United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District
pending before the Court is the Motion to Dismiss filed by
Defendants John Coe and Wexford on August 31, 2016 (Doc. 46).
For the reasons set forth below, the Motion is granted in
part and denied in part.
Shaquille Diggins, an inmate housed at Shawnee Correctional
Center, is proceeding on a number of claims, including three
state law claims for intentional infliction of emotional
distress (Count 4), assault and battery (Count 5), and
negligence (Count 6). Diggins alleges these claims against
Dr. John Coe, Wexford, and the Wexford Doe
Defendants based on an allegedly painful and
humiliating rectal cavity search performed by Defendant Dr.
John Coe. Diggins claims that the search was conducted
without his consent or any penological justification and was
only performed to humiliate and punish him. Defendants argue,
briefly, that these claims require an affidavit as required
by Illinois' Healing Art Malpractice Act.
Illinois law, a plaintiff “[i]n any action, whether in
tort, contract or otherwise, in which the plaintiff seeks
damages for injuries or death by reason of medical, hospital,
or other healing art malpractice, ” must file an
affidavit along with the complaint, declaring one of the
following: (1) that the affiant has consulted and reviewed
the facts of the case with a qualified health professional
who has reviewed the claim and made a written report that the
claim is reasonable and meritorious (and the written report
must be attached to the affidavit); (2) that the affiant was
unable to obtain such a consultation before the expiration of
the statute of limitations, and affiant has not previously
voluntarily dismissed an action based on the same claim (and
in this case, the required written report shall be filed
within 90 days after the filing of the complaint); or (3)
that the plaintiff has made a request for records but the
respondent has not complied within 60 days of receipt of the
request (and in this case the written report shall be filed
within 90 days of receipt of the records). See 735
Ill.Comp.Stat. § 5/2-622(a) (as amended by P.A. 97-1145,
effective January 18, 2013) (hereinafter “§
5/2-622”). A separate affidavit and report should be
filed as to each defendant. See 735 Ill.Comp.Stat.
to file the required affidavit is grounds for dismissal of
the claim. See 735 Ill.Comp.Stat. § 5/2-622(g);
Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.
2000). However, whether such dismissal should be with or
without prejudice is up to the sound discretion of the court.
Sherrod, 223 F.3d at 614. “Illinois courts
have held that when a plaintiff fails to attach a certificate
and report, then ‘a sound exercise of discretion
mandates that [the plaintiff] be at least afforded an
opportunity to amend her complaint to comply with section
2-622 before her action is dismissed with
prejudice.'” Id.; see also Chapman v.
Chandra, No. 06-cv-651-MJR, 2007 WL 1655799, at *4-5
(S.D. Ill. 2007).
case, Defendants argue that, regardless of the labels
assigned to Counts 4 through 6, Diggins is asserting medical
negligence claims that require an affidavit. Because Diggins
has not filed an affidavit in support of his amended
complaint as to any Defendant, his claims should be
Court disagrees with Defendants as to Counts 4 and 5. Not
every act committed by a physician implicates the statute and
triggers the affidavit requirement. See Cohen v.
Smith, 648 N.E.2d 329, 333-334 (Ill.App.Ct. 1995)
(“The fact that the defendants attempt to shield
themselves from the plaintiffs' claim by calling this
action a medical malpractice claim does not transform it into
one. The question is whether “the plaintiff seeks
damages for injuries * * * by reason of medical, hospital, or
other healing art malpractice . . . not whether the incident
complained of . . . involved some medical treatment.”).
If a plaintiff has not alleged any deviation from appropriate
medical standards, then the claim is not based upon medical
or other healing arts malpractice and is not subject to the
requirements of § 5/2-622. Fiala v. Bickford Sr.
Living Group, LLC, 43 N.E.3d 1234, 1241-44 (Ill.App.Ct.
Count 4, Diggins alleges that Dr. Coe committed the tort of
intentional infliction of emotional distress by
“engag[ing] in extreme and outrageous conduct when [ ]
[he] digitally searched Diggins' rectum without cause or
justification” (Doc. 43, p. 11). In Count 5, Diggins
alleges that Dr. Coe committed assault and battery by placing
him in apprehension of and by touching him in a
“harmful and offensive manner” (Id., p.
12). Thus, Counts 4 and 5 allege intentional torts on the
part of Dr. Coe that are unrelated to any deviation from
appropriate medical standards. Because they do not sound in
malpractice, Counts 4 and 5 do not require a § 5/2-622
Count 6, Diggins alleges that Wexford negligently failed to
train Dr. Coe on the appropriate manner to conduct digital
rectal examinations “to the extent that an unlawful
search can ever be conducted appropriately.” Diggins
also claims Dr. Coe conducted the search negligently by
failing to use lubrication, and by taking an extraordinarily
long time to conduct the search.
is required to submit an affidavit to the extent he is
claiming negligence with respect to the performance of a
medical procedure. See, e.g., Dawson v. United
States, No. 3:16-CV-00827-DRH-SCW, 2017 WL 977822, at *2
(S.D. Ill. Mar. 14, 2017); Barrow v. Wexford Health
Sources, Inc., No. 14-CV-00800-NJR, 2014 WL 4267489, at
*5 (S.D. Ill. Aug. 28, 2014). Thus, his claim that Dr. Coe
conducted the rectal search negligently requires an
affidavit. Furthermore, according to the amended complaint,
Wexford supplies medical personnel for the Illinois
Department of Corrections who perform medical procedures,
including digital rectal searches. Diggins claims Wexford is
responsible for training doctors like Dr. Coe in proper
medical procedures, but negligently failed to do so. By
asserting that Wexford failed to train Dr. Coe in a medical
procedure, Diggins necessarily is asserting a claim that
requires an affidavit. See Jacobs v. Rush N. Shore Med.
Ctr., 284 Ill.App.3d 995, 1000, 673 N.E.2d 364, 367
(Ill. 1996) (where complaint alleged hospital's negligent
failure to train, affidavit along with report detailing the
involvement of each defendant, not just a “generalized
conclusion of malpractice, ” was required). As such,
Count 6 is dismissed without prejudice.
reasons set forth above, the Motion to Dismiss filed by
Defendants John Coe and Wexford on August 31, 2016 (Doc. 46)
is GRANTED in part and DENIED in part. Count 6, along with
Wexford and Wexford Doe Defendants 1-20, are DISMISSED
without prejudice. Counts 1 through 5 remain in this suit.
IS SO ORDERED.