The opinion of the court was delivered by: Michael M. Mihm, United States District Judge.
Before the Court is Defendant's Motion to Dismiss [#3]. For the following reasons, the motion is GRANTED in part and DENIED in part. Plaintiff has twenty-one days to amend her Complaint to include a supporting affidavit as required by 735 ILCS 5/2-622(a)(1). Defendant is excused from answering or otherwise pleading until twenty days after being served with Plaintiff's affidavit. 735 ILCS 5/2-622(a)(2); Fed.R.Civ.P. 12(a)(1)(A). Defendant's Motion for Leave to File Reply to Plaintiff's Response to Defendant's Motion to Dismiss [#6] is DENIED as moot.
This Court has original jurisdiction over this action by virtue of 36 U.S.C. § 300105(a)(5), which grants the American National Red Cross the power to "sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States." See Am. Nat'l Red Cross v. S.G., 505 U.S. 247, 248 (1992) (holding that the Charter provision confers "original jurisdiction on federal courts over all cases to which the Red Cross is a party").
On or about June 7, 2001, the American National Red Cross, Central Illinois Chapter (Red Cross) created a blood donor bank at Perry Memorial Hospital in Princeton, Illinois, for the purpose of procuring blood donations from the general public. (Compl. ¶¶ 2, 3.) On or about that same date, Plaintiff Esthela Baumann (Baumann) volunteered to donate blood. (Compl. ¶ 4.) Due to the alleged negligence of the agents, employees, and representatives of the Red Cross involved in drawing Baumann's blood, Baumann suffered injury to a nerve in the area of her right elbow. (Compl. ¶ 8.)
In March, 2003, Baumann filed a Complaint in the Illinois Circuit Court of Bureau County, alleging that the Red Cross was negligent for failing to warn her of the potential for injury involved in drawing blood, improperly injecting the blood-drawing device, and injuring her right median nerve. (Compl. ¶ 8.) The Red Cross subsequently removed the action to this Court.
On April 7, 2003, the Red Cross filed a Motion to Dismiss Baumann's Complaint. Baumann filed a Response on April 30, 2003. This Order follows.
The Red Cross argues that Baumann's Complaint should be dismissed because it is not supported by an affidavit as required by 735 ILCS 5/2-622. That statute provides:
In any action . . . in which the plaintiff seeks
damages for injuries or death by reason of medical,
hospital, or other healing art malpractice, the
plaintiff's attorney or the plaintiff . . . shall
filed an affidavit, attached to the original and all
copies of the complaint, declaring one of the
1. That the affiant has consulted and reviewed the
facts of the case with a health professional who the
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 confidence in
the subject of the case; that the reviewing health
professional has determined in a written report . . .
that there is a reasonable and meritorious cause for
the filing of such action; and that the affiant has
concluded on the basis of the reviewing health
professional's review and consultation that there is a
reasonable and meritorious cause for filing of such
735 ILCS 5/2-622(a)(1).
Baumann correctly admits that if section 2-622 would apply to this case in state court, then it also applies in this Court. (Resp. ¶ 7.) Baumann argues that the statute is inapplicable, however, because she has no information indicating that the allegedly negligent agents, representatives, and employees of the Red Cross were certified, qualified, or educated in the medical profession or any branch of the healing arts. (Resp. ¶¶ 4, 6.) The Red Cross asserts in its Memorandum in Support of its Motion to Dismiss that "[o]nly qualified and appropriately medically and technically trained personnel can perform blood draws" and that there is a "medical standard of care applicable to the manner in which blood draws are performed." (Mem. in Supp. of Mot. to Dismiss at 5.)
The focus of section 2-622, however, is not as much on the education, training, or certification of the defendant as it is on the nature of the claim itself. See Milos v. Hall, 757 N.E.2d 654, 657 (Ill. App. Ct. 2001) ("The nature of the act alleged should determine whether the activity constitutes healing art malpractice."); Cohen v. Smith, 648 N.E.2d 329, 334 (Ill.App.Ct. 1995) ("It is the nature of plaintiff's claim, not defendant's defense, that determines whether the provisions of section 2-622 are implicated."); Chadwick v. Al-Basha, 692 N.E.2d 390, 393 (Ill.App.Ct. 1998) ("The question of whether the plaintiff's complaint requires a section 2-622(a) affidavit is therefore answered by determining whether, after accepting the plaintiff's allegations are true, the damages the plaintiff seeks to recover were caused by the defendant's `malpractice.'"). Furthermore, "[t]he term `medical, hospital or other healing art malpractice' must be construed broadly." Woodard v. Krans, 600 N.E.2d 477, 486 (Ill.App.Ct. 1992).
The question before the Court is not a simple one. While there are a plethora of cases addressing the characterization of a claim by a blood transfusion recipient against the Red Cross for injuries received from contaminated blood,*fn1 the Court could find very few cases addressing a claim by a blood donor against the Red Cross for injuries received during the blood-drawing process. See McCartney v. Glaxo Smith Kline, 2002 WL 31145074 (E.D.Pa. 2002); Bentz v. Am. Red Cross, 1990 WL 94011 (E.D.Pa. 1990); Millton v. Am. Red Cross, 2001 WL 1153505 (9th Cir. 2001) (unpublished opinion). Without discussion, the courts in McCartney, Bentz, and Millton treated the plaintiffs' claims as ones ...