United States District Court, S.D. Illinois
August 19, 2005.
MICHAEL SALSMAN, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: MICHAEL J. REAGAN McCUSKEY, District Judge
Now before the Court is Defendant United States of America's
motion to dismiss Plaintiff Michael Salsman's third amended
complaint (Doc. 53) and memorandum in support (Doc. 57). Salsman
brought this suit pursuant to the Federal Tort Claims Act,
28 U.S.C. 1346(b), 2671-2680, alleging that the United States was
negligent in treating a sinus infection which caused blindness to
Salsman's right eye while he was a federal inmate at the Federal
Correctional Institution (hereinafter "FCI") in Greenville,
Illinois, in 1999. The United States argues that Salsman's third
amended complaint should be dismissed as: (1) Salsman failed to
exhaust his administrative remedies; (2) Salsman failed to file
the requisite medical professional affidavit stating that the
case has merit; (3) Salsman failed to timely serve the United
States without good cause or excusable neglect; and (4) this
Court lacks subject matter jurisdiction. Salsman responded in
opposition at Doc. 58, to which the United States replied at Doc.
59. The Court will begin its analysis with a brief recitation of
the key facts and procedural history.
Factual Background and Procedural History
Salsman was an inmate at the FCI in Greenville, Illinois, in
December 1999. In early December 1999, Salsman became ill with a sinus infection and his
symptoms grew increasingly worse over the month. Salsman alleges
that during this time, the United States Bureau of Prisons
(hereinafter "BOP") continually denied him medical treatment
which caused his symptoms to become progressively worse. As the
infection progressed, Salsman states that it began to affect his
right eye. Salsman further states that he was periodically
treated and monitored by physicians to determine whether his eye
showed any improvement.
On December 20, 1999, Salsman was transferred to St. Louis
University Hospital where he underwent surgery to relieve his
symptoms. Salsman had sustained severe damage to his optical
nerve resulting in blindness to his right eye. He was discharged
from St. Louis University Hospital on December 25, 1999, and sent
back to FCI. Salsman had a follow-up visit with a physician on
December 29, 1999 where he learned that the injury to his right
eye was irreversible and that the would never regain sight in his
right eye. Salsman alleges it was at this follow-up visit that he
became aware of the nature and extent of his injury when he
learned that his blindness in his right eye was irreversible.
Salsman alleges that while at St. Louis University Hospital he
was not aware of the permanent nature of his injury.
Salsman then filed an administrative claim for personal injury
on December 20, 2001 through his attorney who signed a Standard
Form 95 on December 20, 2001 and sent it to the BOP by facsimile
that same day. See Doc. 51, Exh. A and B. Salsman was notified
on January 3, 2002 that his Standard Form 95 was incomplete as it
did not have either an original signature by Salsman or evidence
that Salsman's attorney, whose signature was on the form, had
authorization to act on Salsman's behalf. As a result, Salsman
resubmitted the claim with the proper signatures, which was
received by the BOP on January 17, 2002. The BOP later denied it
on August 29, 2002. Salsman then filed his original complaint in
this Court on February 23, 2003. Salsman later amended his complaints three times, resulting in the current-operating third
amended complaint (Doc. 51).
Thereafter, the United States brought its motion to dismiss
arguing that this matter should be dismissed as: (1) Salsman
failed to timely file an administrative claim with the BOP
pursuant to 28 U.S.C. 2401(b); (2) Salsman failed to file the
requisite affidavit and report from a medical professional
indicating that the case has merit pursuant to
735 ILCS 5/2-622; (3) Salsman failed to serve the United States within
120 days of filing the complaint pursuant to FEDERAL RULE OF
CIVIL PROCEDURE 4(m) and cannot show good cause or excusable
neglect for his failure to do so; and (4) this Court has no
jurisdiction over this matter pursuant to 28 U.S.C. 1331 in a
suit against the United States. The Court will address each
argument in turn.
