Bommersbach v. Ruiz

• Decision Date: 09 June 2006
• Docket Number: No. 3:02-CV-01115-DRH.,3:02-CV-01115-DRH.
• Citation: 461 F.Supp.2d 743
• Parties: James BOMMERSBACH, Plaintiff, v. Brian RUIZ, M.D. and Wexford Health Sources, Defendants.
• Court: U.S. District Court — Southern District of Illinois

461 F.Supp.2d 743

James BOMMERSBACH, Plaintiff, v. Brian RUIZ, M.D. and Wexford Health Sources, Defendants.

No. 3:02-CV-01115-DRH.

United States District Court, S.D. Illinois.

June 9, 2006.

COPYRIGHT MATERIAL OMITTED

Barbara J. Clinite, Law Offices of Barbara J. Clinite, Chicago, IL, for Plaintiff.

Matthew R. Booker, Theresa M. Powell, Heyl, Royster et al., Springfield, IL, for Defendants.

MEMORANDUM AND ORDER

HERNDON, District Judge.

I. Introduction and Background

This matter comes before the Court on a Report and Recommendation ("the Report") (Doc. 39). Based on the following, the Court adopts the Report in its entirety.

On October 30, 2002, James Bommersbach, a civilly committed person at the Big Muddy Correctional Center, filed a two-count complaint against Brian Ruiz, M.D., and Wexford Health Services (Doc. 1). Count I of the complaint is a claim for denial of medical care brought pursuant to 42 U.S.C. § 1983 and Count II is a claim of common law negligence due to Defendants' failure to comply with an Illinois statute, 730 ILCS 5/8-7-2(d), which requires medical care for committed persons. Bommersbach alleges Defendants withheld treatment for both his skin cancer and leukemia. Specifically, Bommersbach contends that in November 2000, Ruiz refused to send Bommersbach to see his cancer specialists, Drs.Oza and Poulos, and that he did not see a cancer specialist until May 2002.

On September 16, 2003, the Court adopted a Report and Recommendation submitted by then Magistrate Judge Gerald B. Cohn (Doc. 11). In that Order, the Court found that the PLRA did not apply to James Bommersbach as he was a civilly committed person and not a prisoner. The Court also found as to Count II that "it was premature to rule on the lack of jurisdiction issue since none of the parties thoroughly addressed the issue. The Court agrees with Magistrate Judge Cohn that Count II could be a pendent state law claim that the Court may have jurisdiction to hear. As recommended by Magistrate Judge Cohn, the Court ORDERS the parties to review Count II to determine whether it is properly before the Court. Thus, the Court adopts Magistrate Judge Cohn's recommendation and denies Defendants' motion to dismiss." (Doc. 11, ps.5-6).

Thereafter, this matter was reassigned to Magistrate Judge Donald G. Wilkerson (Doc. 21). On April 14, 2005, Magistrate Wilkerson granted Plaintiffs motion to appoint Richard Bommersbach as Special Administrator of the Estate of James Bommersbach and granted in part leave to file an amended complaint (Doc. 29).¹ On May 6, 2005, Richard Bommersbach, as Special Administrator of the Estate of James Bommersbach, filed an Amended Complaint against Defendants (Doc. 31). Like the original complaint, Plaintiff alleges that Defendants withheld treatment for both decedent's skin cancer and leukemia. The Amended Complaint also contends that in November 2000, Ruiz refused to send decedent to see his cancer specialists, Drs.Oza and Poulos, and that decedent did not see a cancer specialist until May 2002. The Amended Complaint further alleges that decendent's cancerous conditions led to his death on December 12, 2004 (Doc. 31, Count I; ¶ 31; Count II, ¶ 19).

Count I is for denial of medical care under 42 U.S.C. § 1983 and Count II is for common law claim for medical negligence (Doc. 31, ¶ 6). Count II alleges that it was the duty of Defendants under 730 ILCS 1003-7-2(d) to provide medical care to Plaintiffs decedent, by reason of a contract with the Illinois Department of Corrections (Doc. 31; Count II, ¶ 14). Count II further alleges that Defendants failed to provide chemotherapy treatments and Neupogen ordered by Dr. Oza; failed to provide radiation treatments ordered by Dr. Poulos and failed to provide the medical care by specialists which had been approved previously by the Health Care Unite Medical Director (Doc. 31; Count II, ¶ 15).

