Johnson v. Bishof , 33 N.E.3d 624 ( 2015 )

2015 IL App (1st) 131122
No. 1-13-1122
Opinion Filed March 13, 2015
FIFTH DIVISION
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
KONI JOHNSON, ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) of Cook County
)
v. )
)
CHRISTINE PABIN BISHOF, M.D., Individually and as an )
Agent and/or Employee of Cook County, d/b/a John H. )
Stroger, Jr., Hospital; COOK COUNTY, d/b/a John H. ) No. 08 L 006337
Stroger, Jr., Hospital, by and Through its Agent and/or )
Employee, Christine Pabin Bishof, M.D.; JONATHAN )
BANKOFF, M.D., Individually and as an Agent and/or )
Employee of Cook County, d/b/a John H. Stroger, Jr., )
Hospital; and COOK COUNTY, d/b/a John H. Stroger, Jr., )
Hospital, by and Through its Agent and/or Employee, ) Honorable
Jonathan Bankoff, M.D., ) Kathy M. Flanagan,
) Judge Presiding.
Defendants-Appellees. )
PRESIDING JUSTICE PALMER delivered the judgment of the court with opinion.
Justices McBride and Gordon concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Koni Johnson filed an action against defendants Christine Pabin Bishof,
M.D., Jonathan Bankoff, M.D., and the County of Cook, doing business as John H.
Stroger, Jr., Hospital (the county) alleging negligence, negligent infliction of emotional
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distress and violation of the Emergency Medical Treatment and Active Labor Act
(EMTALA) (42 U.S.C. § 1395dd (2012)) in defendants' diagnosis and treatment of her in
the emergency room of John H. Stroger, Jr., Hospital (Stroger Hospital). The court
entered summary judgment for defendants on all counts asserted against them in
plaintiff's fifth amended complaint. On appeal, plaintiff argues the court erred in granting
summary judgment on (1) counts I and III, as defendants are not immune from liability
under sections 6-105 and 6-106 of the Local Governmental and Governmental
Employees Tort Immunity Act (745 ILCS 10/6-105, 6-106 (West 2012)) (Tort Immunity
Act) for their negligence in failing to appropriately treat her, (2) counts II and IV, as
defendants are not immune from liability under the Tort Immunity Act for their negligent
infliction of emotional distress on her and (3) count V, as questions of fact exist
regarding whether she was given a medical screening examination within defendants'
capability to provide and was stabilized before being discharged from the emergency
room as required by EMTALA. We affirm.
¶2 BACKGROUND
¶3 This appeal concerns the trial court's grant of summary judgment to defendants
on plaintiff's fifth amended complaint sounding in medical negligence, negligent infliction
of emotional distress and violation of EMTALA. 1 Plaintiff filed the complaint in
1
"[S]ection 1867 of the Social Security Act, codified at 42 U.S.C. § 1395dd [is]
better known as the Emergency Medical Treatment and Active Labor Act (EMTALA)."
Arellano v. Department of Human Services, 402 Ill. App. 3d 665, 675 (2010). A "limited
'anti-dumping' statute," EMTALA's " 'core purpose is to get patients into the system who
might otherwise go untreated and be left without a remedy because traditional medical
malpractice law affords no claim for failure to treat.' " Jinkins v. Evangelical Hospitals
Corp., 336 Ill. App. 3d 377, 385 (2002) (quoting Bryan v. Rectors & Visitors of the
University of Virginia, 95 F.3d 349, 351 (4th Cir. 1996)). To that end, EMTALA provides
that any individual who comes to a hospital's emergency department requesting an
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September 2009, directing counts I through V at defendants and counts VI through VIII
at four codefendants. Only the five counts directed at defendants are at issue here.
¶4 In the complaint, plaintiff stated that she presented to the emergency room at
Stroger Hospital, a hospital owned and operated by the county, on or about March 4,
2007, complaining of back spasms, numbness in her right lower extremity, cramping in
her right thigh and severe pain in her back. Plaintiff had slipped on ice the previous day.
She did not have medical insurance. Plaintiff alleged she was seen by Drs. Bishof and
Bankoff, emergency room physicians at the hospital and agents and/or employees of
the county. She asserted she complained to Drs. Bishof and Bankoff that her leg was
numb, it felt like her leg was getting weak and she could not move her toes. She alleged
that Drs. Bishof and Bankoff "did not perform a proper initial medical screening
examination" on her, "ordered a Computerized Axial Tomography (CAT scan) only upon
[her] insistence" and "failed to screen and treat [her] for a spinal cord injury." Plaintiff
claimed Drs. Bishof and Bankoff accused her "of faking her injuries" and discharged her
with Valium and a diagnosis of muscle spasm and did not give her any follow-up
information or instructions upon discharge. She asserted that Drs. Bishof and Bankoff
"had the duty to possess and apply the knowledge and use the skill of a reasonable well
qualified emergency room physician under the same or similar circumstances." Plaintiff
also stated that, on March 5, 2007, she presented to the emergency room at Lincoln
examination or treatment for a medical condition must be provided "an appropriate
medical screening examination within the capability of the hospital's emergency
department, including ancillary services routinely available to the emergency
department, to determine whether or not an emergency medical condition *** exists." 42
U.S.C. § 1395dd(a) (2012). If an emergency medical condition exists, then the hospital
must stabilize the patient prior to transfer or discharge. 42 U.S.C. § 1395dd(b) (2012).
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Park Hospital, from which she was discharged with a diagnosis of "numbness, possibly
fictitious," and she then returned to the emergency room at Stroger Hospital,
complaining of the inability to move her legs. She was diagnosed at Stroger Hospital
with a spinal cord contusion and paralysis on March 6, 2007.
¶5 In counts I and III of plaintiff's fifth amended complaint, she asserted negligence
claims against defendants. She claimed she suffered permanent injuries and lost
earnings as a proximate result of defendants' negligent failure to do one or more of the
following: (1) properly perform an initial medical screening examination; (2) properly
screen her for her signs and symptoms; (3) properly treat her for her signs and
symptoms; (4) properly treat her for a spinal cord injury; (5) properly consult with a
neurologist or neurosurgeon for her signs and symptoms; or (6) refer her to a
neurologist or neurosurgeon for treatment of her signs and symptoms." 2
¶6 In counts II and IV, plaintiff asserted negligent infliction of emotional distress
against defendants, alleging the same negligent acts and omissions as set forth in her
negligence counts. She claimed she suffered and will continue to suffer permanent
injuries, lost earnings and "severe mental and emotional anguish due to her injuries" as
a proximate result of one or more of the negligent acts or omissions.
¶7 In count V, plaintiff asserted the county "had a duty to provide for an appropriate
medical screening for [her] within the capability of [Stroger Hospital's] emergency
department, including ancillary services routinely available to the emergency
department, to determine whether or not an emergency medical condition existed" and
2
Defendant's expert witness, neurologist Charles C. Wang, M.D., explained in
his discovery deposition that "symptoms" are complaints of the patient while "signs" are
the objective findings of a medical examination.
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that it failed to provide her with an appropriate medical screening examination within the
capability of the hospital's emergency department. She asserted the county was
negligent in failing to (1) properly perform an appropriate medical screening examination
pursuant to EMTALA or (2) properly stabilize, treat, and refer her to a neurologist or
neurosurgeon in violation of EMTALA. Plaintiff sought damages for the permanent
injuries she suffered as a proximate result of these negligent acts or omissions and for
the severe mental and emotional anguish she allegedly suffered and will continue to
suffer due to those injuries.
¶8 Defendants answered, denying the allegations. They filed affirmative defenses,
asserting that, as a "local public entity" and employees of that public entity acting within
the scope of their employment, they were immune from liability for any injury which may
have been caused to plaintiff by their failure to diagnose or treat her condition pursuant
to sections 6-105 and 6-106(a) of the Tort Immunity Act (745 ILCS 10/6-105, 6-106(a)
(West 2012)). 3 The parties then conducted extensive discovery.
¶9 In plaintiff's discovery deposition, she testified that she slipped on a patch of ice
3
Section 6-105 provides:
"Neither a local public entity nor a public employee acting within the
scope of his employment is liable for injury caused by the failure to
make a physical or mental examination, or to make an adequate
physical or mental examination of any person for the purpose of
determining whether such person has a disease or physical or
mental condition that would constitute a hazard to the health or
safety of himself or others." 745 ILCS 10/6-105 (West 2012).
Section 6-106(a) provides:
"(a) Neither a local public entity nor a public employee acting within
the scope of his employment is liable for injury resulting from
diagnosing or failing to diagnose that a person is afflicted with
mental or physical illness or addiction or from failing to prescribe for
mental or physical illness or addiction." 745 ILCS 10/6-106(a) (West
2012).
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on March 3, 2007, and fell flat on her back. The next day, she went to the emergency
room at Stroger Hospital, complaining of back spasms, legs tingling and back pain. Dr.
Bishof examined her but plaintiff could not recall what examinations Dr. Bishof
performed. At some point, plaintiff received intravenous infusions of Valium and
morphine for her pain and two X-rays were taken of her back. Plaintiff was then
examined by Dr. Bankoff.
¶ 10 Plaintiff testified that Dr. Bankoff told her there was "nothing wrong" with her and
she had to "get out of here." He stated "I don't know that you think you're up to" and told
her "you're lying, you're faking." Plaintiff stated that, by this time, many hours after she
first arrived in the emergency department, she could not walk but "they wouldn't listen to
[her]." Plaintiff testified that Dr. Bankoff "kept insisting" that there was nothing wrong
with her and that she could stand. He told her to stand and she "said no, I can't stand,
no, I can't." He did not believe her when she said she could not stand. With plaintiff's
boyfriend on one side and Dr. Bankoff on the other, they took plaintiff by the arms and
stood her up. Dr. Bankoff then told her boyfriend "to let go," which he did, and plaintiff
collapsed to the ground. Plaintiff testified that the doctor looked at her and told her "see
how your legs are bent, because they are crossed like this, like sort of funny. He goes,
no one does that, you know, when they just fall, really, you're doing yoga positions, so
you're lying, you’re doing yoga positions."
¶ 11 Plaintiff testified that a CAT scan was then taken and a "second male doctor" told
her the results, telling her there was nothing wrong with her and "we're not going to do
an MRI [magnetic resonance imaging] because you don't need one." 4 This second male
4
This "second male doctor" is not identified or named in plaintiff's complaint.
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doctor then discharged her with instructions "to see a doctor, *** take it easy, take
aspirin or something, if conditions get worse come back, but I couldn't walk, and they
wouldn't listen to me, and he kept writing on the paper that I felt fine." She said, "I was
told there was nothing wrong with me. The first doctor [Dr. Bankoff] *** said there was
absolutely nothing wrong with me and made me stand up and fall on the ground,
insisting there was nothing wrong with me. The second doctor kept insisting there was
nothing wrong with me, and they sent me home saying there was nothing wrong with
me." 5
¶ 12 Plaintiff testified: "I didn't know what to do. I just wanted them to admit me and
keep looking, find out what was wrong, believe me, to believe me, and they wouldn't
believe me, and their treatment of me then too, and, yes, they did not go further with
their tests that they could have performed." She stated she kept telling the doctors that
she wanted them "to go further, is there anything else, because I knew there was
something wrong," but did not request any specific tests. Plaintiff could not walk by this
point and her boyfriend, aided by an orderly, had to lift her into his car. She went home
and slept for a few hours. When she woke, she still could not stand, was in severe pain
and could not urinate.
¶ 13 Plaintiff testified that her boyfriend then took her to Lincoln Park Hospital, where
she was examined by Frederic Fishman, M.D.. Plaintiff stated Dr. Fishman told her
there was nothing wrong with her, told her she had to leave and pushed her in her
wheelchair into the waiting room while she was still crying and "told everybody that [she]
5
In contradiction to her earlier testimony, she stated that the second male doctor
was the doctor "that kept saying I don't know what you think you're up to."
