Riley v. United States
| Decision Date | 28 August 2019 |
| Docket Number | No. 18 C 4810,18 C 4810 |
| Parties | MARCUS RILEY, as independent administrator to the estate of CYNTHIA SUDOR, deceased, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Marcus Riley ("Plaintiff"), as the independent administrator of Cynthia Sudor's ("Sudor") estate, brings this action on behalf of Sudor, who died on July 6, 2015. (R. 15, Am. Compl. ¶¶ 1-25.) Plaintiff alleges that the United States of America ("United States"), Advocate Trinity Hospital ("ATH"), Jackson Park Hospital and Medical Center ("JPHMC"), Rita McGuire, M.D. ("McGuire"), and Naseem Fatima, M.D. ("Fatima") (collectively, the "Defendants") caused Sudor's death. (Id. ¶¶ 26-85.) Before the Court is ATH's motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 32, Mot.) For the reasons set forth below, the motion is granted.
Plaintiff alleges that, on or about May 25, 2015, Sudor went to ATH for medical treatment. (R. 15, Am. Compl. ¶ 18.) Sudor was allegedly experiencing symptoms of a urinary tract infection, which included vaginal bleeding. (Id. ¶ 19.) Plaintiff claims that a urine test was performed, and it showed the presence of white blood cells and bacteria in Sudor's urine, which Plaintiff alleges are results consistent with a urinary tract infection. (Id.) Plaintiff claims that, at ATH, Sudor was under the care of Ericka Searles, M.D., ("Searles"), a licensed physician and employee of the United States. (Id. ¶ 18.) Searles allegedly failed to properly treat the urinary tract infection or order additional testing and then discharged Sudor despite her symptoms of a urinary tract infection. (Id. ¶ 20.)
On May 30, 2015, Sudor went to JPHMC for medical care and treatment. (Id. ¶ 21.) Plaintiff alleges that Sudor was under the care of McGuire and Fatima, who were employed by JPHMC. (Id.) Plaintiff claims that, at this time, Sudor still showed obvious signs of a urinary tract infection, and that McGuire and Fatima failed to order additional tests or treat Sudor's urinary tract infection. (Id. ¶ 22.)
On May 31, 2015, Sudor allegedly went back to ATH with fever, chills, and severe right-lower back pain. (Id. ¶ 23.) Sudor was admitted to ATH's intensive care unit, allegedly diagnosed with "Acute Respiratory Distress Syndrome . . . and E. coli pyelonephritis" as a result of the undiagnosed and untreated urinary tract infection. (Id.) Plaintiff claims that Sudor's condition deteriorated, and on June 9, 2015, Sudor was transferred to Advocate Christ Medical Center in Oak Lawn, Illinois. (Id. ¶ 24.) Plaintiff claims that when Sudor arrived at Advocate Christ Medical Center, she was in cardiogenic shock and placed on respiratory support. (Id.) Sudor died soon thereafter, on July 6, 2015. (Id. ¶ 25.)
Plaintiff filed his initial complaint on July 13, 2018. (R. 1, Compl.) On November 2, 2018, Plaintiff filed an amended complaint, which is the operative complaint. (R. 15, Am. Compl.) It brings six claims for wrongful death against the Defendants and a count alleging that the wrongful death claims survive Sudor's death. (Id. ¶¶ 26-85.)
On January 4, 2019, ATH filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and that motion was entered and continued pending the Court's decision on a motion to remand filed by JPHMC, McGuire, and Fatima. (R. 32, Mot.; R. 35, Min. Entry.) On May 17, 2019, the Court denied the motion to remand, and then on May 29, 2019, the Court ordered the parties to fully brief ATH's motion to dismiss. (R. 48, Order at 8; R. 49, Min Entry.)
