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David Gevas v. Terry Mccann

April 30, 2013

DAVID GEVAS
v.
TERRY MCCANN, ET AL.



Name of Assigned Judge or Magistrate Judge Ronald A. Guzman Sitting Judge if Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons set forth in this order, the Court denies without prejudice plaintiff's motion for leave to file a fourth amended complaint [285] and gives plaintiff until May 20, 2013 to file an amended complaint that complies with 735 Ill. Comp. Stat. § 5/2-622.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

In September 2012, the Seventh Circuit remanded this case for a trial on plaintiff's 42 U.S.C. § 1983 claims against Drs. Selmer and Mitchell for their alleged failure to give him necessary dental care. On March 20, 2013, plaintiff filed a motion to amend his complaint to assert a medical negligence claim against defendants. Federal Rule of Civil Procedure 15 states that "the court should freely give leave [to amend] when justice so requires." But the Court has discretion to deny leave if, among other things, the amendment would be unduly prejudicial to defendants or futile. See Johnson v. Cypress Hill, 641 F.3d 867, 872 (7th Cir. 2011).

Defendants argue that the proposed amendment would be futile because plaintiff has not complied with the Illinois statute governing malpractice claims. That statute requires plaintiff's counsel to submit an affidavit with the complaint declaring one of the following:

That [he] has consulted and reviewed the facts of the case with a health professional who . . .

(i) is knowledgeable in the relevant issues . . . ; (ii) practices . . . in the [relevant] area . . . ; 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 . . . 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 . . . health professional's review . . . that there is a reasonable and meritorious cause for filing of such action. . . . 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.

That a request has been made by the plaintiff or his attorney for examination and copying of records . . . and the party required to comply . . . has failed to produce such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. . . .

735 Ill. Comp. Stat. 5/2-622(a)(1), (3). Moreover, the statute says that "failure to file a certificate required by this Section shall be grounds for dismissal." 735 Ill. Comp. Stat. 5/2-622(g). Plaintiff argues that this requirement is a procedural rule, not a substantive one, and thus the Court is not required to follow it.

The Seventh Circuit's decision in Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000) suggests the opposite. In that case, the district court dismissed a malpractice suit with prejudice because plaintiff had not submitted a separate certificate of merit as to each defendant as § 5/2-622 requires. Id. at 613-14. The Sherrod court acknowledged that "dismissal is mandatory" for violations of § 5/2-622 but said the dismissal should have been without prejudice and directed the lower court to allow Sherrod to amend his complaint to comply with the statute. Id.

Sherrod does not say that ยง 5/2-622 is a substantive state law that federal courts must apply, see Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938), ...


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