Dienna Lash v. Sparta Community Hospital

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2778
DIENNA M. LASH, as Administrator of the Estate of
GLENN LASH, deceased,
Plaintiff-Appellant,
v.
SPARTA COMMUNITY HOSPITAL DISTRICT,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 18-cv-1466 — Mark A. Beatty, Magistrate Judge.
____________________
ARGUED MAY 16, 2022 — DECIDED JUNE 22, 2022
____________________
Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Glenn Lash, an obese, sixty-year-old
man with a remote history of smoking, went to Sparta
Community Hospital District (“Sparta hospital”) with
complaints of shortness of breath and recent chest discomfort.
The doctor diagnosed him with an “anxiety reaction.” Lash
died the next evening of a heart attack. His widow, Dienna
Lash, sued the hospital for the alleged negligent acts of its
2 No. 21-2778
agents. The district court granted summary judgment for
Sparta hospital. We affirm.
I. Background
Glenn Lash was a sixty-year-old, obese man with a remote
history of smoking and high blood pressure. He was traveling
from Pennsylvania to Sparta, Illinois for a trap-shooting event
when he experienced shortness of breath and chest discom-
fort. He decided to go to Sparta hospital, a hospital operating
under the Illinois Hospital District Act, after the shortness of
breath had worsened. There, the hospital staff took Lash’s vi-
tals, which were “abnormal,” so a nurse ordered an EKG,
blood work, and a chest x-ray. The test results revealed no
signs of a previous heart attack, but his white blood cells and
blood sugar were slightly elevated, suggesting a cardiac
event. Based on his chest x-ray, Dr. Robert Panico identified
mild congestive failure—a condition where the heart muscle
does not properly pump blood—and an enlarged right hilum,
a part of the lung. He recommended a CT scan to rule out a
mass. Dr. Haresh Motwani, the main physician responsible
for treating Lash, diagnosed an “anxiety reaction” and pre-
scribed some medications and instructions for treatment. Nei-
ther Dr. Motwani nor the nurses informed Lash of his conges-
tive heart failure prior to his discharge—nor that an enlarged
right hilum could mean heart failure or cancer. One nurse
mentioned only that Lash was seen for an “anxiety reaction.”
The next evening, Lash went into cardiac arrest. He was
taken to the emergency room, where he was pronounced
dead.
Dienna Lash filed a complaint, on behalf of her husband,
alleging medical malpractice against Dr. Motwani and Dr.
No. 21-2778 3
Panico, 1 as well as vicarious liability against the hospital
based on the actions of its agents and alleged violations of in-
formed consent. See 28 U.S.C. § 1332. She alleged that Dr. Mot-
wani and the medical staff learned of Glenn Lash’s comorbid-
ities ahead of diagnosis, age, shortness of breath, and chest
discomfort; that Dr. Motwani and the staff performed tests re-
vealing hypertension, an elevated white blood cell count, and
a hilar enlargement; and that Dr. Motwani was negligent by
not including acute cardiopulmonary disease in his diagnosis.
Sparta hospital and Dr. Motwani moved for summary judg-
ment together. The district court granted the motion for
Sparta hospital and denied the motion for Dr. Motwani. Dr.
Motwani later settled the case and was dismissed from the
lawsuit with prejudice pursuant to the terms of the settlement
agreement. Lash appeals only the claims against Sparta hos-
pital.
II. Discussion
Lash seeks to hold Sparta hospital liable on two theories:
(1) vicarious liability based on the negligence of its agents, Dr.
Motwani and the nursing staff, 2 and (2) direct liability for not
providing informed consent. See Birch|Rea Partners, Inc. v. Re-
gent Bank, 27 F.4th 1245, 1251 (7th Cir. 2022) (“A federal court
sitting in diversity applies state substantive law and federal
procedural law.”); cf. Chi. Sch. of Automatic Transmissions, Inc.
1 Dr. Panico separately moved for summary judgment, without opposition
from Lash, which the district court granted.
2 Sparta hospital disputes that Lash ever pleaded a theory based on the
negligent acts of the nursing staff. We assume with skepticism that Lash
did so because, as explained below, she cannot overcome the hospital’s
immunity defense.