In its motion to dismiss, ATH argues that it should be dismissed as a defendant because Plaintiff fails to allege any ATH employee or agent who was involved in Sudor's care. (R. 32, Mot. at 2-4.) According to ATH, the only physician working at ATH who is referenced in the amended complaint is Searles, who is an agent of the United States and not ATH. (Id.) ATH also argues that Plaintiff did not name any ATH "agents or employees" in a report that must be filed pursuant to 735 ILL. COMP. STAT. 5/2-622, which requires plaintiffs in medical malpractice lawsuits to file a report from a qualified medical professional stating that there is a reasonable and meritorious basis for filing a medical malpractice lawsuit. (Id. at 4-5 (referencing 735 ILL. COMP. STAT. 5/2-622).) In response, Plaintiff argues that he has sufficiently alleged that Searles is ATH's agent, and that his Section 2-622 report is sufficient under Illinois law to survive dismissal. (R. 51, Resp. at 1-6.) Plaintiff alternatively requests that the Court allow him to amend his Section 2-622 report if the Court concludes that it is insufficient. (Id. at 5.)
In its reply brief, ATH again challenges the sufficiency of Plaintiff's allegations because, according to ATH, Plaintiff's amended complaint and Section 2-622 report do not identify any ATH employees for whom ATH could be liable. (R. 56, Reply at 2-3.) ATH argues that even if Plaintiff claims that ATH is vicariously liable through agency, Plaintiff's Section 2-622 report must identify the putative agent whose actions ATH is liable for to survive a motion to dismiss. (Id. at 3.)
A motion to dismiss pursuant to Rule 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In assessing the sufficiency of the complaint, the Court accepts all well-pleaded factual allegations in the complaint as true and "draw[s] all reasonable inferences in favor of the non-moving party." Tobey v. Chibucos, 890 F.3d 634, 639, 645 (7th Cir. 2018).
ATH argues that the Court should dismiss it as a defendant because Searles is "not a named Defendant," and because Searles is a "federal government employee who at all times relevant worked at Chicago Family Health Center and acted within the scope of her employment at Chicago Family Health Center[.]" (R. 32, Mot. at 2-4.) Therefore, according to ATH, there is no basis to hold it vicariously liable for Searles' conduct. (Id.) The Court agrees that Plaintiff has not sufficiently alleged a basis for ATH to be held vicariously liable for Searles' or any other person's conduct.
Plaintiff alleges that Searles was an employee of the United States acting within the scope of her employment when the alleged negligence occurred. (R. 15, Am. Compl. ¶¶ 7-11.) Additionally, Searles has been certified by the U.S. Department of Justice as a U.S. government employee. (R. 15, Am. Compl. ¶¶ 1-5; 17-cv-7973, R. 1 at 18, Section 233 Certification.) ATH iscorrect that, for any alleged medical malpractice committed by Searles, Plaintiff's exclusive remedy is an action against the United States under the FTCA. See 28 U.S.C. § 2679 (b)(1) (); Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2012) (); Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007) (). Plaintiff argues that Searles was an actual or apparent agent of ATH. (R. 51, Resp. at 1-4.) She alleges as a fact, however, that Searles, "[a]t all times relevant to this Complaint, . . . was employed by and/or acting on behalf of [the United States]," and there is no dispute that the United States has certified that Searles is its employee for purposes of this lawsuit. (R. 15, Am. Compl. ¶¶ 11, 18, 29.) The Court, therefore dismisses any vicarious liability claim against ATH based on Searles' negligence because her exclusive remedy for any such negligence is a suit under the FTCA.
Plaintiff, however, avers that ATH's negligence arises not only out of Searles' conduct, but also out of the conduct of "its staff individuals who, upon information and belief, were either actual or apparent agents of ATH. (R. 15, Am. Compl. ¶ 50.) According to Plaintiff, these individuals were "doctors and other medical professionals, including non-medicalprofessionals[.]" (Id. ¶¶ 52-53.) Under Illinois law,1 a hospital can be held liable for the acts of an agent as well as an apparent or ostensible agent. Gilbert v. Sycamore Mun. Hosp., 622 N.E.2d 788, 794 (Ill. 1993); Groeller v. Evergreen Healthcare Ctr. LLC, 31 N.E.3d 869, 875 (Ill. App. Ct. 2015) ().
Specifically, "where a principal has created the appearance of authority in an agent, and another party has reasonably and detrimentally...
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