Krueger v. Petrak

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UNITED STATES DISTRICT COURT                                 
            CENTRAL DISTRICT OF ILLINOIS                                 
                       PEORIA DIVISION                                   

JACOB KRUEGER and PATRICIA      )                                         
KRUEGER, individually and as    )                                         
the parents and next friends of AA, BB,   )                               
and CC,                         )                                         
                               )         Case No. 1:22-cv-01016          
    Plaintiffs,                )                                         
                               )                                         
         v.                    )                                         
                               )                                         
CHANNING PETRAK; OSF ST.        )                                         
FRANCIS MEDICAL CENTER;         )                                         
JENNIFER INNESS, in her individual  )                                     
capacity; ALISA COLLINS, in her  )                                        
individual capacity; KIMBERLY   )                                         
TAYLOR, in her individual capacity;  )                                    
LEANDRA TATE, in her individual  )                                        
capacity; RAELYN GALASSI, in her  )                                       
individual capacity; AUSTIN HADDOCK, )                                    
in his individual capacity; ANITA  )                                      
PARKER, in her individual capacity;  )                                    
ANGELIQUE MAXWELL, in her       )                                         
individual capacity; LINDSAY    )                                         
HORCHARIK, in her individual capacity; )                                  
and KIMBERLY WILSON, in her     )                                         
individual capacity,            )                                         
                               )                                         
    Defendants.                )                                         

                     ORDER & OPINION                                     
    This matter is before the Court on motion by Defendant Channing Petrak to 
dismiss Plaintiffs’ Amended Complaint pursuant to Federal Rule of Civil Procedure 
12(b)(6) and Local Civil Rule 7.1(B)(1) (docs. 79, 80), and on motion by Defendants 
Jennifer  Inness,  Alisa  Collins,  Kimberly  Taylor,  Leandra  Tate,  Raelyn  Galassi, 
Austin  Haddock,  Anita  Parker,  Angelique  Maxwell,  Lindsay  Horcharik,  and 
Kimberly Wilson (“DCFS Defendants”) to dismiss pursuant to Federal Rule of Civil 
Procedure 12(b)(1) and 12(b)(6) (docs. 85, 86). Plaintiffs have responded. (Docs. 92, 
93). The DCFS Defendants replied. (Docs. 104, 198). This matter is therefore ripe for 

review. For the following reasons, the motion filed by Dr. Petrak is granted, and the 
motion filed by the DCFS Defendants is granted in part and denied in part.  
    The Court will also hear Defendant Dr. Petrak’s Motion for Partial Summary 
Judgment (doc. 105), Defendant OSF St. Frances Medical Center’s Motion for Partial 
Summary Judgment (doc. 82), Plaintiffs’ Motion for Leave to Amend (doc. 183), and 
Dr. Petrak’s Motions to Compel Discovery (doc. 157) and Stay Discovery (doc. 203). 

These Motions are ripe for review. For the following reasons, Dr. Petrak’s Motion for 
Partial Summary Judgment is granted, and Defendant OSF’s Motion for Partial 
Summary Judgment is granted in part and denied in part, Plaintiffs’ Motion for Leave 
to Amend is denied, and Dr. Petrak’s Motion to Stay is moot and her Motion to Compel 
is granted.                                                               
                         BACKGROUND1                                     
    Plaintiffs Jacob and Patti Krueger (“the adult Plaintiffs”) are the parents of 

minors AA, BB, and CC and filed this lawsuit pursuant to
42 U.S.C. § 1983
, alleging 
violations of their rights under the Fourth and Fourteenth Amendments and other 
related claims. (Doc. 75). The violations occurred through “the illegal investigation of 


1 The facts are drawn from the allegations found in Plaintiffs’ Amended Complaint 
(doc. 75) and are assumed to be true for purposes of resolving the pending motions to 
dismiss. See United States ex rel. Berkowitz v. Automation Aids, Inc.,
896 F.3d 834, 
839
(7th Cir. 2018). Any disputed or material facts relevant to the motions for partial 
summary judgment will be discussed below.                                 
the adult Plaintiffs, the unreasonable seizure of the minor Plaintiffs, the continued 
detention and withholding of the minor Plaintiffs . . . without probable cause or due 
process of law, and Defendants’ interference with the liberty interests of the adult 

Plaintiffs.” (Doc. 75 at 2). The Illinois Department of Child and Family Services 
(“DCFS”)  employs  Defendants  Jennifer  Inness,  Alisa  Collins,  Kimberly  Taylor, 
Leandra Tate, Raelyn Galassi, Austin Haddock, Anita Parker, Angelique Maxwell, 
Lindsay Horcharik,  and Kimberly Wilson (collectively referred to as “the DCFS 
Defendants”). (Doc. 75 at 6–9). Defendant Dr. Channing Petrak “served as an agent 
of” Defendant OSF St. Francis Medical Center (“OSF”) as a child abuse pediatrician 

and acts as a forensic consultant to DCFS. (Doc. 75 at 5–6).              
    After receiving an anonymous report with concerns of medical child abuse, 
DCFS  investigated  whether  the  adult  Plaintiffs  caused  BB  to  undergo  medical 
procedures that placed him at risk of harm by providing an inaccurate, discrepant, or 
overstated  medical  history  or  symptoms.  (Doc.  75  at  11–12).  For  the  seventeen 
months between October 2017 and March 2019, Defendants Inness, Collins, and 
Petrak conducted this investigation. (Doc. 75 at 12). During this period, there were 

no reported or documented safety concerns that warranted the removal of AA or BB 
from the adult Plaintiffs’ care, so AA and BB remained in their custody, and on March 
7, 2019, the adult Plaintiffs were informed that the “case will finally be closed out as 
unfounded.” (Doc. 75 at 12–13). This was a result of Dr. Petrak’s conclusion that she 
was unable to determine whether there was abuse or neglect. (Doc. 75 at 13–14). 
    Shortly after, on March 11, 2019, BB began having medical issues and was 

evaluated at Decatur Memorial Hospital, where he was given intravenous antibiotics 
and fluids and sent home. (Doc. 75 at 14). However, BB was seen by his primary care 
physician later that same day, who sent him back to Decatur Memorial Hospital, 
where he was diagnosed with perihilar pneumonia. (Doc. 75 at 14). Over the next few 
weeks,  BB  visited  the  emergency  room  and  his  primary  care  physician  with 
respiratory illness and was hospitalized several times at OSF. (Doc. 75 at 14). Dr. 

Petrak was actively involved in the hospitalization that occurred on March 21, 2019, 
during  which  BB  received  treatment  for  dehydration,  pneumonia,  feeding 
intolerance, and viral illness. (Doc. 75 at 14). On March 25, 2019, BB was transferred 
to a hospital room at OSF, which was equipped with surveillance equipment used to 
monitor patients and others in the room, unbeknownst to the adult Plaintiffs. (Doc. 
75 at 14).                                                                
    On  March  29,  2019,  the  adult  Plaintiffs  were  actively  planning  for  BB’s 

discharge from the hospital, which included meeting with a transition specialist. 
(Doc. 75 at 15). On that day, Plaintiff Jacob and his mother were present at OSF. 
(Doc. 75 at 15). Dr. Petrak informed them that she needed to examine BB before he 
could be discharged. (Doc. 75 at 15). Plaintiff Jacob refused, indicating he would not 
allow Dr. Petrak to examine BB or participate in the meeting unless the family’s 
attorney was present. (Doc. 75 at 15–16). Dr. Petrak asked Plaintiff Jacob if he was 
refusing medical care for BB, to which he responded that he was not, and he wanted 
BB’s doctors and nurses to continue caring for him. (Doc. 75 at 16). Plaintiff Jacob 
told Dr. Petrak that she was not BB’s doctor and expressed that he did not want her 

involved in further plans. (Doc. 75 at 16). Dr. Petrak left the room as requested; 
however, Plaintiff Jacob eventually agreed to let her examine BB after speaking with 
hospital staff. (Doc. 75 at 16). After completing her examination of BB, Dr. Petrak 
said, “that is all I need,” and Plaintiff Jacob asked if BB was still able to come home, 
to which Dr. Petrak responded that it would be “up to DCFS.” (Doc. 75 at 16).  
    Around 10:00 p.m. on March 29, 2019, Dr. Petrak told Defendant Collins of her 

finding of medical child abuse. (Doc. 75 at 16). Dr. Petrak stated there was a video 
from OSF that showed Plaintiff Patti taking BB’s diaper without letting any hospital 
staff check it for urine or feces; she felt this indicated Plaintiff Patti was disrupting 
or manipulating BB’s medical care. (Doc. 75 at 16). Defendant Collins then called a 
DCFS investigator to report (1) Dr. Petrak made a finding of medical child abuse, and 
(2) Defendant Collins was authorizing DCFS to take protective custody of AA and BB. 
(Doc. 75 at 18). Around 11:30 p.m. on March 29, 2019, Defendant Galassi entered 

BB’s room while multiple OSF security guards waited outside. (Doc. 75 at 17). Based 
on  Dr.  Petrak’s  recommendation  and  Defendant  Collins’s  directive,  Defendant 
Galassi instructed Plaintiff Jacob that he needed to sign the paperwork she brought 
and leave OSF immediately. (Doc. 75 at 17). When Plaintiff Jacob asked her to 
explain, she refused to show him the paperwork, said it did not matter, and again 
told him that he needed to sign it and leave OSF immediately. (Doc. 75 at 17). Plaintiff 
Jacob continued to challenge Defendant Galassi, so she told him he could either sign 
the paperwork and leave on his own or refuse to sign the paperwork and be escorted 
out of OSF by law enforcement. (Doc. 75 at 17). Plaintiff Jacob ultimately signed the 

paperwork and left on his own accord; he did not discover for several months that 
what he had signed was a safety plan related to the removal of BB from his and his 
wife’s custody. (Doc. 75 at 17). DCFS agents took BB into protective custody on his 
release from OSF on April 2, 2019, based on the recommendation of Dr. Petrak and 
the directive of Defendant Collins. (Doc. 75 at 20). AA was taken from the adult 
Plaintiffs’ home by DCFS and placed into foster care on March 31, 2019. (Doc. 75 at 

18, 20).                                                                  
    On April 1, 2019, Dr. Petrak prepared a report for Defendants Inness and 
Collins  in  which  she  concluded  the  adult  Plaintiffs  had  caused  BB  to  undergo 
procedures and medical therapies that placed him at serious risk of harm because 
they (1) provided either an inaccurate or overstated medical history and (2) kept 
information from medical staff. (Doc. 75 at 18). The report purportedly contradicted 
documentation from other sources familiar with BB’s medical history and treatment. 

(Doc.  75  at  19).  Defendant  Inness  completed  her  safety  assessment  regarding 
Plaintiffs, in which she concluded “[AA and BB] are currently safe” and “[t]he family 
is doing well overall and no safety concerns [are] noted.” (Doc. 75 at 20–21) (internal 
quotations and emphasis omitted). Despite this assessment, a petition alleging the 
adult Plaintiffs had abused and neglected AA and BB was filed in the Macon County 
Juvenile Court on April 2, 2019. (Doc. 75 at 20).                         
    On June 19, 2019, a shelter care hearing for AA and BB was held, and the 
juvenile  court  found  there  was  “probable  cause  to  believe”  AA  and  BB  were 
“neglected, abused or dependent and that it [was] a matter of immediate and urgent 

necessity that the minor[s] be placed in shelter care.” (Doc. 86-12 at 17). Defendant 
Inness testified that there were concerns of abuse or neglect. (Doc. 75 at 21). Plaintiffs 
allege now that exculpatory evidence related to BB’s medical history, mold in their 
home, and Plaintiff Patti’s psychological assessments were ignored or withheld at the 
hearing. (Doc. 75 at 21–22).                                              
    During these events, Plaintiff Patti gave birth to her third child, CC, who was 

removed from the adult Plaintiffs’ care on August 13, 2019. (Doc. 75 at 23). On March 
9, 2020, the adult Plaintiffs stipulated to allegations of neglect set forth in the first 
supplemental petition, and the original petitions were dismissed and stricken. (Doc. 
86-4 at 5). Based on the stipulation, the court concluded AA, BB, and CC were 
neglected. (Doc. 86-4 at 5). However, this finding of neglect was later vacated on July 
8, 2020. (Doc. 86-4 at 7). That same day, the court concluded it was safe and in the 
best interest of AA, BB, and CC to be returned to the care of the adult Plaintiffs. (Doc. 

86-4 at 7). On October 7, 2020, supervision was terminated, and the case was closed. 
(Doc. 86-4 at 8).                                                         
    Plaintiffs initiated this lawsuit on January 10, 2022. (Doc. 1). The DCFS 
Defendants filed a motion to dismiss, which was granted in part on October 14, 2022. 
(Doc. 22). On that same day, the Court instructed Dr. Petrak and Plaintiffs to confer 
on whether the Section 1983 claims were properly pleaded. (See Text Order dated 
October 14, 2022). Dr. Petrak responded with a motion to dismiss (doc. 23); upon 
referral, Magistrate Judge Hawley recommended denial of that motion after hearing 
argument on February 16, 2023, and March 20, 2023, and this Court adopted that 

recommendation (doc. 36). In doing so, the Court emphasized that the allegations 
were “barely sufficient to survive dismissal.” (Doc. 36).2 The parties proceeded to 
discovery, and Plaintiffs filed the operative Amended Complaint on February 7, 2024, 
pursuant to the discovery plan agreed to by all parties. (Doc. 75). The operative 
pleading  now  contains  twenty-eight  counts  directed  at  the  various  defendants. 
Defendant Dr. Petrak moves to dismiss Counts XII, XIII, and XXVII against her. 