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was a mental case and to get out of there or he would call the cops." Later the same
day, plaintiff returned to Stroger Hospital. On this second visit to Stroger Hospital,
plaintiff was evaluated by a neurosurgeon, an MRI was taken of her back, plaintiff was
diagnosed with a spinal injury and she was admitted to the hospital. Plaintiff remained at
Stroger Hospital for a week before being transferred to Oak Forest Hospital for inpatient
rehabilitation.
¶ 14 Asked to explain the emotional distress "problem" she claimed resulted from her
fall and treatment, plaintiff testified:
"I have no self-confidence anymore. I feel very much that I have to
defend myself or at least explain myself, say I'm sorry to anybody, that no
one's going to believe me anyway, that I'm just kind of a phony, people
don't put any trust or faith in me."
She stated she had regularly spoken to a psychologist at Oak Forest Hospital during her
rehabilitation stay there after her transfer from Stroger Hospital and this doctor had told
her she needed to continue seeing a psychologist after her discharge. Plaintiff was "still"
taking Wellbutrin (an anti-anxiety medication) as prescribed to her by this doctor but
was not seeing a psychologist as she could not afford one. She testified that, "a long
time ago," before her fall, she had taken medication for depression.
¶ 15 The medical record of plaintiff's emergency room visit lists Dr. Bishof as the
primary "MD/NP." It shows plaintiff was first "seen" in the emergency room shortly after
5 p.m. and discharged at 3 a.m. the next day. During her stay, she received multiple
doses of pain killer Toradol, of Valium and of morphine. Dr. Bishof ordered two X-rays of
plaintiff's spine, taken five hours apart. The X-rays showed "vertebral body and disc
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height and alignment are preserved *** [and] no definite fracture" and "bony contours
and joint spaces are seen to be within normal limits." The CAT scan ordered by Dr.
Bishof showed "no acute fracture or dislocation," "vertebral body heights and
intervertebral spaces are preserved" and "soft tissues are unremarkable." The
discharge diagnosis written in the record is "back/buttock contusion s/p RH." The
"instructions to patient" directed plaintiff to take the pain medication Motrin as
prescribed, follow up with her primary care physician and "rest." The chart is signed by
Dr. Bishof and Dr. Sergel, Dr. Bishof's attending physician. An emergency department
"discharge" computer record lists the "primary discharge diagnosis" as "muscle spasm."
¶ 16 Dr. Bishof testified in her discovery deposition that she took a "complete history
and physical" of plaintiff. She performed "a complete head-to-toe exam" of plaintiff,
determining that plaintiff's neurological exam was "intact, plaintiff had no point
tenderness over her back or bruising and had full range of motion at her hips, knees
and ankles on her own and with Dr. Bishof "passively ranging her through motion." Dr.
Bishof found plaintiff "had some tense paraspinal muscles in her low back" and seemed
to be spasming in pain but her cranial nerves were intact, her tendon reflexes were
normal, there was normal sensation in all four of her extremities and complete and full
strength in all her extremities, and there were no signs of upper motor neuron problems.
¶ 17 Dr. Bishof testified that, after her physical examination of plaintiff, she ordered
that plaintiff receive an anti-inflammatory and pain medication to help with her muscle
spasms, Valium and, when plaintiff complained of pain, morphine. Dr. Bishof
reassessed plaintiff several different times. When plaintiff complained that her right leg
was getting weak, Dr. Bishof reassessed her but found "a normal exam." As a matter of
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practice, she would have rechecked plaintiff's "deep tendon reflexes," the sensation and
strength in her feet and her ability to move her legs. Dr. Bishof "did not find any physical
objective findings" on her reexamination but, as plaintiff was complaining of new
symptoms, Dr. Bishof ordered a CAT scan of plaintiff's spine. Dr. Bishof's shift then
ended and she did not see plaintiff again.
¶ 18 Dr. Bishof testified that her initial impression of plaintiff's symptoms was "muscle
spasm with possible contusion to her back from the fall," which was consistent with the
symptoms of which plaintiff complained. Dr. Bishof remembered, however, that plaintiff
"had some objective findings which were not consistent with the subjective findings
[plaintiff's complaints]." Specifically, she remembered that plaintiff was complaining of
numbness but "had a normal neurological exam, normal sensation and proprioception"
and that she was moving around "so much" on the gurney, which Dr. Bishof considered
inconsistent with being in pain. Dr. Bishof's impression was that plaintiff "had muscle
spasm" causing her pain, numbness and cramping. Dr. Bishof noted that, at times,
when she looked into plaintiff's cubicle while passing by, plaintiff appeared very
comfortable and relaxed on the gurney but, "at other times when you would step into the
room, she was writhing around on the cart." It was Dr. Bishof's impression that plaintiff
seemed relaxed and comfortable when Dr. Bishof was not in the room.
¶ 19 Dr. Bishof stated her opinion that, at the time she saw plaintiff, plaintiff had not
suffered any permanent injury to her spinal cord and was neurologically intact. Overall,
based on all of plaintiff's complaints, it was Dr. Bishof's "impression that [plaintiff] had
muscle spasm." Dr. Bishof came to a differential diagnosis that plaintiff had "contused a
bone *** bruised a bone" and, when plaintiff's symptoms escalated, ordered a CAT scan
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"to rule out any bony injury that may have not been picked up on the plain films." She
remembered that she did not call in a neurologic consult because she and her attending
physician, to whom she had conveyed plaintiff's history, the results of her physical exam
of plaintiff and her impression regarding plaintiff's condition, did not think it was
indicated. She would also have spoken to her attending physician about "the plan for
evaluation and treatment."
¶ 20 Dr. Bishof's shift ended at midnight and her chief resident, Dr. Bankoff, took over
plaintiff's care. The last Dr. Bishof knew, plaintiff was being sent for a CAT scan. She
did not discharge plaintiff and was not the one who wrote the "discharge diagnosis" into
plaintiff's medical record. Dr. Bishof stated it was her custom and practice to give an oral
report to the doctor taking over a patient's care but she did not specifically remember
giving Dr. Bankoff an oral report on plaintiff. Dr. Bishof asserted she did not believe
plaintiff was "faking her injuries" and she had never accused plaintiff of doing so.
¶ 21 Dr. Bankoff testified in his discovery deposition that he did not remember plaintiff
and had no recollection of any conversation with her but her medical records showed he
examined her in the Stroger Hospital emergency department in the early morning on
March 5, 2007. He assumed he received the customary briefing on this patient from the
"off-going" team of residents at the change of their shift but he could not specifically
recall the briefing he received on that shift. From the medical records, he knew he
attended to her twice, gave her a prescription for Motrin and, although he documented
that she "had subjective back pain with numbness and [was] unable to walk
subjectively," his "normal neurologic exam" did not objectively find numbness. He did
not remember performing the exam or what it had entailed. He did not know whether he
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asked plaintiff to stand or walk and whether she complied. As was his custom and
practice, he would have written plaintiff's discharge order and clarified any discharge
instructions with her but another doctor would "actually" discharge her. He knew from
the medical record that a CAT scan of plaintiff was "negative" but did not know who
wrote this note in the record. Although the medical record stated plaintiff's "primary
discharge diagnosis" as muscle spasm, Dr. Bankoff stated it was not his diagnosis. He
did not remember plaintiff at all, had no recollection of anything other than what he had
written in the medical record and had no memory of asking plaintiff to stand or of
accusing her of faking her injury.
¶ 22 Plaintiff's expert witness, emergency room physician Kenneth A. Corre, M.D.,
testified in his deposition that the county/Stroger Hospital violated EMTALA. He stated
the basis for his opinions was "[t]hat the patient presented to Stroger Hospital did not
have an appropriate or complete medical screening exam, [and[ that she, in fact, did
have an emergency medical condition [a 'spinal cord contusion with neurologic findings']
which was not assessed nor treated or dispositioned appropriately." Dr. Corre opined
that plaintiff did not receive a "complete medical screening" or "subsequent appropriate
testing or diagnosis" and "should have been hospitalized and received immediate
consultation [by a spine specialist, neurosurgeon or neurologist] and treatment that
would have been part of that hospitalization." He stated plaintiff should have been
immediately immobilized with her spine stabilized and should have received "high-dose
steroids."
¶ 23 Dr. Corre stated that, when plaintiff presented to Stroger Hospital on March 4,
2007, the emergency medical screening examination required a complete and detailed
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history, a complete and detailed physical exam, imaging which included an MRI of the
spine, "stat" consultation with a spine specialist, immobilization and stabilization of the
spine, intravenous high-dose steroids, hospitalization of plaintiff as opposed to her
being discharged home and "the diagnosis of spinal injury, in particular spinal cord
contusion, be made." It was his opinion that Dr. Bishof's initial medical screening,
including her failure to schedule an MRI, and physical examination of plaintiff were
inadequate and below the standard of care as plaintiff presented with an obvious spinal
cord injury that should have been diagnosed by Dr. Bishof as an emergency medical
condition requiring immobilization, an MRI, consultation with a spine specialist and
hospital admission. Instead, as a result of Dr. Bishof's inadequate examination and
testing, she diagnosed plaintiff with a muscle spasm, which diagnosis was accepted by
Dr. Bankoff after he received the results of a CAT scan on plaintiff and led to plaintiff's
discharge from the hospital with after-care instructions appropriate for a muscle spasm.
Dr. Corre stated the after-care instructions were "absolutely not" the appropriate
instructions for treatment of plaintiff's spinal cord injury. He asserted that her type of
spinal cord injury presented an emergency medical condition and would not have
necessitated after-care instructions given that, "by standard of care and EMTALA," she
would have been "admitted, treated, immobilized, et cetera." Dr. Corre asserted that the
instructions plaintiff received were related "to the diagnosis of back or buttock contusion
only" and, if given for something more severe such as a spinal cord contusion or injury,
were "woefully inadequate and substandard." Dr. Corre stated that, taking together
plaintiff's complaints, the mechanism of her injury, the results of the physical
examination and the failure to carry out "a complete and standard exam," "they clearly
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did not take this patient seriously, and I believe that they also clearly violated patient
safety."
¶ 24 Plaintiff's other expert witness, neurologist Adrian Richard Mainwaring Upton,
M.D., stated that, based on his review of plaintiff's medical records and his examination
of plaintiff, she had suffered a contusion of the spinal cord as a result of her fall. After
discussing plaintiff's signs and symptoms, Dr. Upton stated he did not know how Dr.
Bishof "could even begin to suggest" that plaintiff's numbness was due to muscle spasm
and found this to be "quite frankly nonsense." Dr. Upton opined that Dr. Bishof did not
perform a thorough screening evaluation to determine whether or not a spinal cord
injury existed and she should have made a probable diagnosis of spinal cord injury and
treated plaintiff for such. He felt that the combination of Dr. Bishof's failure to order an
MRI, failure to request a neurological opinion, failure to administer the steroid methyl
prednisone and failure to immobilize plaintiff comprised a deviation from the standard of
care which aggravated a preexisting condition suffered by plaintiff. Dr. Upton noted that
Dr. Bishof did not write a diagnosis in the record.
¶ 25 Dr. Upton stated his opinion that Dr. Bankoff also deviated from the standard of
care as Dr. Bankoff "was prepared to help discharge the patient when no diagnosis was
made and a probable spinal cord lesion had been missed." He stated Dr. Bankoff failed
to perform a proper screening evaluation to determine whether spinal cord injury
existed, did not order an MRI and did not consult a neurologist or neurosurgeon. Dr.
Upton testified that Dr. Bankoff was the individual who diagnosed plaintiff with a "back
and buttock contusion status post-fall." He stated that, although this was not an
incorrect diagnosis, "what [Dr. Bankoff] didn't do was find out why she had the
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neurological symptoms which was the spinal cord swelling as a result of the fall." Dr.