Standard Governing a Motion to Dismiss
The purpose of a motion to dismiss under FEDERAL RULE OF CIVIL
PROCEDURE 12(b)(6) is to "test the sufficiency of the complaint,
not to decide the merits" of the case. Triad Associates, Inc. v.
Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). When
deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court
accepts as true all well-pled factual allegations and resolves in
the plaintiff's favor all reasonable inferences. Echevarria v.
Chicago Title & Trust Co., 256 F.3d 623, 625 (7th Cir. 2001),
citing Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023
(7th Cir. 2001).
Dismissal for failure to state a claim is proper only if the
plaintiff can prove no set of facts in support of his claims
which would entitle him to relief. Alper v. Altheimer & Gray,
257 F.3d 680, 684 (7th Cir. 2001), citing Conley v. Gibson,
355 U.S. 41, 45-46 (1957), and Veazey v. Communications &
Cable of Chicago, Inc., 194 F.3d 850, 854 (7th Cir. 1999).
Accord Galdikas v. Fagan, 342 F.3d 684, 686 (7th Cir. 2003)
("Dismissal is proper if it appears beyond doubt that the plaintiffs cannot prove any set of facts entitling them
1. Whether Salsman failed to timely exhaust his administrative
The United States argues that Salsman failed to exhaust his
administrative remedies as he filed a claim with the BOP more
than two years after his cause of action accrued. "A tort claim
against the United States shall be forever barred unless it is
presented . . . within two years after such claim accrues."
28 U.S.C. 2401(b). If Salsman failed to file a proper
administrative claim within two years of the accrual of the cause
of action, the district court cannot entertain the plaintiff's
FTCA suit. Sullivan v. United States, 21 F.3d 198, 206 (7th
Cir. 1994). The United States Court of Appeals for the Seventh
Circuit has determined that to constitute a claim under the FTCA,
the claim must include four things: (1) notification of the
incident; (2) a demand for a certain sum; (3) the title or
capacity of the person signing; and (4) evidence of this person's
authority to represent the claimant. Kanar v. United States,
118 F.3d 527, 528 (7th Cir. 1997).
The United States argues that as Salsman's Standard Form 95
that was received on December 20, 2001 did not include evidence
of his attorney's authority to file the claim on Salsman's
behalf, nor Salsman's own signature, it violated the fourth
requirement of the Seventh Circuit's test for a claim.
Accordingly, the United States argues that Salsman's second claim
that was received by the BOP on January 17, 2002 is the one that
matters for purposes of the statute of limitations, and it was
filed beyond the two year statute of limitation, irregardless of
whether Salsman's cause of action accrual date is December 20,
1999 or December 29, 1999.
In response, Salsman argues that his December 20, 2001 Standard
Form 95 gave notice of his claims and demanded a certain amount
of relief, sufficient enough to satisfy his administrative
remedies. Salsman cites to the Seventh Circuit's decision in
Kanar, 118 F.3d 527 (7th Cir. 1984). In that matter, the FTCA plaintiff's suit was
dismissed for failure to exhaust administrative remedies as the
claim he filed did not have the proper signature, and upon being
notified that the proper signature was needed, the plaintiff took
nine months to comply. Id. at 531. The Seventh Circuit stated
that if the plaintiff had "promptly submitted what the agency
called for, we would be inclined to treat his original papers as
close enough to a `claim' to count." Id. As a result, Salsman
argues that because he promptly responded to the request for the
requisite signature, his original claim should be treated as
"close enough" to a claim to count. This Court agrees.