(Docs. 79, 80). The DCFS Defendants move to dismiss Counts I–VI, XIV–XXIII, and 
XXVIII against them. (Docs. 85, 86).                                      
    Both Dr. Petrak and OSF move for partial summary judgment. (Docs. 84, 105). 
Dr. Petrak seeks summary judgment on Counts XI, XII, XIII, and XXIV; OSF seeks 
summary judgment on Counts VII, VIII, X, XI, XII, XIII, XXIV, XXV, XXVI, and 
XXVII. In response to part of those Motions, Plaintiffs request leave to amend and 
supplement their pleading. (Doc. 183). While these Motions have been pending, Dr. 

Petrak has moved to compel and stay discovery. (Docs. 157, 203).          
                        LEGAL STANDARD                                   
    To survive a motion to dismiss for failure to state a claim under Federal Rule 
of Civil Procedure 12(b)(6), the complaint must contain “a short and plain statement” 


2 The Court acknowledges that Plaintiffs have not amended those “barely sufficient” 
allegations in the Section 1983 claims and predicts that Dr. Petrak will file another 
motion for partial summary judgment as the dispositive deadline approaches. 
of the plaintiff’s claim sufficient to plausibly demonstrate entitlement to relief. Fed. 
R. Civ. P. 8(a); see also Bell Atl. Corp. v. Twombly,
550 U.S. 544
, 555–57 (2007). “A 
claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678
(2009) (citing Twombly,
550 U.S. at 556
).  
When considering a motion to dismiss, the Court construes a complaint in the light 
most favorable to the plaintiff, accepting all well-pleaded factual allegations as true 
“and ‘draw[ing] all reasonable inferences from those facts in favor of the plaintiff.’ ” 
United States ex rel. Berkowitz v. Automation Aids, Inc.,
896 F.3d 834, 839
(7th Cir. 

2018) (quoting Kubiak v. City of Chi.,
810 F.3d 476
, 480–81 (7th Cir. 2016)). Those 
statements which are legal conclusions rather than factual allegations are not taken 
as true but are disregarded at this stage. McReynolds v. Merrill Lynch & Co., Inc.,
694 F.3d 873, 885
(7th Cir. 2012).                                        
    A party may seek partial summary judgment as to a claim or defense. See Hotel 
71 Mezz Lender LLC v. Nat’l Ret. Fund,
778 F.3d 593, 606
(7th Cir. 2015). Summary 
judgment is proper when “the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 
Civ. P. 56(a). A genuine dispute as to any material fact exists if “the evidence is such 
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 
Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986). The substantive law controls which facts 
are material.
Id.
After a “properly supported motion for summary judgment is made, 
the adverse party must set forth specific facts showing that there is a genuine issue 
for trial.”
Id. at 250
(internal quotations omitted).                     
    The  Court  must  construe  the  record  in  the  light  most  favorable  to  the 

nonmovant, Payne v. Pauley,
337 F.3d 767, 770
(7th Cir. 2003), “resolving all factual 
disputes and drawing all reasonable inferences in favor of [the nonmovant],” Grant 
v. Trs. of Ind. Univ.,
870 F.3d 562, 568
(7th Cir. 2017). It “must refrain from making 
credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast Corp.,
951 F.3d 429, 467
(7th Cir. 2020) (citing Anderson,
477 U.S. at 255
). In ruling on a 
motion  for  summary  judgment,  the  Court  does  not  give  the  non-moving  party 

“speculative inferences in [its] favor.” White v. City of Chi.,
829 F.3d 837, 841
(7th Cir. 
2016) (internal citations omitted). “The controlling question is whether a reasonable 
trier of fact could find in favor of the non-moving party on the evidence submitted in 
support of and opposition to the motion for summary judgment.”
Id.
Not all factual 
disputes will preclude the entry of summary judgment, only those that “could affect 
the outcome of the suit under governing law.” Outlaw v. Newkirk,
259 F.3d 833, 837
(7th Cir. 2001) (citation omitted).                                       

                          DISCUSSION                                     
    As stated, the following Motions will be addressed: Dr. Petrak’s Motion to 
Dismiss (doc. 79); the DCFS Defendant’s Motion to Dismiss (doc. 85); OSF’s Motion 
for Partial Summary Judgment (doc. 82); Dr. Petrak’s Motion for Partial Summary 
Judgment (doc. 105); Plaintiffs’ Motion for Leave to Amend (doc. 183); Dr. Petrak’s 
Motion to Compel (doc. 157); and Dr. Petrak’s Motion to Stay Discovery (doc. 203). 
I.  Dr. Petrak’s Motion to Dismiss                                       
    In the Amended Complaint, Plaintiffs allege six additional state-law claims 
against Dr. Petrak: negligence (Count XI), informed consent (Count XII), battery 

(Count XIII), false imprisonment (Count XXIV), malicious prosecution (Count XXV), 
and  fraudulent  concealment  or  misrepresentation  (Count  XXVII).  (Doc.  75).  Dr. 
Petrak moves to dismiss Counts XII, XIII, and XXVII for failure to state a claim upon 
which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). She 
asks this Court to dismiss these claims as Plaintiffs have only pleaded conclusory 
allegations without sufficient factual support to establish the material elements of 
each cause of action. The Court will discuss each count in turn.          

  A.  Informed Consent (Count XII)                                       
    To adequately allege an informed-consent claim, Plaintiffs must establish “(1) 
the physician had a duty to disclose material risks; (2) [she] failed to disclose or 
inadequately disclosed those risks; (3) as a direct and proximate result of the failure 
to disclose, the patient consented to treatment [they] otherwise would not have 
consented to; and (4) plaintiff was injured by the proposed treatment.” Lash v. Sparta 
Cmty.  Hosp.  Dist.,
38  F.4th 540, 544
(7th  Cir. 2022)  (internal quotation  marks 

omitted). In moving for dismissal, Dr. Petrak contends that Plaintiffs’ Amended 
Complaint is silent as to her duty to disclose material risks, and that   
    [t]here  are  zero  allegations  regarding  the  substance  of  treatment 
    provided  to  BB  and/or  whether  BB,  or  his  parents,  needed  certain 
    information from Dr. Petrak in order to be able to make an informed  
    decision on whether to undergo that treatment, or an alternative. There 
    are  similarly  no  allegations  that  BB,  or  his  parents,  consented  to 
    treatment that they otherwise would not have consented to, had they  
    been better informed by Dr. Petrak. Plaintiffs have not only failed to 
    allege  defective  consent,  but  they  have  also  failed  to  proffer  any 
    allegations to support proximate cause.                              
(Doc. 80 at 6). Plaintiffs respond, arguing that the “treatment” alleged was the 
examination, and that Dr. Petrak “failed to obtain informed consent to perform [the 
examination  of  BB]  because  she  did  not  disclose  her  true  role  and  purpose  in 
requesting consent to perform this treatment.” (Doc. 92 at 4). Because Dr. Petrak 
failed to disclose the “nature of her role,” “implied she was there to provide care, and 

that  refusing  to  allow  her  to  examine  BB  would  amount  to  ‘refusing  medical 
treatment,’ ” and falsely reported that BB had to be examined before discharge from 
OSF, the consent provided by Plaintiffs was not informed. (Doc. 92 at 5).  
    An informed-consent claim is a form of medical negligence, not an intentional 
tort. See Roberts v. Patel,
620 F.Supp. 323, 325
(N.D. Ill. 1985) (“The elements of the 
informed consent action parallel those of an ordinary malpractice claim.”). To survive 
dismissal, Plaintiffs must “point to significant undisclosed information relating to the 

treatment which would have altered [their] decision to undergo it.” Coryell v. Smith,
274 Ill. App. 3d 543, 546
(1st Dist. 1995). Plaintiffs include the following allegations 
related to Dr. Petrak’s actions in Count XII:                             
    a. Failed to obtain consent for the touching, examination, surveillance, 
    and/or investigation concerning the minor BB;                        
    b.  Continued  with  touching,  examination,  surveillance,  and/or  
    investigation of the minor BB without consent;                       
    c. Failed to disclose her touching, examination, surveillance, and/or 
    investigation of the minor BB to Adult Plaintiffs;                   
    d. Failed to disclose the true purpose of her touching, examination, 
    surveillance, and/or investigation of the minor BB to Adult Plaintiffs;  
    e.  Purposefully  concealed  her  touching,  examination,  surveillance, 
    and/or investigation of the minor BB from his parent;                
    f. Misstated facts regarding her touching, examination, surveillance, 
    and/or investigation of the minor BB;                                
    g. Otherwise caused and/or contributed to cause the violations alleged 
    herein.                                                              
(Doc. 75 at 38–39). They also allege that these actions caused Plaintiffs to suffer 
injuries. (Doc. 75 at 39). Upon review, Plaintiffs have failed to state an informed 
consent claim because they did not allege that these actions by Dr. Petrak caused 
them to consent to medical treatment3 that they otherwise would not have. This is a 
necessary  element  to  this  type  of  claim;  without  it,  the  Court  cannot  say  that 
Plaintiffs have plausibly shown a right to relief. Additionally, the Court is skeptical 
that this type of “harm” can be captured in a negligence claim. “It is well established 
that a claim that a health professional acted without the informed consent of the 
patient is a type of medical malpractice claim.” McDonald v. Lipov,
2014 IL App (2d) 
130401, ¶ 18
. What Plaintiffs allege here is not typical negligence, but that Dr. Petrak 

intentionally acted to harm the Plaintiffs by withholding information and misstating 
her motive to examine BB. (Doc. 75 at 38–39). While they may attempt to recite the 



3 It is worthwhile to mention that the Court is not convinced that Dr. Petrak’s 
examination of BB can be properly categorized as medical treatment. As alleged, Dr. 
Petrak informed Plaintiff Jacob that the examination was for discharge. Despite 
Plaintiffs’ attempt to turn this examination into something more sinister, there is 
nothing in the Amended Complaint to suggest that Dr. Petrak had any motive beyond 
ensuring that BB was prepared for discharge. It would not be a reasonable inference 
that  Dr.  Petrak  had  “ulterior  motives”  from  the  actions  she  took;  if  anything, 
“treatment” is a misnomer for the discharge-related evaluation of BB.     
elements of an informed consent claim in their pleading, the true nature of the alleged 
actions is not negligence.                                                
    Therefore, Dr. Petrak’s Motion is granted as to Count XII. Plaintiffs’ informed 

consent claim is dismissed for failure to state a claim.                  
  B.  Medical Battery (Count XIII)                                       
    A medical battery claim requires that a defendant “committed an intentional, 
unconsented-to act resulting in offensive contact with the plaintiff’s body.” Johnson 
v. Tinwalla,
855 F.3d 747
, 750–51 (7th Cir. 2017). Dr. Petrak argues for dismissal of 
this claim because Plaintiffs fail to include sufficient facts to place her on notice of 
when the battery occurred, and because Plaintiffs gave consent for the examination 

of BB. (Doc. 80 at 6–9). In response, Plaintiffs state that the consent given “equates 
to no consent at all” because Dr. Petrak did not disclose her motives. (Doc. 92 at 6).  
    “A plaintiff claiming medical battery in Illinois may recover if he shows ‘a total 
lack of consent to the procedure performed, that the treatment was contrary to the 
patient’s will, or that the treatment was at substantial variance with the consent 
granted.’ ” Parker v. United States,
721 F. App’x 531
, 532–33 (7th Cir. 2018) (quoting 

Fiala v. Bickford Senior Living Group, LLC,
2015 IL App (2d) 150067, ¶ 20
). Within 
Count XIII, Plaintiffs pleaded that Dr. Petrak lacked informed consent, and that any 
consent was obtained under false pretenses. (Doc. 75 at 39–40). This is not enough to 
meet the elements required to state this type of claim. See also Fiala,
2015 IL App 
(2d) 150067, ¶ 36
(“As we have discussed, plaintiff did not plead a lack of informed 
consent, but pleaded instead a complete lack of consent. This is key, because the cases 
distinguish between a lack of consent for the contested act (generally battery) and a 
lack of informed consent for the contested act (negligence).”).           
    To plead this type of claim, Plaintiffs must allege facts that demonstrate either 

a total lack of consent, that the treatment of BB was contrary to their will, or that the 
examination was substantially varied from what Plaintiffs consented to. Parker, 721 
F. App’x at 532–33. As is, Plaintiffs’ claim does not establish that Dr. Petrak treated 
BB without consent, or deviated in any way from the examination she told Plaintiffs 
she was going to physically perform. Plaintiffs’ Response does nothing to convince 
this Court otherwise—it details that Plaintiff Jacob “provided consent for Petrak to 

examine BB” but that because Dr. Petrak misstated her intentions, it should not 
count. (Doc. 92 at 6). There is no “mental” element to alleging a medical battery claim 
that captures the “ulterior motives” Plaintiffs point to. Simply put, Dr. Petrak had 
Plaintiff Jacob’s consent to perform the examination and did not physically perform 
any treatment that she was not granted consent to do. Therefore, Count XIII is 
dismissed.                                                                
  C.  Fraudulent Concealment or Misrepresentation (Count XXVII)          

