United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
H. Lefkow U.S. District Judge.
Delgado makes claims of medical malpractice against the
United States of America, Silver Cross Hospital and Medical
Centers, and Dr. Mazen M. Kawji. (Dkt. 29, Amended Complaint
(Amend. Compl.).) Before the court is the motion of Silver
Cross and Dr. Kawji (collectively, defendants) to dismiss
counts II and III of Delgado's amended complaint. (Dkt.
For the following reasons, counts II and III are dismissed
March 5, 2013, Patricia Delgado went into labor and was
admitted to Silver Cross Hospital. (Amend. Compl. ¶ 9.)
At that time, Delgado's regular physician, Dr. Jeffrey
Williams, D.O., was not available to deliver her baby.
(Id. ¶¶ 7, 10.) As such, she was placed
under the care of Dr. Cheryl Thompson-Cragwell, the on-duty
obstetrics and gynecology physician (OB/GYN), who managed the
delivery of Delgado's baby. (Id. ¶¶
were no complications during her pregnancy (id.
¶¶ 8, 13) but, after giving birth, Delgado suffered
from ongoing vaginal hemorrhaging, abdominal pain, and
cramping (id. ¶ 14). No effort was made by Dr.
Thompson-Cragwell, or anyone else at Silver Cross Hospital,
to stop or determine the source of the bleeding.
(Id. ¶ 16.) On March 7, 2013, Delgado was
discharged from the hospital. (Id. ¶ 15.)
condition worsened after being discharged such that on March
9, 2013, she was admitted to Silver Cross's Emergency
Department under the care of the attending physician.
(Id. ¶¶ 18-20.) Dr. Thompson-Cragwell was,
once again, the on-duty OB/GYN. (Id. ¶ 21.) Dr.
Thompson-Cragwell ordered a pelvic ultrasound, which revealed
that retained products of conception remained in
Delgado's uterus. (Id. ¶ 22.) Dr.
Thompson-Cragwell requested consultations from various
physicians and specialists, including Dr. Mazen M. Kawji, a
cardiologist. (Id. ¶¶ 4, 25.) For the next
thirteen days, Delgado received treatment for her excessive
bleeding as well as for developing heart and kidney
conditions. (Id. ¶ 27.) During that time (1)
Dr. Thompson-Cragwell performed a surgical procedure to
remove the retained products of conception (id.
¶ 28); (2) an on-duty nurse administered excessive doses
of Norco, a narcotic medication to Delgado (id.
¶ 29); (3) Dr. Thompson-Cragwell and Dr. Kawji
prescribed and administered Coreg to treat Delgado's
blood pressure, even though such medication was
contraindicated by her medical condition (id. ¶
30); (4) Dr. Kawji prescribed a beta-blocker, which was
contraindicated by her medical condition (id. ¶
32); and (5) Dr. Thompson-Cragwell prescribed and
administered Toradol, which was contraindicated by her
medical condition (id. ¶ 33). Delgado alleges
that as a result of these actions she “was exposed to
and/or developed and/or was treated for serious medical
conditions, including but not limited to E. coli, staph
infection, sepsis, Acute Tubular Necrosis, a permanent
condition of TTP-HUS, cardiomyopathy and congestive heart
failure, acute kidney injury, Disseminated Intra-vascular
Coagulation, liver failure, respiratory failure, hypotension,
septic shock, and renal damage.” (Id. ¶
attorney, separately from her complaint, filed an affidavit
required for medical malpractice claims brought under
Illinois law which, in relevant part, stated:
I have consulted and reviewed the facts of this case with a
physician and surgeon licensed to practice medicine in all of
its branches. This physician has been made aware of all the
pertinent medical records. I have been provided with a
physician's report indicating that there is a reasonable
and meritorious cause for the filing of this action. The
report of the reviewing healthcare professional is attached
to this Affidavit. Based upon the consultation and the
conclusions of the consulting physician, I believe there is a
reasonable and meritorious cause for the filing of this
(Dkt. 10 at 1.) Although the attorney's affidavit
references a single physician report, Delgado in fact
attached two physician reports to her amended complaint. One
of the reporting physicians is board certified in emergency
medicine (Amend. Compl. at 14 ¶ 1) and the other is
board certified in obstetrics and gynecology (id. at
16 ¶ 1). Other than their different board certifications
and States in which they hold their licenses, the reports
contain identical paragraphs setting forth each
I am a physician and surgeon licensed to practice medicine in
all of its branches . . . . I am familiar with the issues of
care and treatment herein. I devote 75% of my time in either
medical practice or in teaching the type of medicine at issue
herein. I have familiarity with the standard of care in the
State of Illinois on the matters at issue herein. I am
qualified by experience, education and training within the
standard of care, methods, procedures and treatments relevant
to the allegations at issue in this case, and I have
practiced and taught in this field within the past five
(Id. at 14 ¶ 1, 16 ¶ 1.)
contend that the amended complaint must be dismissed because
Delgado has failed to comply with section 2-622 of the
Illinois Code of Civil Procedure, 735 Ill. Comp. Stat.
5/2-622, as required for medical malpractice claims brought
under Illinois law. See Ortiz v. United States, No.
13 C 7626, 2014 WL 642426, at *3 (N.D. Ill. Feb. 19, 2014)
(noting that section 2-622 is a substantive requirement that
applies to medical malpractice claims brought in federal
2-622 requires a plaintiff asserting a medical malpractice
claim to attach to her complaint an affidavit by her
attorney, when represented, attesting that the affiant has
reviewed the facts of the case with an appropriately
qualified health professional who has determined in a written
report that there is “reasonable and meritorious
cause” for asserting the claim. 735 Ill. Comp. Stat.
5/2-622(a)(1). As applicable here, the reviewing health
professional must be a physician licensed to practice
medicine in all its branches. Id. A copy of the
physician's report must be attached to the attorney
affidavit and “clearly identify 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. Id. Both the attorney
affidavit and the physician report are required, and failure
to provide either results in dismissal. See Plummer v.
Welborn, No. 13 C 8253, 2016 WL 2937029, at *5 (N.D.
Ill. May 20, 2016) (granting a motion to dismiss where the
plaintiff filed a complaint with a physician report but
failed to include a separate attorney affidavit).
argue that the physician reports do not meet section
2-622's requirements because (1) the physicians are not
qualified to offer their opinions; (2) certain allegations of
negligence that appear within those counts should be stricken
because they are not supported in the reports; (3) the
reviewing physicians' reports regarding Silver Cross do
not set forth any facts that could form the basis of