The Seventh Circuit's opinion in Kanar clearly dictates that
this Court should find that Salsman's December 20, 2001 Standard
Form 95 is a proper administrative claim. Salsman was notified on
January 3, 2002 that his Standard Form 95 was incomplete because
it did not have either an original signature by Salsman or
evidence that Salsman's attorney had authorization to act on
Salsman's behalf. Salsman promptly resubmitted the form with the
proper signatures, which was received by the BOP on January 17,
2002. Thus, only two weeks transpired from the time that Salsman
was notified of the error to the time that the BOP received the
corrected version. Therefore, the case at bar is clearly the type
of scenario the Seventh Circuit envisioned in Kanar. Salsman
acted quickly to rectify the omission from his form and the
omission turned out to be a harmless error as the agency was able
to proceed on his claim. Therefore, the Court finds that
Salsman's December 20, 2001 claim constitutes as a proper
As the Court has found that Salsman's December 20, 2001 claim
constitutes a proper administrative claim, the Court now must
decide when Salsman's cause of action accrued in order to
determine whether Salsman filed his administrative claim within
the two-year statute of limitation period. Salsman argues that
his Standard Form 95 was timely as his claim accrued on or after
December 29, 1999 when Salsman was first informed by medical
officials of the nature and extent of his injuries. It is unclear from the United States' pleadings
as to what date they allege Salsman's claim accrued on.
Regardless, the Court finds that his claim accrued no earlier
than on December 20, 1999, the date of his surgery at St. Louis
This Court finds the Seventh Circuit's decision in Green v.
United States, 765 F.2d 105 (7th Cir. 1985) controlling on the
case at bar. In Green, the plaintiff had been receiving
radiation therapy at VA hospitals for oral cancer. Id. at
108-09. One day after having completed treatment at the VA
hospitals, the plaintiff was admitted to Cook County Hospital
hemorrhaging from the mouth, and underwent several operations.
Id. He was released in July 1980 and then admitted to the
hospital again in August 1980, where he underwent another five
surgical procedures and was diagnosed with osteoradionecrosis,
death of bone tissue resulting from excessive exposure to x-rays
or radium, caused by his radiation therapy. Id. The Seventh
Circuit found that the plaintiff's FTCA claim accrued when he was
told that his injuries were caused by his radiation therapy.
Id. at 108. Further, the Seventh Circuit stated that in
failure to treat cases, "the injury is not the mere undetected
existence of the medical problem, but rather, is `the development
of the problem into a more serious condition which poses greater
danger to the patient or which requires more extensive
treatment." Id. at 108-09.
Applying the Seventh Circuit's standard to Salsman's
allegations of the BOP's failure to treat his complaints, the
Court finds that Salsman's cause of action for purposes of
28 U.S.C. 2401(b) did not accrue any earlier than December 20,
1999, when Salsman underwent surgery for his condition, and even
more likely so, did not accrue until he had a follow-up visit
with his physician on December 29, 1999. It was not until
December 29, 1999 that Salsman knew of the extent of his injury
and its probable cause. Regardless, as Salsman filed his claim on
December 20, 2001, he filed his administrative claim within two years of the
earliest possible accrual date and within the statute of
limitations for FTCA claims.
2. Whether Salsman failed to file the requisite affidavit and
report from a medical professional indicating that the case has
merit pursuant to 735 ILCS 5/2-622.
The United States argues in the alternative that Salsman's suit
should be dismissed for failure to comply with
735 ILCS 5/2-622. Section 2-622 provides, in part, "[i]n any action,
whether in tort, contract, or otherwise, in which plaintiff seeks
damages for injuries or death by reason of medical malpractice,
hospital, or other healing art malpractice . . . [the plaintiff]
shall file an affidavit" from a medical professional indicating
that the case has merit. Failure to file an affidavit pursuant to
Section 2-622 is cause for dismissal under 735 ILCS 5/2-619
pursuant to 735 ILCS 5/2-622. Salsman argues in response that:
(1) Section 2-622 is not applicable to the case at bar as his
claim is not a medical malpractice claim, but a failure to treat
claim, which is sounded in ordinary negligence, and (2) Section
2-622 is a state procedural rule and is inapplicable in federal
cases involving medical malpractice. The Court will first address
Salsman's second argument.
FTCA claims are governed by the substantive law of the state in
which the alleged tort occurred. See 27 U.S.C. 1346(b), 2674;
see also Murrey v. United States, 73 F.3d 1448, 1453 (7th Cir.