    Under  Illinois  law,  “fraud  claims  require  a  five-part  showing:  (1)  a  false 
statement or omission of a material fact; (2) the defendant’s knowledge or belief that 
the statement was false; (3) the defendant’s intent to induce the plaintiff to act; (4) 
the plaintiff’s reliance upon the truth of the statement; and (5) damages to the 
plaintiff resulting from his reliance on the statement.” McMahan v. Deutsche Bank 
AG,
938 F. Supp. 2d 795, 804
(N.D. Ill. 2013). Rule 9(b) requires a party alleging fraud 
to “state with particularity the circumstances constituting fraud,” or, in other words, 
the “who, what, when, where, and how.” Fed. R. Civ. P. 9(b); AnchorBank, FSB v. 
Hofer,
649 F.3d 610, 615
(7th Cir. 2011) (citation omitted). Rule 9(b) does not govern 
only  claims  of  fraud;  it  applies  to  claims  that  are  “premised  upon  a  course  of 

fraudulent conduct,” as well. Borsellino v. Goldman Sachs Grp., Inc.,
477 F.3d 502, 
507
(7th Cir. 2007).                                                      
    Dr. Petrak contends Plaintiffs have completely failed to allege the elements 
required to state a cause of action for fraudulent concealment or misrepresentation, 
and that this count only includes few allegations—that Dr. Petrak covertly conducted 
video surveillance of them on March 25, 2019, made an investigative finding based 

on this video, and misstated and misrepresented facts that she knew would be report 
to juvenile court. (Doc. 80 at 10). Although Plaintiffs incorporate the almost 300 
preceding  allegations  by  reference,  Dr.  Petrak  argues  she  should  not  have  to 
scrutinize the pleading for factual allegations that could aid in stating this type of 
claim against her, especially in light of Rule 9(b)’s heightened standard. (Doc. 80 at 
10–11).                                                                   
    The Court agrees with Dr. Petrak, and Plaintiffs’ responsive arguments do not 

persuade otherwise. While it is true that “individual allegations cannot be read in a 
vacuum,  and  instead,  must  be  read  in  the  context  of  the  entire  complaint,” 
Bancorpsouth, Inc., v. Fed. Ins. Co.,
873 F.3d 582
, 586–87 (7th Cir. 2017), a defendant 
is entitled to notice of the claims against it, Schmees v. HC1.COM, Inc.,
77 F.4th 483, 
488
(7th Cir. 2023) (“[D]efendants are entitled to fair notice of each claim against 
them,  as  required  by  the  Federal  Rules  of  Civil  Procedure.”).  The  preceding 
allegations do not only relate to Dr. Petrak but also chronicle the actions of numerous 
other parties. It is not the burden of the defendant to parse through and hunt for 
allegations that could state this particular cause of action. As Count XXVII reads 

now, it describes how Dr. Petrak recorded the family, and then made a finding based 
on this recording. (Doc. 75 at 55–56). There are no allegations that establish a basis 
for the five elements necessary to bring a claim of fraud; namely, there are no 
allegations related to Dr. Petrak’s knowledge of the falsity of her statements, her 
intent to induce action, or Plaintiffs’ reliance on such statements. Plaintiffs must 
include specific factual allegations as to the “who, what, where, and when” of this 

fraud  claim  for  it  to  survive  pursuant  to  Rule  9(b).  Therefore,  Count  XXVII  is 
dismissed.                                                                
II.  DCFS Defendants’ Motion to Dismiss                                   
    Seventeen of the twenty-eight claims brought by Plaintiffs are alleged against 
the DCFS Defendants. Counts I–III allege unlawful seizures of AA, BB, and CC in 
violation of the Fourth Amendment. (Doc. 75 at 30–32). Counts IV and VI are claims 
detailing  Defendants’  interference  with  familial  relationship  in  violation  of  the 

Substantive Due Process Clause of the Fourteenth Amendment. (Doc. 75 at 32–33, 
33–34). Count V is a procedural due process claim under the Fourteenth Amendment. 
(Doc. 75 at 33). The state-law claims, Counts XIV–XXIII, allege negligence against 
each of the DCFS Defendants, and Count XXVIII is a claim of fraudulent concealment 
or misrepresentation against only Defendant Galassi. (Doc. 75 at 41–52, 56). The 
DCFS Defendants move to dismiss all the claims against them for various reasons. 
The motion is similar, and in many parts identical, to the previous dismissal motion 
decided on October 14, 2022. (See doc. 22).                               
    A  related  and  preliminary  argument  raised  by  Plaintiffs  in  opposition  to 

dismissal is that the DCFS Defendants previously raised these arguments, which 
were mostly denied, and then answered the original complaint; thus, they are now 
barred from filing this motion to dismiss. (Doc. 93 at 3). Ordinarily, “[t]he filing of an 
amended complaint will not revive the right to present by motion defenses that were 
available but were not asserted in timely fashion prior to the amendment of the 
pleading,” but “a . . . defense that becomes available because of new matter in the 

amended complaint may be asserted by motion.” 5C Charles Alan Wright & Arthur 
R. Miller, Fed. Prac. & Proc. Civ. § 1388 (3d ed. 2020); see also Keefe v. Derounian,
6 
F.R.D. 11, 13
(N.D. Ill. 1946) (denying motion to dismiss amended complaint, which 
contained no new factual allegations or legal argument but which merely corrected 
jurisdictional information, because the court had already denied defendant’s motion 
to dismiss original complaint on the same grounds). Here, the DCFS Defendants may 
move to dismiss any new legal theory within the Amended Complaint, however, they 

may not move to dismiss the same content merely because Plaintiffs have repackaged 
it in a new pleading. See Fed. Agric. Mortg. Corp. v. It’s A Jungle Out There, Inc., No. 
C 03-3721,
2005 WL 3325051
, at *5 (N.D. Cal. Dec. 7, 2005) (collecting cases). They 
similarly cannot “advance arguments that [they] could have made in the motion to 
dismiss the [first] complaint but neglected to raise.” Redwood v. Piland, No. 00-2305,
2005 WL 8164631
, at *2 (C.D. Ill. Jan. 24, 2005).                         
    Regardless of this precedent, the DCFS Defendants contend that reassertion 
of their previous arguments is proper because Plaintiffs were purposefully evading 
dismissal by failing to attach the transcript of the shelter care hearing to their 

pleading, and because Defendants did not have access to the transcript until after the 
Court ruled on the previous motion. (Doc. 198 at 4–5). The purpose of Rule 12(b)(6) is 
to prevent litigants from asserting defenses in a piecemeal fashion; although, courts 
have allowed successive Rule 12 motions where they are “not interposed for delay,” 
have “addressed each of the causes of action,” and “if the supporting grounds for such 
motion were valid, adjudication of the motion would ‘clearly expedite the disposition 

of the case on the merits.’ ” Donnelli v. Peters Sec. Co., No. 02 C 0691,
2002 WL 
2003217
, at *4 (N.D. Ill. Aug. 29, 2002) (citing Kincaid v. City of Anchorage,
100 
F.Supp. 325, 327
(D. Alaska 1951)). In light of these factors, and because the shelter 
care hearing transcript is now attached to the briefing, the Court will reconsider 
whether  issue  preclusion  applies.  It  will  then  analyze  the  DCFS  Defendants’ 
remaining arguments related to the newly added state-law claims.4         
A.  Issue Preclusion                                                     

    The DCFS Defendants argue that Counts I–VI are barred by issue preclusion, 
as the state proceedings previously determined that there was probable cause to 

4 Plaintiffs additionally argued that the DCFS Defendants’ memorandum of law in 
support of their Motion (doc. 86) violated Local Rule 7.1(B) in that it exceeded fifteen 
pages  in  length  (doc.  93  at  2–3).  In  consideration  of their  oversight,  the DCFS 
Defendants filed a Motion for leave to file excess pages. (Doc. 100). The Court granted 
the Motion (doc. 100) and admonished the DCFS Defendants for their failure to 
comply with the Local Rules; however, this oversight does not warrant dismissal. 
(Text Order dated May 15, 2024).                                          
remove the children from their care; thus, Plaintiffs cannot claim otherwise in this 
lawsuit. (Doc. 86 at 10–19). As discussed, the shelter care hearing transcript is now 
attached. (See docs. 86-7, 86-8, 86-9, 86-10, 86-11, 86-12).5 The foundation of the 

Court’s analysis remains the same.                                        
     “Issue  preclusion  prevents  a  party  from  relitigating an  issue  that  it  has 
previously litigated and lost,” even when part of a new claim. Jensen v. Foley,
295 
F.3d 745, 748
(7th Cir. 2002) (citing Donald v. Polk County,
836 F.2d 376, 381
(7th 
Cir. 1988)). As federal courts must give state court judgments the same preclusive 
effect as a court in the rendering state would, the preclusion laws of Illinois control 

here.  Jensen,
295  F.3d  at  748
.  In  Illinois,  the  application  of  collateral  estoppel 
requires: “(1) the issue decided in the prior proceeding must be identical to the one in 
the current suit; (2) the prior adjudication must have been a final judgment on the 
merits; and (3) the party against whom the estoppel is asserted must have been a 
party to, or must be in privity with a party to, the prior adjudication.” Hope Clinic for 
Women, Ltd. v. Flores,
2013 IL 112673, ¶ 77
. However, if the issues decided in the 
prior adjudication are not identical, then, under Illinois law, collateral estoppel does 

not apply. Brokaw v. Weaver,
305 F.3d 660, 669
(7th Cir. 2002) (citing Kalush v. 
Deluxe Corp.,
171 F.3d 489, 493
(7th Cir.1999)).                          


5 Judicial notice may be taken of the records and hearing transcripts attached to the 
DCFS Defendant’s Motion. See J.B. v. Woodard,
997 F.3d 714, 717
(7th Cir. 2021) 
(“We can also take judicial notice of matters of public record, including court filings 
and documents from the ongoing state court proceedings incorporated into the federal 
complaint.”); 4901 Corp. v. Town of Cicero,
220 F.3d 522
, 527 n.4 (7th Cir. 2000) 
(district court may take judicial notice of state court order).           
    The DCFS Defendants argue that issue preclusion bars these claims because 
Plaintiffs had a full and fair opportunity to litigate and challenge the integrity of the 
evidence  against  them  in  state  court,  any  claim  that  exculpatory  evidence  was 

ignored at the state court is either moot or blatantly false, and Plaintiffs failed to 
appeal the state court decision. (Doc. 86). However, none of these arguments address 
the heart of Plaintiffs’ Amended Complaint, which is that DCFS agents and Dr. 
Petrak maliciously and intentionally put forth false and misleading information that 
caused  Plaintiffs’  children  to  be  removed  from  their  custody.  (See doc.  75 at 3) 
(“[R]emoval of the minor Plaintiffs and the continued withholding of the children from 

their parents was the product of an arbitrary and constitutionally deficient child 
welfare investigation.”). They allege misconduct outside of what was considered by 
the state court; thus, these claims cannot be barred at this stage by issue preclusion 
even when reviewing the transcript.                                       
    As this Court explained, the Seventh Circuit has drawn a distinction in similar 
cases between “ ‘the sufficiency of the evidence to establish probable cause’ and ‘the 
integrity  of  the  evidence’  used  to  establish  probable  cause”  to  remove  children. 

