United States District Court, S.D. Illinois
R.HERNDON, District Judge:
the Court is defendant Southern Illinois Healthcare d/b/a
Memorial Hospital of Carbondale's (“SIH”)
Motion to Dismiss counts II and V (Doc. 50) of plaintiff Teri
Dawson's (“plaintiff”) Amended Complaint.
Plaintiff opposes (Doc.57). Based on the following, the
Motion to Dismiss is GRANTED WITH LEAVE TO AMEND.
March 14, 2017, this Court entered an order granting
plaintiff leave to file an amended complaint, affidavit, and
medical report in accordance with 735 Ill. Comp. Stat.
5/2-622 (Doc. 45). On April 4, 2017, plaintiff filed an
amended complaint (Doc. 46) with an attached attorney
affidavit (Doc. 46-1) and medical report (Doc. 46-2).
Thereafter, SIH filed the instant motion to dismiss count II-
common law negligence, and count V-negligent infliction of
emotional distress, pursuant to Rule 12(b)(6) (Doc. 50). SIH
argues that plaintiff's claim again fails to
affirmatively state the author of the medical report is
currently licensed to practice medicine, and was licensed to
practice at the time the medical report was authored (Doc.
51). As a result, SIH contends plaintiff failed to state a
cause of action for medical negligence under Illinois law,
and requests dismissal of counts II and V with prejudice
response, plaintiff argues that affirmatively stating a
doctor's credentials is not the legal standard; and
moreover, it would not be appropriate to dismiss claims over
a mere stylistic dispute (Doc. 57). Further, plaintiff points
to an attached Proposed Second Amended Complaint (Doc. 57-1)
which contains amended copies of the medical report and
affidavit in effort to resolve any perceived
misunderstandings. Plaintiff requests the Court deny
SIH's Motion to Dismiss and accept the amended medical
report and affidavit copies in the interest of justice (Doc.
analysis here is straightforward and turns solely on
plaintiff's compliance with 735 ILCS 5/2-622. See
Buechel v. United States, 646 F.Supp.2d 1038, 1039 (S.D.
Ill. 2009) (Illinois medical malpractice plaintiff must file
complaint, attorney's affidavit, and medical report
written by health professional).
affidavits . . ., the written report must be from a
physician licensed to practice medicine in all its
branches.” See 5/2-622 (emphasis added).
Illinois does not define or regulate medical specialties of
physicians; therefore “a physician licensed to practice
in Illinois is ‘qualified to practice medicine in all
of its branches.' ” See Ingold v. Irwin,
302 Ill.App.3d 378, 705 N.E.2d 135, 140 (1998). “When
construing a statute, [the] court's primary objective is
to ascertain and give effect to the intent of the
legislature.” Valfer v. Evanston Nw.
Healthcare, 2016 IL 119220, ¶ 22.
Physician-Author Must Be Licensed in IL
case, it is clear the legislature intended to ensure the
physician-author of the medical report is in fact licensed to
practice medicine in Illinois. In an attempt to justify,
plaintiff points to the second amended medical opinion and
affidavit-which were filed as an attachment to
plaintiff's response to SIH's motion to dismiss-in
order to argue that the authoring physician is licensed to
practice medicine; and that “[t]he absence of strict
technical compliance with the statute is one of form and not
of substance. [Therefore] [t]he technical requirements of the
statute should not be mechanically applied to deprive the
plaintiff of her substantive rights.” Ingold,
705 N.E.2d at 140.
is correct in that “[t]he purpose of the enactment was
not to burden the plaintiff with insurmountable hurdles prior
to filing but to reduce the number of frivolous law
suits.” Id. However, ensuring the medical
report is actually authored by a physician licensed to
practice medicine in the state of Illinois is a far cry from
an “insurmountable hurdle.” Nothing written
within plaintiff's amended attorney affidavit and/or
medical report suggests the reviewing physician is licensed
to practice medicine in Illinois. “Thus, although he
may be knowledgeable on the subject of [gynecology and
robotic-assisted laparoscopic surgery], he is not, by
definition, qualified to author the written report required
by section 2-622(a)(1) of the Code.” Id.
Plaintiff Granted Leave to Amend
again, the central purpose of section 5/2-622 is to thwart
frivolous medical malpractice lawsuits. See Cookson v.
Price, 393 Ill.App.3d 549, 914 N.E.2d 229, 232 (2009).
Defendants have not argued nor has the Court determined
plaintiff's complaint was frivolous, or that the amended
attorney affidavit and medical report were filed in bad faith
to delay litigation. Therefore, the Court GRANTS WITH LEAVE
TO AMEND SIH's Motion to Dismiss. See Hahn
v. Walsh, 762 F.3d 617, 634 (7th Cir. 2014) (explaining
although district court believed plaintiff's counsel
should have known to submit affidavit and medical report in
compliance with 5/2-622, it is error for court to refuse to
permit plaintiff to amend complaint in absence of bad faith).
proposed Second Amended Complaint (Doc. 57-1)-attached as an
exhibit to plaintiff's response to the motion to