Defendant's 619 Dismissal Motion

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Motion to Dismiss Plaintiff's Complaint and Motion to Strike Pursuant to 735 ILCS 5/2-615, 735 ILCS 5/2-619 and 735 ILCS 5/2-622

Respectfully submitted, One of the Attorneys for William L. Dawson Nursing Center, Inc., an Illinois corporation d/b/a William L. Dawson Nursing Home.

Charles H. Cole, Richard J. Juarez, Schuyler, Roche & Zwirner, 130 East Randolph Street, Suite 3800, Chicago, Illinois 60601, Tel: (312) 565-2400, Fax: (312) 565-8300.

NOW COMES the Defendant, WILLIAM L. DAWSON NURSING CENTER, INC., an Illinois corporation d/b/a WILLIAM L. DAWSON NURSING HOME, by and through its attorneys, SCHUYLER, ROCHE & ZWIRNER, and moves this Honorable Court for dismissal of the plaintiff's Complaint at Law pursuant to 735 ILCS 5/2-615, 735 ILCS 5/2-619 and 735 ILCS 5/2-622, and in support thereof states:

INTRODUCTION

1. The plaintiff, TONY BOND, as Special Administrator of the Estate of BETTE BOND, deceased, has filed a five-count Complaint at Law (attached as Exhibit “A”). Counts I through IV are directed against these defendants.

2. Counts I and II seek recovery under 210 ILCS 45/1-101 et. seq., commonly known as the Illinois Nursing Home Care Act. Count III states a common law negligence action and seeks recovery pursuant to the Illinois Survival Act (735 ILCS 5/27-6). Count IV also states a common law negligence action and seeks recovery pursuant to the Illinois Wrongful Death Act ( 740 ILCS 180/1 et. seq. ).

3. The Complaint at Law alleges the following:

- The decedent, BETTE BOND, was a resident of the DAWSON NURSING HOME from approximately January, 2003 through August 7, 2003. (Exhibit “A”, Count I, Par. 4);

-Upon admission to the facility, BETTE BOND was suffering from multiple sclerosis and required assistance with all activities of daily living including, but not limited to, transfers and mobility. (Exhibit “A”, Count I, Par. 12);

- On or before February 17, 2003, BETTE BOND developed multiple and worsening pressure ulcers. (Exhibit “A”, Count I, Par. 13).

4. Counts I and II of the complaint further allege that the “defendants, through their owners, office managers and agents” violated the applicable provisions of the Illinois Nursing Home Care Act in that the defendants:

- Violated the pertinent provisions of 42 U.S.C. § 1396(r) (1990) et. seq. as amended by Section 483.75 of the Omnibus Budget Reconciliation Act of 1987 and Volume 42, Code of Federal Regulations, Part 483, which contains Medicare and Medicaid requirements for long-term facilities. (Exhibit “A”, Counts I and II, Pars. 11 and 15(a) - (j));

- Violated the pertinent provisions of 77 Illinois Administrative Code, Chapter 1, Section 300. (Exhibit “A”, Counts I and II, Pars. 15(k)-(o)); and Negligently failed to provide appropriate medical care to BETTE BOND while she was a patient in the nursing home. (Exhibit “A”, Counts I and II, Pars. 15(p)-(z).

5. Counts III and IV contain similar allegations, except those counts allege that the aforementioned violations constituted negligence acts and/or omissions.

6. The Complaint further alleges that as a result of the aforementioned statutory violations and/or negligent acts, BETTE BOND sustained injuries resulting in her death.

7. The Complaint does not identify the agents, employees and owners of DAWSON NURSING HOME whose conduct gave rise to the plaintiff's Complaint. The Complaint also does not identify when the conduct in question occurred or contain any factual allegations describing the conduct.

8. Subsequent to the filing of the Complaint at Law, the plaintiff filed an “Affidavit of Steven M. Levin” and a “Health Professional's Report” (attached as Exhibit “B”) pursuant to 735 ILCS 5/2-622. The report was unsigned. In Paragraph 2 of the report, the health professional states he is “familiar with the standard of care for nursing facilities as it currently relates to issues of care and treatment of the elderly and disabled.” The report does not state the health professional has practiced or taught within the last six years in the same area of health care or medicine at issue in this case.

9. In Paragraph 5 of the Health Professional's Report, the health professional states that “the staff at DAWSON was obligated to provide the necessary services and treatment to prevent pressure ulcer development and profession, as well as monitoring her clinical condition and promoting physical, mental and psycho social wellbeing.” The report fails to identify any staff members by name, occupation or job duty.

10. Set forth in Paragraph 6, subparagraphs (a)-(t) of the Health Professional's Report, is the manner in which the care provided by the “staff” at DAWSON allegedly fell below the minimum standard of care and constituted negligence.