Bankoff should have gone further and considered the possibility that plaintiff had
suffered a spinal lesion, not merely a back and buttock bruising. Dr. Upton stated the
after-care instructions given to plaintiff were not treatment for a spinal cord injury and
would not have been of any benefit to plaintiff in preventing her from progressing from
bruising to paraplegia. It was Dr. Upton's opinion that any of the doctors responsible for
the care and treatment of plaintiff should have, based on plaintiff's signs and symptoms,
"worked her up [(diagnosed her)] for a contused spinal cord, had an MRI done,
delivered the steroids," as was the standard treatment for spinal cord injuries in general.
He found the evidence "obvious" that plaintiff had a contused spine and an MRI,
although not used to make a diagnosis, would have confirmed or denied the clinical
diagnosis. The painkillers prescribed for plaintiff upon discharge would have eliminated
plaintiff's pain and improved her back if she "only" had a contused back but her
numbness indicated that it was very unlikely that she only had a contused back.
¶ 26 Retired Oak Forest Hospital clinical psychologist Malcolm J. Brachman, Jr.,
Ph.D., testified that he visited plaintiff once during her admission to the spinal cord injury
rehabilitation unit at Oak Forest Hospital in 2007. Plaintiff's Oak Forest Hospital medical
records showed that, as with any patient admitted to the rehabilitation unit, plaintiff had
received a psychological screening. Plaintiff's medical records showed a staff
psychologist diagnosed plaintiff as suffering from depression and anxiety, a staff
psychiatrist found plaintiff had a history of "major depressive disorder with psychosis"
and "psychosis with depression" and might possibly suffer from "bipolar disorder," and
plaintiff told a staff social worker that she had suffered from depression since the age of
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21, for more than 20 years. During plaintiff's stay at Oak Forest Hospital, a predoctoral
psychology intern conducted six therapy sessions with plaintiff. Dr. Brachman stated
that he went to talk to plaintiff once, after she had expressed suicidal ideation to her
therapist. Dr. Brachman opined that, based on his general understanding of
rehabilitation patients and given plaintiff's prior history of depression or "mental
condition," her "traumatic injury" "probably exacerbated" her existing mental condition.
¶ 27 Defendant's expert witness, neurologist Charles C. Wang, M.D., testified in some
detail regarding plaintiff's signs and symptoms and opined Dr. Bishof did "a complete
head-to-toe," "pretty thorough" examination involving "neuro" and "deep tendon
reflexes." He considered it "pretty good for an emergency physician in terms of
neurologic examination." He stated Dr. Bishof found a "normal exam," Dr. Bankoff's
discharge diagnosis was back/buttock contusion and the emergency department's
working diagnosis was muscle spasm with possible contusion to plaintiff's back from the
fall. Dr. Wang thought the likely cause of plaintiff's complaints was spinal cord
contusion. Regarding plaintiff's complaint to Dr. Bankoff that she could not walk, Dr.
Wang stated he would expect a reasonably qualified physician under those
circumstances to have the patient walk.
¶ 28 In October 2011, defendants moved for summary judgment on negligence counts
I and III. Pointing out that plaintiff's experts testified that Drs. Bishof and Bankoff failed
to perform diagnostic examinations and tests and to diagnose or treat a spinal cord
injury/spinal cord contusion (SCI/SCC), defendants argued that they were entitled to
judgment as matter of law under sections 6-105 and 6-106(a) of the Tort Immunity Act.
Plaintiff responded that defendants were not immune from liability on counts I and III as
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her allegations were "primarily rooted" in defendants' failure to perform an initial medical
screening, screen her for her signs and symptoms, properly treat her for her signs and
symptoms and properly consult with or refer her to a neurologist or neurosurgeon, i.e.,
were rooted in defendants' negligent and inadequate treatment of the injuries, signs and
symptoms as diagnosed by defendants for which there was no immunity pursuant to
sections 6-106(c) and (d) of the Tort Immunity Act.
¶ 29 The court granted defendants' motion for summary judgment on counts I and III
on January 27, 2012. It found that defendants diagnosed plaintiff "with a back/buttocks
contusion and treated her for the erroneous diagnosis," "failed to correctly diagnose her
spinal cord injury, which required different treatment and was delayed due to the
misdiagnosis" and "failed to perform the tests which would have led to the proper
diagnosis." The court determined that "[t]he claim against the Defendants here is, in
essence, based on their failure to perform an adequate examination and their failure to
diagnose the Plaintiff's spinal cord injury, rather than their negligence in treating the
spinal cord injury." It found defendants were, therefore, immunized from liability from the
negligence alleged in counts I and III pursuant to sections 6-105 and 6-106 of the Tort
Immunity Act and summary judgment on those counts was warranted.
¶ 30 The county moved for summary judgment on the EMTALA count V, asserting
that it was immune from liability for any failure to perform an appropriate medical
screening examination under the Tort Immunity Act and that EMTALA did not preempt
the Tort Immunity Act. It also argued that plaintiff presented no evidence to show that
any member of the Stroger Hospital emergency department staff had determined
plaintiff had an emergency medical condition or had intended to discharge an unstable
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patient in violation of EMTALA. In support of its motion, the county presented the
deposition of its expert emergency medicine physician, Richard M. Feldman, M.D.
Although Dr. Feldman agreed that Drs. Bishof and Bankoff had "missed the diagnosis"
of plaintiff's spinal cord injury and plaintiff was not stabilized when she was discharged
"the first time from Stroger Hospital," he found plaintiff's "EMTALA issue" was "a
nonstarter." He testified:
"There is a well [sic] beyond the medical screening exam for this
patient, the fact that there was a diagnosis made that turned out to be not
as severe as the diagnosis she eventually had, EMTALA has nothing to do
with whether or not you make the correct diagnosis. It has to do with
whether you treat the patient as you would treat every other patient that
presents a similar type symptomography.
Pain medicine, X-rays, observation, more pain medicine, CAT scan
is needed, disposition accordingly, but in terms of the patient being treated
as any other patient would be[,] she was for the set of symptoms she had.
The fact that they didn't go further with an MRI has to do with clinical
judgment. Has nothing to do with the desire on the part of the doctors or
institution not to care for the patient appropriately as they would with every
other patient."
Plaintiff responded to the motion, arguing that EMTALA did preempt the Tort Immunity
Act and that questions of material fact existed regarding whether the county violated
EMTALA and whether, as required by EMTALA, she was given a medical screening and
ancillary services within the capability of Stroger Hospital's emergency department and
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stabilized before being discharged.
¶ 31 The court granted the county's motion for summary judgment on July 27, 2012. It
held that sections 6-105 and 6-106 of the Tort Immunity Act directly conflict with
EMTALA and EMTALA therefore preempts the Tort Immunity Act such that the
requirements of EMTALA apply to the county. 6 It then held that there was no evidence
to show that the county violated EMTALA at the time of plaintiff's emergency room visit
to Stroger Hospital. The court explained there was no evidence that the screening
plaintiff received at Stroger Hospital deviated in any way from the hospital's own
standard screening procedures or that plaintiff was treated any differently from other
patients based on her lack of insurance or inability to pay. It, therefore, found no
evidence to support a violation of EMTALA with regard to whether the county performed
an appropriate screening examination under the statute. The court also found that, as
plaintiff was not diagnosed with an emergency medical condition, Stroger Hospital had
no duty to provide necessary stabilizing treatment under EMTALA.
¶ 32 Defendants then moved for summary judgment on the negligent infliction of
emotional distress counts II and IV pursuant to section 6-109 of the Tort Immunity Act
(745 ILCS 10/6-109 (West 2012)). 7 They argued that the gist of these claims was that
defendants were liable for failing to admit plaintiff to the hospital and they were immune
from failure to admit under section 6-109. The court granted the motion for summary
6
EMTALA provides that its provisions "do not preempt any State or local law
requirement, except to the extent that the requirement directly conflicts with a
requirement of this section." 42 U.S.C. § 1395dd(f) (2012).
7
Section 6-109 provides that local public entities and their employees acting in
the scope of their employment are immune from liability "for an injury resulting from the
failure to admit a person to a medical facility operated or maintained by a local public
entity." 745 ILCS 10/6-109 (West 2012).
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judgment on February 1, 2013. It found section 6-109 of the Tort Immunity Act was
inapplicable but that defendants were immunized from liability on counts II and IV
pursuant to sections 6-105 and 6-106 as these counts were "not pled" as claims for
negligent infliction of emotional distress but rather were identical to counts I and III
sounding in medical malpractice, adding only an allegation of emotional distress as an
element of damages. The court held that, as the negligent infliction of emotional distress
counts II and IV stemmed from the same failure to adequately examine, test and
diagnose plaintiff asserted in counts I and III and the allegations in counts II and IV were
identical to those stated in counts I and III, defendants were immunized from liability
pursuant to sections 6-105 and 6-106.
¶ 33 On March 5, 2013, the court entered an order finding there was no just reason to
delay enforcement or appeal of the February 27, 2012, July 27, 2012, and February 1,
2013, orders granting summary judgment to defendants on counts I through V. It
declared the orders final and appealable pursuant to Illinois Supreme Court Rule 304(a)
(eff. Feb. 26, 2010). On March 27, 2013, plaintiff filed her timely notice of appeal from
the March 5, 2013, finality order and the three underlying summary judgment orders.
¶ 34 ANALYSIS
¶ 35 Plaintiff raises three issues on appeal challenging the court's grant of summary
judgment to defendants on all counts against them. She argues: (1) defendants are not
immune from liability under sections 6-105 and 6-106 of the Tort Immunity Act for their
negligent failure to appropriately treat plaintiff as alleged in counts I and III; (2)
defendants are not immune from liability under sections 6-105 and 6-106 of the Tort
Immunity Act for their negligent infliction of emotional distress caused to plaintiff by their
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treatment of her as alleged in counts II and IV; and (3) questions of material fact exist
regarding whether, as asserted in count V, the county/Stroger Hospital failed to provide
plaintiff with a medical screening examination within the capability of the hospital's
emergency department and to stabilize her prior to discharge as required by EMTALA.
We do not consider whether the delay in treatment between plaintiff's first and second
visit to Stroger Hospital was the cause of her injuries or the extent of her damages as
the issues of causation and damages are not before us.
¶ 36 Summary judgment is a drastic means of disposing of litigation and should be
granted only when " ' "the pleadings, depositions, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law." ' " Axen v. Ockerlund
Construction Co., 281 Ill. App. 3d 224, 229 (1996) (quoting Purtill v. Hess, 111 Ill. 2d
229, 240 (1986), quoting Ill. Rev. Stat. 1983, ch. 110, ¶ 2-1005(c)). The purpose of
summary judgment is not to try a question of fact but to determine whether one exists or
whether reasonable people could draw different inferences from the undisputed facts.
Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 462 (2003); Wood v. National
Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585 (2001). We review the trial
court's decision on a motion for summary judgment de novo, construing the pleadings,
depositions, admissions and affidavits strictly against the moving party and liberally in
favor of the respondent. Golden Rule Insurance Co., 203 Ill. 2d at 462; Gauthier v.
Westfall, 266 Ill. App. 3d 213, 219 (1994).
¶ 37 1. Counts I and III – Negligence
¶ 38 At issue first is the trial court's grant of summary judgment to defendants on
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counts I and III of the fifth amended complaint. The court found defendants, a local
public entity and two of its employees, immune from liability under sections 6-105 and 6-
106 of the Tort Immunity Act for the negligence asserted in those counts. 8
¶ 39 As noted supra, section 6-105 provides:
"Neither a local public entity nor a public employee acting within the scope
of his employment is liable for injury caused by the failure to make a
physical or mental examination, or to make an adequate physical or
mental examination of any person for the purpose of determining whether
such person has a disease or physical or mental condition that would
constitute a hazard to the health or safety of himself or others." 745 ILCS
10/6-105 (West 2012).
"By its plain terms, section 6-105 provides immunity from liability to a local public entity
and its employees who have failed to make a physical or mental examination, or who
have failed to make an adequate physical or mental examination." Michigan Avenue
National Bank v. County of Cook, 191 Ill. 2d 493, 505 (2000).