Brokaw,
305 F.3d at 670
. Therefore, where a plaintiff’s claims rested in part on “the 
defendant’s  intentional  misrepresentation  or  concealment  of  material  facts,”  the 
court held that the state court’s finding of probable cause for removal did not preclude 
the plaintiff’s claims in federal court.
Id.
Here, Plaintiffs assert in part that the DCFS Defendants, along with Dr. 
Petrak, misrepresented information, coerced the parents, and concealed information 
at the hearing, including exculpatory evidence related to environmental concerns like 
mold. (Doc. 75 at 3–5, 22–23). The law is clear: if the finding of probable cause was 
based on the misrepresentation or concealment of material facts, “the plaintiff may 

be able to proceed on a Fourth Amendment claim challenging the reasonableness” of 
such finding. Brokaw,
305 F.3d at 670
. See also Ibitayo v. McDonald, No. 03 C 3362,
2003 WL 22765046
, at *4 (N.D. Ill. Nov. 20, 2003) (declining to apply issue preclusion 
and writing “the state court’s proceeding addressed only the ‘sufficiency’ of [the] 
report to support the probable cause finding necessary to continue the barring order 
and monitoring. The court did not address whether the report contained intentional 

misrepresentations”). On a motion to dismiss, the Court must accept the allegations 
as true, and make any plausible inference in Plaintiffs’ favor. Thus, while issue 
preclusion may bear further exploration as the case proceeds, the Court cannot 
conclude  on  the  basis  of  the  pleadings  that  this  affirmative  defense  warrants 
dismissal of the claims.6                                                 
    The DCFS Defendants also argue that Plaintiffs had a full and fair opportunity 
to be heard at the probable cause hearing, as they were present and represented by 


6 The DCFS Defendants again rely on a Northern District of Illinois case, Tehan v. 
Smith, 20-cv-50515, Doc. 43 (N.D. Ill. March 14, 2022), in which the court applied 
issue  preclusion  to  similar  claims  and  dismissed  the  complaint.  The  differences 
between the instant matter and Tehan were addressed in the previous order. (Doc. 
22). Despite now being able to review the transcript of the shelter care hearing, the 
Court still finds Tehan distinguishable, as it is not clear from the transcript that the 
alleged concealments, misrepresentations, and exculpatory evidence was discussed 
at the state court. The Tehan court was able to expressly state that each issue raised 
by the plaintiff in the federal litigation was heard at the previous state court hearing. 
That is not true here. This argument is therefore not persuasive on a motion to 
dismiss.                                                                  
counsel. (Doc. 86 at 18–19). As Plaintiffs failed to exercise their right to appeal the 
decision, Defendants argue that they cannot now seek to relitigate the issue of 
probable cause after the state court has conclusively ruled against them. As the 

parties proceed through discovery, it may become apparent that Plaintiffs have 
already received a full and fair opportunity to raise any argument about probable 
cause to the state court. See Chen v. Lovins, No. 21CV01925,
2023 WL 8648342
, at *5 
(S.D. Ind. Dec. 14, 2023) (granting summary judgment and applying issue preclusion 
to Fourth Amendment claims after the plaintiff failed to “designate[] evidence that 
she was prevented from arguing that probable cause did not support any of the 

[agency’s] actions”). At this stage, however, this argument is rejected.  
  B.  Previously Heard Arguments                                         
    The  DCFS  Defendants  renew  their  arguments  for  dismissal  of  Plaintiffs’ 
Fourth Amendment and Fourteenth Amendment claims, as well as their assertion 
that qualified immunity applies. (Doc. 83 at 19–21, 28–31). In doing so, Defendants 
ask this Court to reconsider these arguments now that the shelter care hearing 
transcript is available. (See doc. 198) (replying “issue preclusion as to a finding of 

probable  cause  speaks  directly  to  the  basis  of  their  Fourth  and  Fourteenth 
Amendment claims under FRCP 12(b)(6) in that they fail to state a claim for which 
relief can be granted” and “Defendants previous assertion of qualified immunity was 
denied on the grounds that are no longer at issue given the addition of the juvenile 
court transcripts to the record”). Because the Court has come to the same conclusion 
that issue preclusion does not bar this action at this stage of the proceedings, these 
arguments are rejected for the same reasons as stated in the previous Order and need 
not be analyzed. (See doc. 22).                                           
    Along  the  same  lines,  the  DCFS  Defendants  updated  their  argument  for 

dismissal under the Eleventh Amendment in response to the analysis provided in the 
previous Order. (See doc. 83 at 31–32). This renewed argument cannot be properly 
heard on a successive motion to dismiss. See Redwood,
2005 WL 8164631
at *2 
(“Defendant may not challenge the sufficiency of the third amended complaint with 
arguments that the Court previously considered in response to the motion to dismiss 
the second amended complaint.”). This part of the DCFS Defendants’ Motion is 

denied.                                                                   
    The only claim that warrants discussion is Plaintiffs’ Count VI. Previously, the 
Court  dismissed  this  claim  without  prejudice,  as  the  substantive-due-process 
allegations failed to state a claim upon which relief may be granted. (See doc. 22 at 
14–15). Deploying the standards relevant to this type of claim, the Court wrote “a 
balance must be reached between the fundamental right to the family unit and the 
state’s interest in protecting children from abuse . . . .” (Doc. 22 at 13) (citing Brokaw, 

235 F.3d at 1019). It analyzed the claims under the same reasonableness test used to 
evaluate Fourth Amendment claims, as required. (Doc. 22 at 13–15). The analysis 
was as follows:                                                           
    In support of this claim, Plaintiffs’ Complaint states Defendants Taylor 
    and Horcharik told Plaintiffs Jacob and Patti their children would be 
    returned home if they admitted to the alleged abuse and neglect. (Doc. 
    1 at ¶ 158). The Complaint also states, “Horcharik told Jacob if he  
    divorced Patti, then his children would be returned to him.” (Doc. 1 at ¶ 
    159). Even read in a light most favorable to Plaintiffs, it is unclear how 
    these facts support the allegation the State shifted the burden of proof 
    to  the  adult  Plaintiffs.  To  the  contrary,  these  statements  show 
    Defendants  prompted  the  adult  Plaintiffs  to  admit  guilt,  not  prove 
    innocence. As these are the only facts offered in support of Plaintiffs’ 
    allegation the State “impermissibly . . . shifted to Jacob and Patti the 
    burden of proving to DCFS that they were not guilty of abuse of neglect,” 
    (doc. 1 at ¶ 157), this claim is no more than a conclusory statement 
    unsupported by fact. It must therefore be dismissed.                 
(Doc. 22 at 15). Plaintiffs were granted fourteen days to amend this claim; however, 
no amendment was filed until February 7, 2024. (See Text Order dated February 15, 
2024). A review of the amended pleading reveals that no other supporting allegations 
were added to Count VI; therefore, it is dismissed with prejudice.        
  C.  Negligence Claims                                                  
    The DCFS Defendants argue for the dismissal of the negligence claims leveled 
at Inness (Count XIV), Collins (Count XV), Taylor (Count XVI), Tate (Count XVII), 
Galassi (Count XVIII), Haddock (Count XIX), Parker (XX), Maxwell (Count XXI), 
Horcharik  (Count  XXII),  and  Wilson  (Count  XXIII).  (Doc.  86  at  21–24).  The 
arguments are related to the Illinois Tort Immunity Act, 745 ILCS 10/1-101, et seq., 
which the DCFS Defendants later concede does not actually apply to the matter at 
hand. (See doc. 198 at 6) (replying that “[w]hile Defendants argued in their motion 
and  supporting  memorandum  that  the  Illinois  Tort  Immunity  Act  applied  to 
[Plaintiffs’]  claims,  that  argument  was  mistaken”).  The  Court  appreciates 
Defendants’ willingness to concede mistaken arguments; however, Defendants then 
ask for the doctrine of Public Official Immunity to be applied to the claims against 
them because it “fundamentally mirrors the protections of the Illinois Tort Immunity 
Act in that it does not provide immunity for willful or wanton conduct and applies 
only to discretionary acts of public officials.” (Doc. 198 at 6).         
    The general rule is that arguments raised for the first time in reply briefs are 

ordinarily waived, and rightly so given the lack of opportunity for the other party to 
respond to them. See, e.g., Carroll v. Lynch,
698 F.3d 561
, 564 n.2 (7th Cir. 2012). The 
Court sees no reason to deviate from this precedent and declines to consider an 
argument first raised in a reply.                                         
  D.  Fraudulent Concealment Claim (Count XXVIII)                        
    Defendant Galassi moves to dismiss Count XXVIII, a fraudulent concealment 
or misrepresentation claim, because Plaintiffs have failed to state claim upon which 

relief may be granted. As discussed with respect to the fraudulent concealment claim 
brought against Dr. Petrak, the “fraud claims require a five-part showing: (1) a false 
statement or omission of a material fact; (2) the defendant’s knowledge or belief that 
the statement was false; (3) the defendant’s intent to induce the plaintiff to act; (4) 
the plaintiff’s reliance upon the truth of the statement; and (5) damages to the 
plaintiff resulting from his reliance on the statement.” McMahan, 938 F. Supp. at 

804. This claim is subject to the heightened pleading standard under Rule 9(b).  
    While Plaintiffs incorporate all preceding allegations by reference into this 
count, the only allegations within Count XXVIII include:                  
    306. On March 29, 2019, Defendant Galassi concealed the purpose of the 
    paperwork upon which Plaintiff Jacob was required to sign with the   
    intent to deceive or defraud Jacob into signing a safety plan related to 
    the removal of BB from Jacob and Patti.                              
    307. While under duress, Jacob signed the paperwork, which ultimately 
    led to the removal of BB.                                            
(Doc.  75  at  56).  Like  the  analysis  of  the  claim  against  Dr.  Petrak,  these  two 
statements are not enough to place Galassi on notice of the claims against her. 
Plaintiffs must allege more, “the who, what, when, where, and how” of the fraud 

committed. AnchorBank,
649 F.3d at 615
. Once again, the burden to hunt down 
supporting allegations within a fifty-eight-page pleading is not on the defendant. 
Therefore, Count XXVIII is dismissed without prejudice.                   
    In sum, Counts XII, XIII, XXVII, and XXVIII are dismissed without prejudice. 
The Court will discuss Plaintiffs’ leave to amend certain claims within the conclusion 
of  this  Order.  To  the  extent  Plaintiffs  intended  to  allege  Count  VI  again,  it  is 

dismissed with prejudice.                                                 
III.  Application  of  the  Illinois  Healing  Art  Malpractice  Statute  on 
    Summary Judgment                                                     
    Both pending Motions for Partial Summary Judgment are ripe for this Court’s 
review, as well as Plaintiffs’ related request to supplement their Amended Complaint. 
(Docs. 84, 105, 183). The basis of Dr. Petrak’s request for summary judgment on 
Counts XI, XII, XIII, and XXIV is that these claims fail to comply with the Illinois 
Healing Art Malpractice statute, 735 ILCS 5/2-622. (Doc. 105). Additionally, OSF 
requests summary judgment on Counts XI, XII, XIII, XXIV, and XXVI for this alleged 
failure. (Doc. 82). Each claim is directed at both Dr. Petrak and OSF except Count 
XXVI, which is only directed at OSF. (Doc. 75). Section 2-622 requires a plaintiff to 

file  with  the  complaint  an  affidavit  of  merit  and  report  of  a  reviewing  health 
professional opining that there is meritorious basis for bringing the action in medical 
malpractice suits. Further, the statute provides that failure to file an affidavit is 
“grounds for dismissal.” 5/2-622(g). Plaintiffs respond that these specific claims are 
not subject to the nuanced requirements of the Illinois statute, and ask this Court to 
deny summary judgment, or, in the alternative, to grant leave to amend. (Docs. 94, 

107). There are no disputed, material facts related to whether the claims are subject 
to this requirement. (See docs. 82, 94, 98, 105, 107, 120).               
    An initial argument raised by Plaintiffs is that the motions are premature. 
(Docs. 94 at 3, 104 at 3–4). In Young v. United States, the Seventh Circuit clarified 
that when a plaintiff failed to provide the required affidavit and report, the case was 
subject to summary judgment, rather than dismissal pursuant to Rule 12 of the 

Federal Rules of Civil Procedure.
942 F.3d 349
(7th Cir. 2019). Specifically, the 
Seventh Circuit reasoned that “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 litigation proceeds in a federal 
tribunal.”
Id. at 351
. Rule 8 of the Federal Rules of Civil Procedure “does not require 
attachments [to the complaint] . . . supporting documents come later.”
Id.
Therefore, 
because a “motion to dismiss asserts that the complaint is defective,” a “complaint in 

federal court cannot properly be dismissed because it lacks an affidavit and report 
under § 5/2-622.” Id. Rather, dismissal for failure to provide the affidavit and report 
should occur on summary judgment, a motion which can be filed “at any time.” Id. 
(citing Fed. R. Civ. P. 56(b)). Neither Dr. Petrak’s nor OSF’s motion is premature or 
otherwise untimely—both follow the procedures outlined by the Seventh Circuit in 
Young and were brought well before thirty days after the close of discovery. See Fed. 
R. Civ. P. 59(b). Plaintiffs’ arguments related to Dr. Petrak’s “serval motion practice” 
or general untimeliness are not convincing and are therefore rejected.    
    The remaining arguments are with respect to Dr. Petrak’s Motion—Plaintiffs 

state  it  is  procedurally  defective  in  that  she  attaches  exhibits  which  are  not 
admissible. (Doc. 107 at 3). They cite to Friedel v. City of Madison,
832 F.2d 965, 970
(7th Cir. 1987), which outlines how material support a motion for summary judgment 
must “must be established through one of the vehicles designed to ensure reliability 
and veracity – depositions, answers to interrogatories, admissions and affidavits. 
When a party seeks to offer evidence through other exhibits, they must be identified 

by affidavit or otherwise made admissible in evidence.” (Doc. 107 at 3). Because Dr. 
Petrak attached “a handful of pages from OSF’s medical records,” the Court should 
strike her exhibits. (Doc. 107 at 3). In her Reply, Dr. Petrak reminds the Court that 
the Federal Rules “allow a party to support the assertion that a fact is not genuinely 
disputed  by  ‘citing  to  particular  parts  of  materials  in  the  record,  including 
depositions, documents, electronically stored information, affidavits or declarations, 
stipulations (including those made for purposes of the motion only), admissions, 

interrogatory answers, or other materials.’ ” (Doc. 120 at 2) (citing Fed. R. Civ. P. 
56(c)(1)(A)). Dr. Petrak then explained how regardless of whether Plaintiffs are 
making a foundation or hearsay objection (they do not specify), they fail to question 
the accuracy or reliability of the records, and the records were not offered for the truth 
of the matter asserted. (Doc. 120 at 3).                                  
    This dispute does not need to be resolved at this time. Dr. Petrak offered the 
records to “illustrate the scope of [her] inquiry leading to her conclusion that the child 
identified in the caption of this case as ‘BB’ was subjected to medical child abuse.” 

