Medical Malpractice Motion 7 - defendants 619 motion to dismiss

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Motion to Dismiss Plaintiff's Complaint

Respectfully Submitted, Baker & Enright, Attorneys for defendant, Northwest Community Hospital.

Robert S. Baker, John W. Weiss, Baker & Enright, 33 West Jackson Blvd., Chicago, Illinois 60604, 312/663-9600, Atty No. 31368.

Now comes the defendant, NORTHWEST COMMUNITY HOSPITAL, by and through its attorneys, BAKER & ENRIGHT, and for its Motion to Dismiss Plaintiff's Complaint pursuant to sections 2-615, 2- 619, and 2-622 of the Illinois Code of Civil Procedure, states as follows:

2-615 MOTION TO DISMISS FOR FAILURE TO PLEAD SPECIFIC FACTS

1. On August 9, 2005, plaintiff filed her Complaint at Law sounding in medical negligence against NORTHWEST COMMUNITY HOSPITAL and others along with an Attorney's Affidavit and Reports of a Reviewing Healthcare Professional Pursuant to 735 ILCS 5/2-622. (See Exhibit “A” attached hereto).

2. Plaintiff alleges in Counts XI and XII of her Complaint that “NORTHWEST COMMUNITY HOSPITAL, by and through its apparent agents, including but not limited to [Emphasis added] co-defendant Anthony J. Malone, M.D.” was negligent in one or more of the following respects:

a. Failed to advise VINCENT CUPIDRO of the results of his March 14, 2003 x-ray;

b. Failed to send his report of VINCENT CUPIDRO'S March 14, 2003 x-ray to the ordering physician;

c. Failed to adequately communicate the results of VINCENT CUPIDRO'S March 14, 2003 x-rays with the ordering physician;

d. Otherwise neglected and failed to properly care for and prevent injury to VINCENT CUPIDRO.

3. Defendant, Anthony J. Malone, M.D. is the only named and identified alleged “apparent agent” of this defendant named in Counts XI and XII of plaintiff's Complaint who plaintiff alleges was negligent.

4. Plaintiff has not specifically named any other alleged “apparent agents” in Counts XI and XII for whose actions and/or omissions plaintiff is attempting to hold this defendant liable.

5. Plaintiff alleges in Count IV (sic - likely intended to be Count XIII) of her Complaint that “NORTHWEST COMMUNITY HOSPITAL was independently negligent in the care and treatment of VINCENT CUPIDRO for one or more of the following reasons:”

a. Failed to review, monitor and properly supervise the medical care and treatment administered by Brian H. Albert, M.D., Burton Herbstman, M.D., and Anthony J. Malone, M.D. and other healthcare providers at its facility;

b. Failed to exercise reasonable skill and care in the selection, retention and continuing evaluation of Brian H. Albert, M.D., Burton Herbstman, M.D., and Anthony J. Malone, M.D. and other healthcare providers at its facility;

c. Failed to provide an appropriate method of communication between its healthcare providers;

d. Failed to insure that its healthcare providers communicated the results of diagnostic tests performed on its patients;

e. Otherwise failed to review and properly supervise the medical care and treatment administered to IRIS FLORES (sic) at the facility.

6. Because Illinois is a fact pleading state, plaintiffs must allege facts sufficient to afford the defendant the opportunity to defend the cause of action. Capitol Indemnity Corp. v. Stewart Smith Intermediaries, Inc., 229 III.App.3d 119, 593 N.E.2d 872, 171 III.Dec. 52, 55-56 (1 st Dist. 1992). Although pleadings are to be liberally construed ( 735 ILCS 5/2-603 ), “a complaint must, nonetheless, state a cause of action by allegation of facts.” Mount Zion State Bank and Trust v. Consolidated Communications, Inc., 169 111.2d 110, 660 N.E.2d 863, 214 III.Dec. 156, 162 (1996). Essentially, a defendant needs to know in what manner the plaintiff claims the defendant wronged the plaintiff in order to legitimately answer the complaint and formulate a strategy for discovery to prepare for trial. Holton v. Resurrection Hospital, 88 III.App.3d 655, 410 N.E.2d 969, 43 III.Dec. 836, 839 (1 st Dist. 1980).