¶ 40 Section 6-106(a) provides:
8
"In a negligence medical malpractice case, the burden is on the plaintiff to
prove the following elements of a cause of action: the proper standard of care against
which the defendant physician's conduct is measured; an unskilled or negligent failure
to comply with the applicable standard; and a resulting injury proximately caused by the
physician's want of skill or care." Purtill v. Hess, 111 Ill. 2d 229, 241-42 (1986). "Unless
the physician's negligence is so grossly apparent or the treatment so common as to be
within the everyday knowledge of a layperson, expert medical testimony is required to
establish the standard of care and the defendant physician's deviation from that
standard." Id. at 242. Illinois courts follow the "similar locality" rule in determining the
standard of care against which the defendant physician's alleged negligence is judged.
Id. Under this rule, a physician must possess and "apply that degree of knowledge, skill,
and care which a reasonably well-qualified physician in the same or similar community
would bring to a similar case under similar circumstances." Id.
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"Neither a local public entity nor a public employee acting within the scope
of his employment is liable for injury resulting from diagnosing or failing to
diagnose that a person is afflicted with mental or physical illness or
addiction or from failing to prescribe for mental or physical illness or
addiction." 745 ILCS 10/6-106(a) (West 2012)
By its plain language, section 6-106(a) provides immunity from liability to a local public
entity and its employees "for injury resulting from: (1) a diagnosis that a person is
afflicted with a mental or physical illness or addiction; (2) failing to diagnose that a
person is afflicted with a mental or physical illness or addiction; and/or (3) failing to
prescribe for a mental or physical illness or addiction." Michigan Avenue National Bank,
191 Ill. 2d at 510.
¶ 41 The trial court stated its basis for granting summary judgment to defendants on
their sections 6-105 and 6-106(a) immunity defense as follows: "The claim against the
Defendants here is, in essence, based on their failure to perform an adequate
examination and their failure to diagnose the Plaintiff's spinal cord injury, rather than
their negligence in treating the spinal cord injury." Plaintiff acknowledges that
defendants would be immune from liability for failing to make a diagnosis but asserts
defendants are not immune from liability for negligent treatment and that she has
alleged such here.
¶ 42 Plaintiff correctly points out that section 6-106 is not meant to grant blanket
immunity for negligent treatment of a specific medical condition. Michigan Avenue
National Bank, 191 Ill. 2d at 511. As our supreme court explained in Michigan Avenue
National Bank, 191 Ill. 2d at 511:
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"Although subsection (a) of section 6-106 grants immunity for diagnosing,
or failing to diagnose, that a person is afflicted with a physical illness, the
remaining subsections of section 6-106 contain limitations on immunity
where it is alleged that a local public entity and its public employees have
caused a person to suffer injury due to the negligent prescription of
treatment and/or the negligent administration of treatment. Specifically,
subsection (b) of section 6-106 provides that a local public entity and its
public employees are vested with immunity where they administer
treatment prescribed for mental or physical illness or addiction, so long as
such treatment is administered with 'due care.' 745 ILCS 10/6-106(b)
(West 1992). Subsection (c) of section 6-106 states that defendants are
not immunized where, having undertaken to prescribe for mental or
physical illness or addiction, they have proximately caused an injury to a
patient due to negligence or wrongful acts in so prescribing. 745 ILCS
10/6-106(c) (West 1992). Finally, subsection (d) of section 6-106 provides
that defendants are liable for injury proximately caused by their negligent
acts or omissions in the administration of any treatment prescribed for
mental or physical illness or addiction. 745 ILCS 10/6-106(d) (West
1992)."
¶ 43 It is on the basis of these limitations on immunity that plaintiff asserts defendants
are not immune from liability for their negligence here. Asserting that defendants
erroneously diagnosed her with only a back injury and began to treat her for this with
pain medication alone, plaintiff claims that, as alleged in her fifth amended complaint
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and shown by the expert testimony, "this is not a failure to diagnose case but instead a
negligent and inadequate treatment situation," for which, pursuant to sections 6-106(b),
(c) and (d), defendants are not immunized. She argues that, contrary to the trial court's
finding, the essence of her claim does not stem from defendants' failures to adequately
examine, test and diagnose her, for which she acknowledges defendants would be
immune under section 6-106(a). Instead, she asserts her claim arises from defendants'
"failure to properly perform an initial medical screening examination, screen the Plaintiff
for her deteriorating signs and symptoms, properly treat the Plaintiff for those signs and
symptoms, and properly consult with or refer the Plaintiff to a neurologist or
neurosurgeon," for which defendants would not be immunized. Plaintiff claims the court
erred in finding immunity where defendants diagnosed plaintiff while still in their
emergency room and began administering treatment to her but did so in a negligent
manner. Citing to American National Bank & Trust Co. of Chicago v. County of Cook,
327 Ill. App. 3d 212 (2001), she argues that it was this treatment and the subsequent
inadequate examinations and prescription of treatment that were negligent and
defendants, therefore, were not immune under the Tort Immunity Act.
¶ 44 In American National Bank & Trust Co., during a prenatal examination, doctors at
a Cook County hospital clinic diagnosed the plaintiff with a "transverse lie" of her baby,
meaning the baby could not delivered vaginally. They prescribed regular monitoring of
plaintiff and the regular performance of assorted medical tests to determine the baby's
position and whether a caesarean section would be required to deliver the baby.
Doctors consistently performed the prescribed tests and verified that the baby was in
the transverse lie position. However, shortly before the plaintiff went into labor, one of
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the defendant doctors determined, incorrectly and without performing the prescribed
tests, that the baby was no longer in the transverse lie position. When the plaintiff went
into labor, the baby was undeliverable due to its birth position. An emergency
caesarean section was performed but the baby suffered brain damage. The defendants
argued they were immune from liability under sections 6-105 and 6-106. The court
disagreed.
¶ 45 The court found the doctor's actions in failing to determine that the baby was still
in a transverse lie position was not a "diagnosis" for which the defendants would be
immune under section 6-106(a) as the doctor had not examined the plaintiff in order to
investigate, analyze or determine her medical condition. American National Bank &
Trust Co., 327 Ill. App. 3d at 217. Instead, it found the doctor was already aware of the
plaintiff's medical condition, specifically the existing "transverse lie" diagnosis, and the
doctor's actions consisted of "treating" by caring for and managing the previously
diagnosed known condition. Id. The court stated that, once the initial diagnosis of
transverse lie was made, each subsequent prenatal examination did not involve a
separate and independent diagnosis to determine whether the baby was still in a
transverse lie position. Id.
¶ 46 The court explained, " 'once diagnosis of a medical condition is made and
treatment of that condition is prescribed and undertaken, any subsequent diagnosis
required to be made as a result of that treatment, such as with respect to complications
arising from medications prescribed or medical procedures performed, may not be
entitled to the immunity protection of section 6-106(a).' " 9 American National Bank &
9
The court used the definitions of "diagnosis" and "treatment" set forth by our
26
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Trust Co., 327 Ill. App. 3d at 219 (quoting Michigan Avenue National Bank, 306 Ill. App.
3d at 402). For example, treatment of the diagnosed illness might require further
medical testing in order to diagnose and treat any additional medical conditions that
result from the treatment prescribed for the diagnosed medical condition. Id. at 220.
" 'The making of the subsequent diagnosis would become part of the treatment
prescribed for the medical condition initially diagnosed; and there would be no immunity
if the subsequent diagnosis was incorrectly made (a negligent or wrongful act) or if the
diagnosis was not made at all (an act of omission).' " Id. at 219 (quoting Michigan
Avenue National Bank, 306 Ill. App. 3d at 403). "Following the same logic ***, once
diagnosis of a medical condition is made and treatment of the condition is prescribed
and undertaken, any subsequent prescription or examination required to be made
pursuant to that condition is part of the patient's treatment." Id. at 220.
¶ 47 The court stated that the plaintiff had been diagnosed with transverse lie prior to
her examination by the doctor and the prescribed treatment for her condition consisted
supreme court in Michigan Avenue National Bank v. County of Cook, 306 Ill. App. 3d
392 (1999). Giving the term "diagnosis" as used in section 6-106(a) it's plain and
ordinary meaning as gleaned from assorted dictionaries, the supreme court found it to
mean, among other things, the "art or act of identifying a disease from its signs and
symptoms, and as an investigation or analysis of the cause or nature of a condition,
situation, or problem," as well as "the art of distinguishing one disease from another,"
"the determination of the nature of a case of disease" and "[t]he determination of a
medical condition (such as disease) by physical examination or by study of its
symptoms." (Internal quotation marks omitted.) Michigan Avenue National Bank, 191 Ill.
2d at 510.
It found "treatment" as used in section 6-106(a) to mean, "the action or manner of
treating a patient medically or surgically" and "[t]he care of a sick person, and the
remedies or means employed to combat the disease affecting him" as well as
"[t]he management and care of a patient for the purpose of combating disease or
disorder" and "[t]he medical or surgical management of a patient." (Internal quotation
marks omitted.) Michigan Avenue National Bank, 191 Ill. 2d at 511-12.
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of regular monitoring of her condition, testing and manual maneuvers to determine the
baby's position and whether a Caesarean section would be required. The doctor's
alleged failure to schedule or perform such testing or manipulation constituted an act of
omission in administering the plaintiff's prescribed treatment for her previously
diagnosed condition. American National Bank & Trust Co., 327 Ill. App. 3d at 220.
"Under section 6-106(d), in the course of administering the treatment prescribed there is
no immunity if the subsequent prescription or examination was incorrectly made (a
negligent or wrongful act) or if the prescription or examination was not made at all (an
act of omission)." Id. The court found the doctor's conduct was, therefore, afforded no
immunity under section 6-106(d). Id.
¶ 48 Plaintiff asserts Dr. Bishof diagnosed plaintiff with a muscle spasm with possible
back contusion and then began administering treatment to her for her injuries based on
that diagnosis by administering pain medication and "nothing" for her muscle spasm.
Plaintiff claims that Dr. Bishof had, at this point, begun treatment for plaintiff's condition,
prescribed treatment in the form of pain medicine and the orders for X-rays and had
undertaken the treatment as the pain medication was in fact administered. She argues
that, as a result, following American National Bank & Trust Co., any subsequent
prescription or examination required to be made pursuant to that condition is part of
plaintiff's treatment for purposes of analysis under the Tort Immunity Act. Plaintiff claims
that Dr. Bankoff then continued to treat her for the injuries previously diagnosed by Dr.
Bishof by examining her, administering additional pain medication and, upon discharge,
providing her with a prescription for another pain medication. Plaintiff argues that this
evidence shows defendants undeniably began treating plaintiff for the injuries they
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diagnosed as well as for her signs and symptoms and, therefore, once defendants
undertook and prescribed her treatment, they were not immune from negligent
treatment, negligent prescription of treatment, inadequate treatment, omission in
administering treatment or failure to make subsequent examinations of plaintiff.
¶ 49 Contrary to plaintiff's argument, this is not a case where the defendants
negligently prescribed and administered treatment to the plaintiff after a correct
diagnosis as in American National Bank & Trust Co. It is, instead, a failure to diagnose
case, as the trial court correctly found. All of plaintiff's claims of negligent treatment are
directed to defendants' improper treatment of her spinal cord injury. Defendants treated
plaintiff for her signs and symptoms but consistently diagnosed those signs and
symptoms as muscle spasm and back/buttock contusion, not spinal cord injury.
¶ 50 Taking Drs. Bishof's and Bankoff's administration of Valium and pain medication
as "treatment" for plaintiff's diagnosed condition, that diagnosed condition was always
"muscle spasm" with possible back/buttock contusion. Dr. Bishof testified that this was
her initial impression, was her "final" impression after her multiple examinations,
observations and testing of plaintiff and was verified by her attending physician. When
the results of the CAT scan ordered by Dr. Bishof came back "normal," Dr. Bankoff
confirmed Dr. Bishof's initial impression that plaintiff suffered from back/buttock
contusion. After numerous examinations, observations and tests, defendants ruled out
spinal cord injury as a diagnosis and settled on muscle spasm and a discharge
diagnosis of back/buttock contusion. Spinal cord or neurological injury was never a
differential diagnosis. In retrospect, defendants were wrong and plaintiff did have a
spinal cord injury. They misdiagnosed her. However, as our supreme court explained in
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Michigan Avenue National Bank, a misdiagnosis is a "wrong or mistaken diagnosis" for
which defendants are immune from liability under section 6-106(a). (Internal quotation
marks omitted.) Michigan Avenue National Bank, 191 Ill. 2d at 514.
