United States District Court, S.D. Illinois
TARA DICKERSON, Personal Representative of the Estate of Rodrick J. Dagne, Deceased, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, Chief U.S. District Judge.
Dickerson brings this medical malpractice action as Personal
Representative of the Estate of Rodrick H. Dagne, a deceased
veteran of the United States Army (Doc. 1). Dickerson alleges
that Defendant United States of America was negligent in its
diagnosis and treatment of Dagne while he was under the care
of the VA Medical Center in Marion, Illinois (Id.).
The Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. §§ 1346(b) and 2674. Pending
before the Court is the Government’s motion to dismiss,
which argues Dickerson’s claims are barred by the
Illinois statute of repose or, alternatively, should be
dismissed because Dickerson failed to attach a certificate of
merit to her complaint (Doc. 22). For the following reasons,
the motion is granted.
and Procedural Background
According to the allegations in the complaint, in March 2014,
Dagne noticed an ulceration on his right foot and was
admitted to the Marion VA Medical Center on May 19, 2014
(Id. at p. 2). He was diagnosed with hyperemia and
abnormal osteoblastic activity in the head of the third
about May 21, 2014, the Marion VA Medical Center transferred
Dagne to St. Mary’s Medical Center in Evansville,
Indiana (Id.). The VA advised St. Mary’s that
Dagne was not septic, did not have cellulitis, and was not on
dialysis (Id.). When Dagne was admitted to St.
Mary’s, his providers found an ulcer on the bottom of
his right foot with a malodorous discharge (Id.).
His foot was red and swollen, and he was septic
(Id.). Dagne was diagnosed with osteomyelitis of the
right third and fourth metatarsal heads and the base of the
proximal phalanx, with suspected peripheral vascular disease
(Id.). He underwent a transmetatarsal amputation on
May 24, 2014 and passed away on June 5, 2014 (Id.).
filed a claim on Dagne’s behalf with the United States
Department of Veterans Affairs on May 31, 2016
(Id.). The claim was initially denied on December
21, 2016, and Dickerson’s request for reconsideration
was denied on January 12, 2018 (Id.). Dickerson
filed this suit on July 9, 2018, in the United States
District Court for the Southern District of Indiana
(Id.). The case was transferred to this Court in
February 2019 (Id.).
Dickerson’s claims arise under the Federal Tort Claims
Act (“FTCA”), which gives district courts
“exclusive jurisdiction of civil actions on claims
against the United States, for money damages . . . for injury
or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b). The FTCA covers
“circumstances where the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission
occurred.” Morisch v. United States, 653 F.3d
522, 530 (7th Cir. 2011) (quoting 28 U.S.C. §
other words, the FTCA “incorporates the substantive law
of the state where the tortious act or omission
occurred.” Midwest Knitting Mills, Inc. v. United
States, 950 F.2d 1295, 1297 (7th Cir. 1991).
instance, the alleged negligence occurred in Marion,
Illinois, which requires the Court to apply Illinois
substantive law. The Seventh Circuit has determined that
Illinois’ statute of repose for medical malpractice
actions is substantive law that extinguishes claims under the
FTCA if brought more than four years after the negligent act
or omission occurred. Augutis v. United States, 732
F.3d 749 (7th Cir. 2013). Specifically, Illinois law
Except as provided in Section 13-215 of this Act, no action
for damages for injury or death against any physician or
hospital . . . shall be brought more than 2 years after the
date on which the claimant knew . . . of the existence of the
injury . . . 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.”
735 ILCS 5/13-212(a) (emphasis added).
to bringing a civil action under the FTCA, a claimant must
exhaust his or her administrative remedies:
A tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues or
unless action is begun within six months after the date of
mailing, . . . of notice of ...