Plaintiff's Opposition to Defendant's 619 Motion

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Plaintiff's Response to Defendant's Motion to Dismiss and Motion to Strike

Respectfully submitted, Toni Bond as Special, Administrator of the Estate of Bette Bond, deceased, One of Her Attorneys.

Stephen J. Coukos, Steven M. Levin, Levin & Perconti (#55019), 325 North Lasalle Street, Suite 450, Chicago, Illinois 60610, (312) 332-2872, (312) 332-3112 Fax.

The plaintiff, TONI BOND, as Special Administrator of the Estate of BETTE BOND, deceased, by her attorneys, LEVIN & PERCONTI, responds to defendant, WILLIAM L. DAWSON NURSING CENTER, INC., an Illinois Corporation d/b/a WILLIAM L. DAWSON NURSING HOME's (hereinafter “DAWSON”) Motion to Dismiss and Motion to Strike and states as follows:

FACTS

Plaintiff filed a five-count wrongful death and survival action brought under the Illinois Nursing Home Care Act and common law theories of negligence (See attached Exhibit A).

Plaintiff's complaint alleged plaintiff's decedent, Bette Bond, was a resident of William Dawson Nursing Home from January, 2003 through August 7, 2003. Upon admission to the facility plaintiff's decedent was suffering from, among other things, multiple sclerosis and required assistance with all activities of daily living including, but not limited to, transfers and mobility (Exhibt A., para. 12). On or before February 17, 2003, plaintiff's decedent developed multiple and worsening pressure ulcers. (Exhibt A., para. 13). Plaintiff's complaint further alleges that the care and treatment rendered to plaintiff's decedent by defendant DAWSON violated multiple nursing home standards of care, the Illinois Nursing Home Care Act and certain provisions of the Omnibus Budget Reconciliation Act of 1987 setting forth Medicare and Medicaid requirements for nursing homes (Exhibit A, Counts 1-4, para. 15). Plaintiff alleges that these violations resulted in injury to and the death of plaintiff's decedent, Bette Bond.

Pursuant to 735 ILCS 5/2-622, plaintiff attached to its complaint the Attorney's Affidavit and Health Professional's Report (See attached Exhibit B). The Attorney's Affidavit contains all information required under section 2-622, including the qualifications of the reviewing health professional. The Health Professional's Report contained the opinion that there was a reasonable and meritorious basis for filing a cause of action and supported said opinion by citing 20 separate nursing home standard of care violations in the treatment and care of plaintiff's decedent, Bette Bond.

ARGUMENT

I. PLAINTIFF ALLEGES SUFFICIENT FACTS TO SUPPORT A CAUSE OF ACTION AGAINST THIS DEFENDANT.

No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet. 735 ILCS 5/2-612(b). “Illinois is a fact-pleading jurisdiction.” Beahringer v. Page, 204 Ill. 2d 363, 369, 789 N.E.2d 1216 (2003). That is, a plaintiff must allege facts sufficient to bring a claim within a legally recognized cause of action. Vernon v. Schuster, 179 Ill. 2d 338, 344, 688 N.E.2d 1172 (1997) ; Teter v. Clemens, 112 Ill. 2d 252, 256, 492 N.E.2d 1340 (1986) ; see Gonzalez v. Thorek Hospital & Medical Center, 143 Ill. 2d 28, 35, 570 N.E.2d 309 (1991).”

Defendant DAWSON complains in its Motion that plaintiff's complaint is “devoid of any substantive factual allegations, and contains mere conclusions of law”. Defendant argues further that plaintiff's complaint should identify by name each individual involved in the negligent treatment of plaintiff, as well as list each specific negligent act, the date on which it occurred and the person who committed the act. However, not only is plaintiff not required to do this, it would be impossible for plaintiff to do so. The standard defendant alleges plaintiff must meet is akin to evidence-pleading, not the fact-pleading required in Illinois. Furthermore, and perhaps more importantly, plaintiff does not know the names of many, if not most, of those employees of defendant who treated plaintiff, for the only means of identification by plaintiff of most of these individuals is their often indecipherable scribbled initials or signatures. Ironically, while defendant is complaining that plaintiff has not provided them notice of what employees or agents committed the negligent acts, it is actually defendant, and not plaintiff, who is in possession of this information. Plaintiff will only be able to obtain this information through discovery.

Plaintiff's complaint easily meets Illinois' fact-pleading requirements as it alleges both the relevant dates of treatment as well as 26 separate factual allegations of negligent treatment by defendant's agents and employees. As a result, it provides more than enough “information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet” 735 ILCS 5/2-612(b). In light of the above, defendant's argument that plaintiff's complaint is devoid of factual allegations and contains only conclusions of law is disingenuous at best.