7. The facts pled in Counts XI and XII of plaintiff's Complaint are insufficient to allow this defendant to respond. Allegations that certain, unknown, unidentified, and unnamed individuals were the alleged “apparent agents” of this defendant are impracticable to defend because it is impossible to determine the identity of these individuals for whose conduct plaintiff seeks to hold this defendant liable based on the Complaint. Therefore, any allegations referencing “apparent agents” other than Anthony J. Malone, M.D. must be dismissed.

8. Additionally, allegations that this defendant was negligent as an institution with respect to procedures in place and the supervision and retention of hospital personnel “including but not limited to [Emphasis added] co-defendants Brian H. Albert, M.D., Burton L. Herbstman, M.D., and Anthony J. Malone, M.D.,” are impracticable to defend because it is impossible to determine the identity of individuals, other than Brian H. Albert, M.D., Burton L. Herbstman, M.D., and Anthony J. Malone, M.D., for whose conduct this defendant was allegedly negligent in its procedures, supervision, and retention of these other unknown hospital personnel. Therefore, plaintiff's Complaint must be dismissed for failure to plead specific facts.

2-619 MOTION TO DISMISS FOR FAILURE OF REVIEWING HEALTHCARE PROFESSIONAL'S REPORT CRITICIZING ANTHONY J. MALONE, M.D. TO SUPPORT APPARENT AGENCY COMPLAINT

9. This defendant adopts and incorporates paragraphs 1-4 of this Motion to Dismiss.

10. Plaintiff's reviewing healthcare professional's report directed to Anthony J. Malone, M.D., is critical only of the conduct of defendant, Anthony J. Malone, M.D. (See Exhibit “A” attached hereto).

11. The purpose of the reviewing physician's report requirement under section 2-622 is to discourage frivolous medical malpractice suits and dispose of actions without merit before litigation expenses mount. DeLuna v. St. Elizabeth's Hospital, 147 111.2d 57, 588 N.E.2d 1139, 167 III.Dec. 1009, 1012 (1992). The Illinois Appellate Court has held that for a section 2-622 physician's report to be sufficient, it must discuss how each defendant was involved in the treatment of the plaintiff and how each defendant committed malpractice by stating more than just a “generalized conclusion of malpractice.” Jacobs v. Rush North Shore Medical Center, 284 III.App.3d 995, 673 N.E.2d 364, 220 III.Dec. 452, 455 (1 st Dist. 1996). Generally, a separate physician's report needs to be filed as to each defendant complained of by the plaintiff. Peterson v. Hinsdale Hospital, 233 III.App.3d 327, 599 N.E.2d 84, 174 III.Dec. 538, 541 (2d Dist. 1992). Nonetheless, a separate physician's report does not need to be filed as to a defendant if the only alleged theory of liability against the defendant is vicarious liability. Mueller v. North Suburban Clinic, Ltd., 299. III.App.3d 568, 701 N.E.2d 246, 233 III.Dec. 603, 607 (1 st Dist. 1998).

12. Although plaintiff only seeks to hold this defendant liable on agency theories in Counts XI and XII of plaintiff's Complaint, the report of the reviewing healthcare professional is not sufficient to support a “reasonable and meritorious” cause of action against this defendant. The report is only critical of Anthony J. Malone, M.D.

13. The report critical of the conduct of Anthony J. Malone, M.D. is not critical of any other alleged “apparent agents” of this defendant. Therefore, the report is insufficient as to this defendant and Counts XI and XII of plaintiff's Complaint must be dismissed for failure of the reviewing healthcare professional's report to support the allegations in those Counts.

2-619 MOTION TO DISMISS FOR FAILURE OF REVIEWING HEALTHCARE PROFESSIONAL'S REPORT CRITICIZING ANTHONY J. MALONE, M.D. TO SUPPORT ALLEGATIONS IN COMPLAINT

14. This defendant adopts and incorporates paragraphs 1-5 of this Motion to Dismiss.

15. As discussed, a reviewing physician's report must discuss how each defendant was involved in the treatment of the plaintiff and must discuss how each defendant committed malpractice by stating more than just a “generalized conclusion of malpractice.” Jacobs 220 III.Dec. at 455. The report must set forth, specifically, the reasons why the reviewing physician believes there is a meritorious cause of action. Peterson, 174 III.Dec. at 542.

