In re Estate of Allen

• Decision Date: 02 May 2006
• Docket Number: No. 2-04-1205.,2-04-1205.
• Citation: 848 N.E.2d 202
• Parties: In re ESTATE OF Darlene ALLEN, Deceased (Jim Moriarity, as Special Administrator of the Estate of Darlene Allen, Deceased, Plaintiff-Appellant, v. Rockford Health Systems, Inc., d/b/a Rockford Memorial Hospital; Arthur F. Proust; DeWayne Neal; Lorri J. Lee; Emil K. Mosny; and Valeri D. Smith, Indiv. and as Employees of Rockford Health Systems, Inc., Defendants-Appellees).
• Court: United States Appellate Court of Illinois

848 N.E.2d 202

In re ESTATE OF Darlene ALLEN, Deceased (Jim Moriarity, as Special Administrator of the Estate of Darlene Allen, Deceased, Plaintiff-Appellant, v. Rockford Health Systems, Inc., d/b/a Rockford Memorial Hospital; Arthur F. Proust; DeWayne Neal; Lorri J. Lee; Emil K. Mosny; and Valeri D. Smith, Indiv. and as Employees of Rockford Health Systems, Inc., Defendants-Appellees).

No. 2-04-1205.

Appellate Court of Illinois, Second District.

May 2, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Christopher J. Taylor, Byrd & Taylor, Rockford, for Darlene Allen.

Eugene G. Doherty, Holmstrom & Kennedy, P.C., Rockford, for Lorri J. Lee, Emil K. Mosny, DeWayne Neal, Arthur F. Proust, Rockford Health Systems, Inc., Valeri D. Smith.

Justice KAPALA delivered the opinion of the court:

On July 6, 1999, defendant, Dr. Arthur F. Proust, in an attempt to determine the existence of a potentially fatal drug interaction or overdose, ordered the forcible extraction of urine and blood samples from his patient, Darlene Allen. Allen died more than two years later while her suit against the City of Rockford and several police officers under section 1983 of the Civil Rights Act (42 U.S.C. § 1983 (2000)) was pending in federal district court. Thereafter, Allen's estate, through its special administrator, plaintiff Jim Moriarity, sued defendants, Dr. Arthur F. Proust, Rockford Health Systems, Inc., d/b/a Rockford Memorial Hospital, DeWayne Neal, Lorri J. Lee, Emil K. Mosny, and Valeri D. Smith, in the circuit court of Winnebago County, alleging medical battery. Plaintiff claims that defendants failed to obtain consent for the extraction either directly from Allen or indirectly from someone authorized to consent to the treatment for her. The circuit court granted defendants' motion for summary judgment. Plaintiff appeals. We reverse, because we find genuine issues of material fact precluding a holding that the common-law emergency exception to the informed consent rule, which is a defense to an action for medical battery, was applicable as a matter of law.

I. BACKGROUND

After placing Allen under arrest for driving under the influence of drugs, a police officer drove her to Rockford Memorial Hospital, where she signed a consent form for treatment but did not consent to the drug screening test requested by Dr. Proust. After deeming Allen incompetent to consent, Dr. Proust ordered the forcible extraction of blood and urine, as well as the administration of drugs to counteract a possible overdose. After being treated by Dr. Proust, Allen was discharged into police custody. Allen subsequently filed a section 1983 action in United States District Court against the City of Rockford, Officer Taylor, and Officer Taylor's supervisor, as well as supplemental state-law tort claims against the City of Rockford, the police officers, and numerous hospital personnel. On September 12, 2001, while summary judgment briefing was pending in that case, Allen died, and thereafter plaintiff was substituted as the named plaintiff. The district court granted summary judgment in favor of the City of Rockford and the two police officers, and refused to exercise supplemental jurisdiction over the state-law claims against defendants. Estate of Allen v. City of Rockford, No. 99-C-50324, 2002 WL 426117 (N.D.Ill.2002), aff'd, 349 F.3d 1015 (7th Cir.2003). Plaintiff then filed a medical-battery claim against defendants in the circuit court of Winnebago County.

The complaint contained the following allegations. The police brought Allen to Rockford Memorial Hospital against her will, and defendants desired to take samples of Allen's blood and urine, "ostensibly to check her welfare, but actually motivated by the desire to assist the police." Allen refused the requests of Dr. Proust and the medical personnel to provide blood and urine samples. Employees of defendant Rockford Health Systems, by use of force and against Allen's will, obtained blood and urine samples. The actions of these employees constituted a battery. Dr. Proust ordered the employees to batter Allen and, therefore, was accountable and responsible.