II. WHILE THE HEALTH PROFESSIONAL'S REPORT CONTAINS SUFFICENT FACTS AND REASONING SUPPORTING ITS CONTENTION OF A MERITORIOUS CLAIM, PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND ITS PLEADINGS SO THAT ITS HEALTH PROFESSIONAL'S REPORT MAY CONFORM TO THE TECHNICAL PLEADING REQUIREMENTS OF SECTION 2-622.

A. THE HEALTH PROFESSIONAL'S REPORT CONTAINS SUFFICENT FACTS AND REASONING SUPPORTING ITS CONTENTION OF A MERITORIOUS CLAIM.

Defendant DAWSON argues in its Motion that plaintiff's expert report is “woefully insufficient” in that it contains only conclusions of law and fails to describe how DAWSON was negligent in their care and treatment of plaintiff's decedent. It is difficult to conceive how defendant could maintain such a position. Plaintiff's report contains 20 separate requirements or duties that defendant DAWSON, as a nursing home, was required to perform in rendering proper care and treatment to plaintiff's decedent and that they failed to perform properly or at all. Yet, defendant argues that plaintiff fails to provide it notice of the alleged negligent conduct and instead provides mere conclusions of law. How statements such as “failed to properly and adequately reposition and turn (plaintiff's decedent) to relieve existing pressure sores” or “failed to utilize appropriate and adequate pressure reduction or pressure relief devices” (see Exhibit A, Counts 1-4, para.'s q and r) could possibly be construed as conclusions of law is beyond the author of this document.

Defendant DAWSON also argues that the expert's report is deficient in that its statements concerning negligent care refer only to the “staff” of the nursing home and not to the specific categories of staff such as nurses, technicians, doctors, etc. Defendant fails to cite any case law in support of this argument, likely because there is nothing in the case law, and certainly nothing in 735 ILCS 5/2-622, that would support such a position. Section 5/2-622 simply requires the report to identify “the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists.” 735 ILCS 5/2-622(a)(1). The report in the instant case clearly meets this requirement as it delineates 20 separate duties that the nursing home staff failed to adequately perform and which led to the injury and death of plaintiff's decedent. In essence, the standard of care at issue is a nursing home standard of care and the expert's report sets forth the numerous violations of that standard. Furthermore, the purpose of section 2-622 is to prevent frivolous lawsuits. Sheila Leask v. Randall L. Hinrichs, 232 Ill. App.3d 332, 340, 595 N.E.2d 1343, 1347 (2nd Dist., 1992). Therefore, for purposes of the 2-622 expert report it is only relevant that an employee or agent of defendant breached the standard of care in rendering treatment to plaintiff's decedent, not which particular category of staff member negligently performed their duties. In addition, not only would it be onerous and unnecessary for the expert's report to specify each category of employee, each standard of care, and which category of employee was involved in which breach of the standard of care, but more importantly, plaintiff's expert likely could not give such a level of detail until all of defendant's employees had been deposed. In fact, it appears the level of detail defendant seemingly wants is more appropriate for 213(f)(3) opinions than an expert's report whose sole function is to ensure plaintiff has met the threshold requirement of a meritorious claim.

Finally, defendant argues that the expert's report should include not just the category of employee but the name of the employee who is alleged to have negligently performed their responsibilities. However, in light of the aforementioned discussion of the purpose of the 2-622 expert report, as well as the earlier discussion in section I concerning the extreme difficulty plaintiff would have in determining such information at this stage of the proceedings, such an alleged requirement is impractical, irrelevant and unnecessary.

B. PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND ITS PLEADINGS SO THAT ITS EXPERT REPORT MAY CONFORM TO THE TECHNICAL REQUIREMENTS OF SECTION 2-622.

While plaintiff's attorney's affidavit included the information required pursuant to 735 ILCS 5/2-622(a)(1)(i), (ii) and (iii), such information was inadvertently omitted from the Health Professional's Report. Plaintiff has attached an amended complaint with a revised Health Professional's Report containing the omitted information concerning the expert's experience and qualifications (see attached Exhibit C).

