Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jones v. Wexford Health Sources, Inc.

United States District Court, N.D. Illinois, Western Division

November 3, 2016

Bennie Jones, Plaintiff,
v.
Wexford Health Sources, Inc., et al., Defendants.

          ORDER

          Philip G. Reinhard, Judge

         For the reasons stated below, defendants' joint partial motion to dismiss [61] is granted in part and denied in part. Count IV is dismissed with prejudice. Count V is dismissed with respect to Nurse Lisa Minter, without prejudice to plaintiff filing an amended complaint within 28 days that includes an attached affidavit and report conforming with the requirements of section 2-622 as applied to Nurse Minter.

         STATEMENT-OPINION

         This matter arises out of plaintiff Bennie Jones's action against Wexford Health Sources, Inc., Dr. Bessie Dominguez, Dr. Catalino Bautista, and Nurse Lisa Minter regarding a wound on his leg that he alleges was improperly treated by the defendants. Plaintiff raises both section 1983 deliberate indifference and state law medical malpractice against each of the defendants.

         On June 24, 2016, defendants Wexford, Dr. Dominguez, and Dr. Bautista filed a joint partial motion to dismiss for failure to state a claim [61]. On August 17, 2016, defendant Nurse Minter filed a motion to join the motion to dismiss [78], which was granted. In their joint motion to dismiss, defendants seek to dismiss two claims from plaintiff's first amended complaint: Count IV, which asserts respondeat superior liability against Wexford, and Count V, which asserts medical malpractice against Wexford, Dr. Dominguez, Dr. Bautista, and Nurse Minter.

         On October 6, 2016, plaintiff filed a response to the motion to dismiss [89]. On October 21, 2016, Wexford, Dr. Dominguez, and Dr. Bautista filed a reply [91], as did Nurse Minter [92]. These matters are now ripe for the court's review.

         With regard to Count IV, respondeat superior, defendants point out and plaintiff tacitly admits that the Seventh Circuit has repeatedly and recently held that respondeat superior does not apply to private corporations, including Wexford, in section 1983 cases. See Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 796 (7th Cir. 2014); Chatham v. Davis, ____ F.3d____ 2016 WL 6072331, at *3 (7th Cir. Oct. 17, 2016). It is clear from plaintiff's briefing that the issue has been raised in order that it be preserved for appeal. As such, defendants' motion to dismiss with respect to Count IV is granted.

         With regard to Count V, state law medical malpractice, defendants argue that plaintiff has not satisfied the requirements set forth in 735 ILCS 5/2-622, which requires that all medical malpractice claims be supported by an affidavit stating that the filer has consulted with a healthcare professional; the affidavit must show:

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.
. . . .
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.

735 ILCS 5/2-622(a)(1). Further, “[w]here a certificate and written report are required pursuant to this Section a separate certificate and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.” 735 ILCS 5/2-622(b). As the Seventh Circuit has repeatedly held, federal litigants in Illinois are required to comply with section 5/2-622 when bringing a medical malpractice claim. See Ramirez v. Fahim, F. App'x. 2016 WL 3081095 (Mem) (7th Cir. June 1, 2016) (citing Hahn v. Walsh, 762 F.3d 617, 628-33 (7th Cir. 2014).

         Here, there is no dispute that plaintiff attached the required 2-622 affidavit and physician's report to his amended complaint to support the medical malpractice claims in Count V. Defendants also do not attack the qualifications of the report at this time. However, defendants challenge the sufficiency of the content of the physician's report, which, after describing the author's credentials, states as follows:

I have reviewed all available medical records on [the plaintiff, Mr. Jones]. In my opinion, to a reasonable degree of medical certainty, the care and treatment that Mr. Jones received from November 17 2014 to August 17 2015 by Nurse Minter, Dr. Bautista, Dr. Dominguez, and Wexford Health Sources Inc. deviated from the accepted medical standard. It is also my opinion that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.