In their motion for summary judgment, defendants took the position that the emergency exception to the requirement of informed consent to medical treatment was applicable. In support of their motion, defendants attached as exhibits a transcript of Dr. Proust's deposition testimony, Dr. Proust's dictated report of his treatment of Allen (Emergency Department Report), the emergency department record from July 6, 1999, and an excerpt from Allen's deposition. Dr. Proust testified to the following facts during his deposition.

He is board certified in emergency medicine and was on duty at the emergency department of Rockford Memorial Hospital from 9 p.m. July 5, 1999, to 6 a.m. July 6, 1999. Allen was brought to the emergency room at Rockford Memorial Hospital at an unknown time on July 6, 1999, by Officer Taylor of the Rockford police department. Allen signed a form indicating her consent to be treated. According to the patient's chart, Dr. Proust first saw Allen at 2:45 a.m. when he walked into a room where Allen was being verbally abusive to staff and was being restrained by security. Also present were Officer Taylor, a paramedic technician, a nurse, and a certified nurse aide. Dr. Proust had a conversation with the police officer, the nurses, and Allen, but not necessarily in that order. Officer Taylor indicated that Allen was driving her vehicle on a bike path when she struck a tree and left her bumper behind. Officer Taylor also told Dr. Proust that Allen was driving on the wrong side of the road at about 5 miles per hour when she was pulled over by police. The Breathalyzer test administered to Allen in the field was negative. Officer Taylor told Dr. Proust that Allen had with her a bottle of medication called Soma, which was prescribed to Allen's sister. Later in his deposition, Dr. Proust explained that Soma is a muscle relaxant that causes central nervous system depression. Seven tablets of the original twenty tablets remained in the bottle. The prescription had been filled the previous day, and if the person for whom the pills were prescribed had been taking them as directed, nine tablets were unaccounted for.

The triage nurse's report that Dr. Proust read indicated that Allen's vital signs were stable, but that her blood pressure was borderline low. A triage note made at 1:15 a.m. indicated that Allen took two Soma at, she "thinks[,] 2300," that is 11 p.m. The triage notes also indicated that "[p]atient brought in by police—unable to ambulate straight and steady" and "[n]ot oriented to time and date." Allen was uncooperative and did not respond to Dr. Proust's questions, including why some of the Soma pills were missing. Allen was intermittently alert and sleepy, was intermittently aggressive with staff, and had slurred speech. As to his indication in the Emergency Department Report that Allen was oriented to person, time, and place, Dr. Proust said that he called out Allen's name and she responded, he asked her if she knew where she was and she said "Rockford Memorial Hospital," he asked her if she knew what the date was and she said it was "July 1999." Dr. Proust could not remember at what point during his evaluation of Allen he asked her those questions, but he indicated that Allen did not respond to those questions right away.

Based on Allen's slurred speech, uncooperativeness, and intermittent sleepiness and aggressiveness, Dr. Proust became concerned that Allen had ingested other drugs in addition to the Soma. Dr. Proust said, at first, defendant would not admit to taking anything other than two Soma. Dr. Proust testified, "I have to assume the worst when I see a patient and I see a pill bottle that doesn't have all the medication it should have. And that's [sic] our job is to assume the worst and [to evaluate] what is the worst thing that could be happening with the patient, is it an overdose[?], is that a reason for impairment, et cetera[?], and to take or try to take proper action." Dr. Proust agreed that he indicated in the Emergency Department Report that the "[p]atient refused to cooperate with drug screen and alcohol level. She was advised that because of her impaired driving, as well as the fact that [there] were a number of missing Soma, as well as the possibility of other drug usage due to her somnolence and slurred speech, it was necessary to do a drug screen." After Dr. Proust explained to Allen that he needed to know what she had ingested in order to treat her properly, she refused to tell him. Dr Proust explained to Allen that he needed a urine sample. Allen did not verbally refuse to give a urine sample but, rather, refused by attempting to get up and walk away. Allen could not balance and was unable to walk. Dr. Proust asked Allen why she was resisting, but Allen did not answer. Dr. Proust made the determination that Allen was not competent to refuse medical treatment. Dr. Proust explained that Allen was restrained because she was "delirious, intoxicated," and clawing, punching, kicking, and spitting at the staff, and could have hurt herself or a staff member. Dr. Proust gave the instruction to catheterize Allen to obtain a urine sample, to draw blood, and to administer the drugs Narcan and Actidose. These instructions were carried out by the emergency department nurses.

Dr. Proust was concerned with the possibility of Allen losing consciousness and losing control of her airway. As an example, Dr. Proust explained that if Allen took an overdose of tricyclic medication, she could suddenly lose consciousness, lose blood pressure, not control her airway, and possibly aspirate if she vomited. Dr. Proust said that if he did not test for it, and she had taken a tricyclic, even though he might be observing her, he might intervene too late. When asked if his examination of Allen was indicative of a...