United States District Court, N.D. Illinois, Eastern Division
James C. Snow N-50072, Plaintiff,
Ghaliah Obaisi, as independent executor of the estate of Saleh Obaisi, Wexford Health Sources, Inc., and Randy Pfister, Defendants.
E. Bucklo United States District Judge.
James Snow, an inmate at Stateville Correctional Center in
Joliet, Illinois, brings this action under 42 U.S.C. §
1983 and Illinois state law alleging that defendants Wexford
Health Sources, Inc. (“Wexford”), former Wexford
employee and Stateville medical director Dr. Saleh Obaisi
(represented here by defendant Ghaliah Obaisi
(“Obaisi”), the executor of Dr. Obaisi's
estate), and Stateville warden Randy Pfister have failed to
provide adequate medical care for several health conditions
ailing him. Before me are Wexford's and Obaisi's
motions to dismiss Count III of Snow's first amended
complaint for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). I grant their motions for the
reasons that follow.
Count III of his complaint, Snow alleges that Dr. Obaisi and
Wexford are liable for negligence under Illinois
law for allegedly denying him necessary medical treatment.
Defendants Wexford and Obaisi contend that this claim sounds
in medical malpractice and must be dismissed for failing to
comply with the Healing Arts Malpractice Act, 735 ILCS §
5/2-622, an Illinois law requiring a physician's
certificate of merit to be filed with malpractice complaints.
Snow, on the other hand, insists that Count III is nothing
more than an ordinary common-law negligence claim not subject
to the certificate requirement.
Healing Arts Malpractice Act requires plaintiffs in any
action seeking damages for injuries or death “by reason
of medical, hospital, or other healing art malpractice”
to file with their complaint a health care professional's
written report, known as a certificate of merit, attesting
that there is a “reasonable and meritorious cause for
the filing of the action.” 735 ILCS § 5/2-622(a).
The purpose of the certificate requirement is to “deter
the filing of frivolous suits against health care
providers.” Cohen v. Smith, 648 N.E.2d 329,
332 (Ill.App.Ct. 5th Dist. 1995); see also Sherrod v.
Lingle, 223 F.3d 605, 613 (7th Cir. 2000) (the
certificate requirement aims “[t]o minimize frivolous
malpractice suits”). Failure to file a required
certificate of merit is grounds for dismissing a malpractice
claim. 735 ILCS § 5/2-622(g). Because this rule is
substantive, it applies in federal court. See Hahn v.
Walsh, 762 F.3d 617, 628-33, n.29 (7th Cir. 2014);
Sherrod, 223 F.3d at 613.
complaint does not have to allege medical malpractice on its
face to trigger section 2-622's certificate requirement.
See Thomas ex rel. Smith v. Cook Cty. Sheriff, 401
F.Supp.2d 867, 877 (N.D. Ill. 2005); Johnson v.
Frain, No. 17 C 2000, 2018 WL 2087448, at *5 (N.D. Ill.
May 4, 2018). Because Illinois courts construe “healing
art malpractice” broadly, even a complaint cast as an
action for ordinary negligence must include a certificate if
the applicable standard of care involves “distinctively
medical knowledge or principles, however basic.”
Woodard v. Krans, 600 N.E.2d 477, 486-88
(Ill.App.Ct. 2d Dist. 1992). The type of case in which a
certificate is not required “against a defendant health
care provider is the exceptional one.” Id. at
488. To determine whether a claim is for malpractice or
ordinary negligence, Illinois courts consider “(1)
whether the standard of care involves procedures not within
the grasp of the ordinary lay juror; (2) whether the activity
is inherently one of medical judgment; and (3) the type of
evidence that will be necessary to establish
plaintiff['s] case.” Audia v. Briar Place,
Ltd., No. 17-cv-6618, 2018 WL 1920082, *4 (N.D. Ill.
Apr. 24, 2018) (quoting Jackson v. Chicago Classic
Janitorial & Cleaning Serv., Inc., 355 Ill.App.3d
906, 909 (2005)).
bases his negligence claim on duties that Dr. Obaisi owed as
a healthcare professional and “as the primary person
responsible for making medical decisions at
Stateville.” First Am. Compl. ¶ 69. Plaintiff
alleges that, “in providing medical care ... or holding
himself out as a professional rendering medical care, ”
Dr. Obaisi owed Snow certain duties, including the duty
“to possess and apply the skill and care of [a]
reasonably well-qualified medical professional” and
the duty “to ensure [that] Mr. Snow received
appropriate medical diagnosis and treatment.”
Id. ¶¶ 68-69. According to Snow, Dr.
