Solomon v. Center for Comprehensive Services, Inc. ( 2023 )

NOTICE
2023 IL App (5th) 210391-UNOTICE
Decision filed 01/25/23. The
This order was filed under
text of this decision may be NO. 5-21-0391 Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THERESA A. SOLOMON, as Guardian of the ) Appeal from the
Estate of Megan Leigh Farmer, a Disabled ) Circuit Court of
Person, and Julia Lotus Farmer, a Minor, ) Jackson County.
)
Plaintiff-Appellant, )
)
v. ) No. 13-L-63
)
CENTER FOR COMPREHENSIVE )
SERVICES, INC., d/b/a NEURORESTORATIVE )
ILLINOIS and NEURORESTORATIVE )
CARBONDALE; NAOMI BOOKER; DARCY )
KRIEGSMAN; ELBERT FASNACHT, M.D.; )
ELBERT FASNACHT, II, M.D., LTD.; )
RHONDA MELVIN, R.N.; D. DOUGLAS )
STROBEL; and JOSEPHSON, WALLACK, )
MUNSHOWER NEUROLOGY, P.C., )
)
Defendants and Counterplaintiffs-Appellees, )
)
v. )
)
JAMEY A. CARLSON, ) Honorable
) Christy W. Solverson,
Counterdefendant. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Presiding Justice Boie and Justice Barberis concurred in the judgment.
ORDER
1
¶1 Held: The trial court properly dismissed the claims against the out-of-state
defendants for lack of specific personal jurisdiction. The trial court erred in
entering summary judgment for the remaining defendants where the plaintiff
demonstrated that there were triable issues of fact as to the claims for
transferred negligence and negligent supervision.
¶2 The plaintiff, Theresa Solomon, as guardian of the estates of Megan Leigh Farmer,
a disabled person (Megan), and Julia Lotus Farmer, a minor (Julia), brought a personal
injury action against the defendants, Center for Comprehensive Services, d/b/a
NeuroRestorative Illinois and NeuroRestorative Carbondale (NeuroRestorative); Naomi
Booker; Darcy Kriegsman; Rhonda Melvin, R.N.; Elbert Fasnacht, M.D.; Elbert Fasnacht,
II, M.D., Ltd.; D. Douglas Strobel, M.D.; and Josephson, Wallack, Munshower Neurology,
P.C. (JWM Neurology), 1 based upon theories of medical negligence, transferred
negligence, and negligent supervision. The trial court dismissed the claims against Dr.
Strobel and JWM Neurology for lack of personal jurisdiction and granted summary
judgments for the remaining defendants on the claims for transferred negligence and
negligent supervision. The plaintiff appeals those rulings. We affirm in part and reverse in
part.
¶3 I. BACKGROUND
¶4 This action was originally filed in October 2012, by Jamey Carlson, as guardian of
her daughter, Megan, against NeuroRestorative. In February 2016, Theresa Solomon was
substituted as the nominal plaintiff. Solomon is the grandmother of Megan and the great-
1
At the trial level and on appeal, NeuroRestorative, Naomi Booker, Darcy Kriegsman, and Rhonda
Melvin, R.N., were referred to collectively as “the NeuroRestorative defendants.” For consistency, that
designation has been retained in this decision.
2
grandmother of Julia. Over the course of the litigation, the complaint has been amended
several times, and the record is lengthy. An overview of the evidence taken from the
pleadings, depositions, and discovery materials on file follows.
¶5 Megan Farmer was born August 27, 1986. Jamey Carlson and Tim Farmer are
Megan’s parents. On August 27, 1995, Megan suffered a traumatic brain injury after being
hit by a car. Megan received medical care and seemed to be recovering from her injuries.
As Megan entered her early teens, Jamey noted changes in Megan’s cognitive abilities,
behavior, and judgment. Megan “zoned out” at times, and acted out at others. Megan had
sexual relations with a classmate and became pregnant when she was 16 years old. She
miscarried early in the pregnancy. Because of Megan’s ongoing mental health struggles,
Jamey took Megan out of school after the tenth grade. At that time, Megan’s symptoms
included staring spells followed by periods of confusion, deterioration in cognitive
functioning and judgment, and occasional acts of aggression.
¶6 In September 2006, Megan started seeing Dr. Douglas Strobel at his offices in
Indiana. Dr. Strobel diagnosed Megan with a traumatic brain injury and a seizure disorder.
He placed Megan on trials of several medications, none of which was particularly effective.
¶7 In October 2007, Megan was admitted to an Indiana hospital after she attempted to
assault her mother. Dr. Anne Gilbert, a psychiatrist, evaluated Megan. Dr. Gilbert noted
that Megan was avolitional, amotivational, and socially withdrawn. Megan had to be
“cued” to perform basic personal hygiene. Dr. Gilbert also noted that Megan “had no
abstract reasoning whatsoever.” Megan responded to questions with “yes or no” answers.
3
She was able to provide simple factual answers, but without elaboration. For example,
Megan could name her medications, but she could not explain why she was taking them.
¶8 Dr. Gilbert prescribed Ativan and Depakote for Megan. Depakote is an anti-
epileptic drug, prescribed for seizure disorders, bipolar disorders, and other neurologic
conditions. Dr. Gilbert testified that Depakote carried a “Black Box Warning,”2 advising
of the serious risk of birth defects, particularly spina bifida, when Depakote was taken
during pregnancy. Dr. Gilbert testified that she typically discussed Depakote’s risks of birth
defects with patients who were of childbearing age. In Megan’s case, however, Dr. Gilbert
discussed these risks with Megan’s mother because Megan was not able to process that
information. Dr. Gilbert testified that she had no discussions with Megan’s mother
regarding a power of attorney or guardianship during Megan’s hospital stay. Dr. Gilbert
also testified that she did not think Megan could have made decisions about medications
on her own. She thought Megan would have needed a guardian. Dr. Gilbert provided only
in-patient treatment. Megan was discharged with instructions to follow-up with Dr. Strobel.
¶9 Dr. Strobel saw Megan after she was discharged from the hospital. Dr. Strobel
decided to maintain Megan on Depakote because it was effective. He advised Megan and
her mother that Megan should not get pregnant while she was taking Depakote. He also
advised them that Megan should take a vitamin supplement called folate, but he did not
prescribe any form of birth control for Megan. Dr. Strobel admitted that he did not warn
2
Black Box Warnings, also called “boxed warnings,” are the FDA’s most stringent warnings for
drugs and medical devices in marketplace. Black Box Warnings are intended to alert the public and health
care providers that certain medications carry serious adverse reactions, such as injury or death.
