In the courts

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

In a federal case brought by the widow of a deceased prisoner alleging failure of the staff at a county jail to provide him with his prescribed medication, U.S. District Court Judge Virginia M. Kendall ruled that an affidavit from a health-care professional supporting the plaintiff’s allegations was not required to be submitted. Robert Awalt, deceased, was arrested in 2010 and detained in Grundy County Jail. After nine days detention at the facility, Awalt was found without a pulse in his cell. He was transported to a hospital and pronounced brain dead.

The widow of the deceased, Elizabeth Awalt, filed suit against the jail, county officials, as well as two companies who were responsible for carrying out certain medical services in the jail and two of the companies’ employees in Awalt v. Marketti et al. (11-CV-6142). She brought claims under the Illinois Survival Act and the Wrongful Death Act; with further counts alleging failure to intervene under the Civil Rights Act, conspiracy and denial of medical care. She alleged that the jail neglected to give her husband the medication to manage the epileptic seizures from which he suffered despite the numerous warnings being given to the jail.

The ruling was made in the context of a motion to dismiss the claims brought by the defendants. Section 2-622 of the Illinois Code of Civil Procedure requires a supporting affidavit in “any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice.” The affidavit should state that the plaintiff has consulted with a medical professional and that the professional believes the plaintiff to have a meritorious cause of action.

Judge Kendall looked to the case law surrounding Section 2-622 and found that district courts have held it applies exclusively to medical malpractice claims, and no others.  The claims alleging intentional torts were clearly outside the realm of medical malpractice, according to the judge, and the Wrongful Death Act and the Survival Act both created causes of action, which were not medical malpractice claims. Further, the counts alleging negligence were not medical malpractice claims simply by virtue of the fact that they involved an element of medical treatment or care. Judge Kendall held that the plaintiff’s case did not claim any misapplication of medical expertise or skill; rather it alleged reckless disregard by all defendants for the possibility that their conduct might result in injury.

It is important for the limits of certain procedural or substantive laws which bar lawsuits being pursued further to be respected. We often see state actors attempt to apply immunity statutes to almost all claims despite the fact that certain claims are clearly meritorious. Similarly, the pre-emption provisions of statutes like the IHRA are often invoked as a means for preventing genuine claims being pursued by injured plaintiffs.


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