1996). Thus, the Court must decide whether Section 2-622's
filing requirement is a substantive law of Illinois, where
Salsman pleads his alleged tort occurred.
While the United States Court of Appeals for the Seventh
Circuit has not directly decided the issue with regard to actions
arising under federal question, the Seventh Circuit has
implicitly held that Section 2-622's requirement does apply to
actions brought in federal court under diversity jurisdiction.
See Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000)
(applying 2-622 filing requirement in medical malpractice claim
brought under diversity jurisdiction). Importantly, in both diversity cases and FTCA cases, state
substantive law is applied while federal procedural law is
applied. Therefore, for diversity cases, the Section 2-622
requirement must be considered substantive law. And as FTCA cases
and diversity cases use the same rule, it seems likely that the
Seventh Circuit would find that Section 2-622's filing
requirement is applicable to FTCA actions as well.
Further, the Court notes that the Seventh Circuit has stated
that when "a rule [is] limited to a particular area of law and
motivated by concerns about the potential impact on primary
behavior of making it too easy for plaintiffs to win a particular
case," then the rule is "almost certainly" substantive law.
Murrey, 73 F.3d at 1456. Section 2-662's filing requirement
is limited solely to medical malpractice matters and is intended
to minimize frivolous malpractice suits by requiring a showing
that "there is a meritorious cause for the filing of such
action." Sherrod, 223 F.3d at 613. Accordingly, the Court
finds that Section 2-622's filing requirement is an Illinois
The next issue for the Court to decide is whether Section
2-662's filing requirement is applicable to the case at bar as
Salsman asserts this matter is not a medical malpractice action.
Instead, Salsman asserts that he simply alleges ordinary
negligence. However, the Court disagrees and finds that Salsman's
claims are medical malpractice claims.
When deciding whether a complaint is one for malpractice
requiring a Section 2-622 affidavit or, is one for ordinary
negligence, courts apply the following factors: (1) whether the
standard of care involves procedures not within the grasp of the
ordinary lay juror; (2) whether the activity is inherently one of
medical judgment; and (3) the type of evidence that will be
necessary to establish the plaintiff's case. Jackson v. Chicago
Classic Janitorial & Cleaning Service, Inc., 823 N.E.2d 1055,
1058 (Ill.App.Ct. 2005). Courts are to keep in mind that the
term "medical, hospital or other healing art malpractice" in Section 2-622 must
be construed broadly. Id., citing Woodard v. Krans.,
234 Ill.App.3d 690, 703 (1992). As well, "malpractice" is defined as
"[f]ailure of one rendering professional services to exercise
that degree of skill and learning commonly applied under all the
circumstances in the community by the average prudent reputable
member of the profession with the result of injury to the
recipient of those services." Id. at 1059.
As to the first factor, "where determining the standard of care
requires applying distinctively medical knowledge or principles,
however basic, the plaintiff must comply with section 2-622."
Id., citing Woodard, 234 Ill.App.3d at 705-06. In the case at
bar, the Court cannot overlook that in Salsman's complaint
Salsman specifically pleads that "Defendant United States of
America . . . was negligent in the diagnosis and treatment of
Plaintiff's illness." Doc. 51, p. 3 (emphasis added). Salsman
puts his diagnosis at issue, which directly involves the
substance of his medical treatment which the Court finds is not
something usually within the grasp of the average lay juror,
suggesting that this matter is a medical malpractice action.
Likewise, the second factor of whether the activity is one of
medical judgment, also implicates that this is a medical
malpractice matter. Salsman is claiming that there was negligence
in failing to treat his infection and in the diagnosis of his
infection, which this Court believes inherently involves medical
judgment. In Lyon v. Hasbro Industries, 509 N.E.2d 702
(Ill.App. Ct. 1987), the Illinois Appellate Court for the Fourth
District found that the determination of what equipment is
necessary and precautionary to meet the needs of transporting a
child to a hospital in an ambulance is one of inherently medical
judgment. Id. at 708. Comparing the Lyon case to the case
at bar, Lyon merely involved the transportation of a patient
while this case involves the diagnosis of Salsman's infection,
such that the Court does not see how it cannot find that
Salsman's claims involve medical judgment so that this matter is a medical
malpractice case. Diagnosing a patient is inherently a function
of a person's medical judgment.
