Gateway and doctor want med mal complaint dismissed over flawed certificate

Steve Gonzalez Apr. 24, 2008, 3:38am

Gateway Regional Medical Center and Ravi Kumar, M.D. are asking Madison County Circuit Judge Daniel Stack to dismiss a wrongful death suit filed against them because the certificate of merit is flawed.

Donald Beckley of Pontoon Beach man filed a 15-count wrongful death suit against Gateway Regional alleging his wife died due to a tracheal-bronchial laceration and anoxic brain injury.

In addition to Gateway Regional, Beckley named Kumar and James Peyton, CRNA as defendants.

Beckley claims his wife Rosella suffered a hip fracture on Sept. 24, 2006, and was admitted to Gateway for treatment.

According to the complaint filed March 14, Rosella underwent surgery to repair the hip fracture and was admitted to the coronary care unit on a ventilator following surgery.

Beckley alleges that on Oct. 1, 2006, the defendants exchanged his wife's endotracheal tube for a larger tube and when doing so they improperly manipulated the endotracheal tube changer causing a tracheal-bronchial laceration.

But, according to the motion to dismiss filed April 16, Kumar claims he had nothing to do with the tube change.

In his affidavit, Kumar states that he did not have any involvement in the tube exchange and that he did not intubate Rosella or manipulate an endotracheal tube at any time on Oct. 1, 2006.

Gateway and Kumar are represented by Stephen Potter of Behr, McCarter & Potter of St. Louis.

They argue that the Illinois Revised Statutes require that a plaintiff must attach to the attorney's affidavit a copy of the written report of the physician review which must include the reviewing physician's name, address, current license number and state of licensure.

Gateway and Kumar also argue that the statute "unequivocally requires" that the report must clearly identify the plaintiff and the reason for the reviewing physician's determination that a reasonable and meritorious cause for filing the case exists.

They further argue that the statute requires that a reviewing report must be filed for each defendant in a case.

According to the motion, failure to adhere to the requirements of the statute "shall be grounds for dismissal under Section 2-619."

Gateway and Kumar argue that the report submitted by plaintiff's counsel is "fatally deficient" on numerous grounds.

They argue the report fails to provide the name, address and current license number of the reviewing physician and also fails to address the claims of negligence asserted against Kumar.

The report that was submitted with Beckley's original complaint had the reviewing physician's information redacted.

Beckley is represented by Eric Evans and Dawn Kamadulski of Roth Evans in Granite City.

Gateway and Kumar also argue that the medical records clearly show that co-defendant James Peyton exchanged the endotracheal tube on Oct. 1, 2006.

They ask Stack to dismiss the case with prejudice against them at the plaintiff's cost.

Beckley claims that Rosella's death caused great pecuniary losses and injuries including depriving next-of-kin of valuable services that Rosella was accustomed to performing and would have continued to perform but for her death.

Beckley also claims that prior to her death, Rosella suffered respiratory distress, conscious pain and suffering, emotional distress, medical expenses and disfigurement.

He also claims that he has become liable for funeral and burial expenses.

Beckley is seeking damages in excess of $750,000, plus costs.

Stack has yet to set a date to hear Gateway and Kumar's motion to dismiss.

Peyton has not answered the complaint yet. According to court documents his last known address was in Overland Park, Kan.

Peyton was never employed by Gateway and was instead an independent contractor.

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