The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter is before the Court on Defendant Cullinan's Motion to Dismiss Count II of Plaintiff's Amended Complaint (d/e 27), Defendant HPL's Motion to Dismiss Plaintiff's Amended Complaint (d/e 33), and Plaintiff Steven Fosnock's Motion for Leave to File His Second Amended Complaint (d/e 31). For the reasons set forth below, Cullinan's Motion to Dismiss Count II of Plaintiff's Amended Complaint is denied as moot, HPL's Motion to Dismiss is allowed in part and denied in part, and Fosnock's Motion for Leave to File His Second Amended Complaint is denied.
Plaintiff Steven Fosnock's two-count Amended Complaint (d/e 21) alleges 42 U.S.C. § 1983 claims (Count I) and negligence claims (Count II) against a variety of Defendants in connection with a heart attack that Fosnock suffered on September 21, 2008, while incarcerated in the Macoupin County, Illinois Jail. For purposes of this Motion, the Court must accept as true all well-pleaded factual allegations contained in the Amended Complaint and draw all inferences in the light most favorable to Plaintiff Fosnock. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). Thus, the following facts are taken from the allegations of the Amended Complaint.
Fosnock was arrested on September 17, 2008. At that time, Fosnock and his wife Christine advised "Macoupin County, Macoupin County Sheriff's Department, Macoupin County Sheriff Don Albrecht, Jail Superintendent Russell Alexander, Correctional Officer Joe Goodman, and Defendant Health Professionals Limited, by and through Nurse Jane Doe and Dr. Cullinan" that Fosnock "was suffering from a severe congestive heart condition that required constant monitoring, multiple medications twice per day and a breathing (CPAP) machine with an oxygen concentration for breathing while sleeping, all of which had been prescribed by Plaintiff's treating physician." Amended Complaint, ¶ 10 (emphasis omitted). Christine Fosnock provided Defendants with all of Fosnock's medications at the time of his arrest, along with instructions for administering the medications and the CPAP machine.
Fosnock alleges that, from the time of his arrest on September 17, 2008, until September 21, 2008, Defendants "willfully and wantonly deprived Plaintiff of his required medications, including withholding Plaintiff's heart medication, and willfully and wantonly refused to allow Plaintiff to use the required CPAP machine." Amended Complaint, ¶ 12. According to Fosnock, "as a direct and proximate result of Defendants' willful and wanton conduct, Plaintiff suffered a severe heart attack on September 21, 2008 while in the custody and care of Defendants." Id., ¶ 13.
Fosnock filed his initial Complaint (d/e 1) in this matter on September 17, 2009. Under Illinois law, 735 ILCS 5/2-622(a), a plaintiff seeking damages for injuries resulting from medical malpractice must attach an Affidavit, falling into one of three specifically identified categories, to his complaint.*fn1 Fosnock's original Complaint did not contain a § 622 Affidavit. On November 12, 2009, Defendant Cullinan moved to dismiss Count II for failure to comply with § 622. In response, Fosnock filed his Amended Complaint. The Amended Complaint contained an Affidavit dated November 18, 2009, by Plaintiff's counsel Van-Lear Eckert. Eckert averred that the statute of limitations expired in this matter on or about September 21, 2009. Eckert further averred that he "was unable to obtain a report of a qualified physician in the format required by the applicable provisions of 735 ILCS 5/2-622 before the expiration of the statute of limitations." Amended Complaint, p. 12, Affidavit of Van-Lear Eckert, ¶ 4. Eckert asserted that "[c]ertification and a written report will be filed within 90 days after the filing of this complaint." Id., ¶ 5.
Defendant Cullinan then filed his instant Motion to Dismiss, asserting that, to the extent Count II is directed at Defendant Cullinan, it should be dismissed for failure to comply with § 622. Defendant Health Professionals Limited (HPL) has also filed a Motion to Dismiss the Amended Complaint, asking the Court to dismiss Count II, for failure to comply with § 622, and any claim against it in Count I that is based on a respondeat superior or vicarious liability theory. Also pending is Fosnock's Motion for Leave to File his Second Amended Complaint. According to Fosnock, the proffered Second Amended Complaint cures any alleged defects. The proffered Second Amended Complaint contains an Affidavit by Van-Lear Eckert, dated December 11, 2009 and a report by Lawrence Baraduci, M.D., dated December 8, 2009.
The resolution of the pending Motions depends in large part on an application of 735 ILCS 5/2-622(a). As set forth in footnote 1, supra, after this suit was filed, the Illinois Supreme Court held unconstitutional Public Act 94-677, which amended § 622. In relevant part, the applicable version of § 622(a) requires an affidavit declaring one of the following:
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 competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action 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 action. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit, but information which would identify the reviewing health professional may be deleted from the copy so attached.
2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the affidavit and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. No additional 90-day extensions pursuant to this paragraph shall be granted, except where there has been a withdrawal of the plaintiff's counsel.
The defendant shall be excused from answering or otherwise pleading until 30 days after being served with an affidavit and a report required by paragraph 1. 735 ILCS 5/2-622(a) in the Historical and Statutory Notes to P.A. 94-677, Art. 3, § 330. With these ...