCS 5/2-622(a). Counsel for plaintiffs, or the pro se litigant, must also attach to the affidavit a report from the health professional confirming that there is a reasonable and meritorious basis for filing the action. See id. Failure to file an affidavit and report pursuant to § 2-622 is cause for dismissal. See 735 ILCS 5/2-622(g). FTCA claims are governed by the substantive law of the state in which the alleged tort occurred, in this case Illinois. See 28 U.S.C. §§ 1346(b), 2674; see also Murrey v. United States, 73 F.3d 1448, 1453 (7th Cir. 1996). The prevailing rule in this Court is that the § 2-622 certificate of merit requirement is a substantive rule of Illinois law that applies to claims brought in federal court. See Dickerson v. United States of America, Case No. 15-CV-865-NJR-DGW, 2016 WL 866733, at *1 (S.D. Ill. Mar. 7, 2016); Pyles v. Fahim, No. 3:11-cv-0378-MJR, 2013 WL 1287393, at *2 (S.D. Ill. March 26, 2013) (dismissing state inmate’s medical malpractice claim due to the inmate’s failure to attach a § 2-622 certificate of merit to his complaint); Shank Case 3:16-cv-00464-SMY-SCW Document 6 Filed 12/02/16 Page 2 of 5 Page ID #27 3 v. United States, No. 08-CV-214-JPG-PMF, 2008 WL 4671735, at *3 (S.D. Ill. Oct. 21, 2008) (dismissing FTCA survival and wrongful death actions without prejudice to allow plaintiff to refile with the § 2-622 certificate); Chapman v. Chandra, No. 06-cv-651-MJR, 2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007) (dismissing inmate’s malpractice claim due to failure to attach § 2-622 certificate of merit to the complaint). The Court’s approach has been based on the Seventh Circuit’s implicit approval of the § 2-622 requirement in a diversity jurisdiction case, Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). In this medical negligence case brought pursuant to the FTCA, Plaintiff alleges medical providers at the VA failed to timely diagnose her deceased husband’s cancer. To prove this case, Plaintiff must establish the medical standard of care, that it was breached, and that the breach proximately caused her husband’s injuries and/or death. Thus, Plaintiff’s claim falls within the scope of § 2-622 and, therefore, she must file the requisite affidavit and report. See Jackson v. Chicago Classic Janitorial and Cleaning Service, Inc., 823 N.E.2d 1055, 1058-59 (Ill. App. 1st Dist. 2005) (stating the term “medical, hospital or other healing art malpractice” in § 2-622 “must be construed broadly”). Plaintiff, however, has not filed the affidavit and report. Because Plaintiff has not filed the required affidavit and report, her claim should be dismissed. Furthermore, the Court has discretion to dismiss with or without leave to amend the Complaint, but a plaintiff must be afforded an opportunity to amend her complaint to comply with § 2-622 before the case may be dismissed with prejudice. See Lingle, 223 F.3d at 613-614; see also Chapman, 2007 WL 1655799, at *4-5. Case 3:16-cv-00464-SMY-SCW Document 6 Filed 12/02/16 Page 3 of 5 Page ID #28 4 IV. CONCLUSION Plaintiff’s Complaint should be dismissed without prejudice, or alternatively, Plaintiff should be given a definite period of time to amend her complaint to include the required affidavit and report under penalty of dismissal with prejudice should Plaintiff fail to file the requisite documents within the prescribed period. Respectfully submitted, DONALD S. BOYCE United States Attorney s/ Nicholas J. Biersbach NICHOLAS J. BIERSBACH Assistant United States Attorney United States Attorney’s Office Nine Executive Drive Fairview Heights, IL 62208-1344 Phone: 618-628-3700 Fax: 618-622-3810 E-mail: Nicholas.Biersbach@usdoj.gov Case 3:16-cv-00464-SMY-SCW Document 6 Filed 12/02/16 Page 4 of 5 Page ID #29 5 Certificate of Service I hereby certify that on December 2, 2016, I electronically filed the foregoing THE UNITED STATES OF AMERICA’S MOTION TO DISMISS MEDICAL MALPRACTICE CLAIM with the Clerk of Court using the CM/ECF system which will send notification of such filing(s) to the following: None and I hereby certify that on December 2, 2016, I also mailed by United States Postal Service, the document to the following non-registered participant: Raina Campbell 21348 W. Bobtail Rd. Thompsonville, IL 62890 s/ Nicholas J. Biersbach NICHOLAS J. BIERSBACH Assistant United States Attorney United States Attorney’s Office Nine Executive Drive Fairview Heights, IL 62208-1344 Phone: 618-628-3700 Fax: 618-622-3810 E-mail: Nicholas.Biersbach@usdoj.gov Case 3:16-cv-00464-SMY-SCW Document 6 Filed 12/02/16 Page 5 of 5 Page ID #30