Obaisi breached these duties “by ignoring Mr.
Snow's requests for medical attention, ” by
prescribing him the wrong medications, by “needlessly
compartmentaliz[ing]” his treatment, and “by
failing to provide [Snow] with necessary medical treatment
prescribed to him by medical experts.” Id.
¶¶ 13, 26, 39, 70. An ordinary juror would not be
able to evaluate whether Dr. Obaisi applied the skill and
care of a reasonable medical professional, or whether Dr.
Obaisi delivered appropriate medical diagnoses and treatment,
without the assistance of expert testimony. See
Johnson, 2018 WL 2087448, at *5; Audia, 2018 WL
1920082, at *4. And, even if expert testimony were not
required to establish the applicable standard of care, the
determinations at the center of Snow's negligence claim
inherently concern Dr. Obaisi's medical judgment. See
Palmer v. Franz, No. 13-cv-1698, 2017 WL 4122741, at *10
(N.D. Ill. Sept. 18, 2017). To assess Snow's medical
requests and fashion appropriate treatment plans, Dr. Obaisi
presumably had to exercise his professional knowledge,
skills, and training. I therefore agree with Wexford and
Obaisi that Count III sounds in malpractice.
attempts to evade the certificate requirement by framing his
negligence claim as one based solely on Dr. Obaisi's role
in supervising Stateville's staff and directing the
delivery of Stateville's medical resources, rather than
his role in making medical judgments. Snow's argument is
unpersuasive for at least two reasons. First, negligent
supervision and negligent resource allocation are not what
Count III alleges. Despite Snow's efforts to recast his
allegations, Count III, as written, focuses on Dr.
Obaisi's role in “rendering medical care” and
“making medical decisions.” First Am. Compl.
¶¶ 68-69. Second, although Snow is correct that
“not every act or omission committed by a physician
constitutes healing art malpractice, ” Milos v.
Hall, 757 N.E.2d 654, 657 (Ill.App.Ct. 5th Dist. 2001),
he provides no authority for his contention that Dr.
Obaisi's decisions as Stateville's medical director
did not implicate his medical knowledge, expertise, or
judgment. Cf. Sherrod, 223 F.3d at 608-09, 613
(applying section 2-622 to malpractice claims against a
prison medical director and others); Dawson v. United
States, No. 3:16-cv-00827DRHSCW, 2017 WL 977822, at *2
(S.D. Ill. Mar. 14, 2017) (applying section 2-622 to
institutional negligence claim).
cases that Snow does cite offer scant support for his
position. In Thomas, a plaintiff's wrongful
death claim against two paramedics did not sound in medical
malpractice because, according to the complaint,
“anyone, ” not just a medical professional, could
have seen that the prisoner was in serious need of urgent
medical attention. 401 F.Supp.2d at 877. Similarly, in
Awalt v. Marketti, No. 11-cv-6142, 2012 WL 1161500
(N.D. Ill. Apr. 9, 2012), a court in this district determined
that negligence claims against prison staff members
(including medical and non-medical staff members) who
disregarded clear warnings that a prisoner needed certain
medications to control his epileptic seizures did not arise
out of an unreasonable application of medical
expertise. Id. at *4. Snow's claim in
Count III is different. He does not allege that Dr. Obaisi
breached a duty of care that anyone, regardless of
medical expertise, owes to another. Rather, he claims that
Dr. Obaisi breached the duty of care that he owed as a
medical “professional rendering medical care” to
a patient. First Am. Compl. ¶ 68.
Count III as alleged is essentially a medical malpractice
claim, it must be dismissed for failing to comply with the
requirements of the Healing Arts Malpractice Act. Whether
this dismissal is with prejudice is a matter of discretion.
“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.'” Sherrod, 223 F.3d at 614
(quoting Cammon v. W. Suburban Hosp. Med. Ctr., 704
N.E.2d 731, 739 (Ill.App.Ct. 1st Dist. 1998)). I will permit
Snow that opportunity here.
motions to dismiss Count III are granted. Count III is
dismissed without prejudice.
 Snow seeks to hold Wexford liable for
Dr. Obaisi's actions pursuant to the doctrine of
respondeat superior because Dr. Obaisi was allegedly
acting within the scope of his employment with Wexford. First
Am. Compl. ¶¶ 72-73.
 The only other case that Snow cites in
his brief is Milos, 757 N.E.2d at 657. In that case,
a certificate of merit was not required to support a
misrepresentation claim against a doctor who authored an
autopsy report because, in conducting the autopsy, the doctor
was not, by definition, performing a “healing