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Malpractice Claim

By: Derek Hawkins//December 3, 2019//

Malpractice Claim

By: Derek Hawkins//December 3, 2019//

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7th Circuit Court of Appeals

Case Name: Reginald Young v. United States of America

Case No.: 18-3415

Officials: WOOD, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.

Focus: Malpractice Claim

Illinois requires the plaintiff in a medical-malpractice suit to file an affidavit stating that “there is a reasonable and meritorious cause” for litigation. 735 ILCS 5/2-622. The plaintiff needs a physician’s report to support the affidavit’s assertions. The report must show that the physician has reviewed the plaintiff’s medical records and must justify the conclusion that “a reasonable and meritorious cause” exists. This requirement applies to malpractice litigation in federal court because §5/2-622 is a substantive condition of liability. Hahn v. Walsh, 762 F.3d 617 (7th Cir. 2014).

Reginald Young, a federal prisoner, filed this suit alleging that physicians at his prison committed malpractice by not performing or authorizing surgery to correct a cataract that causes blurred vision and headaches. Two physicians recommended surgical intervention, but others disagreed; Young maintains that the two physicians’ recommendations prove that the lack of surgery is medical malpractice. But Young did not provide, with the complaint or later, an affidavit complying with §5/2-622, nor did he ask any physician to prepare the sort of report that would have accompanied such an affidavit. Instead he asserted that a recommendation for surgery is the only medical document he needs. The district judge disagreed and granted a motion by the United States to dismiss the complaint or for summary judgment. 2018 U.S. Dist. LEXIS 151134 (S.D. Ill. Sept. 5, 2018).

By requesting summary judgment as an alternative to its motion to dismiss the complaint, the United States put Young on notice of the need for an affidavit and report. In the ensuing six months he did not try to comply. Instead he argued that two physicians’ recommendations in favor of surgery sufficed. The district judge replied: No medical record Young has submitted indicates (1) that the doctors making the records had reviewed all of Young’s medical records and other relevant documents, (2) that there was “reasonable and meritorious cause” for filing a medical malpractice action, or (3) the reasons for that conclusion. It is true that the authors of [some] medical records recommended a different course of treatment than Young received, but in medicine there is often a range of reasonable treatments, and a doctor’s recommending one course does not necessarily imply that a doctor who choses [sic] another commits malpractice. This is why the certificate of merit [i.e., the documents under §5/2-622] requires not a statement that a course of treatment desired by the plaintiff is “reasonable and meritorious” but a statement that the medical malpractice cause of action is. Young has provided no such statement in this case. 2018 U.S. Dist. LEXIS 151134 at *6 (emphasis in original). We agree with this analysis, which means that the judgment must be affirmed.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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