United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE UNITED STATES DISTRICT COURT
Highland Park CVS, LLC, MinuteClinic Diagnostic of Illinois,
LLC, and Caremark RX, LLC move to dismiss Counts XI through
XIII of Plaintiffs Silvia and Steven Fitzgerald's Second
Amended Complaint. For the reasons stated herein, the Motion
to Dismiss (Dkt. No. 34) is granted.
case arises from Plaintiff Silvia Fitzgerald's visit to a
local CVS clinic operated by Defendants Highland Park CVS,
LLC, MinuteClinic Diagnostic of Illinois, LLC, and Caremark
RX, LLC (collectively “CVS Defendants”). Mrs.
Fitzgerald alleges that she sought assistance from the clinic
to remove earwax from her ear. (Sec. Am. Compl. (SAC) ¶
5, Dkt. No. 29.) Defendant Aphrodite P. Roberts, APN, a nurse
at the CVS clinic, allegedly misused a Waterpik Flosser-a
high-pressure water dispensing device for flossing teeth-in
performing the procedure. (SAC ¶ 7.) Apparently, in
using the Waterpik Flosser, Roberts damaged the tissue in and
around Mrs. Fitzgerald's ear. (SAC ¶ 8.)
on the foregoing, both Mrs. Fitzgerald and her husband,
Steven Fitzgerald, seek damages from Defendants. Defendants
now move to dismiss Counts XI through XIII of Plaintiffs'
Second Amended Complaint, asserting that the counts are (1)
barred under the statute of limitations; and (2) fail to
state a claim under Rule 12(b)(6). The three counts are as
I. Count XI. Willful and Wanton/Intentional
Misconduct against Defendant Highland Park CVS.
II. Count XII. Willful and
Wanton/Intentional Misconduct against Defendant Caremark Rx.
III. Count XIII. Willful and
Wanton/Intentional Misconduct against Defendant MinuteClinic
Diagnostic of Illinois.
Statute of Limitations
Illinois law, medical malpractice claims must be brought no
2 years after the date on which the claimant knew, or through
the use of reasonable diligence should have known or received
notice in writing of the existence of the injury or death for
which damages are sought in the action, whichever of such
date occurs first, but in no event shall such action be
brought more than 4 years after the date on which occurred
the act or omission or occurrence alleged in such action to
have been the cause of such injury or death.
7315 ILCS 5/13-212(a). In other words, section 735 ILCS
5/13-212(a) states that there is a bar to recovering punitive
damages in medical malpractice claims two years after a
person knows or reasonably should have known of an injury and
knows or reasonably should have known that the injury was
wrongfully caused. Moon v. Rhode, 409 N.E.3d 220,
227 (Ill. 2016).
argue that the newly filed institutional negligence claims
should be dismissed because they were filed more than three
years after the alleged negligent care incident. Plaintiffs
agree that their claims were filed three years after
knowledge of the injury; nevertheless, they argue that the
claims should not be dismissed because they relate back to
the original pleading. A negligence claim can relate back if
it passes the “sufficiently close relationship
test.” Porter v. Decatur Mem'l Hosp., 882
N.E.2d 583, 592 (Ill. 2008). For that test, a court considers
whether there was a ...