4
Megan or her mother specifically about an increased risk of birth defects in the babies of
women who took Depakote while pregnant. He explained that he ordinarily advised his
patients to take folate and exercise family planning while on Depakote. He did not inform
his patients about the specific risks of spina bifida and other birth defects associated with
Depakote because he did not want to “poison the well.” He noted that some patients would
refuse to take the drug because of the potential side effects. From time to time, Dr. Strobel
had conversations with Megan’s mother, Jamey, about switching Megan from Depakote to
another medication, but Jamey resisted.
¶ 10 Dr. Strobel clarified that when he testified that he had conversations with Megan,
those conversations were with Jamey. He described Jamey as the “responsible party” and
“very directive” in Megan’s care. Dr. Strobel recognized that Megan was of legal age and
entitled to make decisions, and also that she had a brain injury, and she was not interacting
with her surroundings. In 2012, at Jamey’s request, Dr. Strobel prepared a report indicating
that Megan did not have the mental capacity to make medical decisions for herself. Dr.
Strobel testified that he had not recommended a guardianship for Megan prior to 2012,
because Jamey was in “a supervisory role.” There was, however, within Dr. Strobel’s
records, a prescription form dated October 13, 2006, on which Dr. Strobel noted that
Megan lacked “the capacity for decision-making and self-determination.”
¶ 11 In 2010, Jamey discovered that NeuroRestorative offered inpatient brain-injury
rehabilitation and independent living programs in Carbondale, Illinois. Jamey asked Dr.
Strobel to write a letter of medical necessity to Indiana Medicaid so that she could secure
insurance coverage for the rehabilitation program. In May 2010, and again in August of
5
2011, Dr. Strobel wrote letters to the Indiana Medicaid Prior Authorization Unit to request
authorization and Medicaid coverage. He did not consult with anyone from
NeuroRestorative regarding Megan’s admission to the program.
¶ 12 On October 11, 2011, Megan was admitted to NeuroRestorative’s facility in
Carbondale, Illinois. Megan, then 25 years old, signed admissions paperwork, including an
admissions agreement. The admissions agreement included a waiver of liability. The
waiver provided that the participant agreed to release NeuroRestorative from any and all
liability for the resultant consequences of the participant’s decision to voluntarily engage
in certain activities, including unprotected sexual activity.
¶ 13 The NeuroRestorative records included admissions notes, dated October 10, 2012,
and a “participant overview profile,” dated October 19, 2012. In the records, Megan was
identified as her own guardian, and Jamey was identified as “closely involved.” Megan’s
barriers and challenges included: impairment of executive functioning; lack of insight,
judgment, and initiative; poor problem solving, distractibility, and memory; and lack of
safety in community settings. Megan was at risk of being victimized by others, easily led,
and prone to exploitation by peers. The records also identified areas to pay attention to, and
these included “potential issues with peers (males),” exploitation by others, and personal
safety skills. As part of the treatment plan, Megan was permitted to be independent “up to
4 hours per day with intermittent supervision and safety plans in place.” Megan was not
under 24-hour supervision because the staff tried to afford all participants some level of
privacy.
6
¶ 14 The NeuroRestorative records also contained a written report of a psychiatric
evaluation performed by Dr. Claudia Kachigian on October 21, 2011. In the report, Dr.
Kachigian noted that Megan had undergone a neuropsychological evaluation on July 20,
2011, that indicated severe executive function impairment, disinhibition, verbal memory
disturbance, mild depression, and anxiety. Dr. Kachigian performed a mental status
evaluation on Megan. Dr. Kachigian found that Megan was mildly disheveled with good
eye contact. Megan had a blunted demeanor with an occasional smile, very slow and soft
speech, and difficulty formulating her thoughts and responses. Megan’s judgment and
insight appeared impaired, but she was oriented to time, place, date, and situation. Dr.
Kachigian found nothing that called for an adjustment to Megan’s medications.
¶ 15 At the time of Megan’s admission, Dr. Elbert Fasnacht was the medical director and
primary care physician at NeuroRestorative. Dr. Fasnacht continued to prescribe Depakote
and Ativan for Megan. He deferred to Dr. Strobel’s decision to prescribe Depakote, noting
that it would be dangerous to suddenly change someone’s seizure medication. Dr. Fasnacht
knew about the risks of birth defects associated with Depakote. He did not talk with Megan
about Depakote’s risks of birth defects. He thought Dr. Strobel would have warned her
about those risks. Dr. Fasnacht did not prescribe any form of birth control for Megan.
¶ 16 Rhonda Melvin, R.N, was Megan’s medical manager. Upon Megan’s admission to
the rehabilitation program, Melvin did not talk with Megan about the risks and benefits of
Megan’s medications. Melvin did not think Megan was capable of managing medications
on her own. She noted that Megan had not previously managed her own medications and
would need to be trained on how to take them. Melvin did not recall talking with Megan
7
and her mother specifically about Depakote’s risk of birth defects. She expected that the
prescribing physician would have warned about those risks. Melvin recalled one
conversation in which she advised Megan that seizure medications have bad effects on
babies and that if Megan wanted children, that would need to be planned and monitored
closely by a doctor. Melvin acknowledged that she did not document that conversation in
her assessment notes, and she could not recall when the conversation occurred.
¶ 17 In early November 2011, Melvin, Darcy Kriegsman (Megan’s case manager), and
Naomi Booker (residential supervisor) became aware of Megan’s apparent interest in some
of the male residents. Melvin met with Megan and advised her about the interpersonal
conflicts that could arise from engaging in sexual activity with other residents as well as
the risks of unprotected sexual activity. At that time, Megan indicated that she was not
sexually active and that she did not want birth control. By March 2012, the
NeuroRestorative staff was aware that Megan had been sneaking out of her room, and that
she was romantically involved with a male peer. Melvin met with Megan again. Megan
acknowledged the relationship, but denied that they had been sexually active. Megan also
requested an OB/GYN consult.
