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Fitzgerald v. Roberts

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

July 18, 2019

SILVIA FITZGERALD and STEVEN FITZGERALD, Plaintiffs,
v.
APHRODITE P. ROBERTS, R.N., HIGHLAND PARK CVS, L.L.C., and MINUTECLINIC DIAGNOSTIC OF ILLINOIS, L.L.C., Defendants.

          MEMORANDUM OPINION AND ORDER

          HARRY D. LEINENWEBER, JUDGE UNITED STATES DISTRICT COURT

         Defendants 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.

         I. BACKGROUND

         This 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.)

         Based 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 follows:

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.

         II. DISCUSSION

         A. Statute of Limitations

         Under Illinois law, medical malpractice claims must be brought no more than:

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).

         Defendants 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 ...


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