¶ 51 Having ruled out a neurological injury, defendants consistently treated plaintiff for
the muscle spasm and back/buttock contusion injury with which they had misdiagnosed
her. There is no evidence that the treatment defendants provided for the signs and
symptoms they attributed to muscle spasm and back/buttock contusion was negligent
for that diagnosis. In other words, there being no evidence to the contrary, defendants
treated the wrong diagnosis correctly. Defendants' arguably proven negligence was in
their failure to perform adequate medical examinations or testing leading to their failure
to diagnose plaintiff's spinal cord injury, for which they are immune from liability under
sections 6-105 and 6-106(a). Although, according to plaintiff's expert witnesses,
defendants should have immobilized plaintiff, hospitalized her, administered steroids,
consulted a neurosurgeon or neurologist and ordered an MRI for her spinal cord injury,
the reality is that defendants did not diagnose a spinal cord injury and those additional
treatments and testing were not indicated for the muscle spasm and back/buttock
contusion with which they diagnosed her. The treatment defendants provided to plaintiff
was appropriate for the injury with which they diagnosed her and they are immune from
liability for that misdiagnosis. Michigan Avenue National Bank, 191 Ill. 2d at 514. Unlike
in American National Bank & Trust Co., there is no evidence that the treatment provided
to plaintiff was inadequate or negligent for the diagnosis. The fact that the muscle
spasm diagnosis was incorrect or inadequate does not, without more, make defendants'
treatment for that diagnosis negligent. The fact that the treatment was the wrong
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treatment for spinal cord injury would be relevant only if defendants had diagnosed
plaintiff with a spinal cord injury. They had not. They diagnosed her with a muscle
spasm and possible back/buttock contusion and treated her solely for that.
¶ 52 Plaintiff's argument is similar to that raised by the plaintiff in Michigan Avenue
National Bank. There, the plaintiff, the special administrator of the estate of Cynthia
Collins, characterized its lawsuit as grounded in the defendants' failure to administer
proper treatment to Collins after determining that Collins suffered from a specific
medical condition and argued the defendants were, therefore, liable under sections 6-
106(b), (c) and (d). Doctors at a Cook County hospital had diagnosed Collins with
fibrocystic breast disease and advised her to return in three months. During subsequent
visits to the hospital's emergency room for other ailments, including a pain in her breast,
the doctors consistently failed to diagnose that Collins suffered from breast cancer. At
another hospital, Collins was diagnosed with the cancer and died from it. The plaintiff
filed a two-count complaint against the defendants, alleging their negligence in failing to
order a mammogram, failing to adequately perform tests and examinations, failing to
perform a biopsy, failing to diagnose Collins' breast cancer and failing to administer
proper and necessary medical and nursing care to Collins. Michigan Avenue National
Bank, 191 Ill. 2d at 499. The trial court granted summary judgment to the defendants
pursuant to sections 6-105 and 6-106(a) of the Tort Immunity Act and the appellate and
supreme courts affirmed.
¶ 53 The supreme court found the allegations made in the plaintiff's complaint
contradicted its assertion that its action was premised upon the defendants' negligent
treatment of Collins. Michigan Avenue National Bank, 191 Ill. 2d at 513. It found,
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instead, that "the gravamen of plaintiff's action against defendants is that defendants'
failure either to perform examinations or to adequately perform examinations led to
defendant's failure to diagnose Collins' breast cancer, which, in turn, proximately
caused her death" and, therefore, "the immunity provided to local public entities and
their public employees in section 6-105 and subsection (a) of section 6-106 applies."
Michigan Avenue National Bank, 191 Ill. 2d at 512. The plaintiff had alleged that the
defendants' negligent misdiagnosis of fibrocystic breast disease had prevented the
discovery of Collins' breast cancer and was the proximate cause of her death. Noting
that " '[m]isdiagnosis' is defined as a 'wrong or mistaken diagnosis' " (id. at 514 (quoting
Stedman's Medical Dictionary 973 (25th ed. 1990))), the court held that, "[b]ecause
[section 6-106(a)] immunizes defendants 'from diagnosing or failing to diagnose' that a
person has a physical illness, plaintiff's attempts to characterize its lawsuit as a case of
'misdiagnosis' does not remove its action from the ambit of [section 6-106(a)]" (id.).
¶ 54 The court also found the plaintiff's argument that its cause was an action for
negligent treatment rather than failure to diagnose was not supported by the deposition
testimony of the plaintiff's own experts, noting there was no testimony by the experts
that fibrocystic breast disease is treatable, that any treatment of Collins' fibrocystic
breast disease occurred or that there was negligence in the course of treatment. The
court concluded:
"The criticisms lodged against defendants by plaintiff's experts *** focused
upon the failure to perform certain examinations, such as a mammogram,
ultrasound or biopsy. This failure, in turn, led to defendants' failure to
diagnose Collins' breast cancer, which, the experts surmised, had
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coexisted with Collins' fibrocystic condition. Section 6-105 immunity
applies to defendants' alleged failure to conduct physical examinations in
order to evaluate whether Collins suffered from breast cancer in addition
to fibrocystic condition. In addition, because defendants rendered no
medical treatment to Collins in relation to her breast condition on October
22, 1986, defendants' failure to diagnose breast cancer is conduct to
which section 6-106(a) immunity applies." Michigan Avenue National
Bank, 191 Ill. 2d at 516.
¶ 55 Similarly here, although plaintiff argues that "this is not a failure to diagnose case,
but instead a negligent and inadequate treatment situation," the gravamen of her fifth
amended complaint is that defendants' failure either to perform examinations or to
adequately perform examinations led to their failure to diagnose and treat plaintiff's
spinal cord injury, which, in turn, proximately caused her claimed injuries. 10 The import
of all these allegations is that defendants' failure to properly perform an initial
examination of plaintiff, screen her and consult with a spine expert prevented them from
reaching a correct diagnosis of spinal cord injury. Only because defendants failed to
10
In the fifth amended complaint, plaintiff claimed she suffered injuries as a
proximate result of one or more of the following negligent acts or omissions by Drs.
Bishof and Bankoff and/or the county:
"a. Failing to properly perform an initial medical screening examination; or
b. Failing to properly screen [her] for her signs and symptoms; or
c. Failing to properly treat [her] for her signs and symptoms; or
d. Failing to properly treat [her] for a spinal cord injury; or
e. Failing to properly consult with a neurologist or neurosurgeon for [her]
signs and symptoms; or
f. Failing to refer [her] to a neurologist or neurosurgeon for treatment of
her signs and symptoms ***."
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diagnose the spinal cord injury did they fail to properly treat plaintiff's signs and
symptoms, properly treat her spinal cord injury and properly refer her to a neurologist or
neurosurgeon. Only because defendants failed to properly diagnose and treat plaintiff
for a spinal cord injury did she suffer her ultimate injuries. In plaintiff's reply brief, she
states that "the crux" of her case is her allegation that defendants' treatment for their
diagnoses of muscle spasm and back/buttock contusion was negligent. Yet nowhere in
her complaint has she alleged that that the treatment provided to her was improper
treatment for the muscle spasm and back/buttock contusion diagnoses. Moreover, as
discussed in detail below, her experts have stated no opinion that the treatment she
received was inadequate and negligent for a muscle spasm and back/buttock contusion
injury.
¶ 56 If defendants began treating plaintiff for their diagnosis of muscle spasm and
back/buttock contusion, then they are not immune from liability for negligently
prescribing or administering that treatment, including negligently examining her in the
course of that treatment. Plaintiff argues, therefore, that defendants should have
ordered more diagnostic testing of and made subsequent examinations of her when her
condition did not improve after the initial diagnosis and treatment and they are not
immune for their failure to do so. She points to her expert witness Dr. Corre's testimony
that defendants should have conducted more tests and examinations on plaintiff based
on the symptoms that they were treating to rule out a spinal cord injury and that they
were negligent for failing to order an MRI of her spine and to consult a spine specialist.
This testimony by Dr. Corre is evidence that defendants failed to adequately examine
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plaintiff, for which they are immune under section 6-105. 11 It is not evidence that
defendants negligently treated plaintiff for their diagnosis.
¶ 57 At oral argument, citing page 2596 of the record, plaintiff asserted Dr. Upton had
testified that defendants' treatment of plaintiff deviated from the standard of care for her
diagnosed condition of back/buttock contusion, specifically that he testified plaintiff
should have been immobilized and given steroids for her diagnosed condition. This
contention is not supported by the record. On page 2596 of the record, Dr. Upton
testified in his discovery deposition that Dr. Fishman should have immobilized plaintiff
as "[t]his is standard treatment of all spinal cord lesions." (Emphasis added.) Dr.
Fishman is the doctor who examined plaintiff at Lincoln Park Hospital, he was not
employed at Stroger Hospital and he is not a party to this appeal. Nowhere on page
2596 of the record does Dr. Upton state that anyone, let alone defendants, should have
immobilized plaintiff and administered steroids to her for her back/buttock contusion
diagnosis. The only arguably relevant opinion stated by Dr. Upton on page 2596 is his
11
Based on the deposition testimony of Drs. Corre and Upton, we consider an MRI
to be a diagnostic tool and defendants' failure to order an MRI to be a failure to perform
a diagnostic step. Dr. Corre testified "[t]he medical screening examination required a
complete and detailed history, a complete and detailed physical exam. It required
imaging which included an MRI of the spine. It required stat consultation with a spine
specialist." He also testified that "the imaging that was performed on the initial
evaluation was inadequate and should have included an MRI." He stated that, if plaintiff
had been diagnosed with a spinal cord contusion without an MRI, then the MRI did not
have to be done immediately. However, since Dr. Bishof did not make that diagnosis, it
was Dr. Corre's opinion that "it would have been appropriate and standard to have
gotten the test."
Dr. Upton testified similarly, stating that, as he would have known from the
"evidence" that plaintiff had a spinal cord lesion, for him, "the MRI isn't the way of
making the diagnosis" but rather " a way of confirming or denying the clinical diagnosis
which is that there's a spinal cord injury." However, as Dr. Bishof did not know what was
wrong with plaintiff and did not "have enough evidence" and "didn't come up with a clear
diagnosis about spinal cord at all," it was Dr. Upton's opinion that "the MRI should be a
way of helping [her] see what is going on."
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explanation that indications that a patient should be immobilized are "if you don't know
what is wrong with their nervous system and you think they've had an injury, it is
standard practice to do just exactly that" and "you might believe they have a fracture or
dislocation" or an "acute disc herniation" and immobilization "also applies if there's a
spinal cord swelling." But again, he did not specifically tie these statements to treatment
of a diagnosed back/buttock contusion, only to Dr. Fishman's inadequate treatment of
plaintiff's spinal cord injury.
¶ 58 At oral argument, plaintiff also asserted generally, without further citation to the
record, that Drs. Upton and Corre testified that defendants' failure to immobilize plaintiff
or administer steroids to her was negligent and in violation of the standard of care for
treatment of her diagnosed back/buttock contusion. Neither doctor stated this opinion in
his deposition. Dr. Upton's only reference to the need to immobilize plaintiff was in his
testimony regarding Dr. Fishman cited above in the context of a spinal cord injury. His
assorted statements that defendants should have administered steroids to plaintiff were
made in the context of defendants' initial examination of plaintiff and their failure to
properly diagnose and treat her spinal cord contusion. He did not testify that defendants
should have administered steroids to plaintiff as part of their treatment for her diagnosed
back/buttock contusion.
