November 14, 2019

In our blog posting on November 11, 2019, we reported on the published opinion of the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) dated November 7, 2019 that addressed whether a federal inmate who had surgery while imprisoned in a federal prison in Ohio that left him permanently disabled was required to file an affidavit of merit pursuant to Ohio Rule 10(D)(2), in his Federal Tort Claims Act lawsuit filed against the United States in which he alleged that the Bureau of Prisons (“BOP”) was negligent. The Sixth Circuit held: “To impose a heightened pleading standard in [the plaintiff’s] case would upset the careful balance struck by the Federal Rules. In short, the Federal Rules answer the question in dispute: [The plaintiff] did not have to file an affidavit with his complaint to state a claim … In sum, the district court should have applied the Federal Rules, not Ohio Rule 10(D)(2).” Source

Contrary Opinion?

In its decision dated November 4, 2019, the United States Court of Appeals for the Seventh Circuit (“Federal Appellate Court”) stated: “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).”

The Federal Appellate Court held: “Hahn was a private suit. Today’s suit is against the United States under the Federal Tort Claims Act, which says that the United States is liable to the same extent as a private person. 28 U.S.C. §1346(b)(1). The only way to make the United States liable to the same extent as a private entity is to apply §5/2-622. So other courts of appeals have held with respect to equivalent statutes in other states. See Frazier v. United States, 560 F. App’x 320, 323–24 (5th Cir. 2014); Littlepaige v. United States, 528 F. App’x 289, 292–93 (4th Cir. 2013); Smith v. United States, 498 F. App’x 120, 121–22 (3d Cir. 2012); Swails v. United States, 406 F. App’x 124, 125 (9th Cir. 2010); Cestnik v. Fed. Bureau of Prisons, 84 F. App’x 51, 53–54 (10th Cir. 2003). None of those decisions carries precedential force, but the conclusion is compelling. The language of §1346(b)(1) shows that §5/2-622 must apply in suits against the national government, just as it applies in suits against private physicians.”

Source Young v. United States of Amercica, No. 18-3415.

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