Opinion
01 C 50468
March 17, 2003
ORDER
The Finley Hospital ("Defendant") filed a Motion to Compel seeking an order compelling Diane Carter ("Plaintiff") to 1) submit Plaintiff's journal to Defendant; and 2) disclose the name and address of the certifying doctor so that the Defendant may depose him/her. During an in court hearing on March 5, 2003, the Magistrate Judge granted Defendant's Motion to Compel as to the journal and set a briefing schedule as to the issue regarding the certifying doctor. As of March 14, 2003, the Magistrate Judge is in receipt of Defendant's Motion to Compel and Plaintiff's Response to Defendant's Motion to Compel ("Plaintiff's Response"). Although given an opportunity, Defendant did not file a reply brief For the reasons set forth below, Defendant's Motion to Compel is denied.
It should be noted that by the March 5, 2003 hearing, Plaintiff had already filed a response to Defendant's Motion to Compel. Thus, the Magistrate Judge needed only set a date for Defendant's reply brief to be filled.
The first issue the Magistrate Judge must address is whether 735 ILCS 5/2-622 ("§ 2-622") applies in federal court. Apparently, this issue has divided the Northern District of Illinois without direct guidance from the Seventh Circuit. Compare Copeland v. Northwestern Memorial Hospital, 964 F. Supp. 1225, 1242 (N.D. Ill. 1997) (stating that failing to file a affidavit of merit in a medical malpractice claim is cause for dismissal under 735 ILCS 5/2-622(g)), with Threlkeld v. White Castle Systems, 127 F. Supp.2d 986, 991 (N.D. Ill. 2001)("In any event, I will not dismiss a state claim made in federal court for failure to comply with a state pleading rule."). Although the Seventh Circuit has yet to directly address the issue, some guidance can be attained from the treatment the Seventh Circuit has given § 2-622. In Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000), the Seventh Circuit stated "[t]o minimize frivolous malpractice suits, Illinois law requires the plaintiff to file a physician's certificate of merit and accompanying report with every malpractice complaint." Id. (citing McCastle v. Sheinkop, 520 N.F.2d 293, 294 (1987)). This gives the court notice that "a qualified, licensed physician has reviewed the ease and determined that `there is a reasonable and meritorious cause of the filing of such action."' Id. (citing § 2-622). In remanding the case back to the district court, the Seventh Circuit held that it was an abuse of discretion to dismiss the claim without affording an opportunity for Plaintiff to amend in conformity with 2-622. Id. at 614. If merely procedure, the Seventh Circuit should not have sent the case back to district court for a refilling. Therefore, this court will consider 2-§ 622 as substantive state law that must be applied in federal court. See Erie RR Co. v. Tompkins, 304 U.S. 64, 78 (1938); Hanna v. Plumer, 380 U.S. 460, 468 (1965).
Once it is determined that § 2-622 applies in federal court, the next question is under what circumstances the certifying doctor is subject to discovery. Federal Rules of Civil Procedure 26 states, in' pertinent part, that "a party my obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative (including . . . consultant. . .) only upon a showing that the party seeking discovery has substantial need of the materials . . . ." Fed.R.Civ.P. 26(b)(3). The certifying doctor required under § 2-622 is analogous to a consultant (i.e. consulting expert) discussed in 26(b)(3). Defendant must therefore show a "substantial need of the material." Fed.R.Civ.P. 26(b)(3). The Defendant has failed to meet this burden. Therefore, Defendant's Motion to Compel is denied.