16. The report with respect to Anthony J. Malone, M.D. states in part, “If the report was not sent to Dr. Albert, the care provided by Dr. Malone and Northwest Radiology Associates, S.C. fell below the standard of care.” (See Exhibit “A” attached hereto).

17. The report with respect to Northwest Community Hospital states in part, “If Dr. Albert did not receive the report, the care provided by Northwest Community Hospital fell below the standard of care.” (See Exhibit “A” attached hereto).

18. The conclusion that there is meritorious cause of action in the instant case is supported only by conjecture on the part of the reviewing physician. Despite the reviewing physician's conclusion that there is a reasonable and meritorious cause of action, the conditional language “if...” in the reviewing physician's report makes it clear that he/she cannot say whether a violation occurred other than in hypothetical terms.

19. The reviewing physician's report does not truly come to the conclusion that there is a reasonable and meritorious cause of action; it simply states that there may be a hypothetical standard of care violation. Therefore, plaintiff's Complaint must be dismissed for failure of the physician's report to support plaintiff's Complaint.

2-619 MOTION TO DISMISS FOR LACK OF QUALIFICATION OF REVIEWING HEALTHCARE PROFESSIONAL WITH RESPECT TO CLAIM OF INSTITUTIONAL NEGLIGENCE

20. This defendant adopts and incorporates paragraphs 1-5 of this Motion to Dismiss.

21. Under section 2-622(a)(1), a reviewing healthcare professional must demonstrate that he/she:

(i) is knowledgeable in the relevant issues involved in the particular action;

(ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case.

22. If the reviewing physician cannot demonstrate that he/she has competence or experience in the practice area involved in the Complaint's allegations, the report will not comply with section 2-622. Cuthbertson v. Axelrod, 282 III.App.3d 1027, 669 N.E.2d 601, 218 III.Dec. 458, 463 (1 st Dist. 1996). Moreover, Cuthbertson held that a physician's deficiency in a given medical subject rendered the physician unqualified to form an opinion with regard to whether the complaint stated a meritorious cause of action and was not a “minor or technical” matter with respect to pleadings. Id.

23. With respect to a reviewing healthcare professional's report, generally “[h]ospitals fall within the class of ‘all other defendants' for whom consultation with a physician is required.” Giegoldt v. Condell Medical Center, 328 III.App.3d 907, 767 N.E.2d 497, 263 III.Dec. 46, 50 (2d Dist. 2002). However, Jacobs pointed out that “there is support for the notion that, when allegations of a hospital's failure to supervise are advanced, the reviewing professional may be required to demonstrate competence in health care administration.” 220 III.Dec. at 455.

24. The unnamed doctor who submitted a report with respect to this defendant is board-certified in internal medicine and hematology. (See exhibit “A” attached hereto). However, nothing in the report indicates that this physician is qualified in any way to render an opinion with respect to “systems of communication” utilized by the hospital.

25. Further, the reviewing physician does not even mention any allegations of standard of care breaches on the part of this defendant with respect supervision or retention (as mentioned in the complaint) and further does not indicate in any way that he/she is qualified to render an opinion with respect to these allegations.

26. Because the reviewing physician is not qualified to render an opinion in the subject areas of medicine alleged in Count IV (sic) against this defendant, the report is insufficient and plaintiffs Complaint must be dismissed.

WHEREFORE, the defendant, NORTHWEST COMMUNITY HOSPITAL, prays that this court dismiss plaintiff's allegations in the Complaint with respect to alleged “apparent agents” of this defendant for failure to plead specific facts, dismiss plaintiff's Complaint for failure of the reviewing healthcare professional's report to support the allegations in the Complaint, and dismiss plaintiff's Complaint for failure of the reviewing physician to demonstrate qualifications to render an opinion that plaintiff has a reasonable and meritorious cause of action in the instant case.

Respectfully Submitted,

BAKER & ENRIGHT

By:<<signature>>

Attorneys for defendant,

NORTHWEST COMMUNITY HOSPITAL

Robert S. Baker

John W. Weiss

BAKER & ENRIGHT

33 West Jackson Blvd.

Chicago, Illinois 60604

312/663-9600

Atty No. 31368

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