(Doc. 120 at 3). The Court does not need to analyze the medical record pages to 
determine whether the scope of Plaintiffs’ claims require the application of Section 2-
622  because  Plaintiffs  have  included  enough  information  within  the  Amended 
Complaint to determine the issue. Therefore, Plaintiffs’ arguments related to the 
posterity of the Motions for Partial Summary Judgment are denied, and the Court’s 
analysis continues.                                                       

    The Court will first address whether the Illinois statute applies to each claim. 
To  determine  whether  the  cause  of  action  alleges  medical  malpractice,  and  is 
therefore covered by this statute, courts analyze three factors: “ ‘(1) whether the 
standard of care involves procedures not within the grasp of the ordinary lay juror; 
(2) whether the activity is inherently one of medical judgment; and (3) the type of 
evidence that will be necessary to establish plaintiff[’s] case.’ ” Sauer v. Methodist 
Hosp. of Chi., No. 14-CV-7191,
2015 WL 5163680
, at *2 (N.D. Ill. Sept. 1, 2015) 

(quoting Jackson v. Chicago Classic Janitorial & Cleaning Serv., Inc.,
355 Ill. App. 
3d 906, 909
(1st Dist. 2005)). See also Fiala v. Bickford Sr. Living Grp., LLC,
2015 IL 
App (2d) 150067, ¶ 28
(writing whether Section 2-622 applies depends “on whether 
the conduct is beyond the ken of a layperson and requires a medical expert’s opinion 
to help the jurors understand”); Childs v. Pinnacle Health Care, LLC,
399 Ill. App. 3d 
167, 183
(Ill. 2010) (holding that where the allegations “encompass matters of medical 
judgment[,] they are appropriately addressed as healing art malpractice” and fall 
under the statute).                                                       
A.  Negligence (Count XI)                                                

    Despite the label indicating that Count XI is a claim of ordinary negligence, 
Dr. Petrak and OSF argue that it essentially alleges medical negligence, and failure 
to correctly identify it should not allow Plaintiffs to bypass the requirements of 
Section 2-622. (Docs. 82 at 5–9, 105 at 6–7). By alleging the standard of care for a 
similarly situated physician, how Dr. Petrak deviated from this standard, and what 
injuries  were  proximately  caused  by  her  purported  negligence,  Plaintiffs  have 
pleaded the requisite elements to state a claim for medical negligence. See Thomason 

v. Dallison, No. 22-CV-00834,
2022 WL 2866716
, at *4 (S.D. Ill. July 21, 2022) (“An 
Illinois medical negligence claim requires the plaintiff to show: (1) the applicable 
standard of care; (2) the defendant breached the standard of care and was negligent; 
and (3) and the breach was a proximate cause of the plaintiff’s injury.”).  
    However, not all medical negligence cases require the plaintiff to use expert 
testimony to establish a standard of care and therefore do not automatically fall 

under “healing art malpractice.” See Edelin v. Westlake Cmty. Hosp.,
157 Ill. App. 3d 
857, 862
(1st Dist. 1987) (“Generally, in a medical malpractice case, plaintiff must 
offer expert testimony to establish the standard of care unless defendant’s conduct is 
so grossly negligent or the treatment so common that a lay person could readily 
understand it.”). Plaintiffs’ responsive argument is just that—Dr. Petrak’s actions 
were so grossly negligent that any juror would be able to understand how they did 
not comport to the standard of care, and will not need expert testimony or fall under 
Section 2-622. (Docs. 107 at 4–9, 94 at 3–6).                             
    In reviewing the Amended Complaint, it is observed that Plaintiffs do not 

allege that Dr. Petrak simply breached an administrative duty, or that she failed to 
follow a hospital policy that is understandable by a layperson. See Cohen v. Smith,
269 Ill. App. 3d 1087
, 1091–92 (5th Dist. 1995) (finding nonconsensual touching by 
nurse not “healing art malpractice”); Edelin,
157 Ill. App. 3d at 857
(failing to follow 
hospital policy requiring patients to be escorted from the property in a wheelchair not 
captured under “healing arts malpractice”). Instead, they allege in Count XI that she 

did  not  “apply  the  knowledge  and  use  the  skill  and  care  ordinarily  used  by  a 
reasonably careful physician” in investigating for abuse and neglect of the minor 
children, directing the removal of the minor children, and misstating facts related to 
the investigation. (Doc. 75 at 37). A claim for healing arts malpractice is found “when 
a professional applies his expert knowledge or skill in an unreasonably deficient way 
resulting in injury.” Awalt v. Marketti, 11 C 6142,
2012 WL 1161500
, at *4 (N.D. Ill. 
Apr. 9, 2012) (citing Purtill v. Hess,
111 Ill. 2d 229, 239
(Ill. 1986)). Simply put, 

Plaintiffs are bringing this claim in a way that requires the analysis of whether Dr. 
Petrak applied her expert knowledge in child abuse investigations and her skills as a 
medical  professional  in  a  deficit  way;  therefore,  it  is  considered  healing  acts 
malpractice and subject to the requirements of Section 2-622.             
  B.  Informed Consent (Count XII)                                       
    Dr.  Petrak  and  OSF  move  for  summary judgment  on  Plaintiffs’  informed 
consent claim due to their failure to comply with the express language of the statute, 

which provides:                                                           
    When the attorney intends to rely on the doctrine of failure to inform of 
    the consequences of the procedure, the attorney shall certify upon the 
    filing of the complaint that the reviewing health professional has, after 
    reviewing the medical record and other relevant materials involved in 
    the particular action, concluded that a reasonable health professional 
    would have informed the patient of the consequences of the procedure. 
5/2-622(d). See also McDonald v. Lipov,
2014 IL App (2d) 130401, ¶ 18
(“It is well 
established  that  a  claim  that  a  health  professional  acted  without  the  informed 
consent of the patient is a type of medical malpractice claim.”).         
    There  are  no  direct  arguments  in  response  by  Plaintiffs  related  to  their 
informed consent claim. As a general argument opposing the application of Section 2-
622 to all her claims, Plaintiffs put forth that they will not need expert evidence, as 
“[t]he expectation of honesty and mutual understanding are basic components of all 
agreements, including those between patient and provider” and any juror can grasp 
this concept. (Doc. 107 at 6). This is not enough to defeat the express statutory 
language that brings this type of claim into what is covered by Section 2-622. This 
informed consent claim is clearly subject to the requirements.            
  C.  Battery (Count XIII)                                               
    Both Dr. Petrak and OSF argue that Plaintiffs’ battery claim falls squarely 
under what is subject to the requirements of Section 2-622. Under Illinois law, a 
battery is the unauthorized touching of the person of another. Curtis v. Jaskey,
326 
Ill. App. 3d 90, 92
(2d Dist. 2001). In a medical battery case, a plaintiff may recover 
for a medical battery if he or she shows “a total lack of consent to the procedure 
performed,  that  the  treatment  was  contrary  to  the  patient’s  will,  or  that  the 

treatment was at substantial variance with the consent granted.”
Id.
In response, 
Plaintiffs  contend  that  Dr.  Petrak  only makes  this argument  “because  she  is  a 
licensed medical doctor and her acts occurred in a hospital,” and their allegations that 
there was “offensive touching by an individual who was not a treater, but instead 
acting for the state as an investigator, and under a false and incomplete disclosure of 
the nature of her role” should be determinative in the Court’s analysis. (Doc. 107 at 

7).                                                                       
    It is correct that not every act or omission committed by a physician or hospital 
constitutes healing art malpractice and falls under the requirements of Section 2-622. 
Milos v. Hall,
325 Ill. App. 3d 180, 183
(5th Dist. 2001). Claims of medical battery are 
subject to the requirements only where the underlying nature of the claim sounds in 
medical healing art malpractice, and generally “if the allegations contained in the 
plaintiff’s  complaint  involve  issues  of  medical  diagnoses,  skill,  knowledge,  or 

treatment” that is beyond what an average juror may understand. Ripes v. Schlechter,
2017 IL App (1st) 161026, ¶ 6
.                                            
    As previously discussed in relation to Dr. Petrak’s Motion to Dismiss, Plaintiffs 
here are not alleging a “total lack of consent” in bringing this type of claim, or even 
that the treatment performed went beyond the scope of the consent given. What they 
allege  is  that Dr.  Petrak  failed  to  disclose  her  “true  motive” in  evaluating and 
assessing BB, which requires the analysis of whether her medical judgment and 
decisions were sound. Dr. Petrak correctly argues that this case is unique in it that 
will require the “determination of the standard of care in the context of a child abuse 

investigation” especially considering how obtaining consent from Plaintiffs might 
neutralize the purpose of the investigation, and possibly jeopardize the safety of the 
minor. (Doc. 105 at 9–10). This decision-making falls outside the scope of what a 
layperson may understand, requires expert testimony, and is therefore subject to the 
requirements of Section 2-622.                                            
    Plaintiffs’ cited authority does not change this. Both cases turn on issues that 

are not present here. See, e.g., Cohen,
269 Ill. App. 3d at 1087
; Fiala,
2015 IL App 
(2d) 150067
. In Cohen, the plaintiff pleaded a refusal to medical treatment that 
conflicted with her religious beliefs, and in Fiala, the plaintiff alleged a complete and 
total lack of consent to the treatment.
Id.
The plaintiffs in these cases did not need to 
comply with the requirements of Section 2-622 because a juror can more readily 
understand the black and white nature of pleading a complete lack of consent or right 
to refuse treatment. That is not the case here, where the battery claim boils down to 

whether Dr. Petrak used sound judgment, which is essentially medical malpractice. 
See Ripes,
2017 IL App (1st) 161026 at ¶ 14
(“Accordingly, courts that have applied 
this rule to various pleadings have concluded that claims for breach of contract, fraud, 
and medical battery will be subject to section 2–622’s pleading requirements where 
the underlying nature of those claims sound in medical healing art malpractice.”). 
For the reasons explained, Plaintiffs’ battery claim is subject to the requirements of 
Section 2-622.                                                            
  D.  False Imprisonment (Count XXIV)                                    

    The false imprisonment claim is leveled against Dr. Petrak and OSF, both of 
which argue that this count alleges medical malpractice. Under Illinois law, “ ‘[t]he 
elements of a cause  of action for  false imprisonment are that the plaintiff was 
restrained or arrested by the defendant, and the defendant acted without reasonable 
grounds  to  believe  that  an  offense  was  committed  by  the  plaintiff.’ ”  Molina  v. 
Latronico,
430 F. Supp. 3d 420
, 438 (N.D. Ill. 2019) (quotation omitted). 
    Illinois  courts  give  a  broad  reading  to  the  statutory  phrase  “healing  art 

malpractice.” See Woodard v. Krans,
234 Ill. App. 3d 690
(2d Dist. 1992). The statute 
applies if the claim involves the exercise of medical judgment, even if it is not a 
medical malpractice claim. See Campolattara v. Feliciano,
2016 IL App (3d) 141005
-
U, ¶ 20 (2016) (“[P]laintiff's amended complaint alleged claims of false imprisonment 
against each of the defendants. Although he does not allege medical malpractice, his 
claims concern issues of medical judgment, and therefore, fall under the purview of 