¶ 18 On April 9, 2012, Megan visited Planned Parenthood. She received a Depo-Provera
injection, but she did not have a pregnancy test. On April 23, 2012, Megan was discharged
from NeuroRestorative. On August 16, 2012, Megan had a positive pregnancy test. On
November 12, 2012, Megan gave birth to a baby girl, Julia Farmer. Julia was born with
spina bifida and other health problems.
8
¶ 19 Megan was deposed on August 20, 2019. At that time, Megan was 32 years old, and
7 years removed from her stay at NeuroRestorative. During the deposition, Megan gave
short answers to simple and sometimes leading questions. She often answered questions
with “uh-huh” and “huh-uh,” and “yeah” or “no,” without elaboration. Megan was able to
recite her own date of birth, and the date of birth of her daughter, Julia. Megan testified
that she lived with her parents, and that she helped take care of Julia. She stated that when
she awoke in the morning, she showered and sometimes made her own breakfast. She
stated that her medication was kept in her dad’s room, and that she was able to take it on
her own.
¶ 20 Megan stated that she went to NeuroRestorative for help with “her GED and stuff
and getting things together.” She recalled that she had to sign some documents when she
first arrived. Megan was shown the waiver of liability document, and she identified her
signature. Megan was asked to read aloud the words on the document, and she was able to
do so. Megan was not questioned about the purpose of the document or to explain its
meaning in her own words. Megan acknowledged that she had agreed to go to
NeuroRestorative. She also stated she could leave if she wanted to and if her mother would
sign her out. Later, she said that NeuroRestorative “had me sign papers and pretty much
had my rights unless my mom came and got me.”
¶ 21 Megan testified that Depakote had been prescribed for her about three or four years
before she went to NeuroRestorative. Megan did not ask any questions about the
medication. She recalled that her doctor said that if there was any family planning in the
future, there should be a medication change. She knew that family planning meant if she
9
was thinking about having children. She was not having sex, so she really did not remember
it or think about it. Megan testified that the doctor never told her that Depakote could cause
major birth defects. Megan was asked whether anyone from NeuroRestorative talked to her
about not having sexual activities with others, and she replied, “Uh-huh.” Megan said that
the staff told her she should not have sexual activities with others, but they did not explain
that Depakote could cause spina bifida. Megan was asked whether she knew, while at
NeuroRestorative, that if she had sex, she could become pregnant and she could risk getting
a sexually transmitted disease. She answered, “yeah,” without elaboration. When asked if
she thought about those risks while she was having sex with her male peer, she replied,
“Well, not really, no.” “He was in a wheelchair, and I didn’t really think that he’s—he’s
been there in NeuroRestorative for a long time, so I didn’t think that that was like a problem
because he had been shot in the head and he’s missing a leg.”
¶ 22 The Litigation
¶ 23 On October 12, 2012, Jamey Carlson, as guardian of Megan Farmer,3 filed a one-
count complaint against NeuroRestorative. The plaintiff alleged that NeuroRestorative, by
and through its authorized agents, breached its duty to adequately supervise and thereby
prevent Megan and other residents from engaging in sexual activity, and that as a result of
the defendant’s breach of duty, Megan became pregnant and suffered physical and
emotional injuries. The case was originally filed in Cook County, Illinois. It was transferred
3
On October 12, 2012, Jamey Carlson was appointed as Guardian of the Estate and Person of Megan
Farmer, a disabled adult, by the Marion Superior Court in Indianapolis, Indiana. Prior thereto, Jamey had
been acting as Megan’s temporary guardian, pursuant to a preliminary order, entered August 22, 2012.
10
to Jackson County, Illinois, on May 15, 2013, pursuant to defendant’s
forum non conveniens motion. Since then, the complaint has been amended several times,
with the addition of new parties and new causes of action. The seventh and eighth amended
complaints are at issue here.
¶ 24 On November 9, 2017, Theresa Solomon, as guardian of the estates of Megan
Farmer, a disabled person, and Julia Farmer, a minor, 4 filed the seventh amended complaint
against the NeuroRestorative defendants, Elbert Fasnacht, M.D., and Elbert Fasnacht, II,
M.D., Ltd.5 The first three counts were brought on behalf of Julia under a theory of
transferred negligence. In count I, the plaintiff alleged that Dr. Fasnacht breached his duty
to Megan, and deviated from accepted standards of medical care in that he improperly
prescribed Depakote to Megan, a woman of childbearing age who was not on contraception
and who was suspected of being sexually active, without informing her of Depakote’s risks
of birth defects; failed to communicate with Rhonda Melvin, R.N., about Megan’s sexual
activities; failed to timely prescribe birth control and folic acid for Megan; and failed to
timely provide or refer Megan for appropriate prenatal care. In count II, the plaintiff alleged
that Rhonda Melvin, R.N., breached her duty to Megan and deviated from accepted
standards of nursing care and medical management in that she improperly administered
4
On December 7, 2015, Solomon was appointed to serve as guardian of the estates of Megan and
Julia by the Marion Superior Court. In February 2016, Solomon was substituted as the nominal plaintiff.
The substitution was made when third-party contribution claims were filed against Jamey Carlson.
5
Dr. Fasnacht was the agent and/or employee of Elbert Fasnacht, II, M.D., Ltd., and the counts
against the corporate entity were brought under a theory of vicarious liability. Therefore, we will refer to
these defendants “collectively” as Dr. Fasnacht.
11
Depakote to Megan, a woman of childbearing age who was not on contraception and who
was suspected of being sexually active, without adequately informing her of Depakote’s
risks of birth defects; failed to communicate with Dr. Fasnacht about Megan’s sexual
activities; and failed to provide adequate medical supervision and timely referral of Megan
for appropriate prenatal care. Count III was brought against NeuroRestorative, alleging
vicarious liability for the negligence of its agents or apparent agents. In all three counts,
the plaintiff alleged that as a proximate result of the defendants’ negligence, Megan became
pregnant and gave birth to Julia, a baby born with spina bifida and other birth defects; that
Julia’s injuries were proximately caused by in utero exposure to Depakote; and that Julia’s
injuries were foreseeable consequences of the defendants’ negligent treatment of Megan.
¶ 25 The plaintiff also brought medical negligence claims on behalf of Megan and
against Dr. Fasnacht (count IV), Nurse Melvin (count V), and NeuroRestorative (count
VI), alleging the same respective acts and omissions set forth in the counts I, II, and III.