LAW AND ARGUMENT

11. Defendant's Motion to Dismiss and Strike makes three arguments. First, the Complaint fails to set forth sufficient facts to state a claim against this defendant. Second, the affidavit and health professional report submitted by plaintiff's counsel fails to comply with 735 ILCS 5/2-622 of the Illinois Code of Civil Procedure. Finally, this defendant contends all allegations that this defendant violated federal statutory law must be stricken as those regulations do not provide for a private right of action.

I. COUNTS I - IV OF PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED PURSUANT TO 735 ILCS 5/2-615 BECAUSE PLAINTIFF FAILS TO ALLEGE SUFFICIENT FACTS TO SUPPORT A CAUSE OF ACTION AGAINST THIS DEFENDANT.

12. Illinois is a fact pleading jurisdiction and the plaintiff must allege facts essential to the cause of action under which recovery is sought. Welsh v. Commonwealth Edison Co., 306 Ill.App.3d 148, 713 N.E.2d 679, 684 (1st Dist. 1999). Mere conclusions of law, argumentative matter or conclusions of fact unsupported by allegations of specific fact upon which such conclusions rest, are irrelevant and must be disregarded by the trial court in ruling upon a motion to dismiss. Alford v. Phipps, 169 Ill.App.3d 845, 523 N.E.2d 563, 571 (4th Dist. 1988). Therefore, a Complaint must set forth a legally recognized claim as its basis for recovery and must plead facts which bring the claim within the legally recognized cause of action alleged. Failure to meet these requirements mandates dismissal of the Complaint. Doyle vs. Shlensky, 120 Ill.App.3d 807, 458 N.E.2d 1120 (1st Dist. 1983).

13. In the instant matter, plaintiff's Complaint at Law fails to set forth sufficient facts to support a cause of action against DAWSON NURSING HOME. Notably, the plaintiff's Complaint seeks recovery against this defendant based upon the vicarious liability of unnamed individuals who worked at the DAWSON NURSING HOME. Plaintiff's Complaint, however, fails to set forth any facts identifying the agents or employees whose conduct has created liability on the part of DAWSON NURSING HOME. Furthermore, the plaintiff's Complaint at Law also fails to allege specific dates of treatment or specific occurrences or acts which occurred at the nursing home and which allegedly caused the death of BETTE BOND. At a bare minimum, plaintiff should be required to plead facts establishing the identify of the agents and employees of DAWSON NURSING HOME, the dates they were involved in the medical care of BETTE BOND and the nature and/or extent of their interaction with BETTE BOND. Presently, defendants are left to defend a claim that is simply devoid of any substantive factual allegations, and contains mere conclusions of law, and therefore, the plaintiff's Complaint at Law should be dismissed.

II. COUNTS I THROUGH IV OF PLAINTIFF'S COMPLAINT AT LAW SHOULD BE DISMISSED PURSUANT TO 735 ILCS 5/2-619 AS PLAINTIFF FAILS TO SATISFY THE REQUIREMENTS OF 735 ILCS 5/2-622 .

14. Under Illinois law, “those cases that require expert analysis of the medical condition, treatment procedure, or diagnosis must comply with Section 2-622. Owens v. Manor Healthcare Corp., 159 Ill.App.3d 684, 512 N.E.2d 820, 823 (4th Dist. 1987). The purpose of Section 2-622 is to “reduce the number of frivolous suits that are filed and to eliminate such actions at an early stage.” Mueller v. North Suburban Clinic, 299 Ill.App.3d 568, 573, 701 N.E.2d 246, 250 (1st Dist. 1998). The Mueller court made it clear that, “while the affidavit and report requirements imposed on plaintiffs under Section 2-622 of the Code do not rise to the level of substantive elements of a claim for medical malpractice, neither should they be viewed as empty formulism.” Id.

A. The Health Professional's Report is Insufficient as it Fails to Set Forth Any Facts or Reasoning as to This Defendant's Conduct and Merely Contains Generalized Conclusions of Malpractice.

15. Where unsupported by any facts or reasoning, the plaintiff's Section 5/2-622 report will be deemed insufficient. Jacobs v. Rush N. Shore Medical Ctr, 284 Ill.App.3d 995, 220 III. Dec. 452, 673 N.E.2d 364 (1st Dist. 1996). When the report fails to clearly define the standard of care or how a defendant hospital failed to meet that standard of care and further fails to state what a defendant should have done and failed to do, the report is merely conclusory and is insufficient. Giegoldt v. Condell Medical Center, 328 Ill.App.3d 907; 767 N.E.2d 497, 502 (2nd Dist. 2002). A report submitted pursuant to Section 2-622 must consist of more than generalized conclusion of malpractice. Id. A report fails to comply with Section 2-622 where the physician fails to provide any reasoning for his conclusions. Tucker v. St. James Hospital, 279 Ill.App.3d 696, 665 N.E.2d 392, 395-96 (1st Dist. 1996).

16. The Plaintiffs report as to this defendant is grossly insufficient as it is conclusory, intermingles responsibilities of nurses and other staff members with those of physicians, fails to specify any bases for the conclusory opinions and fails to provide the Defendants with notice as to the alleged negligence they must face in the defense of this claim.