4 No. 21-2778
v. Accreditation All. of Career Schs. & Colls., 44 F.3d 447, 449 (7th
Cir. 1994) (comparing a federal court sitting in diversity juris-
diction to being “a ventriloquist’s dummy”). We review a
grant of summary judgment de novo and draw all reasonable
inferences in favor of the nonmovant. Lewis v. Indiana Wesleyan
Univ., No. 21-2327, 2022 WL 2093087, at *2 (7th Cir. June 10,
2022). Summary judgment is appropriate if “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists
when the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Weaver v. Speedway, LLC,
28 F.4th 816, 820 (7th Cir. 2022) (internal quotation marks
omitted) (quoting Carmody v. Bd. of Trs. of Univ. of Ill., 893 F.3d
397, 401 (7th Cir. 2018)).
A. The Illinois Tort Immunity Act
Sparta hospital raises various arguments and affirmative
defenses to rebut Lash’s vicarious-liability theory. We focus
on one, the Illinois Tort Immunity Act. Section 6-105 of the Act
provides that “a local public entity,” such as Sparta Hospital,
is not 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. Section 6-106(a) largely repeats this
provision:
No. 21-2778 5
Neither a local public entity nor a public employee act-
ing within the scope of his employment is liable for in-
jury 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.
Id. 10/6–106(a). Section 6-106(d), however, states that the Act
does not “exonerate[]” an entity for an “injury proximately
caused by [an employee’s] negligent or wrongful act or omis-
sion in administering any treatment prescribed for mental or
physical illness or addiction.” Id. 10/6–106(d).
In short, local public entities enjoy immunity from liability
based on an employee’s negligent “diagnosis,” not negligent
“treatment.” See Mich. Ave. Nat. Bank v. County of Cook, 732
N.E.2d 528, 535–37 (Ill. 2000); Johnson v. Bishof, 33 N.E.3d 624,
640 (Ill. App. Ct. 2015). If the “gravamen” of a claim—that is,
its essence or most serious part—concerns an employee’s di-
agnosis, then the entity cannot be liable. Willis v. Khatkhate,
869 N.E.2d 222, 229 (Ill. App. Ct. 2007). Conversely, if the “gra-
vamen” involves a treatment for a diagnosed injury, then im-
munity does not attach; the plaintiff’s claim can procced. Id.The words “diagnosis” and “treatment” are afforded their
plain meanings. Mich. Ave., 732 N.E. at 538–39. A diagnosis is
“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.’” Id. at 538
(quoting Webster’s Third New International Dictionary 622
(1993)). A treatment is “the action or manner of treating a pa-
tient medically or surgically.” Id. at 539 (quoting Webster’s
Third New International Dictionary 2,435).
6 No. 21-2778
Lash’s claim concerns an improper diagnosis. The hospital
staff attended to Glenn Lash, an obese, older man with a
history of smoking with complaints of chest pains; performed
multiple diagnostic tests, including an x-ray and vital checks;
diagnosed him with anxiety; prescribed medication for
anxiety; and finally, gave discharge instructions related to
that diagnosis of anxiety. All these measures indicate the staff
made only an incorrect diagnosis. Indeed, at no point did
anyone at the hospital diagnose Lash with acute
cardiopulmonary disease—the disease that proved fatal for
him—much less administer treatment for his heart condition.
Lash’s own complaint undermines her claim. It takes issue
with the “testing performed by Motwani and the staff.” But
the word “testing” relates to a “diagnosis.” A “test” is per-
formed to identify a particular disease. Additionally, the com-
plaint continuously refers to choices “not to include acute car-
diopulmonary disease in his differential diagnosis,” among
other similarly worded phrases, such as “failed to address,”
“failed to consider,” and “failed to recognize.”