The plaintiff further alleged that as a proximate result of the defendants’ negligence, Megan
became pregnant and gave birth to a baby with spina bifida and other birth defects. The
plaintiff claimed that Megan suffered physical and emotional injuries, and other damages
as a proximate cause of the defendants’ negligence.
¶ 26 In addition, the plaintiff brought negligence supervision claims on behalf of Megan
and against NeuroRestorative (count VII), Darcy Kriegsman (count VIII), and Naomi
Booker (count IX). The plaintiff alleged that the defendants knew or should have known
that Megan and a male peer were having a sexual relationship. The plaintiff further alleged
that the defendants failed to properly monitor and supervise Megan and the male peer who
12
impregnated Megan; failed to inform Dr. Fasnacht that Megan was sexually active or had
an interest in becoming sexually active; and improperly relied upon Megan to make
decisions regarding birth control. The plaintiff again claimed that Megan suffered physical
and emotional injuries, and other damages as a proximate cause of the defendants’
negligent supervision.
¶ 27 On April 20, 2018, the trial court dismissed the medical negligence claims filed on
behalf of Megan and against Dr. Fasnacht (count IV) and Nurse Melvin (count V) based
upon a failure to state a cause of action for wrongful birth. The court noted that wrongful
birth was a distinct cause of action in which parents allege that a medical provider was
negligent in providing genetic counseling or prenatal testing, and that as a result, they were
foreclosed from making an informed decision about whether to conceive a child, or in the
event of pregnancy, whether to carry that pregnancy to term. The court found the plaintiff
made no such allegations against Dr. Fasnacht and Nurse Melvin. In a “corrected” order,
the court dismissed the wrongful birth claim (count VI) against NeuroRestorative for the
same reasons.
¶ 28 On June 9, 2020, the NeuroRestorative defendants filed a motion for summary
judgment as to all remaining counts of the seventh amended complaint. The
NeuroRestorative defendants argued that Julia’s claims based upon transferred negligence
could not stand because her mother’s medical negligence/wrongful birth claims had been
dismissed by the trial court. They also claimed that they were entitled to judgment as a
matter of law on Megan’s negligent supervision claims because Megan voluntarily signed
a form, waiving liability for the resultant consequences of unprotected sexual activity, and
13
because Megan’s engagement in unprotected sexual activity while on Depakote constituted
a superseding and intervening cause of her pregnancy.
¶ 29 On June 22, 2020, Dr. Fasnacht filed a motion for summary judgment, and joined
in all but one of the points made by NeuroRestorative. Dr. Fasnacht declined to adopt
NeuroRestorative’s waiver argument because the waiver did not apply to him.
¶ 30 The plaintiff filed a response in opposition to the defendants’ motions for summary
judgment. In addressing transferred negligence, the plaintiff argued that Megan and Julia
had a special relationship as mother and child, and that it was reasonably foreseeable that
Megan could become pregnant and give birth to a child with spina bifida as a result of the
defendants’ negligent acts and omissions. The plaintiff also argued that Julia had a right to
file a claim for her own damages even if Megan chose not to pursue a separate claim for
damages. In addressing the waiver argument, the plaintiff claimed there were genuine
issues of material fact as to whether Megan was competent to execute the waiver, whether
Megan had the capacity to understand the waiver, and whether Megan had voluntarily
engaged in unprotected sexual activity. The plaintiff also claimed that there were genuine
disputes regarding whether the waiver was against public policy and whether it clearly and
unequivocally covered the particular circumstances of the case. As to the proximate cause
arguments, the plaintiff claimed that Megan’s engagement in unprotected sexual activity
did not break the chain of causal connection because Megan had not been adequately
informed about Depakote’s risks of birth defects.
¶ 31 While the motions for summary judgment were pending, the plaintiff was granted
leave to amend her complaint. In the eighth amended complaint, the plaintiff reasserted the
14
claims for transferred negligence and negligent supervision. 6 Additionally, the plaintiff
brought medical negligence and transferred negligence claims against Dr. Strobel and his
employer, JWM Neurology (collectively, the Strobel defendants). 7
¶ 32 The Strobel defendants moved to dismiss the claims against them for lack of
personal jurisdiction. They argued that neither Dr. Strobel nor JWM Neurology had
sufficient contacts within the State of Illinois to subject them to the jurisdiction of the
Illinois courts. The motion was supported by affidavits from Dr. Strobel and Herschal F.
Jacquay, executive director of JWM Neurology. Dr. Strobel averred that he did not have
any offices in Illinois, that he did not practice medicine in Illinois, that all of the care he
provided to Megan occurred in Indiana, and that he provided no care to Megan while she
was a resident of NeuroRestorative. Jacquay averred that JWM Neurology was
incorporated in Indiana, and that it maintained several offices in Indiana, but no offices in
Illinois. Jacquay further averred that JWM Neurology had no business connections in
Illinois and did not promote or target advertising in Illinois.
¶ 33 In response, the plaintiff claimed that personal jurisdiction was proper under
subsection (c) of the Illinois long-arm statute (735 ILCS 5/2-209(c) (West 2020)), because
the Strobel defendants purposefully directed their activities in Illinois, and the medical
negligence action against them arose from those activities. The plaintiff argued that Dr.
6
The plaintiff also included the medical negligence/wrongful birth claims against Dr. Fasnacht and
Nurse Melvin that had been previously dismissed by the court. The plaintiff indicated that this was done to
preserve the record.
7
The medical negligence claims against JWM Neurology were based on a theory of vicarious
liability.
15
Strobel prescribed Depakote for Megan without advising her of the risks of serious birth
defects, that he recommended that Megan attend the NeuroRestorative program in Illinois,
and that he knew or should have known that his medical decisions would form the basis
for further treatment in Illinois.
¶ 34 On April 20, 2021, the trial court dismissed all claims against the Strobel defendants
based upon a lack of personal jurisdiction. The court found that the plaintiff failed to make
a prima facie showing that the Strobel defendants had sufficient minimum contacts with
Illinois to satisfy due process concerns.
¶ 35 On November 12, 2021, the trial court entered summary judgment on the transferred
negligence counts in favor Dr. Fasnacht, Rhonda Melvin, R.N., and NeuroRestorative. The
court also entered summary judgment on the negligent supervision counts in favor of the
NeuroRestorative defendant. This appeal followed.