section 2-622(a).”). Here, to establish their claim for false imprisonment, Plaintiffs 
must  plead  and  prove  that  Dr.  Petrak’s  finding  of  medical  child  abuse  was 
unwarranted, and that her professional determination was not grounded in sound 
judgment when she “directed the detainment of BB and the removal of Plaintiffs 
Jacob and Patti from OSF.” (Doc. 75 at 53). This theory, touching on both Dr. Petrak’s 
exercise of judgment as a doctor and as a child abuse investigator, clearly raises 
issues of medical judgment that are beyond the ken of a layperson.        
    Plaintiffs do not raise a viable argument in response. They state:   
    As to the false imprisonment claim, again, the fact that Petrak is a 
    licensed medical doctor does not automatically convert this to a medical 
    malpractice claim. Instead, Petrak’s acts must be viewed for what they 
    are, regardless of the location or profession of the actor. Petrak’s acts 
    can be compared to those of a police officer or other person cloaked with 
    apparent authority who abuses her position to control and limit the acts 
    of another by virtue of their disparate positions. Just as there would be 
    no certificate of merit required in such a police case, there can be none 
    claimed here.                                                        
(Doc. 107 at 7). There is no authority included to support this argument comparing 
Dr. Petrak’s role as a child abuse pediatrician to a police officer, or that in this type 
of role, she would not be exercising medical judgment. See Mwangangi v. Nielsen,
48 
F.4th 816
, 832 (7th Cir. 2022) (“A litigant who fails to press a point by supporting it 
with pertinent authority, or by showing why it is a good point despite a lack of 
supporting authority or in the face of contrary authority, forfeits the point.”). This 
argument does not refute the contention that Dr. Petrak’s medical judgment is at 
issue; therefore, this claim falls under the scope of Section 2-622. The Court does not 
follow the logic of this argument—if Plaintiffs are asking the Court to abandon 
precedent and ignore the plain statutory language of Section 2-622, it must decline. 
Because this argument is not properly supported and lacks merit as written, it is 
rejected.                                                                 
  E.  Institutional Medical Malpractice (Count XXVI)                     
    OSF, the sole defendant of Count XXVI, argues that Plaintiffs have failed to 
supply the required affidavit and reports needed to bring an institutional medical 
malpractice claim against it. (Doc. 82 at 8–9). Plaintiffs offer no response to this 
argument for summary judgment other than a general denial that any of the state-
law claims require expert testimony. (See doc. 94). Institutional negligence from the 
violation of the hospital’s own duty to care. See Longnecker v. Loyola Univ. Med. Ctr.,
383 Ill. App. 3d 874, 885
(1st Dist. 2008) (holding that “a hospital may face liability 

under  two  separate  and  distinct  theories:  (1)  vicarious  liability  for  the  medical 
negligence  of  its  agents  or  employees;  and  (2)  liability  for  its  own  institutional 
negligence”). Like the other state-law claims, an institutional negligence claim must 
comply with the requirements in Section 2-622 when the plaintiff alleges medical 
malpractice. Ortiz v. United States, No. 13 C 7626,
2014 WL 642426
, at *2 (N.D. Ill. 
Feb. 19, 2014). Plaintiffs themselves labeled this negligence claim “institutional 

medical malpractice,” (doc. 75 at 55), leaving little to no argument that they are not 
alleging malpractice on the part of OSF. They include allegations related to a failure 
to follow hospital standards, assume responsibility, supervise treatment and medical 
care, and protect patients. (Doc. 75 at 55). The issue of whether OSF met these 
standards is beyond the knowledge of the average juror and will require expert 
testimony; this claim is therefore subject to Section 2-622.              
    In sum, Counts XI, XII, XIII, XXIV, and XXVI contain claims that are subject 

to the requirements in the Illinois statute.                              
IV.  Plaintiffs’ Request for Leave to Amend                               
    While the summary judgment motions have been pending before this Court, 
Plaintiffs  moved  for  leave  to  file  health  professional  reports  “in  the  interest  of 
eliminating such dispute based on technicality so to move forward with the merits of 
this case.” (Doc. 183). In essence, this is a request to amend their pleading. Dr. Petrak 
opposes any amendment, details how Plaintiffs’ purposed health professional reports 
fall short of what is required under the statute, and argues for the Motion’s denial. 
(Doc. 195).                                                               
    Generally, as a case proceeds, a party may amend only with the opposing 

party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). Where the 
opposing party does not consent to an amendment, the Court will grant leave to 
amend a complaint when justice so requires.
Id.
Leave may be denied, however, when 
there is “undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, 
undue prejudice to the defendants, or where the amendment would be futile.” Arreola 
v. Godinez,
546 F.3d 788, 796
(7th Cir. 2008). Delay alone is an insufficient basis to 

deny leave to amend the complaint, “rather, the degree of prejudice to the opposing 
party is a significant factor in determining whether the lateness of the request ought 
to bar filing.” Dubicz v. Commonwealth Edison Co.,
377 F.3d 787, 792
(7th Cir. 2004). 
    When the motions for summary judgment were filed by Dr. Petrak and OSF, 
Plaintiffs were placed on notice of the potential need for an affidavit and report as 
required by Section 2-622. In the ensuing ten months, Plaintiffs had the opportunity 
to gather essential information and evidence in order to acquire the affidavit and 

report.  On  December  2,  2024,  Plaintiffs  moved  for  leave  to  file  two  Health 
Professional Reports, one pertaining to Dr. Petrak’s actions, and the other related to 
OSF’s failures, in an effort to meet this requirement under the statute. (Doc. 183). 
Dr. Petrak picks apart these reports, calling out the insufficiencies. (Doc. 195). This 
Court agrees—the suggested reports do not meet the requirements of the statute for 
various reasons.                                                          
    The first and most obvious omission is that there is no proposed attorney 
affidavit included with either report. Both the attorney affidavit and the physician 
report are required, and failure to provide either result in dismissal. See Plummer v. 

Welborn, No. 13 C 8253,
2016 WL 2937029
, at *5 (N.D. Ill. May 20, 2016) (granting a 
motion to dismiss where the plaintiff filed a complaint with a physician report but 
failed to include a separate attorney affidavit). The second reason is because the 
reports  themselves  are  substantively  insufficient  and  include  only  conclusory 
language  without  explanation.  To  comply  with  Section  2-622,  the  health 
professional’s report is not required to contain specific language that a “reasonable 

and meritorious cause for filing the action exists.” Hagood v. O’Conner,
165 Ill. App. 
3d 367, 373
(3rd Dist. 1988). A report is sufficient where it states with specificity (1) 
what the defendant did, (2) the reasons why that activity constituted a breach of the 
applicable standard of care, and (3) the adverse effects suffered by the plaintiff as a 
result of the breach. Mueller v. N. Suburban Clinic, Ltd.,
299 Ill. App. 3d 568, 576
(1st Dist. 1998). “A generalized conclusion of medical malpractice cannot support the 
meritoriousness determination.” Moss v. Gibbons,
180 Ill. App. 3d 632, 638
(4th Dist. 

1989).                                                                    
    Here, the suggested reports fail to explain why the alleged actions committed 
by Dr. Petrak and OSF constitute a breach of the applicable standard of care. The 
language  of  the  statute  includes  that  “the  reviewing  health  professional  has 
determined in a written report, after a review of the medical record and other relevant 
material involved in the particular action that there is a reasonable and meritorious 
cause for the filing of such action.” 5/2-622. The report related to OSF states that the 
care provided to BB “fell below the minimum standard” and “constituted negligence” 
in the following ways:                                                    

    a. Failed to assume responsibility for the care of its patients including 
    BB;                                                                  
    b. Failed to review and supervise the treatment of its patients including 
    BB;                                                                  
    c. Failed to ensure BB was protected from unwanted touching;         
    d. Failed to supervise the medical care provided to BB;              
    e. Failed to ensure adequate communication between its medical team. 
(Doc. 183-1 at 1–2). Dr. Petrak’s actions fell below the required standard of care and 
constituted negligence because she:                                       
    a. Failed to conduct a thorough and appropriate investigation into the 
    health, safety, and welfare of BB;                                   
    b.  Conducted  an  examination,  surveillance,  and/or  touching  of  BB 
    without consent;                                                     
    c.  Omitted  and/or  allowed  information  to  be  omitted  or  otherwise 
    allowed inaccurate reports.                                          
(Doc. 183-1 at 3–4). While a report need not state what care should have been 
provided, Neuman v. Burstein,
230 Ill. App. 3d 33
(2d Dist. 1992), it should be 
supported by facts, Mueller,
299 Ill. App. 3d at 577
. The reports, and these conclusions 
of misconduct, are devoid of any factual support from the reviewed materials. For 
example, looking at the alleged negligence of Dr. Petrak, there are no details to 
demonstrate when she “allowed inaccurate reports” or provided care without consent. 
Considering the allegations against OSF, there is no supporting evidence or details 
related to its failure to supervise, or ensure adequate communication, other than it 
should have done so “at all times.” (Doc. 183-1 at 1). That is not enough to provide 
that there is a reasonable and meritorious cause for filing these claims. See McDonald 
v. Obaisi, No. 16 C 5417,
2018 WL 1156243
, at *5 (N.D. Ill. Mar. 2, 2018) (rejecting a 

report when it failed to explain how and why alleged failure violated the standard of 
care). Also, these statements related to the negligent actions of both OSF and Dr. 
Petrak border on allegations of liability, which are conclusions of law and “a physician 
is not required to opine on legal conclusions in a physician report.” Delgado v. United 
States, No. 16 C 1899,
2016 WL 7324590
, at *5 (N.D. Ill. Dec. 16, 2016).  
    Further,  at  the  time  Plaintiffs  attempted  to  supplement  their  pleading, 

depositions of numerous medical doctors were already taken in this matter; however, 
the reports do not mention that any records beyond the minor Plaintiffs’ medical 
records  were  reviewed.  This  is  generally  considered  “relevant  material”  to  be 
reviewed under Section 2-622. See Kuzmiak v. Kooperman,
2015 IL App (1st) 142165
-
U, ¶ 25 (“We find that the depositions of the parties, especially the defendants, and 
the treating physicians, would have been ‘relevant material’ under section 2–622(a) 
of the Code that a health professional should have reviewed prior to authoring 2–622 

reports.”).  The  substance  of  the  reports  does  not  come  close  to  meeting  the 
requirements of Section 2-622 or what is accepted in relevant case law.   
    The third reason is that Plaintiffs fail to establish that the physicians are 
qualified to provide the opinions rendered. Both suggested reports state that the 
physician has “practiced within the last 6 years in the same area of health care or 
medicine that is at issue in this particular action and/or have taught within the last 
6 years.” (Doc. 183-1). This is not enough to provide the defendants notice of the 
qualifications of the reviewing physician and does not establish “the ‘author’ of the 
report . . . [has the] requisite qualifications to express an opinion.” Moyer v. Southern 

Illinois Hosp. Serv. Corp.,
327 Ill. App. 3d 889, 897
(5th Dist. 2002). A plaintiff must 
demonstrate that the physician authoring the report is qualified to do so. 
    Therefore, Plaintiffs are not granted leave to file these health professional’s 
reports, as this amendment would be futile. The Motion (doc. 183) is denied. The 
question of whether Plaintiffs should be granted more time to meet the requirements 
of the statute, or whether summary judgment should be granted for Dr. Petrak and 

OSF on these counts, must be decided. A main consideration is whether Plaintiffs 
were truly on notice of the requirement to provide an affidavit or report pursuant to 
Section 2-622, as they argued that each claim was not actually subject to the statute 
when faced with the Motions for Partial Summary Judgment. Plaintiffs not having 
true  notice  of  the  requirement  may  negate  granting  summary  judgment  for 
Defendants, and instead, would suggest that it is more appropriate given the relevant 
case law to provide Plaintiffs with the time to cure the defect. However, the Court 

has thoroughly reviewed the progression of this case, and concludes that Plaintiffs 
had adequate notice, whether they knew or should have known, that their claims 
were subject to the requirements in Section 2-622 from at least March 20, 2024. 
    There are two main considerations for this decision: first, in response to the 
summary judgment motions, Plaintiffs have put forth arguments that are clearly 
contradictory to established case law, and have wasted the Court’s time and resources 
by denying that the statute applied to their allegations—especially when considering 
their informed consent and institutional medical malpractice claims. Plaintiffs did 
not provide a responsive argument as to why these claims specifically were not 

subject to the statute, ignoring in part the plain language of the statute. Second, 
Plaintiffs asked this Court to grant them time to file the necessary reports, and then 
moved for leave to amend. In the Motion, Plaintiffs do not state that they were not 
able to gather sufficient evidence to properly draft an affidavit and reports necessary 
to  meet  the  requirements  under  Section  2-622.  They  instead  attempt  to  file  a 
supplement that does not come close to satisfying this burden, purporting that they 

are now in compliance without a second thought.                           
    Allowing Plaintiffs to continue would prejudice Dr. Petrak and OSF in that 
they would have to continue defending claims that Plaintiffs seemingly cannot gather 
the necessary evidence to bring. This would be in direct contrast to the purpose of 
Section 2-622 and the Illinois Healing Arts Malpractice statute. See Sullivan v. 
Edward Hospital,
209 Ill. 2d 100
, 116–17 (2004) (writing that the sets forth pleading 
requirements  that  are  “designed  to  reduce  the  number  of  frivolous  medical 

