Childs v. Pinnacle Health Care LLC

• Decision Date: 03 May 2010
• Docket Number: No. 2-09-0648.,2-09-0648.
• Citation: 926 N.E.2d 807,339 Ill.Dec. 332,399 Ill.App.3d 167
• Parties: Jeannie CHILDS, as Independent Administrator of the Estate of Dorothy Jones, Deceased, Plaintiff-Appellant,v.PINNACLE HEALTH CARE, LLC; Trust 26-6859; Trust 8002347755; Mark Tucci; Daisy Andaleon; Doctor's Office of Zion; Barry J. Gans; Eric Rothner; Mary J. Claussen; and Mary Ann Gedvilas, Defendants (Carolyn English, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 167

926 N.E.2d 807

339 Ill.Dec. 332

Jeannie CHILDS, as Independent Administrator of the Estate of Dorothy Jones, Deceased, Plaintiff-Appellant,v.PINNACLE HEALTH CARE, LLC; Trust 26-6859; Trust 8002347755; Mark Tucci; Daisy Andaleon; Doctor's Office of Zion; Barry J. Gans; Eric Rothner; Mary J. Claussen; and Mary Ann Gedvilas, Defendants (Carolyn English, Defendant-Appellee).

No. 2-09-0648.

Appellate Court of Illinois,

Second District.

March 17, 2010.

Rehearing Denied May 3, 2010.

COPYRIGHT MATERIAL OMITTED

Robert G. Black, Law Offices of Robert G. Black, Naperville, IL, David G. Pribyl, Marien Zalduondo, Salvi, Schostok & Pritchard, P.C., Waukegan, IL, for Jeannie Childs.

Marc Altenbert, Cassiday Schade LLP, Libertyville, IL, for Daisy Andeleon M.D., Pinnacle Health Care, LLC, Mark Tucci.

Donald J. Morrison, Morrison & Morrison, P.C., Waukegan, IL, for Doctor's Office of Zion.

Jeffrey S. Pavlovich, Shannon F. O'Shea, Mark L. LeFevour, Leahy, Eisenberg & Fraenkel, Ltd., Joliet, for Carolyn English R.N.

Jeffrey M. Brown, Ashman & Stein, Chicago, IL, for Mary L. Claussen, Mary Ann Gedvilas, Eric Rothner.

Justice HUDSON delivered the opinion of the court:

Plaintiff, Jeannie Childs, as independent administrator of the estate of Dorothy Jones, deceased, filed a multiple-count complaint against various entities and individuals, including Pinnacle Health Care, LLC (Pinnacle) and registered nurse Carolyn English. Prior to her death, Jones was a resident at Pinnacle's nursing home in Waukegan, Illinois, where English was the director of nursing. The trial court dismissed with prejudice counts XXIII, XXIV, and XXV of plaintiff's complaint, all of which were directed against English. The court reasoned that plaintiff's allegations were limited to English's role as the director of nursing for Pinnacle; that, although titled otherwise, the three counts were premised on the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2008)); and that only licensees and owners of nursing homes can be held liable pursuant to the Nursing Home Care Act (see 210 ILCS 45/3-601 (West 2008)). In this appeal brought pursuant to Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)), plaintiff asserts that the counts against English were improperly dismissed, because they stated causes of action for professional negligence pursuant to section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 2008)), commonly referred to as the Healing Arts Malpractice Act. Alternatively, plaintiff asserts that the trial court abused its discretion in dismissing with prejudice the three counts against English. For the reasons that follow we reverse the judgment of the trial court and remand the matter for further proceedings.

I. BACKGROUND

According to plaintiff's complaint, Jones was born on October 26, 1947. As a result of multiple sclerosis, Jones was rendered nonambulatory, and she became a resident of Pinnacle's long-term care facility in Waukegan, Illinois, on July 26, 2002. When Jones began residing at Pinnacle's facility, she had no skin impairment. However, skin assessments administered by Pinnacle personnel between January 20, 2005, and October 4, 2006, categorized Jones to be at high risk for developing pressure sores. During Jones's residency at Pinnacle's facility, she developed 16 pressure sores, including seven stage IV decubitus ulcers, one stage III decubitus pressure sore, one stage II decubitus pressure sore, and one pressure sore that was categorized as “unstageable.” By October 4, 2006, the pressure ulcers had become infected and progressed to more serious stages, including bleeding from a sacral decubitus ulcer, necessitating Jones's transfer from Pinnacle's facility to Victory Memorial Hospital. Upon her admission, the hospital documented Jones's injuries to include: (1) a sacral pressure ulcer so large, deep, and infected that liquid stool was seeping out of her vagina; (2) a scalp pressure ulcer that appeared to reach down to the skull; (3) a left leg pressure ulcer that exposed Jones's tendons; and (4) pressure ulcers on Jones's ears, which exposed cartilage. Moreover, prior to Jones's transfer from Pinnacle's facility on October 4, 2006, she had developed multiple severe urinary tract infections, symptoms of recurrent infection with yellow-green sputum production, and severe respiratory problems. Jones died from respiratory failure on October 6, 2006.