Defendant has cited the case of Cuthbertson v. Axelrod, 282 Ill. App.3d 1027, 669 N.E. 2d 601 (1st Dist. 1996) for the proposition that plaintiff's expert's report is deficient for omitting the threshold information outlined in 735 ILCS 5/2-622(a)(1)(i),(ii) and (iii). However, it is clear from the case law that any dismissal based upon the facts of the instant case should be without prejudice and should allow plaintiff leave to amend her expert report so that it includes the omitted information otherwise contained in the attorney's affidavit. Section 2-622 should be liberally construed and amendments to pleadings liberally allowed to enable medical malpractice claims to be decided on their merits rather than on procedural technicalities. Cuthbertson at 1034. The trial court's discretion must be viewed in light of the fundamental purpose of section 2-622 which is to deter frivolous lawsuits. Leask at 340. “Ensuring that the plaintiff has a meritorious claim is the touchstone of section 2-622.”Id. The technical pleading requirements of section 2-622 should not be used to deprive a plaintiff of his right to a trial on the merits. Id. Where only a minor technical error is involved, allowing a plaintiff to amend his pleadings is more in line with the purpose of 2-622 than dismissing the case with prejudice. Russell Thompson v. Peter Heydemann, 231 Ill.App.3d 578, 582, 596 N.E. 2d 664, 667 (1st Dist. 1992). Illinois courts have even held that where there is a substantive defect in the requirements of 2-622, such as if the reasons given by the expert that the claim is meritorious are unclear, the dismissal should be granted with leave to amend. Michael A. Apa v. David Rotman, M.D., 288 Ill.App.3d 585, 590, 680 N.E.2d 801, 804, (5th Dist., 1997), citing Steinberg v. Dunseth, 276 Ill.App.3d 1038, 1042, 658 N.E. 2d 1239 (4th Dist., 1995).

Consistent with the above principles, appellate courts have held that it is an abuse of discn tion for a trial court to dismiss a complaint without leave to amend when a plaintiff files a deficient expert report with its initial complaint. SeeLeask at 342; Apa at 590-591; Thompson at 584. In fact, even a failure to attach an expert report at all to the complaint and affidavit has not been considered a basis to dismiss a plaintiff's complaint without granting leave to amend. See Doris Jean Huff v. H.R. Hadden, 160 Ill. App. 3d 530, 534, 513 N.E. 2d 541, 544 (4th Dist., 1987). As a result, plaintiff should be granted leave to amend its complaint and expert report due to the technical deficiency of including the expert's qualifications in the attorney's affidavit but not the expert report. In fact, even if this Court were to find that plaintiff's expert report was substantively deficient, which it clearly is not, according to the case law cited above it should be granted leave to amend.

III. WHILE CERTAIN STANDARDS OF CARE ALLEGED IN PLAINTIFF'S COMPLAINT ARE BASED UPON A FEDERAL STATUTE, THE CLAIMS THEMSELVES ARE BASED UPON THE ILLINOIS NURSING HOME CARE ACT AND COMMON LAW PRINCIPLES OF NEGLIGENCE.

Defendant DAWSON argues that those allegations in plaintiff's complaint based upon 42 U.S.C. 1396 (r), the Omnibus Budget Reconciliation Act of 1987 (“OBRA Regulations”), should be stricken because the aforementioned statute does not give right to a private right of action. This argument misses the point. Plaintiff is not bringing its cause of action under the federal statute. Rather, the claims themselves are brought under the Illinois Nursing Home Care Act and common law negligence theories. While plaintiff does reference certain federal OBRA regulations to establish some of the nursing home standards of care violated by defendant in their care and treatment of plaintiff's decedent, that is something entirely different from bringing a private right of action under the statute. Plaintiff's use of certain provisions of the federal OBRA statute as some evidence of violations of the standard of care is similar to using violations of criminal or civil state statutes to establish violations in other tort actions. For instance, a plaintiff may allege violations of the Illinois motor vehicle code, such as for speeding or following too closely, to help prove negligence in an auto case; or a plaintiff may allege a myriad of criminal or civil statutory violations to show some evidence of civil negligence. As a result, defendant's argument that plaintiff's allegations referencing OBRA regulations should be stricken is unfounded.

WHEREFORE, the plaintiff, TONI BOND, as Special Administrator of the Estate of BETTE BOND, deceased, respectfully requests that defendant's Motion to Dismiss and to Strike be denied.

Respectfully submitted,

TONI BOND as Special

Administrator of the Estate of BETTE BOND, deceased,

BY: <<signature>>

One of Her Attorneys
Stephen J. Coukos
Steven M. Levin
LEVIN & PERCONTI (#55019)
325 North LASALLE Street
Suite 450
Chicago, Illinois 60610
(312) 332-2872
(312) 332-3112 FAX

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