malpractice  lawsuits  at  an  early  stage  before  litigation  expenses  mount”).  The 
Seventh Circuit has instructed:                                           
    [W]hile the decision to dismiss . . . is left to the sound discretion of the 
    court, see McCastle,
117 Ill.Dec. 132
,
520 N.E.2d at 295
, Illinois courts 
    have held that when a plaintiff fails to attach a certificate and report, 
    then “a sound exercise of discretion mandates that [the plaintiff] be at 
    least afforded an opportunity to amend her complaint to comply with  
    section 2–622 before her action is dismissed with prejudice.” Cammon,
235  Ill.Dec.  158
,
704  N.E.2d  at  739
;  see  also  Apa  v.  Rotman,
288 
    Ill.App.3d 585
,
223 Ill.Dec. 851
,
680 N.E.2d 801, 804
(1997). It follows 
    that when the certificate was filed but failed in some technical or minor 
    respect, sound discretion also requires an opportunity to amend. See 
    Apa,
223 Ill.Dec. 851
,
680 N.E.2d at 804
(holding that “the technical 
    requirements  of  the  statute  should  not  be  mechanically  applied  to 
    deprive a plaintiff of his substantive rights.”).                    
Sherrod v. Lingle,
223 F.3d 605, 614
(7th Cir. 2000). Illinois courts have more recently 
directed that “a medical malpractice plaintiff should be afforded every reasonable 
opportunity to establish his case,” and that an “abuse of discretion occurs when the 
court’s ruling is arbitrary, fanciful, or unreasonable, or when no reasonable person 
would take the same view.” Langston v. Catt,
2024 IL App (4th) 230736-U
, ¶ 49 
(citations and internal quotation marks omitted).                         
    Here, the attempt to supplement was obviously insufficient, and Plaintiffs 
have  put  forth  arguments  that  are  plainly  meritless  in  response  to  the  partial 
summary judgment motions. In other words, Plaintiffs have not simply failed in some 
“technical” or “minor” respect, but in significant ways that border on bad faith. 
Another opportunity to establish the case would be unreasonable, and Defendants 
Dr. Petrak and OSF would be greatly prejudiced if the Court allowed Plaintiffs more 
time to comply with the requirement they knew or should have known about for 

almost one year. For these reasons, Plaintiffs are not entitled to another opportunity 
to comply with the requirements of Section 2-622. See Hill v. C.R. Bard, Inc.,
582 F. 
Supp. 2d 1041, 1051
(C.D. Ill. 2008) (denying the plaintiff more time to meet Section 
2-622 requirements because the plaintiff should have known, from the outset, that it 
would need to comply with the state law). Defendants Dr. Petrak and OSF are 
granted summary judgment on Counts XI, XII, XIII, and XXIV, and OSF is granted 
summary judgment on Count XXVI.                                           
V.  Remaining Arguments in OSF’s Motion for Summary Judgment             
    OSF requests summary judgment on Plaintiffs’ claims of intentional infliction 
of emotional distress in Count X, negligence in Count XI, lack of informed consent in 

Count XII, battery in Count XIII, false imprisonment in Count XXIV, malicious 
prosecution in Count XXV, institutional medical malpractice in Count XXVI, and 
fraudulent concealment or misrepresentation in Count XXVII because there is no 
agency relationship between OSF and Dr. Petrak. (Doc. 82 at 2). OSF then contends 
that federal law on medical records preempts Plaintiffs’ state law claims seeking 
declaratory relief in Count VII and injunctive relief in Count VIII. (Doc. 82 at 2). Both 
arguments will be addressed in turn.7                                     

A.  Agency                                                               
    Under Illinois law, a principal may be liable for the medical negligence of its 
actual or apparent agents. See Wilson v. Edward Hosp.,
2012 IL 112898, ¶ 18
. 
Whether an agency relationship exists is typically a question of fact; however, “a court 
may decide this issue as a matter of law if only one conclusion may be drawn from 


7 Plaintiffs are warned that a response should comply with the District’s Local Rules. 
They failed to indicate which of Defendant OSF’s facts were material or disputed 
under the correct headings. See Local Rule 7.1(D)(2)(b) (“In separate subsections state 
the following . . . Undisputed Material facts . . . Disputed Material Facts . . . Disputed 
Immaterial Facts . . . [and] Undisputed Immaterial Facts.”). Within the Seventh 
Circuit, district courts are entitled to strictly, but reasonably, enforce local rules. See 
Igasaki v. Illinois Dept. of Fin. and Prof. Reg.,
988 F.3d 948
, 957 (7th Cir. 2021). In 
their Response, Plaintiffs write that Fact Number 3 is objected to “because it states 
and calls for a legal conclusion” and that Fact Numbers 4 and 5 are “unsupported by 
the citations.” Neither of these statements inform the Court whether the facts are 
disputed  or  material;  however,  Plaintiffs  title  their  section  “Response  to  the 
Undisputed Material Facts.” Thus, all of Defendant OSF’s facts within the Motion for 
Partial Summary Judgment will be deemed admitted.                         
the undisputed facts.” Churkey v. Rustia,
329 Ill. App. 3d 239, 243
(2d Dist. 2002). 
Plaintiffs bear the burden of establishing an agency relationship. Pyskaty v. Oyama,
266 Ill. App. 3d 801, 824
(1st Dist. 1994). But on summary judgment, it is OSF that 

must show that there is no triable issue on that question. Winter v. Minn. Mut. Life 
Ins. Co.,
199 F.3d 399, 408
(7th Cir. 1999).                              
    OSF argues that summary judgment is appropriate because Dr. Petrak is 
neither its actual agent nor its apparent agent. (Doc. 82 at 9–12). In denying Dr. 
Petrak is an actual agent of the hospital, OSF points to an agreement between the 
University of Illinois College of Medicine at Peoria (“UICOMP”) and OSF that plainly 

outlines how Dr. Petrak is an independent contractor and neither an employee nor 
agent of OSF. (Doc. 82-2). This fact is undisputed by Plaintiffs; in other words, it is 
undisputed that Dr. Petrak was employed by and hired by UICOMP, and, therefore, 
not the actual agent of OSF. See Heubner v. Galesburg Cottage Hospital,
215 Ill. App. 
3d 129, 132
(3d Dist. 1991) (noting that the dominant factors in determining whether 
a physician was the actual agent of a hospital are whether hospital paid and employed 
the physician and, ultimately, retained control over the physician). Presented with 

these admitted facts, no reasonable jury could conclude that Dr. Petrak was an actual 
agent of OSF.                                                             
    The Federal Rules of Civil Procedure require parties to “identif[y] each claim 
or defense—or the part of each claim or defense—on which summary judgment is 
sought” Fed. R. Civ. P. 56(a), and, “[a]t the summary-judgment stage, the court can 
properly narrow the individual factual issues for trial by identifying the material 
disputes of fact that continue to exist,” BBL, Inc. v. City of Angola,
809 F.3d 317, 325
(7th Cir. 2015). Therefore, summary judgment is granted in favor of OSF on the issue 
of actual agency.                                                         

    The finding that Dr. Petrak was not an actual agent of OSF does not disclose 
the possibility that there is apparent agency. Most of Plaintiffs’ arguments are related 
to this theory, which put forth that there are triable issues related to whether 
Plaintiffs Patti and Jacob Krueger knew or should have known that Dr. Petrak was 
an independent contractor—the relevant inquiry in determining whether apparent 
authority exists. (Docs. 94, 199). OSF introduces the consent form which Plaintiffs 

signed, explaining the use of independent physicians in the hospital. (Doc. 82 at 4–
5). There is no dispute that Plaintiff Patti Krueger signed this form—based on this, 
OSF argues then that Plaintiffs knew or should have known that Dr. Petrak was an 
independent contractor and the theory of apparent authority cannot apply here. (Doc. 
82 at 9).                                                                 
    Where a physician is an independent contractor, and not the actual agent or 
employee of a principal, the principal may still be held vicariously liable for the 

physician’s  negligent  acts  under  the  doctrine  of  apparent  authority.  See  Lamb-
Rosenfeldt v. Burke Med. Grp., Ltd.,
2012 IL App (1st) 101558
, ¶ 24–25. To prevail on 
a summary judgment motion, Defendant OSF must show that there is no genuine or 
material dispute on both the “holding out” and “justifiable reliance” elements of an 
apparent authority theory. See Gilbert v. Sycamore Municipal Hospital,
156 Ill. 2d 
511, 525
(Ill. 1993).                                                     
    The “holding out” element requires proof that the hospital, or its agent, acted 
in a manner that would lead a reasonable person to conclude that the physician who 
was alleged to be negligent was an agent or employee of the hospital. Gilbert, 156 Ill. 

2d at 523–26. This element “is satisfied if the hospital holds itself out as a provider 
of care without informing the patient that the care is provided by independent 
contractors.” Yarbrough v. Nw. Mem’l Hosp.,
2017 IL 121367
, ¶ 30. “If a patient 
knows,  or  should  have  known,  that  the  treating  physician  is  an  independent 
contractor, then the hospital will not be liable.” Gilbert,
156 Ill. 2d at 522
. See also 
Petrovich v. Share Health Plan of Ill., Inc.,
188 Ill. 2d 17, 34
(Ill. 1999) (“Vicarious 

liability under the apparent authority doctrine will not attach, however, if the patient 
knew or should have known that the physician providing treatment is an independent 
contractor.”). The form signed by Plaintiff Patti included a provision that read, as 
follows:                                                                  
    3.  Independent  Healthcare  Practitioners.  I  understand  and      
    acknowledge that most physicians, mid-level providers and allied health 
    professionals (“healthcare practitioners”) providing services at Hospital 
    are INDEPENDENT HEALTHCARE PRACTITIONERS who are                     
    not employees of the Hospital. These healthcare practitioners are    
    independent contractors who are not employees or agents of Hospital, 
    and Hospital is not responsible for their opinions, decisions or medical 
    procedures  performed.  Independent  physicians  include,  but  are  not 
    limited  to,  consultants  and  specialists.  I  also  understand  that  the 
    healthcare practitioners who provide the following services may not be 
    employees or agents of Hospital: surgery, anesthesiology, pathology, 
    radiology,  orthopedic  surgery,  cardiology,  hospitalist  services, 
    intensivist  services,  and  emergency  medicine.  I  understand  that 
    Hospital  may  be  a  teaching  institution,  providing  clinical  training 
    opportunities  for  medical,  nursing  and  allied  health  students  and 
    residents. I consent to such students and residents being involved in my 
    care and treatment. THE EMPLOYMENT OR AGENCY STATUS OF               
    PHYSICIANS, MID-LEVEL PROVIDERS, AND ALLIED HEALTH                   
    PROFESSIONALS WHO TREAT ME WHILE AT HOSPITAL IS                      
    NOT RELEVANT TO MY SELECTION OF THIS OSF HOSPITAL                    
    FOR MY CARE. I understand that professional personnel are available  
    to explain this section to me.                                       
(Doc.  82  at 4–5)  (emphasis  in  original). To  evaluate  whether  this  consent  form 
provision provided Plaintiffs with sufficient notification of Dr. Petrak’s independent 
contractor status, the Court reviewed the analysis in Kaepplinger v. Michelotti, No. 
17 C 5847,
2019 WL 3024633
, at *7 (N.D. Ill. July 9, 2019). There, the consent form 
was found to be ambiguous in that “a jury may reasonably conclude that the form 
failed to adequately inform a patient of her doctor’s independent contractor status” 
when it included language that physicians “may or may not be employees or agents” 
of the hospital.
Id. at *7
. The form listed types of doctors that may be independent 
contractors, but the doctor at issue in Kaepplinger did not fall within the listed 
categories.
Id.
at *7–8.                                                  
    The same is true here: the form indicates only that “most” physicians are not 

employed directly by the hospital, and Dr. Petrak, a pediatrician, does not directly 
fall within the categories of physicians listed in this provision. This consent form, by 
itself, does provide unequivocal notice that Dr. Petrak was an independent contractor. 
See also Knighten v. United States, No. 06 C 1318,
2008 WL 5244475
(N.D. Ill. Dec. 
16,  2008)  (denying  summary  judgment  where  consent  form  at  issue  stated  the 
patient’s attending physician “may or may not be an employee of the hospital”); 

Hammer v. Barth,
2016 IL App (1st) 143066, ¶ 24
(denying summary judgment where 
consent form stated “that ‘some or all of the physicians who provide medical services’ 
at the hospital ‘are not employees or agents of the hospital, but rather independent 
practitioners’ ” and “that ‘[n]on-employed physicians may include, but are not limited 
to, those practicing emergency medicine, trauma, cardiology, obstetrics, surgery, 
radiology, anesthesia, pathology and other specialties’ ”); but see Frezados v. Ingalls 

Mem’l Hosp.,
2013 IL App (1st) 121835, ¶ 22
(granting summary judgment on this 
element where consent form stated—without exception—that physicians providing 
services to the patient “are not employees, agents or apparent agents of [the hospital] 
but are independent medical practitioners”).                              
    Therefore, whether the consent form adequately informed Plaintiffs of Dr. 
Petrak’s independent contractor status is a triable issue and this alone is enough to 

prevent  granting  summary  judgment  on  the  issue  of  apparent  authority.  See 
Kaepplinger,
2019 WL 3024633
at *8 (“Like the Hammer and Knighten courts, we 
find the disclaimer language in the consent forms at issue, which only alerts a patient 
to the possibility that her physicians are independent contractors, too ambiguous to 
negate the ‘holding out’ element as a matter of law.”). OSF has failed to demonstrate 
that there is no triable issue as to the first element of apparent agency.  
    OSF next contends that Plaintiffs fail to introduce any evidence that Dr. 