The Illinois Appellate Court’s decision in Mabry v. County
of Cook, 733 N.E.2d 737 (Ill. App. Ct. 2000), closely guides our
analysis. There, Ada Pinkson went to the hospital with
dizziness and shortness of breath. Id. at 739. Her vitals were
troubling, and she had numerous other ailments. Id. She
received a chest x-ray that revealed some soft tissue density
in the right hilum, much like Lash, which the doctor
attributed to a problem with her lymph nodes. Id. The
diagnosis was an asthma attack. Id. at 739–40. The doctors
listed the asthma diagnosis, filled out a treatment plan, and
prescribed an anti-inflammatory drug. Id. at 740. The doctors
even noted the possibility of a heart attack and advised her to
No. 21-2778 7
follow-up. Id. But the diagnosis was wrong; Pinkson died
shortly after of a pulmonary embolism. Id. at 741. The state
appellate court rejected Mabry’s argument that the doctors
mistreated Pinkson and, in doing so, determined that the
hospital was immune under state law. The court noted the
facts indicated some treatment of the symptoms, but that
treatment solely related to the asthma diagnosis. See id. at 745.
Overall, the doctors diagnosed “only asthma,” and they
“never considered a pulmonary embolism and never
prescribed a course of treatment for a pulmonary embolism.”
Id. at 746. Thus, the plaintiff could never recover for any
misdiagnosis of the heart condition. Our case is nearly
indistinguishable: Glenn Lash arrived at a hospital with heart-
attack symptoms; an x-ray was performed; he, too, had a
history of risk factors; and the doctor made a misdiagnosis.
Like in Marby, immunity bars any suit against the hospital.
Lash attempts to save this claim by arguing that Dr. Mot-
wani, in his deposition, claimed that he diagnosed an “anxiety
reaction” and “lymphadenopathy,” the swelling of the lymph
nodes. Thus, putting aside the anxiety reaction, the doctors
and nurses were still negligent in treating the lymphadenopa-
thy. Even accepting that an ex-post answer to deposition tes-
timony adds an additional diagnosis, it still does not address
the fact that the doctors and nurses failed to properly diag-
nose the acute cardiopulmonary disease that caused Glenn
Lash’s sudden death. See Johnson, 33 N.E.3d at 643 (conclud-
ing there was no liability where “[d]efendants treated plaintiff
for her signs and symptoms but consistently diagnosed those
signs and symptoms as muscle spasm and back/buttock con-
tusion, not spinal cord injury”). And follow-up visit instruc-
tions, as given to the patient here, do not constitute “treat-
ment.” See Mich. Ave., 732 N.E.2d at 532, 542 (determining that
8 No. 21-2778
“[t]here is no indication in the record that Dr. Ali rendered
treatment to Collins in February 1987,” even though Dr. Ali
“recommended that Collins return to the hospital’s Family
Planning Clinic in three months and to the Gynecological
Clinic in one year”).
In short, Lash has not provided any evidence that a prob-
lem with the lymph nodes relates to the ultimately fatal heart
condition. Thus, Sparta Hospital is immune under the Illinois
Tort Immunity Act for the alleged negligent acts of its doctors
and nurses.
B. Informed Consent
To prevail on an informed-consent complaint, the plaintiff
must establish “(1) the physician had a duty to disclose
material risks; (2) he failed to disclose or inadequately
disclosed those risks; (3) as a direct and proximate result of
the failure to disclose, the patient consented to treatment [he]
otherwise would not have consented to; and (4) plaintiff was
injured by the proposed treatment.” Crim ex rel. Crim v.
Dietrich, 67 N.E.3d 433, 438–39 (Ill. App. Ct. 2016) (quoting
Davis v. Kraff, 937 N.E.2d 306, 314–15 (Ill. App. Ct. 2010)). In
essence, a plaintiff must “point to significant undisclosed
information relating to the treatment which would have
altered her decision to undergo it.” Coryell v. Smith, 653
N.E.2d 1317, 1319 (Ill. App. Ct. 1995). The claim here fails for
similar reasons as above. Glenn Lash never received any
treatment and, thus, no doctor could have failed to disclose
information that might have changed his decision. See, e.g.,
Davis, 937 N.E.2d at 314 (plaintiff would have not undergone
LASIK theory with better consent); Coryell, 653 N.E.2d at 1318(no informed consent about the problems related to back
surgery).
No. 21-2778 9
III. Conclusion
For these reasons, we affirm the judgment of the district
court.