¶ 36 II. ANALYSIS
¶ 37 A. Personal Jurisdiction—The Strobel Defendants
¶ 38 Initially, we consider whether the trial court erred in dismissing the claims against
the Strobel defendants for lack of personal jurisdiction. A plaintiff has the burden to
establish a prima facie basis for exercising personal jurisdiction over a nonresident
defendant. Russell v. SNFA, 2013 IL 113909, ¶ 28. Where, as here, the trial court’s decision
is based solely upon the pleadings and documentary evidence, without an evidentiary
hearing, the decision is reviewed de novo. Russell, 2013 IL 113909, ¶ 28.
¶ 39 The exercise of personal jurisdiction over a nonresident defendant by an Illinois
court is authorized under the Illinois long-arm statute. See 735 ILCS 5/2-209 (West 2020).
16
Subsection (c) of the long-arm statute, commonly referred to as the “catch-all provision,”
provides that a court may exercise jurisdiction “on any other basis now or hereafter
permitted by the Illinois Constitution or the Constitution of the United States.” 735 ILCS
5/2-209(c) (West 2020). Under the “catch-all provision,” the issue is whether a nonresident
defendant’s contacts with Illinois are sufficient to satisfy federal and Illinois due process
standards. Russell, 2013 IL 113909, ¶ 30. The Strobel defendants have not argued that the
Illinois Constitution provides more due process protections than the federal constitution on
the issue of personal jurisdiction. Therefore, we will not consider due process principles
under Illinois law separately from federal due process principles. Russell, 2013 IL 113909,
¶ 33.
¶ 40 Under federal due process principles, a state court may exercise personal
jurisdiction over a nonresident defendant if the defendant has “certain minimum contacts”
with the forum “such that the maintenance of the suit does not offend ‘traditional notions
of fair play and substantial justice.’ [Citation.]” International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945). The “minimum contacts” required for personal jurisdiction differ
depending upon whether general jurisdiction or specific jurisdiction is asserted. Russell,
2013 IL 113909, ¶ 36.
¶ 41 General jurisdiction is considered “all purpose.” Aspen American Insurance Co. v.
Interstate Warehousing, Inc., 2017 IL 121281, ¶ 14. General jurisdiction exists when the
nonresident defendant’s contacts with the forum state are so “ ‘continuous and systematic’
as to render him essentially at home in the forum State.” Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting International Shoe, 326 U.S.
17at 316). When general jurisdiction exists, the plaintiff may pursue a claim against a
defendant even if the defendant’s challenged conduct occurred outside of the forum state.
Aspen American, 2017 IL 121281, ¶ 14.
¶ 42 Specific jurisdiction is “case-specific.” Aspen American, 2017 IL 121281, ¶ 14. It
exists when a plaintiff’s cause of action arises out of or relates to a defendant’s contacts
with the forum state. Aspen American, 2017 IL 121281, ¶ 14. A court may exercise specific
jurisdiction over a nonresident defendant if the defendant has “purposefully directed” his
activities at the forum’s residents and the cause of action arose out of or related to those
activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). There must be
“ ‘some act by which the defendant purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its laws.’ ”
Burger King, 471 U.S. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The
“purposeful availment” requirement protects a nonresident defendant from being brought
into a jurisdiction based on random or attenuated contacts or the unilateral activity of
another person. Burger King, 471 U.S. at 475. Only specific jurisdiction is at issue here.
¶ 43 The record shows that Dr. Strobel was a physician licensed in Indiana, that he was
an employee or agent of JWM Neurology, that his medical office was located in Indiana,
and that his contacts with Megan Farmer occurred at his office in Indiana. The record also
shows that JWM Neurology was an Indiana corporation, that its offices were located in
Indiana, and that it had no offices in Illinois. Herschal F. Jacquay, executive director of
JWM Neurology, submitted an affidavit stating that the Strobel defendants did not target
advertising to Illinois residents or otherwise promote their business in Illinois.
18
¶ 44 There is no evidence indicating that the Strobel defendants had a business
relationship with NeuroRestorative, or that they referred Megan or any other patients to
NeuroRestorative. Jamey Carlson, Megan’s mother, testified that she made the initial
contact and the arrangements for Megan’s admission to the NeuroRestorative program in
Carbondale, Illinois. At Jamey’s request, Dr. Strobel wrote two letters to the Indiana
Medicaid Preauthorization Unit, asking that Indiana Medicaid provide insurance coverage
for Megan’s care at NeuroRestorative. Dr. Strobel treated Megan at his offices in Indiana.
He did not treat Megan while she was at the NeuroRestorative facility in Illinois. He did
not consult with Dr. Fasnacht or any other agent or employee of NeuroRestorative about
Megan’s admission to the program or Megan’s care while she participated in the program.
Additionally, all of the alleged negligence by Dr. Strobel occurred in Indiana.
¶ 45 Based upon this record, the plaintiff failed to make a prima facie showing that the
Strobel defendants had sufficient minimum contacts with Illinois to establish specific
personal jurisdiction. The plaintiff did not establish that the Strobel defendants
purposefully directed their activities toward Illinois residents and that the cause of action
arose out those activities. Accordingly, the trial court did not err in dismissing the claims
against the Strobel defendants for lack of specific personal jurisdiction.
¶ 46 B. Summary Judgment—Transferred Negligence
¶ 47 Next, we consider whether the trial court erred in granting summary judgment in
favor of Dr. Fasnacht and the NeuroRestorative defendants on the transferred negligence
claims filed on behalf of Julia. The plaintiff argues that the trial court improperly applied
the law of transferred negligence, as set forth in Renslow v. Mennonite Hospital, 67 Ill. 2d
19348 (1977), in analyzing those claims. The plaintiff also argues that there are genuine issues
of material fact regarding whether the defendants breached a duty of care to Megan, and
whether that breach was a proximate cause of Julia’s injuries.
¶ 48 Summary judgment is appropriate only when the pleadings, depositions,
admissions, exhibits, and affidavits on file, viewed in a light most favorable to the
nonmoving party, show that there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2020). The
purpose of summary judgment is not to try an issue of fact, but to determine whether a
triable issue of fact exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004).
When considering whether a genuine issue of material fact exists, the court must construe
all pleadings and attachments strictly against the moving party and liberally in favor of the
opposing party. Adams, 211 Ill. 2d at 43. A triable issue exists if there is a dispute
concerning material facts, or, if those facts are undisputed, but reasonable persons might
draw different inferences from the undisputed facts. Adams, 211 Ill. 2d at 43. The trial
court’s ruling on a motion for summary judgment is reviewed de novo. Adams, 211 Ill. 2d
at 43.
