United States District Court, S.D. Illinois
DEBBIE TAYLOR, as administrator of the Estate of Gail Marie Legate, deceased, Plaintiff,
GRANITE NURSING AND REHABILITATION CENTER, LLC, Defendant.
MEMORANDUM AND ORDER
Herndon, United States District Judge.
before the Court is defendant's motion to dismiss Counts
II and III of plaintiff's amended complaint (Doc. 36).
Specifically, defendant argues that Counts II and III should
be dismissed because the amended complaint does not contain
an affidavit of merit as required under 735 ILCS 5/2-622 in
Illinois healing art cases and that Count III should be
dismiss to the extent that it is brought under the Illinois
Nursing Home Care Act. Plaintiff opposes the motion arguing
that an affidavit of merit is not required for Counts II and
III. Based on the allegations in the amended complaint and
the following, the Court denies the motion.
February 12, 2018, plaintiff Debbie Taylor, as administrator
of the Estate of Gail Marie Legate, deceased, filed an
amended complaint against defendant Granite Nursing and
Rehabilitation Center, LLC (Doc. 32). This case arises from
Legate's death on February 17, 2016 at defendant's
nursing home facility located in Granite City, Illinois.
According to the amended complaint, Legate, prior to her
admission to defendant's nursing home on October 6, 2015,
“was a patient at Christian Hospital NE, where her
diagnosis included paraplegia stemming from a recent injury
and treatment therefrom, diabetes, unspecified urinary
incontinence, full incontinence of feces, depressive
disorder, Chrohn's disease, lactose intolerant, and
hypertension.” (Doc. 32; p. 2, ¶ 8). The amended
complaint contains three counts: Count I - Illinois Nursing
Home Care Act, 210 ILCS 45/3-610; Count II - Illinois common
law negligence and Count III - Illinois Wrongful Death Act,
740 ILCS, 180/1 et seq. Specifically, the amended complaint
alleges that through defendant's “acts or
omissions, Gail Marie Legate did experience personal injury
to her body as a whole, including but not limited to sepsis,
recurrent infections, decubitus ulcers, pressure ulcers, skin
breakdown, malnutrition, dehydration, renal failure, …
resulting in her death on February 17, 2016.” (Doc. 32,
ps. 6-7; ps. 9; and p. 10). Plaintiff incorporates by
reference certain paragraphs contained in Count I into Counts
II and III.
12(b)(6) governs motions to dismiss for failure to state a
claim on which relief can be granted. The purpose of a Rule
12(b)(6) motion is to test the legal sufficiency of a
complaint. See Richards v. Mitcheff, 696 F.3d 635,
637 (7th Cir. 2012); McReynolds v. Merrill Lynch &
Co., 694 F.3d 873, 878 (7th Cir. 2012). A complaint must
state a claim that is facially plausible. Vinson v.
Vermilion County, Il., 776 F.3d 924, 928 (7th Cir.
2015). To avoid Rule 12(b)(6) dismissal, it must contain
“enough facts to state a claim for relief that is
plausible on its face.” Scott v. Chuhak &
Tecson, P.C., 725 F.3d 772, 782 (7th Cir. 2013),
quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Accord Foster v. Principal Life Ins.
Co., 806 F.3d 967, 971 (7th Cir. 2015). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” D.B. ex rel. Kurtis B. v. Kopp, 725
F.3d 681, 684 (7th Cir. 2013), quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The complaint must
“go beyond mere labels and conclusions” and
contain “enough to raise a right to relief above the
speculative level.” G&S Holdings, LLC v.
Continental Cas. Co., 697 F.3d 534, 537-38 (7th Cir.
assessing a complaint under Rule 12(b)(6), the district court
construes the complaint in the light most favorable to the
plaintiff, “accepting as true all well-pleaded facts
alleged, and drawing all possible inferences in her
favor.” Hecker v. Deere & Co., 556 F.3d
575, 580 (7th Cir. 2009), cert. denied, 558 U.S.
1148 (2010), quoting Tamayo v. Blagoyevich, 526 F.3d
1074, 1081 (7th Cir. 2008).
defendant seeks dismissal of Counts II and III of the amended
complaint on the basis that plaintiff failed to file an
affidavit of merit pursuant to the Illinois Healing Art
Malpractice statute, 735 ILCS 5/2-622. That Illinois law
requires a plaintiff alleging medical malpractice to file an
affidavit stating that he has obtained a statement from a
health care professional opining that there is a
“reasonable and meritorious cause” to file the
lawsuit. The purpose of this requirement is to reduce the
number of frivolous malpractice suits. Ebbing v.
Prentice, 587 N.E.2d 1115, 1117 (Ill.App.Ct.1992). It is
undisputed that the amended complaint did not contain the
affidavit described in 735 ILCS 5/2-622(a). The Illinois
Supreme Court has determined, however, that this requirement
does not apply to private causes of action brought against a
nursing homeowner under the Nursing Home Care Act. Eads
v. Heritage Enterps., Inc., 787 N.E.2d 771, 777-80
(Ill.2003). In response opposing this motion, plaintiff
argues that defendant cites no authority suggesting that the
affidavit is required against a nursing home for common law
negligence or for wrongful death claims.
have not identified, and the undersigned has not located, any
Illinois cases squarely addressing this issue. Clearly,
“compliance with section 2-622 [is required] if the
alleged conduct involved questions about the medical standard
of care or issues that were otherwise so complicated that
laypersons would not be able to assess it without expert
testimony.” Fiala v. Bickford Senior Living Group,
LLC, 43 N.E.3d 1234, 1242 ( Ill. App. 2015). But
plaintiff's claims are not so much premised on
allegations that defendant's course of treatment deviated
from the appropriate standard of care (thereby requiring
expert testimony), as the claims are based on the argument
that defendant failed to comply with doctor's orders,
failed to perform nursing services, and failed to follow the
procedures set forth by Illinois Nursing Home Care Act
statute. Viewing plaintiff's claims in this framework,
the Court finds that the claims do not fall within the scope
of the Illinois Healing Art Malpractice statute that require
a Section 622 report/affidavit.
the Court finds that the claims in Counts II and III are
derivative of Count I. Thus, the Court denies defendant's
motion to dismiss Counts II and III of the amended complaint.
the Court DENIES defendant's motion to dismiss Counts II
and III of ...