¶ 59 Similarly, Dr. Corre never testified that defendants' failure to immobilize plaintiff
or administer steroids to her was negligent treatment in violation of the standard of care
for a diagnosed back/buttock contusion. Although he testified many times that
defendants should have immobilized plaintiff, stabilized her spine and given her high-
dose steroids, he stated these opinions in the context of defendants' failure to properly
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examine, diagnose and treat her spinal cord contusion/injury. He did not testify that
such treatment is required for a muscle spasm or a back/buttock contusion and his
testimony is not evidence that defendants were negligent in treating for plaintiff's, in
retrospect incorrect, back/buttock contusion diagnosis.
¶ 60 As in Michigan Avenue National Bank, and unlike in American Bank & Trust Co.,
there was never a correct diagnosis here for which treatment was prescribed and
negligently rendered. Following Michigan Avenue National Bank, defendants are
immune from liability under section 6-106(a) for their failure to diagnose plaintiff's spinal
cord injury and their misdiagnosis of her injury as a muscle spasm and/or back/buttock
contusion. See also Mabry v. County of Cook, 315 Ill. App. 3d 42 (2000) (doctors at a
public hospital diagnosed a patient with asthma but the patient died of undiagnosed
pulmonary embolism; the court found the defendants immune from liability for failure to
treat a condition they had not diagnosed, finding that the alleged negligence was based
not on treatment actually received for asthma but on treatment that should have been
received and diagnosis that should have been made).
¶ 61 Although plaintiff need not prove her entire case at the summary judgment stage,
she must still present a factual basis that could arguably entitle her to judgment in her
favor. Wallace v. Alexian Brothers Medical Center, 389 Ill. App. 3d 1081, 1086 (2009).
Construing the pleadings, depositions, admissions and affidavits strictly against
defendants and liberally in favor of plaintiff, we find plaintiff has failed to present
evidence to show that defendants were negligent in treating her diagnosed condition.
The court did not err in finding defendants immune from liability under section 6-105
(failure to conduct an adequate examination) and section 6-106(a) (failure to diagnose)
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for the negligence asserted in counts I and III. We affirm the trial court's grant of
summary judgment to defendants on counts I and III.
¶ 62 2. Counts II and IV – Negligent Infliction of Emotional Distress
¶ 63 Next, we consider the trial court's grant of summary judgment to defendants on
counts II and IV of the fifth amended complaint pleading negligent infliction of emotional
distress. The court held that counts II and IV were "not pled" as claims for negligent
infliction of emotional distress but, rather, except for an additional allegation of
emotional distress as an element of damages, were identical to counts I and III
sounding in negligent medical malpractice. As the negligent infliction of emotional
distress counts stemmed from the same failure to adequately examine, test and
diagnose asserted by plaintiff in her negligence counts and the allegations in the four
counts were identical, the court held that defendants immunized from liability pursuant
to sections 6-105 and 6-106.
¶ 64 Illinois applies a "general-negligence approach to a claim of negligent infliction of
emotional distress raised by a direct victim of the defendant's negligence." Thornton v.
Garcini, 382 Ill. App. 3d 813, 817 (2008), aff'd, 237 Ill. 2d 100 (2010) (citing Corgan v.
Muehling, 143 Ill. 2d 296, 306 (1991)). For a direct victim, such as plaintiff here, to state
a claim for negligent infliction of emotional distress, she must allege that: (1) the
defendant owed her a duty; (2) the defendant breached that duty; and (3) her injury was
proximately caused by that breach. Parks v. Kownacki, 193 Ill. 2d 164, 181 (2000)
(citing Corgan, 143 Ill. 2d at 306). "Whether a duty exists is a question of law for the
court to decide." Washington v. City of Chicago, 188 Ill. 2d 235, 239 (1999). In resolving
whether a duty should be imposed, "a court must determine whether there is a
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relationship between the parties requiring that a legal obligation be imposed upon one
for the benefit of the other," taking into consideration factors including "the reasonable
foreseeability of injury, the likelihood of such injury, the magnitude of guarding against
the injury, and the consequences of placing that burden on the defendant." Id. If the
victim has not alleged facts sufficient to impose a duty on the defendants, she has failed
to state a claim and her action should be dismissed. Parks, 193 Ill. 2d at 181. "[U]nless
a duty is owed, there is no negligence [citation], and plaintiffs cannot recover as a
matter of law [citation]." (Internal quotation marks omitted.) Washington, 188 Ill. 2d at
239.
¶ 65 Plaintiff's claims for negligent infliction of emotional distress are nothing more
than a recasting of her medical negligence claims for which defendants have immunity.
Except for the addition of an allegation that plaintiff suffered and would continue to
suffer severe mental and emotional anguish due to her injuries proximately resulting
from defendants' negligent acts or omissions, plaintiff's allegations in her negligent
infliction of emotional distress counts were, as the trial court found, identical to the
allegations in her medical negligence counts. In both plaintiff's medical negligence and
negligent infliction of emotional distress counts, she alleged that Drs. Bishof and
Bankoff "had the duty to possess and apply the knowledge and use the skill of a
reasonable well qualified emergency room physician under the same or similar
circumstances" and were negligent in failing to: (1) properly perform an initial medical
screening examination; (2) properly screen her for her signs and symptoms; (3) properly
treat her for her signs and symptoms; (4) properly treat her for a spinal cord injury; (5)
properly consult with a neurologist or neurosurgeon for her signs and symptoms; or (6)
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refer her to a neurologist or neurosurgeon for treatment of her signs and symptoms.
¶ 66 Plaintiff makes many of the same assertions in her argument here as she did in
supporting her medical negligence claims (resolved in section 1 supra). Specifically, she
asserts that her experts' testimony that she had a spinal cord injury rather than a muscle
spasm or back/buttock contusion and that Drs. Bishof and Bankoff should have
immobilized her spine, ordered an MRI or further testing, administered steroids and
consulted with a spine specialist shows defendants clearly undertook treatment of her,
this treatment was negligent and defendants are not immune from liability for the
negligent treatment and the emotional distress resulting from it. As we have already
determined, defendants are immune from liability for these alleged negligent
"treatments." The testimony of plaintiff's expert witnesses showed that defendants were
negligent in failing to diagnose her with a spinal cord injury and in treating a spinal cord
injury but did not show that defendants were negligent in treating her for her diagnosed
condition, muscle spasm and/or back/buttock contusion. We, therefore, found
defendants immune from liability pursuant to section 6-105 for their failures to
adequately examine plaintiff and immune from liability pursuant to section 6-106(a) for
their failure to correctly diagnose her. There being no evidence that the treatment
defendants undertook for the muscle spasm and/or back/buttock contusion diagnosis
was negligent for that diagnosis, we found no basis on which to impose the limitation on
immunity provided in section 6-106(d).
¶ 67 As additional evidence that defendants treated her negligently and she suffered
severe emotional distress as a result, plaintiff points to her testimony that the doctors
did not believe her, ordered her to stand when she could not, dropped her when she
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could not stand, accused her of lying, would not listen to her and insisted there was
nothing wrong with her. She points to her testimony that, as a result of how she was
treated, she has no self-confidence anymore, feels no one will believe her or put faith
and trust in her, that people think she is a "phony" and that she has to defend or explain
herself. She points to her testimony that, while she was at Oak Park Hospital, she spoke
to a psychologist for "these" emotional problems on a regular basis. She also points to
Oak Park Hospital psychologist Dr. Brachman's testimony that plaintiff's injury probably
exacerbated her existing mental conditions and Dr. Corre's testimony that defendants
failed to take her seriously. In American National Bank & Trust Co., 327 Ill. App. 3d at
220, the court held, "[u]nder section 6-106(d), in the course of administering the
treatment prescribed there is no immunity if the subsequent prescription or examination
was incorrectly made (a negligent or wrongful act) or if the prescription or examination
was not made at all (an act of omission)." On this basis, plaintiff argues that defendants
"were very insulting" to her and this negligent treatment, in addition to the negligent
treatment defendants prescribed for her signs and symptoms, caused her severe
emotional distress for which defendants are not immunized under the Tort Immunity Act.
¶ 68 In order to show negligent infliction of emotional distress, plaintiff must show
defendants had a duty toward her, they breached that duty and she suffered injury as a
proximate result of that breach. Parks, 193 Ill. 2d at 181. Although plaintiff does not
articulate her argument as such, she appears to be suggesting, without citation to legal
authority or evidentiary support, that defendants had a duty to believe her and not to
question the sincerity of her complaints. She appears to argue that the manner in which
defendants spoke to her and addressed her concerns was part of the "treatment" they
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provided to her, they were negligent in this "insulting" treatment and she suffered
emotional distress as a result.
¶ 69 Plaintiff, however, makes no argument regarding the existence of a physician's
duty to treat her politely or, at a minimum, not to treat her rudely, or a duty to believe
her. At most, her assertion is that the doctors offended her in assorted ways and that
she suffered severe emotional distress as a result. Although plaintiff's expert witnesses
testified in depth regarding defendants' violations of the standard of care applicable to
an emergency room physician's examination, treatment and diagnosis of a patient
presenting with plaintiff's signs and symptoms, they did not testify that a standard of
care exists for an emergency room physician's deportment toward a patient. They did
not testify that an emergency room physician in defendants' circumstances has a duty to
believe and not question the sincerity of a patient's complaints or that the standard of
care so requires, let alone that defendants breached this standard of care.
¶ 70 Plaintiff asserted at oral argument, without citation to the record, that Drs. Upton
and Corre testified that defendants' failure to take plaintiff seriously was a violation of
the standard of care. The closest Dr. Upton came to stating such is his testimony that
"the management here required, optimal management required recognition of the
problem, not thinking it's fictitious." (Emphasis added.) However, Dr. Upton stated this
opinion specifically in the context of plaintiff's visit to Dr. Fishman, who had noted in
plaintiff's medical record his diagnosis of "numbness, possibly fictitious." Further, even if
this opinion could arguably apply to defendants' "management" of plaintiff, it is an
opinion based on the particular "management here," i.e., the circumstances of plaintiff's
case, and is not a general statement that physicians have a duty to believe a patient or
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take her seriously, let alone a duty to do so against their own professional judgment.
¶ 71 With regard to Dr. Corre's testimony, he testified that there was a "blatant failure"
by defendants to take plaintiff seriously and this was a deviation from the standard of
care. He defined this deviation in some detail, closing with "not one person *** takes this
[plaintiff's] compendium of signs and symptoms and mechanisms and findings and
considered seriously that the patient could have a spinal cord contusion, spinal cord
injury." Although Dr. Corre testified that defendants violated the standard of care by not
taking plaintiff seriously, his opinion was based on the specific circumstances of her
case, on the "compendium of signs and symptoms and mechanisms and findings" she
presented with. His opinion was not a general statement that physicians have a duty to
believe a patient even though their findings or professional experience show otherwise.
Moreover, a duty to take a patient seriously is not the same as a duty to believe a
patient. Given the number of tests and examinations defendants conducted of plaintiff, it
appears they did initially take her seriously but then, when the tests results did not
support her complaints, determined she was not believable. This, therefore, in a circular
way, brings the analysis back to failure to diagnose or misdiagnosis, which is
immunized. Plaintiff's allegations are insufficient to show any duty breached by
defendants when they "insulted" or did not believe her and, therefore, are insufficient to
state a claim for negligent infliction of emotional distress.
¶ 72 In determining whether a duty should be imposed, we must determine whether
there is a relationship between the parties requiring that a legal obligation be imposed
on one party for the benefit of the other, taking into consideration factors including "the
reasonable foreseeability of injury, the likelihood of such injury, the magnitude of
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guarding against the injury, and the consequences of placing that burden on the
defendant." Washington, 188 Ill. 2d at 239. As a result of the particular relationship
between a physician and patient at issue here, the law imposes on a physician the duty
to exercise due care in attending to the needs of his or her patient. Nichelson v. Curtis,
117 Ill. App. 3d 100, 104 (1983). However, there is no legal authority imposing a duty on
physicians to believe a patient contrary to their own medical judgment and experience
or to accept without question the sincerity of a patient's complaints. Other than the
recognized standard of care, we decline to impose on physicians an additional duty to
believe a patient or not to question a patient's sincerity for fear of the remote chance
that this may cause the patient emotional distress. In considering the consequences of
imposing such a burden on the medical profession, we find the imposition of such a duty
would have a chaotic effect upon the practice of medicine in that medical professionals
would be unable to question the sincerity of any patient's complaints. The magnitude of
the negative effect imposing such a duty would have on the medical profession vastly
outweighs the remote possibility that a patient may suffer emotional distress if the duty
is not imposed.
