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Banks v. Santaniello

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

July 10, 2017

TASHA BANKS, Plaintiff,
v.
DR. JOHN SANTANIELLO, METHODIST HOSPITAL NORTH LAKE E.R. DOCTOR, METHODIST HOSPITAL NORTH LAKE E.R. NURSE, and METHODIST NORTH LAKE E.R. SECURITY, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman Judge.

         Tasha Banks filed this diversity suit against John Santaniello-a doctor at Loyola University Medical Center who attended to her daughter, Letajonique Larry-alleging that he terminated Larry's life support without justification and without Banks's consent. Doc. 18. After Santaniello moved to dismiss Banks's original complaint under Federal Rule of Civil Procedure 12(b)(6), Doc. 15, Banks used her one amendment as of right under Rule 15(a)(1)(B) in lieu of responding, Docs. 18, 21. Santaniello again moves to dismiss. Doc. 25. The motion is granted, though Banks will be given one final opportunity to replead.

         Background

         In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, ” along with additional facts set forth in Banks's brief opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The facts are set forth as favorably to Banks as those materials allow. See Pierce v. Zoetis, 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).

         Banks's complaint is short on detail, but the court-aided by her opposition brief-can piece together the following allegations. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed … .”) (internal quotation marks omitted); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (“[P]ro se pleadings are held to less exacting standards than those prepared by counsel and are to be liberally construed.”). On April 29, 2014, Larry was taken to the Emergency Room of Methodist Hospital Northlake in Gary, Indiana, with unspecified injuries to the left side of her face and the back of her head. Doc. 18 at 5; Doc. 36 at 6. Larry underwent surgery at Methodist. Doc. 18 at 5. After her treatment at Methodist proved unsuccessful, Larry was airlifted to Loyola University Medical Center in Maywood, Illinois. Ibid.; Doc. 36 at 6.

         Santaniello was charged with caring for Larry at Loyola. Ibid. At some point after Larry's arrival, Santaniello determined that she was “braindead, ” Doc. 36 at 17, and informed Banks that the ventilator that was keeping her breathing should be disconnected, Doc. 18 at 5, Doc. 36 at 9. On Larry's second day at Loyola, without Banks's consent and over her repeated objections, Santaniello carried out his decision to disconnect the ventilator, allegedly laughing as he did so. Doc. 18 at 5; Doc. 36 at 10. According to Banks, this was unwarranted; Santaniello “unplugged the ventilator when he should not have.” Doc. 18 at 5; see also Doc. 36 at 14, 17. Banks also questions whether Larry was truly braindead. Doc. 36 at 17.

         After Larry's ventilator was shut off, members of the hospital staff had Banks escorted from the hospital premises. Doc. 18 at 5. Banks has experienced continuous heartache from the time of her daughter's death to the present. Ibid.

         Discussion

         Santaniello's motion urges dismissal on four separate grounds. Doc. 25. It suffices to discuss just one of them: Santaniello contends, correctly, that Banks has failed to comply with Illinois's requirement, set forth in 735 ILCS 5/2-622, that medical malpractice plaintiffs attach to their complaints either (a) an affidavit from a health professional with relevant experience averring that he or she has reviewed the record and that the suit is well founded, or (b) an affidavit stating that the plaintiff was unable, for either of the two reasons set forth in the statute, to obtain such an affidavit. Banks attached no such affidavit to her original complaint, and although Santaniello moved to dismiss that complaint for failure to comply with Section 2-622, Doc. 15 at 3-4, Banks did not attach any affidavit to her amended complaint either.

         Section 2-622 states in relevant part:

(a) In 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, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, 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. …
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. …
3. That a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to [735 ILCS 5/8-2001 et seq.] and the party required to comply under those Sections has failed to produce such records ...

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