On September 26, 2005, Defendants moved to dismiss Count II of the Amended Complaint (Doc. 36). Defendants argue that Count II attempts to state a cause of action for medical negligence/medical malpractice under Illinois law, thus, Plaintiff failed to comply with Illinois law by failing to attach an affidavit from a reviewing health care professional as required by 735 ILCS 5/2-622. On October 10, 2005, Plaintiff filed an opposition to the motion to dismiss arguing that Count II is not one for medical malpractice, therefore, 735 ILCS 5/2-622 does not apply (Doc. 38). He argues that Count II is brought against Defendants for conduct not involving treatment, but rather decisions whether to approve the expenditures for medical care ordered by physicians at Big Muddy Correctional Center and specialists.

Pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Wilkerson submitted a Report on April 25, 2006 (Doc. 39). The Report recommends that the Court grant Defendants' motion to dismiss Count II of Plaintiffs Amended Complaint for failing to attach a proper affidavit as required by 735 ILCS 5/2-622 (Doc. 36). Specifically, Magistrate Judge Wilkerson recommends that the Court find that Count II of the Amended Complaint asserts a claim for "healing art malpractice," therefore, Plaintiff needs to comply with the requirements of 735 ILCS 5/2-622 and attach an affidavit from a medical professional indicating that the case has merit. The Report was sent to the attorneys of record with a notice informing them of their right to appeal by way of filing "objections" within ten days of service of the Report. On May 11, 2006, Plaintiff filed objections to the Report (Doc. 41).

Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir.1992). The Court may "accept, reject of modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.

In his objections, Plaintiff maintains that the Court should reject the Report because Magistrate Judge Cohn previously found that Count II is not based on healing art malpractice (Doc. 41).² Plaintiff contends that Count II is a common law negligence action, supported in part by violation of the statutory duty to provide medical care. Plaintiff further contends that in this case "the decisions involving medical judgment had already been made before Dr. Ruiz took over the care of Mr. Bommersbach. The healthcare unit doctors had already decided that Mr. Bommersbach needed cancer treatment by specialists, and the specialists had already decided what course of treatment was needed." (Doc. 41, ¶ 13). "Count II is brought against DR. RUIZ and WEXFORD HEALTH SOURCES for conduct not involving medical judgment, but rather a decision to discontinue treatment already prescribed." (Doc. 41, ¶ 16). Based on the following, the Court rejects Plaintiffs argument, adopts Magistrate judge Wilkerson's Endings and conclusions and grants Defendants' motion to dismiss Count II of the Amended Complaint.

II. Motion to Dismiss

The standard governing motions to dismiss is well-established. The allegations of the complaint, and all reasonable inferences therefrom, are taken as true, and the question is whether — under those assumptions — the plaintiff would have a right to legal relief. Baker v. Westinghouse Elec. Co., 70 F.3d 951, 954 (7th Cir.1995) (citing Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986)). A plaintiff need not set out in detail all facts upon which a claim is based, but the complaint must allege sufficient facts to outline a cause of action. McKay v. Town & Country Cadillac, Inc., 991 F.Supp. 966, 969 (N.D.Ill. 1997). Accord Kyle v. Morton High School, 144 F.3d 448, 455 (7th Cir.1998). Further, the complaint "must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory." McKay at 969 (quoting Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Dev. Co., 758 F.2d 203, 207 (7th Cir.1985)). A plaintiff can plead conclusions, but the conclusions "must provide the defendant with at least minimal notice of the claim." Kyle at 455 (quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir.1995)). The Court is not required to accept as true legal conclusions alleged or inferred from pleaded facts. McKay at 969 (citing Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 730 (7th Cir.1994)).

III. Analysis

Section 2-622 of the Illinois Code applies "to any action ... in which the plaintiff seeks damages for injuries or death by reason of medical, hospital or other healing art malpractice." 735 ILCS 5/2-622.³ The term "medical, hospital or other healing art practice" must be construed broadly." Jackson v. Chicago Classic Janitorial and Cleaning Servic, Inc., 355 Ill.App.3d 906, 291 Ill.Dec. 469, 823 N.E.2d 1055, 1058 (Ill.App.2005)(leave to appeal denied, 215 Ill.2d 598, 295 Ill.Dec. 521, 833 N.E.2d 3 (Ill. May 25, 2005) (citations omitted). "The phrase `healing art' includes `an entire branch of learning dealing with the restoration of physical or mental health.'" Id. at 1059(quoting Lyon v. Hasbro Industries, Inc., 509 N.E.2d "Malpractice is defined as "[f]ailure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent member in of the profession with the result of injury * * * to the recipient of those services." Id. at 1059 (quoting Black's Law Dictionary 959 (6th ed.1990)). Further, "`[m]alpractice' is defined as incorrect or negligent treatment of the patient by a person responsible for his...