Foote v. United States

• Decision Date: 22 October 1986
• Docket Number: No. 85 C 7159.,85 C 7159.
• Citation: 648 F. Supp. 735
• Parties: Abraham FOOTE, Plaintiff, v. UNITED STATES of America, Defendant/Third Party Plaintiff, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER, Third Party Defendant.
• Court: U.S. District Court — Northern District of Illinois

648 F. Supp. 735

Abraham FOOTE, Plaintiff, v. UNITED STATES of America, Defendant/Third Party Plaintiff, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER, Third Party Defendant.

No. 85 C 7159.

United States District Court, N.D. Illinois, E.D.

October 22, 1986.

Carl Nusbaum, Levin, Sorkin & Nusbaum, Chicago, Ill., for plaintiff.

Michael O'Connell, Asst. U.S. Atty.'s Office, Lord, Bissell & Brook, Chicago, Ill., for defendant/third party plaintiff.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Abraham Foote brought this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1982), against the United States of America ("the government") for injuries allegedly incurred as a result of the failure of medical personnel at a government hospital to diagnose and properly treat a ruptured quadriceps mechanism which Foote had suffered. The government then filed a third-party complaint under Fed.R.Civ.P. 14(a) against Michael Reese Hospital and Medical Center ("Reese") seeking contribution under the Illinois Contribution Act, Ill.Rev.Stat. ch. 70, ¶ 302(a) (1985), with respect to treatment rendered by Reese to Foote prior to his visit to the government facility. Presently before this Court is Reese's motion to dismiss the third-party complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. For the reasons stated below, Reese's motion to dismiss is denied.

In general, the same principles governing the disposition of a 12(b)(6) motion apply whether the plaintiff's original complaint or a third-party complaint is involved. See 6 C. Wright & A. Miller, Federal Practice and Procedure § 1455 (1971). Thus, for the purposes of this motion we assume the truth of the well-pleaded factual allegations in the government's third-party complaint. Al-Hazmi v. City of Waukegan, 579 F.Supp. 1441, 1442 n. 2 (N.D.Ill.1984). Furthermore, we cannot grant the motion to dismiss for failure to state a claim unless it appears beyond doubt that the government can prove no set of facts which would entitle it to relief. Id. at 1444 n. 6 (citing the now familiar liberal pleading standards set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), in reviewing a third-party complaint). With these standards in mind, we turn to the third-party complaint.

On January 15, 1981, Foote first went to Reese for treatment of an injury to his right leg. He was seen in the emergency room and released. Third-Party Complaint ¶ 6. Ten days later Foote went to Naval Regional Medical Center at Great Lakes ("Naval Regional") complaining of pain, stiffness and weakness in the knees. He was seen in the emergency room and released, but returned to Naval Regional later during the same year for treatment. Third-Party Complaint at ¶¶ 4, 7. As noted above, Foote has allegedly sustained damage to his right leg due to the government's failure to properly diagnose and treat a rupture of his right quadriceps mechanism.

In its third-party complaint, the government alleges that it is entitled to contribution from Reese regarding any liability to Foote which the government might have, because Reese first failed to diagnose the problem in Foote's leg. Reese asserts that the government fails to state a claim because Reese's treatment of Foote predated that of the government, and Reese therefore cannot be the cause or a contributing cause of the alleged injury claimed in Foote's lawsuit.

Under Fed.R.Civ.P. 14(a), at any time after the commencement of an action, a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. Under this rule, the government in this case has the right to bring in a third-party defendant that is or may be liable to it for all or part of Foote's claim under the Federal Tort Claims Act. Fed.R.Civ.P. 14(a); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1450 (1971).

State law governs liability, including the right to indemnity or contribution, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1982); Smith v. United States, 688 F.2d 476, 479 n. 7 (7th Cir.1982). We determine which state's law is to apply by looking to the place where the act or omission underlying the suit occurred. 28 U.S.C. § 2674 (1982); Smith, 688 F.2d at 479 n. 7. Reese and Naval Regional, the only places where Foote sought medical treatment for his leg, are both located in Illinois. Thus, the basis for the government's third-party complaint against Reese is the Illinois Contribution Act, Ill.Rev.Stat. ch. 70, ¶ 302(a) (1985), which states:

Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property ... there is a right of contribution among them, even though judgment has not been entered against any or all of them.

Accordingly, there are only two express requirements contained in the statute: the third-party plaintiff and third-party defendant must be subject to liability in tort, and that liability must arise from the same injury.

The first requirement, that the liability be based in tort, does not pose a problem. Foote alleges negligence on the government's part for failure to diagnose...