¶ 73 Construing the pleadings, depositions, admissions and affidavits strictly against
defendants and liberally in favor of plaintiff, we find plaintiff has not sufficiently alleged
the existence of a duty requiring defendants to comport themselves in a courteous
manner towards her or to believe her. Accordingly, given that defendants are immune
from liability for their "physical" treatment and that plaintiff has not sufficiently alleged
that defendants had a duty to comport themselves towards her in any particular manner
or to believe her complaints, the court did not err in granting summary judgment to
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defendants on the negligent infliction of emotional distress counts II and IV. 12
¶ 74 3. Count V – EMTALA
¶ 75 Lastly, we consider whether the trial court erred in granting summary judgment to
the county on count V of the fifth amended complaint, in which plaintiff alleged the
county violated EMTALA. The court found EMTALA applied to the county but that
plaintiff failed to show that the medical screening examination she received at Stroger
Hospital violated EMTALA or that she required stabilization for an emergency medical
condition prior to her discharge from the emergency room as required by EMTALA.
¶ 76 At Stroger Hospital, the county offers emergency room services. "Where
emergency room services are offered, a certain level of health care is required to be
provided to every person who seeks treatment there. That is so as a matter of both
state (210 ILCS 80/1 (West 2002); see also 210 ILCS 70/1 (West 2002)) and federal (42
U.S.C. § 1395dd) law." Provena Covenant Medical Center v. Department of Revenue,
236 Ill. 2d 368, 375 (2010). Codified at 42 U.S.C. § 1395dd, EMTALA is that federal law.
Jinkins v. Evangelical Hospitals Corp., 336 Ill. App. 3d 377, 385 (2002). In order to
prevent patient dumping, "EMTALA prohibits hospitals from rejecting patients suffering
from emergency medical conditions without first stabilizing or transferring the patients."
Arellano v. Department of Human Services, 402 Ill. App. 3d 665, 675 (2010).
12
We will not address the question of whether section 6-109 of the Tort
Immunity Act applies here. Section 6-109 provides for immunity for a local public entity
and its employees "for an injury resulting from the failure to admit a person to a medical
facility operated or maintained by a local public entity." 745 ILCS 10/6-109 (West 2012).
Defendants raised this immunity in their motion for summary judgment, asserting that
plaintiff's claim for negligent infliction of emotional distress was based on defendants'
failure to admit her to the hospital. As the trial court found and plaintiff points out in her
reply brief on appeal, her arguments were not based on defendants' failure to admit her
to the hospital.
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" 'Patient dumping' refers to the practice of a hospital that, despite its
capability to provide needed medical care, either refuses to see or
transfers a patient to another institution because of the patient's inability to
pay. Congress sought to end patient dumping by requiring any hospital
receiving federal funds to examine patients who seek treatment in an
emergency department and treat any serious medical condition detected."
Baber v. Hospital Corp. of America, 977 F.2d 872, 873, n.1 (4th Cir. 1992)
(citing Melissa K. Stull, Annotation, Construction and Application of
Emergency Treatment and Active Labor Act (42 USCS § 1395dd), 104
A.L.R. Fed. 166, 175 (1991)).
EMTALA allows a plaintiff to recover any damages she is entitled to under state law as
a result of a hospital's failure to comply with EMTALA. Tolton v. American Biodyne, Inc.,
48 F.3d 937, 944 (6th Cir. 1995) (citing 42 U.S.C. § 1395dd(d)(2)(A) (1994)).
¶ 77 EMTALA requires:
"In the case of a hospital that has a hospital emergency
department, if any individual (whether or not eligible for benefits under this
subchapter) comes to the emergency department and a request is made
on the individual's behalf for examination or treatment for a medical
condition, the hospital must provide for an appropriate medical screening
examination within the capability of the hospital's emergency department,
including ancillary services routinely available to the emergency
department, to determine whether or not an emergency medical condition
(within the meaning of subsection (e)(1) of this section) exists." 42 U.S.C.
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§ 1395dd(a) (2012).
"If any individual *** comes to a hospital and the hospital determines that the
individual has an emergency medical condition," then the hospital must provide
"further medical examination and such treatment as may be required to stabilize
the medical condition" or an appropriate transfer of that patient after the patient
has been "stabilized." 42 U.S.C. § 1395dd(b)(1), (c) (2012).
¶ 78 As the trial court found, EMTALA applies to the county. EMTALA provides in
section 1395dd(f) that its provisions "do not preempt any State or local law requirement,
except to the extent that the requirement directly conflicts with a requirement of this
section." 42 U.S.C. § 1395dd(f) (2012). The only court to have addressed the question
of whether EMTALA preempts sections 6-105 and 6-106 of the Tort Immunity Act is the
United States District Court for the Northern District of Illinois in Williams v. County of
Cook, No. 97-C-1069, 1997 WL 428534 (N.D. Ill. July 24, 1997). Although decisions of
the United States District Court and Court of Appeals are not binding on state courts,
they can provide guidance and serve as persuasive authority. People v. Criss, 307 Ill.
App. 3d 888, 900 (1999).
¶ 79 In Williams, as here, the county argued it was immune from EMTALA liability
pursuant to sections 6-105 and 6-106 of the Tort Immunity Act because it was being
sued as a local public entity that operates a public medical facility. Williams, 1997 WL
428534, at *5. The court held EMTALA preempts sections 6-105 and 6-106, explaining:
"Under the Illinois Tort Immunity Act, local public entities are not liable for
injury resulting from the failure to make a physical or mental examination,
745 ILCS § 10/6-105, the failure to diagnose or treat, 745 ILCS § 10/6-
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106, or the failure to admit a person to a medical facility, 745 ILCS § 10/6-
109. EMTALA preempts state or local law requirements that directly
conflict with its requirements. 42 U.S.C. § 1395dd(f). EMTALA requires
hospitals to provide all emergency room patients with appropriate medical
screening examinations and to stabilize any emergency medical
conditions discovered before transfer or discharge. In direct conflict with
EMTALA, the Illinois Tort Immunity Act purports to relieve public hospitals
from liability for the failure to screen, examine, treat or admit. The Illinois
Tort Immunity Act is preempted and does not shield Cook County from
EMTALA violations." Williams, 1997 WL 428534, at *5.
¶ 80 We agree that, by immunizing public hospitals from liability for failure to screen,
examine, treat or admit, sections 6-105 and 6-106 directly conflict with EMTALA's
requirement that all hospital emergency departments must provide "an appropriate
medical screening examination within the capability of the hospital's emergency
department" (42 U.S.C. § 1395dd(a) (2012)) to determine whether an emergency
medical condition exists. Therefore, pursuant to section 1395dd(f) of EMTALA, EMTALA
preempts sections 6-105 and 6-106 of the Tort Immunity Act and EMTALA's
requirements apply to the county.
¶ 81 Plaintiff argues that the court erred in granting the county's motion for summary
judgment on the basis that there is no evidence to support a violation of EMTALA.
Plaintiff argues a question of fact exists regarding whether defendants' medical
screening examination was in accordance with EMTALA, i.e., whether their medical
screening examination was "an appropriate medical screening examination within the
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capability of the hospital's emergency department, including ancillary services routinely
available to the emergency department" (42 U.S.C. § 1395dd(a) (2012)), which plaintiff
asserts included a neurology or neurosurgical consultation and an MRI test. She argues
the court erred in finding her expert witness Dr. Corre's criticisms only went to the
issues of negligent screening and misdiagnosis "when his testimony was clear as to the
Defendants' violations of EMTALA." She also argues a question of fact exists regarding
whether defendants stabilized her prior to discharging her as required by EMTALA.
¶ 82 We find plaintiff raises no genuine issue of material fact regarding whether the
Stroger Hospital emergency department gave plaintiff an "appropriate medical
screening examination" under EMTALA. EMTALA does not define the term other than to
state the purpose of this examination is to determine whether or not an emergency
medical condition exists. Baber v. Hospital Corp. of America, 977 F.2d 872, 879 (1992)
(4th Cir. 1992). EMTALA defines "emergency medical condition" as, in relevant part:
"a medical condition manifesting itself by acute symptoms of sufficient
severity (including severe pain) such that the absence of immediate
medical attention could reasonably be expected to result in--
(i) placing the health of the individual *** in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part[.[" 42 U.S.C.
§ 1395dd(e)(1)(A) (2012).
The goal of "an appropriate medical screening examination" under EMTALA, therefore,
"is to determine whether a patient with acute or severe symptoms has a life threatening
or serious medical condition." Baber, 977 F.2d at 879. To that end, EMTALA essentially
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requires that a hospital develop a screening procedure "designed to identify such critical
conditions that exist in symptomatic patients and to apply that screening procedure
uniformly to all patients with similar complaints." Id.
¶ 83 EMTALA does not impose a national standard of care in screening patients and,
instead, requires that a hospital will provide a screening procedure "appropriate" and
"within the capability" of the particular hospital's emergency department and its available
ancillary services. Baber, 977 F.2d at 879-80. Although a hospital may have one
general screening procedure for all patients, it may tailor that procedure to each
patient's complaints or symptoms. Id. at 879 n.6. "[S]uch varying screening procedures
would not impose liability under EMTALA as long as all patients complaining of the
same problem or exhibiting the same symptoms receive identical screening
procedures." Id.
¶ 84 Application of a hospital's screening procedures involves the hospital personnel's
use of medical judgment and training to assess a patient's signs and symptoms to
determine whether an emergency medical condition exists. Baber, 977 F.2d at 879.
EMTALA does not, however, "guarantee that the emergency personnel will correctly
diagnose a patient's condition as a result of this screening." Id. EMTALA is not a federal
malpractice statute. Repp v. Anadarko Municipal Hospital, 43 F.3d 519, 522 (10th Cir.
1994). It was intended to address patient dumping and guarantee that all patients
receive an adequate first response to a medical crisis and ensure that each is accorded
the same level of treatment regularly provided to patients in similar medical
circumstances, not to guarantee that they will be correctly diagnosed "or even to ensure
that they receive adequate care." Baber, 977 F.2d at 880; Gatewood v. Washington
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Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991). "Thus, what constitutes an
'appropriate' screening is properly determined not by reference to particular outcomes,
but instead by reference to a hospital's standard screening procedures." Gatewood, 933
F.2d at 1041; see also Repp, 43 F.3d at 522. A hospital provides "appropriate medical
screening" under EMTALA when it follows its standard emergency room screening
procedures, applying its standard procedure uniformly to all patients in similar medical
circumstances. Repp, 43 F.3d at 522; Baber, 977 F.2d at 881; Gatewood, 933 F.2d at
1041. Although a hospital violates EMTALA when it does not follow its own standard
policies, "[m]ere de minimus variations" or "slight deviation" from the hospital's standard
procedures do not amount to a violation of hospital policy. Repp, 43 F.3d at 523.
¶ 85 It is uncontested that defendants performed a medical screening examination on
plaintiff when she presented to the Stroger Hospital emergency department. Plaintiffs'
experts Drs. Upton and Corre consistently testified, and her emergency department
medical record shows, that the emergency department, through Drs. Bishof and
Bankoff, made multiple physical examinations and observations of plaintiff and
employed X-rays, a CAT scan, pain medication and a muscle relaxant in an effort to
determine what was wrong with her. The fact that, in retrospect, the examinations might
have been incomplete or resulted in a misdiagnosis does not determine whether a
medical screening examination satisfies EMTALA. EMTALA's requirement for an
appropriate medical screening examination is " 'not designed to redress an incorrect
diagnosis by a hospital; instead, it is merely an entitlement to receive the same
treatment that is accorded to others similarly situated.' " Baber, 977 F.2d at 880 (quoting
Jones v. Wake County Hospital Systems, Inc., 786 F. Supp. 538, 544 (E.D.N.C. 1991)).