Petrak held herself out as an agent of OSF, and that this failure requires the Court 
to grant summary judgment in its favor. (Doc. 82 at 11). Plaintiffs respond that there 
are triable issues regarding the elements of apparent authority (e.g., whether Dr. 
Petrak was being “held out” as an agent, and whether Plaintiffs sought care from the 
hospital itself and not only Dr. Petrak). (Doc. 94 at 8). The complicated nature of this 
analysis is in part due to Plaintiffs’ failure to introduce any additional facts to support 
their argument; instead, they treat this Motion for Partial Summary Judgment akin 
to  a  dismissal  motion  under  Rule  12  and  point  to  allegations  in  the  Amended 
Complaint. (Doc. 94 at 8). If Plaintiffs could not adequately respond to this Motion at 

the time it was filed, the proper procedure would be to use Federal Rule of Civil 
Procedure 56(d), which provides the appropriate relief to the non-moving party when 
a summary judgment motion is filed prior to discovery taking place. (See Text Order 
dated August 26, 2024). Plaintiffs did not utilize this procedure, and OSF now argues 
that they have waived any argument that more discovery was required to respond. 
(Doc. 98 at 6).                                                           

    While this Motion has been pending, both Plaintiffs and Defendant OSF have 
filed supplemental evidence in support of their respective positions on the issue of 
agency  and  responses.  The  filings  have  been  unnecessarily  complicated  and 
burdensome. (See docs. 126, 161, 169, 199, 201). The Court allowed the supplements 
to be filed on the docket. With all filings in front of it, the Court concludes that even 
if it did consider the supplement put forth by Plaintiffs (doc. 199), and the one 
submitted by Defendant OSF (doc. 201), or any responsive filings, the outcome is the 

same. Nothing submitted by either party allows this Court to hold, as a matter of law, 
that Dr. Petrak was not held out as an apparent agent of OSF, and that there is no 
triable issue as to this element of apparent agency. For example, Plaintiffs introduce 
evidence that Dr. Petrak “wears a security badge when working at OSF” with an OSF-
related logo, and that she has children admitted at OSF “for her to perform DCFS 
related medical evaluations.” (Doc. 199).                                 
    OSF, on the other hand, introduces evidence that Dr. Petrak states she is “with 
the Pediatric Resource Center” when meeting patients, and that this center is not a 
part of OSF. (Docs. 201, 169 at 4). However, OSF does not introduce evidence that 

Plaintiffs knew or should have known that the Pediatric Resource Center is not a part 
of OSF. It instead submits evidence that Dr. Petrak does not have an office at OSF, 
and that DCFS employees’ belief that Dr. Petrak may be an agent of OSF was “based 
on unsupported speculation.” (Doc. 199). None of these statements address the theory 
of apparent agency or go to whether Plaintiffs knew or should have known that Dr. 
Petrak was an independent contractor and not an employee of OSF. (Doc. 169). 

Therefore,  the  analysis  does  not  change,  and  summary  judgment  would  be 
inappropriate.                                                            
    The Court cannot, as a matter of law, find that Dr. Petrak was not an apparent 
agent of OSF. As the movant, OSF has the burden of either (1) showing there is an 
absence  of  evidence  supporting  an  essential  element  of  Plaintiffs’  claims,  or  (2) 
presenting affirmative evidence negating an essential element. See Hummel v. St. 
Joseph Cnty. Bd. of Com’rs,
817 F.3d 1010, 1016
(7th Cir. 2016). Here, OSF has not 

met that burden—it has not negated all triable issues in the record which support a 
finding of apparent agency. OSF’s Motion for Summary Judgment on the issue of 
apparent agency is denied. Thus, summary judgment is denied for Counts X, XXV, 
and XXVII, and on all other issues. Summary judgment is granted on the issue of 
actual agency in favor of OSF.                                            
  B.  Federal Law Preemption                                             
    OSF moves for summary judgment on the declaratory and injunctive relief in 
Counts VI and VII of Plaintiffs’ Amended Complaint. (Doc. 82 at 13). Within those 

counts, Plaintiffs seek an order correcting the contents of their medical records where 
the minor children are referred to as “victims of abuse.” (Docs. 82 at 12, 94 at 9). 
OSF’s argument is that the Health Insurance Portability and Accountability Act 
(“HIPAA”) provides the procedures for Plaintiffs to address concerns over the contents 
of the medical records, and that they cannot bypass this federal statute by seeking 
declaratory or injunctive relief. (Doc. 94 at 12–13). There are no disputed, material 
facts related to whether the requests are preempted.                      

    OSF correctly points out that the procedures and standards for the amendment 
of  medical  records  are  proscribed  by  HIPAA,  and  that  generally,  state  law  is 
preempted by the statute.8 However, OSF does not put forth a convincing argument 
as to why this process for amending medical records would entitle it to summary 
judgment  on  relief  sought  by  Plaintiffs.  It  fails  to  connect  the  dots  as  to  how 
preemption of state law could also work to bar the requested relief. While dismissal 

of this relief may be appropriate, summary judgment can only be granted if the 
moving party shows that it is entitled to judgment as a matter of law. See Bank of 
Com. v. Hoffman,
829 F.3d 542, 546
(7th Cir. 2016). In other words, OSF might be 


8 Under the HIPAA Privacy Rule, patients have a legal right to amend or correct a 
mistake in his or her medical records. See
45 C.F.R. § 164.526
. Further, state laws 
that are contrary to HIPAA generally give way to the federal requirements unless a 
specific exemption applies.
45 C.F.R. § 160.203
.                          
correct that Plaintiffs are misplaced, and that they should use the procedures under 
HIPAA, but that does not mean OSF itself prevails.                        
    Upon consideration of Plaintiffs’ requests (which are found in Counts VII and 

VIII), there is no cause of action pleaded related to how or why Plaintiffs would be 
entitled to correct their medical records. Declaratory and injunctive relief are not 
causes of action; they are equitable remedies. Bittman v. Fox,
107 F. Supp. 3d 896, 
905
(N.D. Ill. 2015) (“[A]n injunction is . . . not a separate cause of action.”); Obi v. 
Chase Home Fin., LLC, No. 11-CV-3993,
2012 WL 1802450
, at *4 (N.D. Ill. May 15, 
2012) (“Declaratory relief is a form of remedy a plaintiff may request in his prayer for 

relief.”). The denial of summary judgment does not entitle Plaintiffs to relief or signal 
that the counts are properly pleaded. Because explanation as to why OSF is entitled 
to judgment as a matter of law is lacking here, the Court denies granting summary 
judgment on this issue.                                                   
VI.  Discovery Motions                                                    
    Dr. Petrak requested this Court to stay all discovery deadlines on January 9, 
2025, as the parties were approaching the close of fact discovery, and the claims 

against  each  Defendant  were  not  clear.  (Doc.  203).  This  Motion  is  opposed  by 
Plaintiffs, who argue that the pending dismissal and summary judgment Motions 
would not have disposed of all their claims, and that discovery should continue, or, in 
the alternative, be extended. (Doc. 206). As the dispositive motions have been decided, 
Dr. Petrak’s Motion to Stay Discovery is moot. The parties are instructed to file an 
amended discovery plan within twenty-eight (28) days of the date of this Order. 
    Also pending before the Court is a Motion to Compel Discovery filed by Dr. 
Petrak. (Doc. 157). Plaintiffs responded (doc. 166), and Magistrate Judge Hawley held 
a hearing on the dispute and indicated that a written decision would be forthcoming. 

(Text Order dated November 7, 2024). As Judge Hawley has been appointed to 
District Court Judge, this Court will analyze the merits of this Motion, having 
reviewed the briefing in full.                                            
    The dispute stems from Plaintiffs’ refusal to provide authorization to Decatur 
Psychological Associates, therefore prohibiting Dr. Petrak from issuing a subpoena 
for mental health records. (Doc. 157 at 1–2). Plaintiffs ask this Court to limit Dr. 

Petrak’s “fishing expedition” for confidential mental health records by using the 
“middle ground approach” and considering that Plaintiffs seek only “garden variety 
damages.” (Doc. 166 at 10–11).9 Much of Plaintiffs’ Response details the actions Dr. 
Petrak took during the DCFS investigation. (See doc. 166).                

9 Plaintiffs’ argument that a “middle ground approach applies” to “garden variety 
damages” is off base. The undersigned agrees with the analysis found in Gildwell: 

    Some district courts in this Circuit have ignored the holding in Oberweis 
    and  applied  an  exception  for  “garden  variety”  emotional  distress 
    damages. See, e.g., Johnston v. Jess,
2020 WL 3605629
, at *4 (W.D. Wis. 
    July  2,  2020).  The  undersigned,  however,  does  not  read  such  an 
    exception  into  Oberweis.  “The  rule  espoused  in  Oberweis  is   
    straightforward and unequivocal.” Taylor v. City of Chicago,
2016 WL 
    5404603
, at *3 (N.D. Ill. Sept. 28, 2016). “And the Oberweis decision tells 
    the  district  courts  precisely  when  a  plaintiff  waives  the  privilege; 
    namely, ‘by seeking damages for emotional distress.’ ” Laudicina v. City 
    of Crystal Lake,
328 F.R.D. 510
, 516 (N.D. Ill. 2018) (quoting Taylor,
2016 WL 5404603
, at 3).                                              
Glidwell v. S. Illinois Hosp. Servs., No. 22-1100,
2023 WL 2895147
, at *4 (S.D. Ill. 
Apr.  11,  2023).  Therefore,  the  Court  will  adhere  to  the  standards  outlined  in 
Oberweis.                                                                 
    “[T]here is a psychotherapist-patient privilege in federal cases,” and privileged 
information is not discoverable. Doe v. Oberweis Dairy,
456 F.3d 704, 718
(7th Cir. 
2006) (citing Jaffee v. Redmond,
518 U.S. 1
(1996)); Fed. R. Civ. P. 26(b)(1). However, 

this privilege is not absolute—“[i]f a plaintiff by seeking damages for emotional 
distress places his or her psychological state in issue, the defendant is entitled to 
discover any records of that state.” Oberweis,
456 F.3d at 718
. As other courts have 
recognized, the language in Oberweis that a “defendant is entitled to discover any 
records,”  of  a  plaintiff's  mental  health  when  that  plaintiff  seeks  damages  for 
emotional distress is “broad and sweeping.” Laudicina v. City of Crystal Lake,
328 

F.R.D. 510
, 514 (N.D. Ill. 2018) (“[T]he judges on the Seventh Circuit are careful 
writers: They say what they mean and mean what they say. The broad language 
hedges no bets.”).                                                        
    In the instant matter, Plaintiffs are bringing a claim of intentional infliction of 
emotional distress and seeking monetary damages as a result of Dr. Petrak’s conduct. 
Applying Oberweis, Dr. Petrak is entitled to access Plaintiffs’ mental health records 
because Plaintiffs have placed their psychological states at issue, and the records are 

relevant to their claim for damages from emotional distress. This waives the privilege 
between a psychotherapist and a patient. Dr. Petrak’s Motion to Compel Discovery 
(doc. 157) is granted. Plaintiffs are compelled to produce the required authorization 
for the release of the mental health records from Decatur Psychological Associates.   
                          CONCLUSION                                     
    IT IS THEREFORE ORDERED that Defendant Petrak’s Motion to Dismiss    
(doc. 79) is GRANTED, and the DCFS Defendants’ Motion to Dismiss (doc. 85) is 

GRANTED in part and DENIED in part. Counts XII, XIII, XXVII, and XXVIII are 
DISMISSED WITHOUT PREJUDICE. To the extent Plaintiffs intended to allege  
Count VI again, it is DISMISSED WITH PREJUDICE.                           
    Defendant  Petrak’s  Motion  for  Partial  Summary  Judgment  (doc.  105)  is 
GRANTED, her Motion to Stay Discovery (doc. 203) is MOOT, and her Motion to 
Compel Discovery (doc. 157) is GRANTED. Summary judgment is granted as to 

Counts XI, XII, XIII, and XXIV in favor of Dr. Petrak. OSF’s Motion for Partial 
Summary Judgment (doc. 82) is GRANTED in part and DENIED in part. Summary 
judgment is granted as to Counts XI, XII, XIII, XXIV, and XXVI in favor of OSF. 
Summary judgment is granted on the issue of actual agency in favor of OSF, but is 
denied as to Counts X, XXV, and XXVII, and all other issues.              
    Plaintiffs’ Motion for Leave to Amend (doc. 183) is DENIED for the reasons 
stated herein. If able to truthfully cure the defects outlined herein, the Court grants 

leave for Plaintiffs to amend Counts XXVII and XXVIII within fourteen (14) days of 
the date of this Order. Any other amendments must be made pursuant to Federal 
Rule of Civil Procedure 15(a). The parties are instructed to file an amended discovery 
plan within twenty-eight (28) days of the date of this Order; Plaintiffs are compelled 
to produce the required authorization for the release of the mental health records 
from Decatur Psychological Associates as discussed.                       

SO ORDERED.                                                               

Entered this 31st day of January 2025.                                    
                                          s/ Joe B. McDade               
                                          JOE BILLY McDADE               
                                    United States Senior District Judge