Delgado v. United States

PATRICIA DELGADO, Plaintiff, v. THE UNITED STATES OF AMERICA, SILVER CROSS HOSPITAL and MEDICAL CENTERS,and MAZEN M. KAWJI, M.D., Defendants.

Case No. 16 C 1899

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

December 16, 2016

Judge Joan H. Lefkow

OPINION AND ORDER

Patricia Delgado makes claims of medical malpractice against the United States of America, Silver Cross Hospital and Medical Centers, and Dr. Mazen M. Kawji. (Dkt. 29, Amended Complaint (Amend. Compl.).) Before the court is the motion of Silver Cross and Dr. Kawji (collectively, defendants) to dismiss counts II and III of Delgado's amended complaint. (Dkt. 31).¹ For the following reasons, counts II and III are dismissed without prejudice.²

BACKGROUND

On March 5, 2013, Patricia Delgado went into labor and was admitted to Silver Cross Hospital. (Amend. Compl. ¶ 9.) At that time, Delgado's regular physician, Dr. Jeffrey Williams, D.O., was not available to deliver her baby. (Id. ¶¶ 7, 10.) As such, she was placed under the careof Dr. Cheryl Thompson-Cragwell, the on-duty obstetrics and gynecology physician (OB/GYN), who managed the delivery of Delgado's baby. (Id. ¶¶ 11-12.)

There were no complications during her pregnancy (id. ¶¶ 8, 13) but, after giving birth, Delgado suffered from ongoing vaginal hemorrhaging, abdominal pain, and cramping (id. ¶ 14). No effort was made by Dr. Thompson-Cragwell, or anyone else at Silver Cross Hospital, to stop or determine the source of the bleeding. (Id. ¶ 16.) On March 7, 2013, Delgado was discharged from the hospital. (Id. ¶ 15.)

Delgado's condition worsened after being discharged such that on March 9, 2013, she was admitted to Silver Cross's Emergency Department under the care of the attending physician. (Id. ¶¶ 18-20.) Dr. Thompson-Cragwell was, once again, the on-duty OB/GYN. (Id. ¶ 21.) Dr. Thompson-Cragwell ordered a pelvic ultrasound, which revealed that retained products of conception remained in Delgado's uterus. (Id. ¶ 22.) Dr. Thompson-Cragwell requested consultations from various physicians and specialists, including Dr. Mazen M. Kawji, a cardiologist. (Id. ¶¶ 4, 25.) For the next thirteen days, Delgado received treatment for her excessive bleeding as well as for developing heart and kidney conditions. (Id. ¶ 27.) During that time (1) Dr. Thompson-Cragwell performed a surgical procedure to remove the retained products of conception (id. ¶ 28); (2) an on-duty nurse administered excessive doses of Norco, a narcotic medication to Delgado (id. ¶ 29); (3) Dr. Thompson-Cragwell and Dr. Kawji prescribed and administered Coreg to treat Delgado's blood pressure, even though such medication was contraindicated by her medical condition (id. ¶ 30); (4) Dr. Kawji prescribed a beta-blocker, which was contraindicated by her medical condition (id. ¶ 32); and (5) Dr. Thompson-Cragwell prescribed and administered Toradol, which was contraindicated by her medical condition (id. ¶ 33). Delgado alleges that as a result of these actions she "was exposed to and/or developedand/or was treated for serious medical conditions, including but not limited to E. coli, staph infection, sepsis, Acute Tubular Necrosis, a permanent condition of TTP-HUS, cardiomyopathy and congestive heart failure, acute kidney injury, Disseminated Intra-vascular Coagulation, liver failure, respiratory failure, hypotension, septic shock, and renal damage." (Id. ¶ 34.)

Delgado's attorney, separately from her complaint, filed an affidavit required for medical malpractice claims brought under Illinois law which, in relevant part, stated:

I have consulted and reviewed the facts of this case with a physician and surgeon licensed to practice medicine in all of its branches. This physician has been made aware of all the pertinent medical records. I have been provided with a physician's report indicating that there is a reasonable and meritorious cause for the filing of this action. The report of the reviewing healthcare professional is attached to this Affidavit. Based upon the consultation and the conclusions of the consulting physician, I believe there is a reasonable and meritorious cause for the filing of this action.

