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Riley v. United States

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

August 28, 2019

MARCUS RILEY, as independent administrator to the estate of CYNTHIA SUDOR, deceased, Plaintiff,
UNITED STATES OF AMERICA et al., Defendants.



         Marcus Riley ("Plaintiff), as the independent administrator of Cynthia Sudor's ("Sudor") estate, brings this action on behalf of Sudor, who died on July 6, 2015. (R. 15, Am, Compl. ¶¶ 1-25.) Plaintiff alleges that the United States of America ("United States"), Advocate Trinity Hospital ("ATH"), Jackson Park Hospital and Medical Center ("JPHMC"), Rita McGuire, M.D. ("McGuire"), and Naseem Fatima, M.D. ("Fatima") (collectively, the "Defendants") caused Sudor's death. (Id. ¶¶ 26-85.) Before the Court is ATH's motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 32, Mot.) For the reasons set forth below, the motion is granted.


         Plaintiff alleges that, on or about May 25, 2015, Sudor went to ATH for medical treatment. (R. 15, Am. Compl. ¶ 18.) Sudor was allegedly experiencing symptoms of a urinary tract infection, which included vaginal bleeding. (Id. ¶ 19.) Plaintiff claims that a urine test was performed, and it showed the presence of white blood cells and bacteria in Sudor's urine, which Plaintiff alleges are results consistent with a urinary tract infection. (Id.) Plaintiff claims that, at ATH, Sudor was under the care of Ericka Searles, M.D., ("Searles"), a licensed physician and employee of the United States. (Id. ¶ 18.) Searles allegedly failed to properly treat the urinary tract infection or order additional testing and then discharged Sudor despite her symptoms of a urinary tract infection. (Id. ¶ 20.)

         On May 30, 2015, Sudor went to JPHMC for medical care and treatment. (Id. ¶ 21.) Plaintiff alleges that Sudor was under the care of McGuire and Fatima, who were employed by JPHMC. (Id.) Plaintiff claims that, at this time, Sudor still showed obvious signs of a urinary tract infection, and that McGuire and Fatima failed to order additional tests or treat Sudor's urinary tract infection. (Id. ¶ 22.)

         On May 31, 2015, Sudor allegedly went back to ATH with fever, chills, and severe right-lower back pain. (Id. ¶ 23.) Sudor was admitted to ATH's intensive care unit, allegedly diagnosed with "Acute Respiratory Distress Syndrome ... and E. coli pyelonephritis" as a result of the undiagnosed and untreated urinary tract infection. (Id.) Plaintiff claims that Sudor's condition deteriorated, and on June 9, 2015, Sudor was transferred to Advocate Christ Medical Center in Oak Lawn, Illinois. (Id. ¶ 24.) Plaintiff claims that when Sudor arrived at Advocate Christ Medical Center, she was in cardiogenic shock and placed on respiratory support. (Id.) Sudor died soon thereafter, on July 6, 2015. (Id. ¶ 25.)


         Plaintiff filed his initial complaint on July 13, 2018. (R. 1, Compl.) On November 2, 2018, Plaintiff filed an amended complaint, which is the operative complaint. (R. 15, Am. Compl.) It brings six claims for wrongful death against the Defendants and a count alleging that the wrongful death claims survive Sudor's death. (Id. ¶¶ 26-85.)

         On January 4, 2019, ATH filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and that motion was entered and continued pending the Court's decision on a motion to remand filed by JPHMC, McGuire, and Fatima. (R. 32, Mot.; R. 35, Min. Entry.) On May 17, 2019, the Court denied the motion to remand, and then on May 29, 2019, the Court ordered the parties to fully brief ATH's motion to dismiss. (R. 48, Order at 8; R. 49, Min Entry.)

         In its motion to dismiss, ATH argues that it should be dismissed as a defendant because Plaintiff fails to allege any ATH employee or agent who was involved in Sudor's care. (R. 32, Mot. at 2-4.) According to ATH, the only physician working at ATH who is referenced in the amended complaint is Searles, who is an agent of the United States and not ATH. (Id.) ATH also argues that Plaintiff did not name any ATH "agents or employees" in a report that must be filed pursuant to 735 III. Comp. Stat. 5/2-622, which requires plaintiffs in medical malpractice lawsuits to file a report from a qualified medical professional stating that there is a reasonable and meritorious basis for filing a medical malpractice lawsuit. (Id. at 4-5 (referencing 735 III. Comp. Stat. 5/2-622).) In response, Plaintiff argues that he has sufficiently alleged that Searles is ATH's agent, and that his Section 2-622 report is sufficient under Illinois law to survive dismissal. (R. 51, Resp. at 1-6.) Plaintiff alternatively requests that the Court allow him to amend his Section 2-622 report if the Court concludes that it is insufficient. (Id. at 5.)

         In its reply brief, ATH again challenges the sufficiency of Plaintiff s allegations because, according to ATH, Plaintiffs amended complaint and Section 2-622 report do not identify any ATH employees for whom ATH could be liable. (R. 56, Reply at 2-3.) ATH argues that even if Plaintiff claims that ATH is vicariously liable through agency, Plaintiffs Section 2-622 report must identify the putative agent whose actions ATH is liable for to survive a motion to dismiss. (Id. at 3.)


         A motion to dismiss pursuant to Rule 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp, v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In assessing the sufficiency of the complaint, the Court accepts all well-pleaded ...

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