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A hospital satisfies EMTALA's screening requirement "if its standard medical screening
procedure is applied uniformly to all patients in similar medical circumstances." Baber,
977 F.2d at 881. Therefore, in order to show that the screening examination or
treatment she received at Stroger Hospital violated EMTALA, plaintiff must show that
the hospital did not comply with its own standard screening procedure or that it treated
her differently from similarly situated patients. She makes no such showing here.
¶ 86 First, in her brief on appeal, plaintiff does not argue, let alone show, that she was
examined or treated any differently than similarly situated patients. Second, the record
does not support plaintiff's assertion at oral argument that Dr. Bankoff admitted in his
discovery deposition that, although he usually performed a neurological examination on
patients such as plaintiff, he did not perform such an examination on plaintiff. Plaintiff
cited to pages 2660-61 of the record, but in those pages, Dr. Bankoff testified that he
did do his usual neurologic examination on plaintiff. He first explained that he did not
remember plaintiff, did not remember examining her and could only testify regarding
what he had written in plaintiff's medical record. Then, on page 2660 of the record,
when asked how he had determined that plaintiff had a "lack of numbness" as he had
noted in her medical record, he stated "I did a neurologic exam." He explained that
"[c]ustom and practice for me on any patient in a neurologic exam would include a
sensory evaluation" and "I documented a 'normal exam' [in the record], that would
indicate a normal neurologic exam." He acknowledged that he had not documented
"neuro normal" or the particulars of his exam in plaintiff's medical record, only "normal
exam" but testified that, had he determined "sensory abnormalities," he "wouldn't have
written a normal exam." Taken together, Dr. Bankoff's testimony was that he usually
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performed a neurological examination including a sensory evaluation on patients such
as plaintiff and that he did perform such an examination on plaintiff here.
¶ 87 Third, although plaintiff argues that the court improperly disregarded Dr. Corre's
testimony regarding whether there was an appropriate screening examination under
EMTALA, DR. Corre's testimony does not raise any questions of fact regarding whether
the screening was appropriate under EMTALA. Dr. Corre testified at length regarding
how the inadequacies of the screening examination given to plaintiff and defendants'
failure to immobilize and stabilize her spine, order an MRI and consult with spine
experts violated both the standard of care and EMTALA. However, he did not testify that
the medical screening examination accorded to plaintiff was different than the medical
screening examination the emergency department at Stroger Hospital would provide for
any other patient presenting with the same complaints, signs and symptoms. Nor did he
testify that defendants violated Stroger Hospital's own standard medical screening
policy or that they deviated from the hospital's custom and practice in treating
emergency room patients with similar complaints and symptoms. All of Dr. Corre's
EMTALA opinions were based on his professional opinion of what the hospital should
have done and not on what it usually did in similar circumstances or was required by do
by its own policies.
¶ 88 EMTALA " 'is neither a malpractice nor a negligence statute.' " Repp, 43 F.3d at
522 (quoting Urban v. King, No. 93-3331, 1994 WL 617521, at *2 (10th Cir. Nov. 8,
1994)). Thus, while Dr. Corre's opinion and testimony may create an issue with regard
to whether Stroger Hospital's examination, treatment and misdiagnosis of plaintiff
deviated from medical standards of care, it does not create a material question of fact
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as to whether the hospital emergency department personnel violated EMTALA by failing
to provide an "appropriate" medical examination. 13 Questions regarding whether
hospital personnel properly diagnosed or treated a patients are to be resolved under
state negligence and medical malpractice theories of recovery, not EMTALA. Baber,
977 F.2d at 880.
¶ 89 Pointing to Stroger Hospital's eight-page policy on EMTALA, plaintiff argues that
she provided evidence that the screening examination performed on her violated the
policy. The hospital's policy quotes much of EMTALA verbatim and defines and explains
the EMTALA terms and requirements in detail. In a section labeled "procedure," the
policy sets forth the steps to be followed when a patient presents to the emergency
room. In the first step, "Medical Screening," the policy requires that "[a]ny person who
comes to the emergency department requesting examination or treatment of a medical
condition (or where such a request is made on their behalf) shall receive a Medical
Screening." It provides that, "[o]nce the Medical Screening is completed and there is a
determination the patient does not have an Emergency Medical Condition the patient
may be treated, discharged or transferred as appropriate for the their medical condition"
and, "[i]f the patient has an emergency medical condition, the patient is to *** receive
further examination and treatment as required to Stabilize their medical condition; or ***
be transferred." (Emphases in original.)
¶ 90 EMTALA does not define "medical screening" but the hospital's EMTALA policy
does, as follows:
13
The testimony of plaintiff's other expert witness, Dr. Upton, is similarly
deficient. Although Dr. Upton found the hospital's medical screening examination of
plaintiff to be inadequate, he did not state this opinion in the context of EMTALA and, in
fact, made no reference to EMTALA or Stroger Hospital's policies at all.
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" 'Medical Screening' means the appropriate process (examination and
evaluation of the patient) used by a Qualified Medical Person within the capability
of the hospital's emergency department (services and staff) including ancillary
services routinely available to the emergency department to determine whether
or not the patient has an Emergency Medical Condition.
Medical Screening is a process that is reasonably calculated to determine
whether an Emergency Medical Condition exists and represents the use of a
spectrum of activities and personnel indicated by the needs of the particular
patient. The Medical Screening for a patient is to be consistent with that provided
to other patients with similar medical conditions. A Medical Screening also
includes documentation on Emergency Department ('ED') log, triage and ED
records of the above as well as final patient disposition."
In a section of the policy titled "Requests for Medical Treatment at Bureau Hospitals," it
is provided that "the Medical Screening is a process engaged in until an Emergency
Medical Condition has been diagnosed or ruled out."
¶ 91 As noted above, plaintiff presents no testimony from her expert witnesses stating
that defendants' medical screening examination and treatment of plaintiff did not comply
with the hospital's EMTALA policy. Instead, she cites to the policy's provisions providing
that (a) to "stabilize" a person with an emergency condition means, in part, to provide
such medical treatment of the condition as may be necessary to assure, within
reasonable medical probability, that no material deterioration of the condition is likely to
result from or occur during the transfer of the patient and that transfer includes
discharge of a patient and (b) medical screening is a process engaged in until an
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emergency medical condition has been diagnosed or ruled out. She argues that
defendants failed to either diagnose or rule out an emergency medical condition and,
therefore, they violated their own policy on EMTALA, thus presenting a question of fact
precluding entry of summary judgment to defendants.
¶ 92 Plaintiff appears to argue that, unless and until Stroger Hospitals' emergency
department personnel memorialize in some fashion that they have (a) provided such
medical treatment to assure, within reasonable medical probability, that no material
deterioration of the condition is likely to result from or occur during the transfer or
discharge and (b) diagnosed or ruled out that a patient suffers from an emergency
condition, a question of fact exists regarding whether the department did indeed
diagnose or rule out an emergency condition as required by the policy. There is no
support for this argument.
¶ 93 The hospital policy's definition of "stabilize" is the same as that set forth in
EMTALA. 14 Neither the policy nor EMTALA states a requirement that emergency
department personnel must memorialize, whether in the patient's record or verbally or
by any other means, that they have provided the medical treatment necessary to
assure, with reasonable medical probability, that the patient will not likely suffer material
deterioration of her condition from or during transfer or discharge. Neither the policy nor
14
EMTALA defines "to stabilize" as "to provide such medical treatment of the
condition as may be necessary to assure, within reasonable medical probability, that no
material deterioration of the condition is likely to result from or occur during the transfer
of the individual from a facility." 42 U.S.C. § 1395dd(e)(3)(A) (2012). It defines
"stabilized" as "no material deterioration of the condition is likely, within reasonable
medical probability, to result from or occur during the transfer of the individual from a
facility." 42 U.S.C. § 1395dd(e)(3)(B) (2012). "Transfer" includes the discharge of a
patient. 42 U.S.C. § 1395dd(e)(4) (2012).
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EMTALA require that a determination regarding whether an emergency medical
condition has been diagnosed or ruled out must be memorialized.
¶ 94 All that is required under EMTALA is that a decision regarding the existence of
an emergency medical condition be made after an appropriate medical screening
examination, "[n]othing more, nothing less." Collins v. DePaul Hospital, 963 F.2d 303,
306-07 (10th Cir. 1992). Stroger Hospital's policy provides the same. It is obvious here
that, after its screening examination, the hospital determined that an emergency
medical condition did not exist. In asserting that the hospital misdiagnosed her by failing
to find she had an emergency medical condition, plaintiff admits that it decided an
emergency medical condition did not exist. Further, her testimony that both Dr. Bankoff
and the "second male doctor" did not believe her, told her there was nothing wrong with
her, told her she was lying and discharged her with instructions to take Motrin and see
her internist shows that, in compliance with the hospital's EMTALA policy, the doctors in
the emergency department reached a determination regarding whether plaintiff had an
emergency medical condition by ruling out the condition.
¶ 95 With regard to plaintiff's assertion that Stroger Hospital violated EMTALA when it
failed to stabilize her prior to discharge, her assertion that the hospital did not diagnose
her with an emergency medical condition precludes finding the hospital liable for failure
to stabilize plaintiff prior to her discharge. EMTALA requires that, if a hospital
determines that an emergency department patient has an emergency medical condition,
it must provide "further medical examination and such treatment as may be required to
stabilize the medical condition" or an appropriate transfer (or discharge) of that patient
after the patient has been "stabilized." 42 U.S.C. § 1395dd(b)(1), (c) (2012). The
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requirement that a hospital stabilize a patient prior to transfer or discharge is " 'triggered
only after a hospital determines that an individual has an emergency medical condition.'
" Baber, 977 F.2d at 883 (quoting Gatewood, 933 F.2d at 1041). "[U]nless the hospital
actually determines that the patient suffers from an emergency medical condition," the
requirement does not apply. Baber, 977 F.2d at 883; also Barrios v. Sherman Hospital,
No. 06 C 2853, 2009 WL 935750, at *4 (N.D. Ill. Apr. 3, 2009).
¶ 96 Plaintiff has not shown that Stroger Hospital had actual knowledge that she had
an emergency medical condition at the time it discharged her. It may be that, had Drs.
Bishof and Bankoff performed the medical screening examination and testing to Drs.
Corre and Upton's satisfaction, they would have determined that plaintiff did, in fact,
have an emergency medical condition requiring stabilization. Nevertheless, "[a]nalysis
by hindsight is not sufficient to impose liability under EMTALA." Baber, 977 F.2d at 883.
Plaintiff's own argument and testimony show that the doctors in the emergency
department determined that she did not have an emergency medical condition.
Therefore, as plaintiff has not shown that the hospital knew she had an emergency
condition, the hospital cannot be liable for any failure to provide stabilizing treatment
under EMTALA. Id. at 884; Barrios, 2009 WL 935750, at *4; Anadumaka v. Edgewater
Operating Co., 823 F. Supp. 507, 510 (N.D. Ill. 1993).
¶ 97 The court did not err in finding plaintiff failed to show that the county violated
EMTALA in its medical examination of plaintiff or its failure to stabilize her prior to
discharge. We affirm the trial court's grant of summary judgment to the county on count
V of the fifth amended complaint.
¶ 98 CONCLUSION
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¶ 99 For the reasons stated above, we affirm the orders of the trial court granting
summary judgment to Dr. Bishof on counts I and II of the fifth amended complaint, to Dr.
Bankoff on counts III and IV of the fifth emended complaint and to the county on the
counts I through V of the fifth amended complaint.
¶ 100 Affirmed.
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