(Dkt. 10 at 1.) Although the attorney's affidavit references a single physician report, Delgado in fact attached two physician reports to her amended complaint. One of the reporting physicians is board certified in emergency medicine (Amend. Compl. at 14 ¶ 1) and the other is board certified in obstetrics and gynecology (id. at 16 ¶ 1). Other than their different board certifications and States in which they hold their licenses, the reports contain identical paragraphs setting forth each physician's qualifications:

I am a physician and surgeon licensed to practice medicine in all of its branches . . . . I am familiar with the issues of care and treatment herein. I devote 75% of my time in either medical practice or in teaching the type of medicine at issue herein. I have familiarity with the standard of care in the State of Illinois on the matters at issue herein. I am qualified by experience, education and training within the standard of care, methods, procedures and treatments relevant to the allegations at issue in this case, and I have practiced and taught in this field within the past five years.

(Id. at 14 ¶ 1, 16 ¶ 1.)

Defendants contend that the amended complaint must be dismissed because Delgado has failed to comply with section 2-622 of the Illinois Code of Civil Procedure, 735 Ill. Comp. Stat. 5/2-622, as required for medical malpractice claims brought under Illinois law. See Ortiz v. United States, No. 13 C 7626, 2014 WL 642426, at *3 (N.D. Ill. Feb. 19, 2014) (noting that section 2-622 is a substantive requirement that applies to medical malpractice claims brought in federal courts).

LEGAL STANDARD

Section 2-622 requires a plaintiff asserting a medical malpractice claim to attach to her complaint an affidavit by her attorney, when represented, attesting that the affiant has reviewed the facts of the case with an appropriately qualified health professional who has determined in a written report that there is "reasonable and meritorious cause" for asserting the claim. 735 Ill. Comp. Stat. 5/2-622(a)(1). As applicable here, the reviewing health professional must be a physician licensed to practice medicine in all its branches. Id. A copy of the physician's report must be attached to the attorney affidavit and "clearly identify[] the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists. Id. Both the attorney affidavit and the physician report are required, and failure to provide either results in dismissal. See Plummer v. Welborn, No. 13 C 8253, 2016 WL 2937029, at *5 (N.D. Ill. May 20, 2016) (granting a motion to dismiss where the plaintiff filed a complaint with a physician report but failed to include a separate attorney affidavit).

ANALYSIS

Defendants argue that the physician reports do not meet section 2-622's requirements because (1) the physicians are not qualified to offer their opinions; (2) certain allegations of negligence that appear within those counts should be stricken because they are not supported inthe reports; (3) the reviewing physicians' reports regarding Silver Cross do not set forth any facts that could form the basis of liability;³ and (4) the reports commingle allegations of agency and institutional negligence against Silver Cross.

I. Qualifications

Defendants argue (1) that the emergency room physician is not qualified to offer an opinion because the report does not specify the physician's experience treating patients suffering from childbirth complications in non-emergency settings or running a hospital and (2) that the OB/GYN physician is not qualified to offer an opinion regarding hospital administration or narcotics organizational schemes.⁴ Defendants rely heavily on Cuthbertson v. Axelrod, 669 N.E.2d 601, 282 Ill. App. 3d 1027, 218 Ill. Dec. 458 (1996), in which the Illinois Appellate Court affirmed a dismissal with prejudice for failing to satisfy section 2-622. Cuthbertson is relevant here, but defendants' reliance on it is somewhat overblown. Among the case's applicable insights is that, despite the statutory language that may be read to indicate otherwise, the requirements of section 2-622(a)(1)(i)-(iii) need to be met both in the attorney attestation and the physician's report. Id. at 608.⁵

Applying that rule, Cuthbertson found both the first amended affidavit and physician report insufficient because, although both represented that the physician had recent experience as a physician, neither stated that the physician had recent experience in the health care area that was at issue in the case. Id. at 606, 608. The court emphasized that it was not imposing "artificial barriers" but it was enforcing the statutory requirement of recent experience in the area of healthcare at issue. Id. Further, the court accepted the plaintiff's argument that, so long as the statutory requirements are met, the reviewing physician need not be a specialist in the field at issue so long as they have had recent experience in that field. Id.⁶

When faced with similar arguments pressing for a greater degree of specialization than section 2-622 requires, courts in this district have aligned with the Illinois courts in not requiring it. See Estate of Nemirow ex rel. v. Univ. of Chi. Hosps., No. 07 C 6413, 2008 WL 4543016, at*3 (N.D. Ill. Oct. 7, 2008); Hall v. Cook Cnty., No. 14 C 7887, 2015 WL 5950839, at *3 (N.D. Ill. Oct. 13, 2015); Maldonado, 2008 WL 161671, at *5-6.

Although the reviewing physicians are qualified to make the reports, their reports do not comply with the requirement that a physician's credentials and the nature of their recent experience be set forth in some form. See Jacobs, 673 N.E.2d at 366 n.1 (noting that the report did not identify the physician (as is permitted by § 622...