Dawson v. United States, 3:16-cv-00827-DRH-SCW

CourtUnited States District Courts. 7th Circuit. Southern District of Illinois
Docket NumberNo. 3:16-cv-00827-DRH-SCW,3:16-cv-00827-DRH-SCW
Decision Date14 March 2017

TERI DAWSON, Plaintiff,

No. 3:16-cv-00827-DRH-SCW


March 14, 2017


HERNDON, District Judge:

Before the Court is defendant's motion to dismiss negligence Count II and negligent infliction of emotional distress Count V, pursuant to Fed. R. Civ. P. 12(b)(6); and, motion to strike pursuant to Fed. R. Civ. P. 12(f)(2) (Doc. 22). Plaintiff opposes (Doc. 38). Based on the following, defendant's motion is GRANTED IN PART and DENIED IN PART and plaintiff is granted leave to amend.


Plaintiff Teri Dawson ("Dawson") originally filed this action in the Circuit Court of the First Judicial Circuit, Jackson County, Illinois (Doc. 1-1). She asserts claims for negligence and negligent infliction of emotional distress ("N.E.I.D") against Southern Illinois Healthcare d/b/a Memorial Hospital of Carbondale ("SIHS"), stemming from a surgical procedure that failed to properly

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seal a port closure1 resulting in herniation and small bowel obstruction. Following surgery, Dawson sustained severe abdominal complications from an incisional hernia, and suffered nausea, vomiting, diarrhea, and probable gastritis; and, now is diagnosed with posttraumatic stress disorder, depression, and anxiety—all of which require psychological counseling, and prescription of antidepressant medications. For relief, Dawson requests monetary damages and costs.

In defense, SIHS argues failure to sufficiently assert medical negligence and N.I.E.D. claims due to defective pleading (Doc. 22). Specifically, arguing that Dawson's required attorney's affidavit (Doc. 1-1 at 16-17), does not satisfy the pleading requirements of 735 ILL. COMP. STAT. 5/2-622(a)(1); and, declaring the complaint—as a whole—fails to support allegations of institutional negligence (Doc. 22). As a result, SIHS requests the Court dismiss negligence Count II and N.I.E.D. Count V pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim (Id. at 3). In addition, SIHS contends that paragraph 34 and 35(a) & (d) of negligence Count II should be stricken because it owes no duty to ensure Dawson's safety or ensure doctors utilizing its facilities will not act negligently in caring for patients (Id. at 4); and, Count V should follow suit under Fed. R. Civ. P. 12(f)(2), because allegations in N.I.E.D. Count V mirror those in negligence Count II. (Id.).

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A. Rule 12(b)(6)

Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule 12(6)(b) dismissal is warranted if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Notice pleading remains all that is required in a complaint, even though federal pleading standards were overhauled by Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009). "A plaintiff still must provide only 'enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.' " Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (citation omitted).

The Seventh Circuit offers further instruction on what a civil action must allege to endure 12(b)(6) dismissal. In Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008), the Court reiterated the standard: "surviving a Rule 12(b)(6) motion requires more than labels and conclusions"; the complaint's allegations must "raise a right to relief above the speculative level." A plaintiff's claim "must be plausible on its face," that is, "the complaint must establish a non-negligible probability that the claim is valid." Smith v. Med. Benefit Admin. Grp., Inc., 639 F.3d 277, 281 (7th Cir. 2011).

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B. Rule 12(f)

Under Rule 12(f) the court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored but may be used to expedite a case and "remove unnecessary clutter." Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); see also Wiliams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991) (stating motions to strike will not be granted unless it appears to certainty that plaintiffs would succeed despite any state of facts which could be proved in support of defense and are inferable from pleadings).


SIHS maintains Dawson failed to establish the author of her medical report met requisite qualifications of 735 ILL. COMP. STAT. 5/2-622.2 Dawson contends requirements specified in section 2-622 are inapplicable because her claims are based upon "institutional negligence" not "healing art malpractice;" and, even if section 2-622 applies, the documents attached to her complaint satisfy statutory prerequisites.

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A. Healing Art Malpractice or Institutional Negligence

Section 2-622 requires an affidavit to be attached to the to the complaint in any action in which the plaintiff seeks damages for injuries by reason of medical, hospital, or healing art malpractice. 735 ILL. COMP. STAT. 5/2-622(a). "When construing a statute, [the] court's primary objective is to ascertain and give effect to the intent of the legislature." Valfer v. Evanston Nw. Healthcare, 2016 IL 119220, ¶22, 52 N.E.3d 319, 326 (Ill. 2016). The language used in the statute must be given its plain and ordinary meaning, see Gillespie Cmty. Unit Sch. Dist. v. Wight & Co., 2014 IL 115330, ¶31, 4 N.E.3d 37, 44, and the statute should be construed in its entirety, thus words should not be viewed in insolation. See Midstate Siding and Window Co., Inc. v. Rogers, 204 Ill.2d 314, 320, 789 N.E.2d 1248, 1252 (Ill. 2003).

Whether Dawson's injury allegations for damages against SIHS are labeled "negligence," "institutional negligence," or "healing art malpractice," under the plain ordinary language of section 2-622, the fact remains, an affidavit declaring the affiant has consulted with and reviewed facts of the case with a medical professional must be attached to the complaint. See § 2-622.

B. 5/2-622(a)(1) Procedural Defect

SIHS argues the affidavit failed to establish the author of the medical report possessed necessary qualifications pursuant to section 2-622(a)(1). Namely, failure to identify the profession of the reviewing health professional; and, failure to state whether the author of the report is a licensed physician. On the other hand, Dawson argues that section 2-622(a)(1) requirements are satisfied

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because the affidavit certifies the reviewing health care professional is qualified, and the report describes Dawson's cause of injury in detail.

i. Section 2-622 Requirements

Section 2-622 contains a two-tiered list of...

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