17. The report only offers conclusory statements regarding what the “staff” at DAWSON NURSING HOME failed to do and generally repeats the allegations set forth in the plaintiff's Complaint at Law. The health professional's report fails to delineate or identify which agents or employees of DAWSON NURSING HOME failed to comply with the applicable standard of care. The report merely alleges that the care provided by the “staff” at the nursing home fell below the minimum standard of care. The report fails to identify any of the staff members, and further fails to identify whether the “staff” members were doctors, nurses, technicians, therapists or administrative personnel. Each of these job positions is filled by an individual with different levels of experience, qualifications and training, and yet the health professional's report treats them all equally and lumps them into a category described as “staff”. The report submitted by the health professional is woefully insufficient as it (1) contains mere conclusions of law; (2) fails to set forth the manner in which the conduct of DAWSON NURSING HOME agents or employees fell below the standard of care; (3) fails to identify which agents or employees of DAWSON NURSING HOME fell below the standard of care; (4) holds all of the “staff” members at DAWSON NURSING HOME to the same standard of care despite their various background, training and experience.

B. The Health Professional's Report is Insufficient Because it Fails to Adequately Establish the Reviewing Professional's Qualifications to Review this Case.

18. Section 2-622 clearly sets forth the necessary qualifications for a reviewing health care professional who provides an affidavit in support of a plaintiff's medical malpractice claim. The health professional must be someone who:

(i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last six (6) years or teaches or has taught within the last six (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. 735 ILCS 5/2-622.

19. A physician's report must, in and of itself, establish the physician's qualifications in light of the fact that the 2-622 affidavit must be based on the report and where the report does not satisfy the statute's requirements, a dismissal may be granted. Cuthbertson v. Axelrod, 282 Ill.App.3d 1027, 669 N.E.2d 601 (1st Dist. 1996). The consultation affidavit must be based on the written medical report of the reviewing physician. Id. at 608. An affidavit will fail when it is based on an invalid medical report. Id. An affidavit is invalid where the health professional report in no way shows the physician meets the qualifications of Section 23-622(a)(1)(ii). Id.

20. In this case, the physician's report addressing the allegations against the numerous defendants of varying specialties is silent as to the physician's qualifications. Only the attorney's affidavit states that the reviewing physician is has practiced or taught within the last six years in the same area of health care or medicine which is at issue in this case. See Exhibit B. The physician report is devoid of any information to establish that the reviewing physician has practiced or taught within the last six years in the same area of medicine at issue in the instant case. As the report is insufficient, the attorney affidavit is also improper. Thus, the Complaint must be dismissed for failure to submit an affidavit and report compliant with Section 2-622.

III. THE PLAINTIFF CANNOT MAINTAIN A PRIVATE RIGHT OF ACTION FOR A VIOLATION OF THE APPLICABLE FEDERAL STATUTE.

21. This defendant moves to strike all of those allegations in the Complaint seeking recovery based upon a violation of 42 U.S.C. 1396(r). As a general rule, a federal statute does not give rise to a private cause of action unless the statute itself or its legislative history indicates that congress intended to create such a remedy. See Stewart v. Bernstein, 769 Fed.2d 1088, 1092 (5th Cir. 1985). A United States District Court has stated that “nothing in 42 U.S.C. Sec. 1396(r) indicates that Congress intended the legislation to grant individuals a private right of action enforceable against their private nursing homes.” Nichols v. St. Luke Center of Hyde Park, 800 F.Supp.1564, 1567 (S.D. Ohio 1992). The Nichols court went on to state that, “as the statute is silent on its face as to any private remedy, and as the court is aware of no other objective indication that Congress intended to create a private cause of action for violations of 42 U.S.C. Sec. 1396(r), the Court concludes that plaintiffs do not possess a federal cause of action thereunder.” In the instant matter, plaintiff's Complaint seeks recovery, in part, for numerous alleged violations of 42 U.S.C. Sec. 1396(r) as amended by the Omnibus Budget Reconciliation Act of 1987. The aforementioned case law indicates there is nothing in the statute which permits individuals to maintain actions against private nursing facilities for violation of this statute. Therefore, this defendant requests that all allegations alleging a violation of 42 U.S.C. Sec. 1396(r) be stricken from the Complaint.

WHEREFORE, the Defendant, WILLIAM L. DAWSON NURSING CENTER, INC., an Illinois corporation d/b/a WILLIAM L. DAWSON NURSING HOME, respectfully submits this Motion to Dismiss and asks that the plaintiff's Complaint at Law be dismissed with prejudice.

Respectfully submitted,

By: <<signature>>

One of the Attorneys for WILLIAM L.
DAWSON NURSING CENTER, INC., an
Illinois corporation d/b/a WILLIAM L.
DAWSON NURSING HOME
Charles H. Cole
Richard J. Juarez
SCHUYLER, ROCHE & ZWIRNER
130 East Randolph Street, Suite 3800
Chicago, Illinois 60601
Tel: (312) 565-2400
Fax: (312) 565-8300

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