On August 3, 2007, plaintiff (Jones's daughter) was appointed the independent administrator of Jones's estate. On February 11, 2008, plaintiff filed the complaint at issue. As noted above, three counts were directed against English. Those counts were styled as “Medical Malpractice” (count XXIII), “Wrongful Death” (count XXIV), and “Funeral and Burial Expenses” (count XXV). Count XXIII was brought by plaintiff under the provisions of the Illinois survival statute (755 ILCS 5/27-6 (West 2008)), while counts XXIV and XXV were premised upon provisions of the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2008)).

All three counts stated that English, a registered nurse, was, “[a]t various times relevant,” Pinnacle's director of nursing. Plaintiff asserted that on or prior to October 4, 2006, and at all times relevant, English knew or should have known that Jones was at a high risk for skin breakdown, pressure sores and infections therefrom, urinary tract infections, and respiratory problems. Plaintiff alleged that English “had a duty to provide nursing and nursing home services consistent with the standard of care for like institutions and medical treatment providers when treating residents and patients similar to [Jones].” Paragraph 16 of each count alleged that English breached her duty and was negligent in that she committed one or more of the following acts or omissions:

“a. failed to hire qualified and experienced nursing staff to provide appropriate care and treatment to DOROTHY JONES during her residency pursuant to the state and federal regulations governing nursing home residents;

b. failed to ensure that the medical and nursing services provided to DOROTHY JONES met the applicable regulations policies, procedures and standards for overall quality of care;

c. failed to ensure the safety and welfare of DOROTHY JONES pursuant to the state and federal regulations governing nursing home residents;

d. failed to evaluate, monitor and supervise the overall quality of healthcare being provided by the attending physician, nursing staff and other medical personnel pursuant to the state and federal regulations governing nursing home residents;

e. failed to demonstrate a personal effort to improve the overall quality of care being provided to DOROTHY JONES by the medical and nursing staff during her residency;

f. failed to ensure that the nursing staff implemented a care plan that addressed the specific measures necessary to treat a highly complex, total-care resident like DOROTHY JONES;

g. failed to ensure that the medical and nursing staff provided adequate monitoring and care to prevent the development and worsening of numerous infected decubitus ulcers, pursuant to the state and federal regulations governing nursing home residents;

h. failed to ensure that the nursing staff appropriately assessed, monitored and consistently documented the status of DOROTHY JONES' skin, wounds and clinical condition during her residency pursuant to the state and federal regulations governing nursing home residents;

i. failed to monitor and timely obtain treatment orders for infections pursuant to the state and federal regulations governing nursing home residents;

j. failed to recommend that the appropriate medical consultants were consulted when DOROTHY JONES' pressure sores continued to worsen;

k. failed to ensure that DOROTHY JONES' skin remained free of pressure sores throughout her residency as it was upon her admission to PINNACLE HEALTHCARE, pursuant to the state and federal regulations governing nursing home residents;

l. failed to ensure that the nursing staff notified the physician and family members of other significant changes in DOROTHY JONES' clinical condition throughout her residency;

m. failed to ensure that the nursing staff followed physician orders and administered medications and treatments as ordered pursuant to state and federal regulations governing nursing home residents;

n. failed to ensure that the nursing staff was providing appropriate care to DOROTHY JONES' PEG tube stoma site in order to prevent infections;

o. failed to ensure that the nursing staff kept the head of the bed at an appropriate level in order to prevent aspiration pneumonia and other respiratory problems;

p. failed to ensure that DOROTHY JONES was properly medicated for pain pursuant to the state and federal regulations governing nursing home residents;

q. failed to evaluate and address the continued appropriateness of DOROTHY JONES' medical regime during her residency and change the plan of care as needed; [and]

r. failed to ensure that the nursing staff followed proper nursing policy and procedures for performing gastrostomy feedings.”

The counts further alleged that as a direct and proximate result of one or more of the foregoing acts or omissions of English, Jones suffered injuries of a personal and pecuniary nature, including, but not limited to, pain and suffering, disability and disfigurement, and medical and related expenses.

Attached to plaintiff's complaint were various certificates for “an Action in Medical Malpractice Pursuant to 735 ILCS 5/2-622.” See 735 ILCS 5/2-622 (West 2008). Relevant here is a certificate signed by Patricia Bawcum, a licensed registered nurse. Bawcum opined that there existed a meritorious basis for filing an action against English. Regarding the specific acts or omissions allegedly committed by English, Bawcum set forth allegations of negligence essentially identical to those in paragraph 16 of counts XXIII, XXIV, and XXV of plaintiff's complaint. Bawcum...