Reginald Young v. United States

                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________

No. 18-3415
REGINALD YOUNG,
                                                Plaintiff-Appellant,

                                v.

UNITED STATES OF AMERICA,
                                               Defendant-Appellee.
                    ____________________

           Appeal from the United States District Court
                for the Southern District of Illinois.
          No. 17-cv-946-JPG-RJD — J. Phil Gilbert, Judge.
                    ____________________

   SUBMITTED MAY 30, 2019 — DECIDED NOVEMBER 4, 2019
                ____________________

   Before WOOD, Chief Judge, and EASTERBROOK and ROVNER,
Circuit Judges.
    EASTERBROOK, Circuit Judge. 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 meri-
2                                                    No. 18-3415

torious cause” exists. This requirement applies to malprac-
tice litigation in federal court because §5/2-622 is a substan-
tive condition of liability. Hahn v. Walsh, 

 (7th
Cir. 2014).
    Hahn was a private suit. Today’s suit is against the Unit-
ed States under the Federal Tort Claims Act, which says that
the United States is liable to the same extent as a private per-
son. 

(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,

, 323–24 (5th Cir. 2014); Li@lepaige v. United
States, 

, 292–93 (4th Cir. 2013); Smith v. Unit-
ed States, 

, 121–22 (3d Cir. 2012); Swails v.
United States, 

 (9th Cir. 2010); Cestnik v.
Fed. Bureau of Prisons, 

, 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 gov-
ernment, just as it applies in suits against private physicians.
And we held in Gipson v. United States, 

, 451–52
(7th Cir. 2011), that an Indiana statute requiring an expert’s
report to show the standard of medical care applies under
the FTCA. The reasoning of Gipson is equally applicable to a
statute such as §5/2-622.
   Reginald Young, a federal prisoner, filed this suit alleging
that physicians at his prison commiled malpractice by not
performing or authorizing surgery to correct a cataract that
causes blurred vision and headaches. Two physicians rec-
ommended surgical intervention, but others disagreed;
Young maintains that the two physicians’ recommendations
No. 18-3415                                                   3

prove that the lack of surgery is medical malpractice. But
Young did not provide, with the complaint or later, an affi-
davit 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 dis-
trict judge disagreed and granted a motion by the United
States to dismiss the complaint or for summary judgment.

 (S.D. Ill. Sept. 5, 2018).
    The judge did not state which of these requests was being
granted, and the difference is potentially important. A mo-
tion to dismiss asserts that the complaint is defective. A mo-
tion for summary judgment asserts that the evidence of rec-
ord would not permit a reasonable jury to find for the non-
moving party. A prisoner may have insuperable difficulty
obtaining a favorable physician’s report before filing a com-
plaint, so if a complaint not accompanied by a §5/2-622 affi-
davit is defective, many a prisoner will be unable to litigate a
malpractice claim. But if a prisoner or other pro se plaintiff
has until the summary judgment stage to comply with the
state law, information obtained in discovery may allow a
physician to evaluate the medical records and decide wheth-
er there is reasonable cause for liability.
   Section 5/2-622(a) requires the affidavit and report to be
alached to the complaint unless an exception applies, and
the litigants in Hahn assumed that this is when the docu-
ments must be filed. Because timing was not contested in
Hahn—the debate concerned whether the affidavit and re-
port were required at all—our decision did not produce a
holding on that topic. And having given the maler some
thought, we now conclude that a complaint in federal court
4                                                     No. 18-3415

cannot properly be dismissed because it lacks an affidavit
and report under §5/2-622. As we observed in Cooke v. Jack-
son National Life Insurance Co., 

 (7th Cir.
2019): “Many cases hold that federal, not state, rules apply to
procedural malers—such as what ought to be alached to
pleadings—in all federal suits, whether they arise under fed-
eral or state law. See, e.g., Shady Grove Orthopedic Associates,
P.A. v. Allstate Insurance Co., 

 (2010); Burlington
Northern R.R. v. Woods, 

 (1987); Walker v. Armco
Steel Corp., 

 (1980); Mayer v. Gary Partners & Co.,

 (7th Cir. 1994).”
    Rule 8 of the Federal Rules of Civil Procedure specifies
what a complaint must contain. It does not require alach-
ments. One can initiate a contract case in federal court with-
out alaching the contract, an insurance case without alach-
ing the policy, a securities case without alaching the regis-
tration statement, and a tort case without alaching an ex-
pert’s report. Supporting documents come later. Section 5/2-
622 applies in federal court to the extent that it is a rule of
substance; but to the extent that it is a rule of procedure it gives
way to Rule 8 and other doctrines that determine how litiga-
tion proceeds in a federal tribunal.
    Section 5/2-622 itself allows delay in filing the affidavit
and report when, for example, the time to obtain a report
would prevent suing within the statute of limitations (§5/2-
622(a)(2)) or records needed for evaluation are unavailable
(§5/2-622(a)(3)). At least the second of these exceptions likely
applies to Young’s suit. But these exceptions are accompa-
nied by language that excuses the defendant from answering
the complaint until the affidavit and report have been filed.
Just as Rule 8 specifies what must be in a complaint, so Fed.
No. 18-3415                                                                  5

R. Civ. P. 12(a)(1) tells us when the answer is due. A defend-
ant in federal court may ask a district court for an extension
but cannot rely on state law as canceling or deferring the
need to answer a complaint.
    Illinois wants insubstantial medical-malpractice suits re-
solved swiftly. That goal can be achieved in federal court
under summary-judgment practice, because Fed. R. Civ. P.
56(b) allows such a motion to be filed “at any time”. A de-
fendant may submit a motion with its answer and ask the
court to grant summary judgment because the plaintiff has
not supplied the required affidavit and report. And just as
§5/2-622(a)(3) allows extra time if necessary to provide the
reviewing physician with vital information, so Rule 56(d)
allows a district court to grant extra time to the nonmovant
to gather essential evidence. The state substantive goal and
the federal procedural system thus can exist harmoniously.
   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 submiled indicates (1) that the
   doctors making the records had reviewed all of Young’s medical
   records and other relevant documents, (2) that there was “rea-
   sonable and meritorious cause” for filing a medical malpractice
   action, or (3) the reasons for that conclusion. It is true that the au-
   thors 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 state-
6                                                           No. 18-3415

    ment that a course of treatment desired by the plaintiff is “reason-
    able and meritorious” but a statement that the medical malprac-
    tice cause of action is. Young has provided no such statement in
    this case.

 at *6 (emphasis in original). We
agree with this analysis, which means that the judgment
must be
                                                              AFFIRMED.