The third factor involves the evidence that will be necessary
to establish the standard of care. "Generally, in a medical
malpractice case, [a] plaintiff must offer expert testimony to
establish the standard of care unless defendant's conduct is so
grossly negligent or the treatment so common that a lay person
could readily understand it." Kolanowski v. Illinois Valley
Community Hospital, 544 N.E.2d 821, 824 (Ill.App.Ct. 1987).
However, if the standard may be established on the basis of
defendant's administrative policies or other evidence short of
medical expert testimony, plaintiff will be permitted to proceed
with his suit on a theory of ordinary negligence. Id. at 824.
In the Kolanowski case, the court gave an example of an
action based on a slip and fall injury allegedly resulting from
the defendant hospital's negligent failure to remove or warn of
water on the floor. The court found that action was one of
ordinary premises liability rather than medical malpractice.
Id. In the case at bar, Salsman's allegations concern the
manner in which the United States originally diagnosed and failed
to treat his infection. Accordingly, the Court finds that it is
likely that the evidence necessary to prove the allegations of
the complaint is "beyond the ken of the average juror and as such
will require expert testimony." Jackson, 823 N.E.2d at 1060.
After reviewing the facts of this case and the factors applied
by courts to determine whether a matter involves ordinary
negligence or medical malpractice under Illinois law, the Court
finds that Salsman's allegations fall within the term
"malpractice" and Section 2-622. Therefore, it was necessary for
Salsman to provide a physician's affidavit stating that a
meritorious cause of action existed under the facts of this case.
Under Illinois law, if Section 2-622's filing requirement has
not been satisfied, dismissal is mandatory, but courts have discretion to dismiss
with or without leave to amend. Sherrod, 223 F.3d at 613. In
the case at bar, Salsman originally filed his complaint on
February 28, 2003 without the Section 2-622 affidavit. He was
then granted leave to amend his complaint and filed an amended
complaint on May 18, 2004, again without the Section 2-622
affidavit. The United States then filed a motion to dismiss the
amended complaint on June 1, 2004, arguing, among other things,
that Salsman failed to file the requisite affidavit pursuant to
Section 2-622. Salsman then moved for leave to file a second
amended complaint to cure the deficiencies raised in the United
States' June 1, 2005 motion to dismiss, and was granted leave to
do so. Salsman filed his second amended complaint on November 14,
2004, again without the Section 2-622 affidavit. Before the
United States could answer or otherwise respond to the second
amended complaint, this Court set an in-court status conference
in this matter for December 13, 2004 as trial was set to begin on
December 6, 2004, and the second amended complaint was just filed
two weeks before the trial date.
At the status conference, the United States raised several
deficiencies that still existed in the second amended complaint,
including the lack of a Section 2-622 affidavit. Salsman's
counsel advised the Court that he would file a third amended
complaint to cure the deficiencies. Accordingly, the Court
directed Salsman to file a third amended complaint, which he did
on January 5, 2005, however, again, without the Section 2-622
affidavit. As Salsman has had four chances to file a complaint
that complies with Section 2-622 and was aware if the United
States' objection to the lack of a Section 2-622 affidavit since
June 1, 2004, the Court finds that leave to amend is not
warranted in this matter. Accordingly, the Court exercises its
discretion to dismiss this matter without prejudice for failure
to comply with Section 2-622. As the Court is dismissing this
matter without prejudice for failure to comply with Section
2-622, the Court need not address the United States' remaining
arguments in support of dismissal. Conclusion
The Court hereby GRANTS Defendant United States of America's
motion to dismiss Plaintiff Michael Salsman's third amended
complaint (Doc. 53). The Court hereby DISMISSES without
prejudice this matter. This case is now CLOSED.
IT IS SO ORDERED.
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