The opinion of the court was delivered by: Gilbert, District Judge
This matter comes before the Court on defendant Union County Hospital District's Motion to Dismiss Count III of Plaintiff's Complaint (Doc. 11), to which Merritt has responded (Doc. 20) and Union County Hospital District ("UCHD") has replied (Doc. 22). For the following reasons this motion will be DENIED.
Merritt filed this action against various defendants alleging medical negligence relating to the treatment of an injury he sustained to his eye on March 22, 2003. Soon after he was injured, Merritt presented himself to the Community Health and Emergency Services, Inc., in Cairo, Illinois. While at that facility Merritt was examined by Dr. Jean Charlot. After the examination, Dr. Charlot apparently referred him to an opthamologist in Carbondale, Dr. Michaelis Jackson. When he showed up at Dr. Jackson's office, it was already closed. Being unfamiliar with the Carbondale area, Merritt started to make the trip back home instead of going to some other doctor or hospital in Carbondale. On his way home, Merritt stopped at the Union County Hospital ("UCH") in Anna, Illinois, where he allegedly received negligent care from a physician there, Dr. William Ribbing. Merritt alleges that Ribbing, an agent of UCH acting in the scope of that relationship, deviated from the applicable standard of care in one or more of the following ways:
a. That he failed to acquire a complete history, and did not acquire a history of the prior care received by the Plaintiff from Dr. Charlot and did not acquire the records or the contents of those records, or attempt to do so, from Dr. Charlot or from the patient; and/or
b. That he failed to recognize the significance of the history which he did acquire; and/or
c. That he failed to order appropriate diagnostic procedures including the failure to an [sic] order an x-ray or CT scan; and/or
d. That he made an improper diagnosis, and as a result thereof he provided negligent care, including negligent instructions;
(Complaint, 11 at ¶ 18). In its motion to dismiss, the UCHD claims it has immunity from all the acts of negligence alleged against it under the Local Government and Governmental Employees Tort Immunity Act, 745 ILCS §§ 10/6-105 & 10/6-106.
UCHD prays for dismissal of Count III under Federal Rule of Civil Procedure 12(b)(6) because of its alleged entitlement to immunity under the Tort Immunity Act. The immunities provided under the Act operate as affirmative defenses. Michigan Ave. Nat. Bank v. County of Cook, 732 N.E.2d 528, 535 (Ill. 2000). UCHD's choice of a 12(b)(6) motion to address this issue is problematic because "[a]ffirmative defenses do not justify dismissal under Rule 12(b)(6) [inasmuch as] litigants need not try to plead around defenses." Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003) (citing Gomez v. Toledo, 446 U.S. 635 (1980)); Deckard v. General Motors Corp., 307 F.3d 556, 560 (7th Cir. 2002). Put another way, the existence of an affirmative defense "does not undercut the adequacy of the claim." Deckard, 307 F.3d at 560. There is an exception to this general rule, however, in cases where the existence of a defense is so obvious from the face of the complaint that the claim can be dismissed as frivolous. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002) ("Thus a personal-injury suit filed 100 years after the date of the injury as stated in the complaint would be frivolous, even though expiration of the time within which to sue is an affirmative defense."). With this framework in mind, the Court will address UCHD's specific arguments.
A. Immunity Under 745 ILCS § 10/6-105
UCHD argues that it is immune from the allegations of negligence in paragraph 18(a) and (c) under 745 ILCS § 10/6-105. Section 10/6-105 provides that:
Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others. 745 ILCS §10/6-105. UCHD claims the allegations in (a) and (c) clearly address Ribbing's failure to perform an examination or failure to perform an examination properly, and as such, that they fall directly within the protection of § 10/6-105. Merritt does not dispute UCHD's status as a "local public entity" as that term is defined in the Tort immunity Act. See 745 ILCS § 10/1-206. However, he argues that a liberal construction of the allegation in paragraph 18(a) discloses that it does not deal only with examination, but with treatment as well. Merritt concedes that UCHD is immune from liability predicated on the allegations in 18(c) (Doc. 21, at 3) ("With the exception of Paragraph 18(c), (applicable to defendants other than the Hospital District) Plaintiff's allegations do not fall within the general rule of section 6-105, but within the scope of 6-106(d)."). In urging the Court to construe all the allegations in paragraph 18 liberally, Merritt cites to the Illinois Code of Civil Procedure and cases discussing the Code. Though the sentiment may be correct, this is federal court and federal procedural rules govern.
UCHD devotes little argument on the immunity issue regarding sections (a) and (c) of paragraph 18. Basically, UCHD's entire argument on this point is the following: "Obtaining a medical history, obtaining medical records, and ordering diagnostic tests are all connected with and part of the examination of a patient." It is beyond dispute that these three omissions would go to the adequacy of the examination conducted by Ribbing. What UCHD does not address however, is the next sentence in § 10/6-105, which continues, "for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others." 745 ILCS § 10/6-105. ...