¶ 49 To prevail on a cause of action for medical negligence, the plaintiff must establish
the existence of a medical provider/patient relationship, the applicable standard of care
against which the medical professional’s conduct is measured, a deviation from the
standard of care, and a resulting injury proximately caused by the deviation from the
standard of care. Purtill v. Hess, 111 Ill. 2d 229, 241-42 (1986). The standard of care fits
within the duty element of a cause of action, and requires that the medical professional act
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with the same degree of knowledge, skill, and ability as an “ordinarily careful professional”
would act under similar circumstances. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d
278, 294-95 (2000). In a medical negligence case, expert testimony is ordinarily required
to establish the standard of care, the deviation from that standard of care, and proximate
cause. Johnson v. Armstrong, 2022 IL 127942, ¶ 53. Whether a medical professional
deviated from the standard of care and whether that deviation was a proximate cause of the
plaintiff’s injury are questions of fact for the factfinder. Borowski v. Von Solbrig, 60 Ill. 2d
418, 423 (1975).
¶ 50 The Illinois Supreme Court recognized the concept of transferred negligence in
Renslow v. Mennonite Hospital, 67 Ill. 2d 348 (1977). In Renslow, our supreme court held
that a child, not conceived at the time negligent acts were committed against the child’s
mother by medical providers, had a cause of action against those medical providers for
prenatal injuries the child sustained as a result of their negligent conduct. Renslow, 67 Ill.
2d at 357. The Renslow court noted that the law had long recognized that “a wrong done
to one person may invade the protected rights of one who is intimately related to the first.”
Renslow, 67 Ill. 2d at 357. Applying that legal principle, the court found that the medical
providers’ duty to the patient should be transferred to her infant daughter because of the
special, intimate relationship between the infant and her mother and because the injury to
the infant was the direct result of the negligent treatment rendered to the mother. Renslow,
67 Ill. 2d at 357. The court concluded that the child had a right to be born free from prenatal
injuries foreseeably caused by a breach of duty to the child’s mother. Renslow, 67 Ill. 2d
at 357.
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¶ 51 In this case, it is undisputed that a special, intimate relationship existed between
Megan and her daughter, Julia, and that Megan had patient/medical professional
relationships with Dr. Fasnacht and Nurse Melvin. Both owed a duty to use the same degree
of knowledge, skill, and ability that an ordinarily careful health care professional, in his or
her respective field, would exercise under similar circumstances.
¶ 52 The parties do not agree on the proximate cause element of a transferred negligence
claim. Dr. Fasnacht and Nurse Melvin argue that the plaintiff was required to establish that
the defendants breached a duty owed to Megan, that the breach resulted in an injury to
Megan, and that the breach also resulted in an injury to Julia. They further argue that
Megan’s cause of action for “wrongful birth” was dismissed, and that absent a valid cause
of action for Megan, there was no negligence to transfer to Julia. The plaintiff counters that
under Renslow, the plaintiff is required to establish that the defendants breached a duty to
the mother, and that the breach resulted in foreseeable injuries to the child.
¶ 53 The dispute between the parties centers on the nature of the “negligence” that is
being transferred to Julia as the nonpatient third party. The word “negligence” is often used
in the law to mean either (a) the cause of action or theory of liability, including all of its
elements, or (b) the breach of a duty of care. See Johnson v. Armstrong, 2022 IL 127942,
¶ 54. In a transferred negligence claim, it is the breach of the defendant’s duty of care, i.e.,
the act of negligence, 8 that is transferred. The breach of a duty owed to the mother is
8
“Negligence” is defined as “[t]he failure to exercise the standard of care that a reasonably prudent
person would have exercised in a similar situation.” Black’s Law Dictionary 1056 (7th ed. 1999). Our civil
jury instructions provide, “When I use the word ‘negligence’ in these instructions, I mean the failure to do
something which a reasonably careful person would do, or the doing of something which a reasonably
careful person would not, under circumstances similar to those shown by the evidence. The law does not
22
extended to the child because of the special and intimate relationship between mother and
child, and because of a foreseeable injury to the child directly resulting from the negligent
treatment rendered to the mother. Renslow, 67 Ill. 2d at 356-57. To prevail on a claim for
transferred negligence, Julia must establish that the defendants owed and breached a duty
of care to her mother, and that her injuries were a proximate result of that breach of duty.
The child is not required to establish that her mother sustained an injury as a result of the
negligent acts. The child may pursue her claim regardless of whether her mother pursues
her own claim for damages. Unlike a derivative loss-of-consortium claim, a transferred
negligence claim involves a claim for an injury to the child’s person. The child’s injuries
are direct and distinct; they exist apart from any injury to the child’s mother. In addition,
we note that in some cases, a mother may not be able to demonstrate a sufficient or
cognizable personal injury resulting from the negligent care, making an action on the
mother’s behalf unfeasible. That does relieve a defendant from liability for prenatal harm
to the child foreseeably caused by a breach of duty to the child’s mother.
¶ 54 Next, we consider whether the trial court erred in finding there was no breach of
duty to Megan by Dr. Fasnacht and Nurse Melvin. In entering summary judgment, the trial
court indicated it had previously held that there was no breach of duty to Megan, and
therefore, negligence could not be transferred to Julia. In that previous ruling, entered on
March 16, 2017, the trial court found that “wrongful birth” was a distinct cause of action,
say how a reasonably careful person would act under those circumstances. That is for you to decide.” Illinois
Pattern Jury Instructions, Civil, No. 10.01 (approved Dec. 8, 2011). A medical professional’s deviation
from the standard of care or practice constitutes professional negligence. See Illinois Pattern Jury
Instructions, Civil, No. 105.01 (approved June 24, 2020).
