United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
matter is before the Court on several pending motions.
Defendant United States of America has filed a motion to
dismiss Plaintiff Lisa Vandervelden's Amended Complaint
(Doc. 17) for failure to provide an affidavit and physician
report that fully comply with 735 Ill. Comp. Stat.
5/2-622(a)(1) in a case alleging medical malpractice (Doc.
18). Also pending are motions to consolidate this case with
3:19-CV-769-NJR-RJD filed by Vandervelden and Third-Party
Plaintiff Saint Louis University (SLU). For the reasons set
forth below, the motion to dismiss is denied, and the motions
to consolidate are granted.
Motion to Dismiss
initially filed the Complaint in this case pursuant to the
Federal Tort Claims Act alleging that from January 2017 to
August 2017, the United States, by and through its agents,
failed to recognize, diagnose, and appropriately treat her
oral cancer (Doc. 1). On March 4, 2019, the Court dismissed
the Complaint due to deficiencies in the required physician
report (Doc. 15). Vandervelden filed her Amended Complaint on
May 16, 2019, and the United States again moved to dismiss it
because, it argues, the affidavit and physician report fail
to fully comply with Illinois law.
Court discussed in its earlier Order, a claim made pursuant
to the Federal Tort Claims Act, 28 U.S.C. § 267, is
subject to the requirements of the Illinois Healing Art
Malpractice Act, which requires that a medical malpractice
complaint be accompanied by a certificate stating that a
qualified, licensed physician has reviewed the case and
determined in a written report that the lawsuit is reasonable
and meritorious. 735 Ill. Comp. Stat. § 5/2-622 (a)(1);
Hahn v. Walsh, 762 F.3d 617, 634 (7th Cir. 2014).
The report must provide the physician's reasoning as to
why the medical care was deficient under the standard of care
and what alternative conduct might have been appropriate.
See Ortiz v. United States, No. 13 C 7626, 2014 WL
642426, at *3 (N.D. Ill. Feb. 19, 2014) (citing Jacobs v.
Rush N. Shore Med. Ctr., 673 N.E.2d 364, 367
(Ill.App.Ct. 1996)). Illinois courts liberally construe
certificates of merit in favor of the plaintiff, recognizing
the statute as a tool to reduce frivolous lawsuits by
requiring a minimum amount of merit, not a likelihood of
success. Sherrod v. Lingle, 223 F.3d 605, 613 (7th
regard to the Amended Complaint, the Government takes issue
with the reviewing physician's failure to indicate that
he or she practices or teaches in the same area of healthcare
or medicine that is at issue in this particular action and
that the physician has done so within the past six years.
is no requirement under Illinois law, however, that the
reviewing physician practice in the same area of medicine as
the defendant. “[T]he requirement set forth in section
2-622 that the affiant state that he consulted with a health
professional who practices in the same specialty as the
defendant means merely that if the defendant is a physician,
then the health care professional must also be a
physician.” Hagood v. O'Conner, 165
Ill.App.3d 367, 372-73, 519 N.E.2d 66, 69 (Ill.App.Ct. 1988).
Because a licensed physician in Illinois is a legally
qualified practitioner in every medical specialty, “a
physician who is licensed to practice medicine in all of its
branches may evaluate the treatment given by any other
physician who is licensed to practice medicine in all of its
branches, even if the defendant physician holds himself out
to be a specialist.” Id. at 373. Thus, there
is no requirement that the reviewing physician practice in
the same area of healthcare or medicine at issue in this
case. The physician's statement that he or she is a
“physician licensed to practice medicine” is
under Section 2-622(a)(1), only the attorney is required to
attest that the physician practices or has practiced within
the last six years. The Court acknowledges that the attorney
affidavit in this case fails to provide that information. To
that end, Vandervelden shall be granted an opportunity to
amend the attorney affidavit. In the interest of justice,
however, the Court does not find that dismissal of the
complaint is warranted.
Motions to Consolidate
Vandervelden and SLU have filed motions to consolidate (Docs.
29, 31). Vandervelden seeks to consolidate this case with
both of its sister actions, 19-CV-769 and 19-CV-746, while
SLU has moved only to consolidate this case with 19-CV-769
(as it is not a party to the 19-CV-746 case). The United
States does not oppose consolidation of this case with
19-CV-769, but has not taken a position with regard to
consolidation in 19-CV-746, as it has a pending motion to
dismiss in that case.
Court agrees that consolidation of all three actions is
appropriate under Rule 42 of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 42(a)(2) (“If
actions before the court involve a common question of law or
fact, the court may . . . consolidate the actions . . .
.”). Here, all three cases stem from Vandervelden's
allegation that Defendants were negligent in failing to
timely diagnose and properly treat her oral cancer between
January 2017 and August 2017. This case is Vandervelden's
Federal Tort Claims Act case against the United States for
the alleged medical malpractice of United States
deemed-employees working for Southern Illinois Healthcare
Foundation. No. 19-CV-746 is Vandervelden's Federal Tort
Claims Act case against the United States for the alleged
medical malpractice of United States employees working for
the U.S. Air Force. And No. 19-CV-769 is Vandervelden's
state law medical malpractice claim against SLU. Because all
three cases involve commons questions of law and fact, the
motions to consolidate are granted.
these reasons, the Motion to Dismiss filed by Defendant
United States of America (Doc. 18) is
DENIED. Plaintiff Lisa Vandervelden is
ORDERED to file a supplemental attorney
affidavit that meets the requirements of 735 Ill. Comp. Stat.
§ 5/2-622 (a)(1) as related to the reviewing
physician's experience practicing medicine. Plaintiff
shall file the supplemental affidavit by October 25,
2019. If Plaintiff fails to file a supplemental
affidavit by that date, the United States may renew its
motion to dismiss.
the Motion to Consolidate filed by Vandervelden (Doc. 29) and
the Motion to Consolidate filed by Defendant Saint Louis
University (Doc. 31) are GRANTED. This case
is CONSOLIDATED with ...