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based upon a failure to provide prenatal testing or genetic counseling. The trial court
dismissed Megan’s claims for wrongful birth because the plaintiff did not allege that the
defendants failed to provide genetic counseling or prenatal testing. The trial court made no
findings with regard to the plaintiff’s allegations that Dr. Fasnacht and Nurse Melvin
breached their respective duties of care by improperly prescribing and/or improperly
administering Depakote to Megan. Therefore, the trial court misstated its findings, and
erred in concluding that there was no negligence to transfer to Julia. According to the
record, summary judgment was entered before the deadlines for disclosure of expert
witnesses. Whether Dr. Fasnacht and Nurse Melvin breached their respective duties by
improperly prescribing and/or administering Depakote to Megan, and without adequately
informing her of the Depakote’s risks of birth defects, and whether prenatal exposure to
Depakote was a proximate cause of Julia’s injuries are questions of fact to be decided by
the factfinder, after considering expert testimony. Accordingly, we conclude that the trial
court erred in entering summary judgment in favor of Dr. Fasnacht, Rhoda Melvin, R.N.,
and NeuroRestorative on Julia’s claims for transferred negligence. As to those claims, the
summary judgment is reversed, and the cause is remanded for further proceedings.
¶ 55 C. Summary Judgment—Negligent Supervision
¶ 56 Next, we consider whether the trial court erred in entering summary judgment in
favor of the NeuroRestorative defendants on Megan’s claims for negligent supervision. In
its judgment order, the trial court found that there were no disputed issues of material fact,
and that the NeuroRestorative defendants were entitled to judgment as a matter of law
because Megan voluntarily signed a waiver of liability upon admission to the
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NeuroRestorative rehabilitation program. The court found that Megan was competent to
make her own decisions, including the decision to sign the waiver, and that the waiver was
clear and unambiguous. On appeal, the plaintiff claims that there were genuine issues of
material fact regarding Megan’s capacity to sign the waiver and her ability to understand
the waiver. The plaintiff also argues that there are questions regarding whether the waiver
encompassed the situations and dangers Megan encountered at NeuroRestorative.
¶ 57 Under appropriate circumstances, a person may by contract avoid liability for his or
her negligence. Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 576 (1984). Absent
fraud or willful and wanton negligence, a contract’s exculpatory clause will be valid and
enforceable unless there is a substantial disparity of the parties’ bargaining position, the
social relationship between the parties militates against upholding the clause, or
enforcement of the exculpatory clause would violate public policy. Hawkins v. Capital
Fitness, Inc., 2015 IL App (1st) 133716, ¶ 18. When none of these factors is present, the
question of whether an exculpatory clause will be enforced depends on whether the
defendant’s conduct and the risk of injury inherent in that conduct was of a type intended
by the parties to fall within the scope of the clause. Hawkins, 2015 IL App (1st) 133716,
¶ 18.
¶ 58 Exculpatory clauses are not favored, and courts will closely scrutinize them and
strictly construe them against the party seeking to rely on them, especially when that party
also drafted the waiver. Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378,
396 (1986). Close scrutiny is warranted because when a plaintiff expressly consents to
relieve a defendant of its duty of care, the plaintiff assumes the risk of harm should the
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defendant breach that duty. Larsen, 130 Ill. App. 3d at 576. Foreseeability of a specific
danger is an important element of the risk which a party assumes, and, therefore, serves to
define the scope of an exculpatory clause. Larsen, 130 Ill. App. 3d at 577. An exculpatory
clause should contain clear, explicit, and unequivocal language referencing the type of
activity, circumstance, or situation that it encompasses and for which the plaintiff agrees
to assume the risk. Hawkins, 2015 IL App (1st) 133716, ¶ 19. The parties need not have
contemplated the precise occurrence that results in injury, but the injury must fall within
the scope of possible dangers ordinarily accompanying the activity, and therefore,
reasonably contemplated by the plaintiff. Hawkins, 2015 IL App (1st) 133716, ¶ 19. No
agreement to assume unknown risks shall be inferred. Larsen, 130 Ill. App. 3d at 577.
Whether the particular injury ordinarily accompanies a certain activity and whether the
plaintiff understands and assumes the risk associated with the activity are often questions
of fact, precluding summary judgment. Hawkins, 2015 IL App (1st) 133716, ¶ 20.
¶ 59 The NeuroRestorative admissions agreement at issue provided in pertinent part:
“I voluntarily consent to admission to the NeuroRestorative and to receive such
evaluation and rehabilitation assistance as deemed necessary and appropriate by
NeuroRestorative staff and consulting professionals. I also acknowledge and
understand that I have certain rights and responsibilities as a program participant at
NeuroRestorative and that I will be oriented to these rights and responsibilities by
the appropriate NeuroRestorative staff person(s). ***
NeuroRestorative is interested in the safety of the entire program participants for
whom we provide assistance. In our experience, the use of alcohol and illegal drugs,
unprotected sexual activity, refusal to follow physician orders, leaving a program
unsupervised, or community access prior to receiving necessary orientation and
safety training may result in unsafe situations. While NeuroRestorative can educate,
provide structure, and make recommendations to minimize the likelihood of unsafe
circumstances occurring, we cannot share responsibility when a program participant
26
makes his/her choice to engage in an activity that is contrary to our professional
recommendations or illegal in nature.
In the event that I voluntarily engage in any of the above listed activities, I agree to
release NeuroRestorative from any and all liability for resultant consequences.”
¶ 60 Before turning to the language of the exculpatory clause and waiver, we consider
whether there were disputed issues of material fact as to Megan’s competence and ability
to understand the exculpatory clause and waiver of liability. The ability to comprehend the
nature and effect of entering into a contract is essential to the formation of a valid contract.
Thatcher v. Kramer, 347 Ill. 601, 609-10 (1932). To make a valid contract, each party must
be of sufficient mental ability to comprehend the nature of the transaction and protect his
or her own interest. Thatcher, 347 Ill. at 609-10.
¶ 61 When Megan signed the admissions agreement, she was 25 years old, and she was
not under a legal guardianship. The NeuroRestorative admission notes and the participant
overview profile, completed on or within a week of Megan’s admission, indicated that
Megan was her own guardian, and that Megan’s mother was closely involved in Megan’s
care. The admission notes also indicated that Megan displayed a degree of cognitive
impairment. Staff members testified that on the date of Megan’s admission to the
NeuroRestorative facility, Megan thought she was in Lexington, Louisiana, not
Carbondale, Illinois. According to the admission notes, Megan’s barriers and challenges
included a lack of insight and impairment of executive functioning, reasoning, and
judgment. She was prone to exploitation by peers, easily led, and at risk because of
inadequate personal safety skills. The staff notes indicated that attention should be paid to
“potential issues with male peers.” The NeuroRestorative records also contained a written
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report by Dr. Claudia Kachigian, dated October 21, 2011. In that report, Dr. Kachigian
noted that three months prior to admission, Megan had neuropsychological tests that
indicated severe executive function impairment, disinhibition, and verbal memory
disturbance. Dr. Kachigian’s evaluation demonstrated that Megan was oriented to time and
place, but she displayed impaired judgment and insight.
¶ 62 The record also contains additional medical evidence that sheds light on Megan’s
cognitive status and her ability to understand the waiver of liability and to assume the risks
associated therewith. At the time of Megan’s admission to NeuroRestorative, Nurse Melvin
testified that she did not explain the risks and benefits of Megan’s medications with her
because she did not think Megan was capable of managing her medications on her own.
Dr. Gilbert, a psychiatrist who evaluated and treated Megan during a hospital admission in
October 2007, noted that Megan had no “abstract reasoning whatsoever.” Dr. Gilbert did
not advise Megan about Depakote’s risks because Megan was not able to process the
information at that time. Dr. Gilbert acknowledged that she had no discussions with
Megan’s mother regarding guardianship at the time of Megan’s evaluation. Dr. Gilbert also
testified that she thought that Megan would have needed a guardian and that Megan could
not have made her own decisions about medications. Additionally, Dr. Strobel admitted
that he did not warn Megan or her mother specifically about an increased risk of spina
bifida in the babies of women who took Depakote while pregnant. Dr. Strobel’s records
included a notation in 2006 that Megan “lacks the capacity for decision-making and self-
determination.”
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¶ 63 In this case, there is some evidence indicating that Megan, because of her brain
injury, was incapable of understanding the exculpatory clause and waiver. There is also
evidence that the NeuroRestorative defendants were aware of Megan’s mental condition at
the time Megan signed the agreement containing the exculpatory clause and waiver. Taking
the evidence and all reasonable inferences therefrom in a light most favorable to the
plaintiff, we find that there are genuine issues of material fact regarding whether Megan
had the mental competence and ability to understand the exculpatory clause and waiver of
liability.
¶ 64 There are also genuine questions of material fact regarding the scope of the
exculpatory clause and waiver. In this case, the NeuroRestorative defendants argue that
Megan agreed to release them from “any and all liability for resultant consequences” of
engaging in unprotected sexual activity. The parties agree that pregnancy and sexually
transmitted diseases are ordinary risks of unprotected sexual activity. Megan testified that
she knew about those risks. Nevertheless, Megan repeatedly and adamantly testified that
none of her health care providers, including those at NeuroRestorative, ever informed her
that if she became pregnant while taking Depakote, she was at serious risk of having a child
with major birth defects, including spina bifida. As noted above, Nurse Melvin did not
recall having any conversations specifically about Depakote’s risks. Melvin recalled one
conversation in which she advised Megan that seizure medications can have bad effects on
babies and that if Megan wanted a family, that would need to be planned and closely
monitored by a doctor. That conversation was not documented in Melvin’s assessment
notes. Dr. Fasnacht admitted he did not discuss Depakote’s risks of birth defects with
29
Megan because he presumed that Dr. Strobel had done so. Dr. Strobel admitted that he did
not warn Megan or her mother specifically about an increased risk of spina bifida in the
babies of women who took Depakote while pregnant. Dr. Gilbert testified that she
discussed Depakote’s risks with Megan’s mother because Megan was not able to process
the information.
¶ 65 To enforce an exculpatory agreement, an injury must fall within the scope of
possible dangers ordinarily accompanying the activity, so that the person assuming the risk
has notice of the range of dangers for which she is assuming the risk of injury. The standard
to be applied is subjective and geared toward a particular plaintiff and her situation. Larsen,
130 Ill. App. 3d at 576-77. Under the circumstances of this case, we are unable to hold, as
a matter of law, that the risk of having a child with birth defects was a danger within the
scope of the exculpatory clause. Foreseeability of a specific danger is an important element
of the risk which a party assumes, and no agreement to assume unknown risks will be
inferred. Larsen, 130 Ill. App. 3d at 577.
¶ 66 Finally, the NeuroRestorative defendants also argue that the plaintiff cannot
establish proximate cause because Megan’s engagement in unprotected sexual activity
while on Depakote constituted a superseding and intervening cause of her pregnancy. They
claimed that Megan was informed that she should not engage in unprotected sex while she
was taking Depakote, that she was consulted regarding the need for birth control, and that
she refused birth control. A “superseding cause” is a natural force or act of a third party
that intervenes between the defendant’s tortious conduct and the injury at issue to absolve
the defendant of liability. Thomas v. Khoury, 2021 IL 126074, ¶ 6. In such situations, both
30
the tortious aspect of the defendant’s conduct and the intervening act are causes in fact of
the injury, but for reasons of fairness, the defendant’s conduct is no longer considered a
legal cause. Thomas, 2021 IL 126074, ¶ 5. Not every intervening act amounts to a
superseding cause. An intervening force or act will constitute a superseding cause only
when it is both independent of the defendant’s action, and of such an extraordinary,
unforeseeable nature that the original wrongdoer cannot rightfully be held liable for the
plaintiff’s injuries. Thomas, 2021 IL 126074, ¶ 5; Bentley v. Saunemin Township, 83 Ill.
2d 10, 15 (1980). Whether an intervening act amounts to a superseding cause such that the
defendant’s tortious conduct cannot be deemed a legal cause is a question of fact to be
resolved by the factfinder. Thomas, 2021 IL 126074, ¶ 6. On this record, we find that there
are genuine issues of material fact as to whether Megan was adequately informed of and
understood the risks and consequences of her actions, and whether her acts were reasonably
foreseeable, thereby precluding summary judgment.
¶ 67 III. CONCLUSION
¶ 68 In summary, the trial court properly dismissed the claims against the Strobel
defendants for lack of specific personal jurisdiction. The trial court erred in entering
summary for Dr. Fasnacht, Rhonda Melvin, R.N., and the NeuroRestorative defendants on
Julia’s claims for transferred negligence. The trial court also erred in entering summary
judgment for the NeuroRestorative defendants on Megan’s claims for negligent
supervision. Accordingly, the judgment is affirmed in part and reversed in part, and the
cause is remanded for further proceedings.
¶ 69 Affirmed in part and reversed in part; cause remanded.
31