Johnson v. Bishof
| Decision Date | 13 March 2015 |
| Docket Number | No. 1–13–1122.,1–13–1122. |
| Parties | Koni JOHNSON, Plaintiff–Appellant, v. Christine Pabin BISHOF, M.D., Individually and as an Agent and/or Employee of Cook County, d/b/a John H. Stroger, Jr., Hospital; Cook County, d/b/a John H. Stroger, Jr., Hospital, by and Through its Agent and/or Employee, Christine Pabin Bishof, M.D.; Jonathan Bankoff, M.D., Individually and as an Agent and/or Employee of Cook County, d/b/a John H. Stroger, Jr., Hospital; and Cook County, d/b/a John H. Stroger, Jr., Hospital, by and Through its Agent and/or Employee, Defendants–Appellees. |
| Court | United States Appellate Court of Illinois |
Power Rogers & Smith, P.C., of Chicago (Joseph A. Power, Jr., and Carolyn Daley Scott, of counsel), for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Patrick T. Driscoll, Jr., Jeffrey McCutchan, and Sandra J. Weber, Assistant State's Attorneys, of counsel), for appellees.
delivered the judgment of the court with opinion.
¶ 1 Plaintiff Koni Johnson filed an action against defendants Christine Pabin Bishof, M.D., Jonathan Bankoff, M.D., and the County of Cook, doing business as John H. Stroger, Jr., Hospital (the county) alleging negligence, negligent infliction of emotional distress and violation of the Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C. § 1395dd (2012)
) in defendants' diagnosis and treatment of her in the emergency room of John H. Stroger, Jr., Hospital (Stroger Hospital). The court entered summary judgment for defendants on all counts asserted against them in plaintiff's fifth amended complaint. On appeal, plaintiff argues the court erred in granting summary judgment on (1) counts I and III, as defendants are not immune from liability under sections 6–105 and 6–106 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/6–105, 6–106 (West 2012)) (Tort Immunity Act) for their negligence in failing to appropriately treat her, (2) counts II and IV, as defendants are not immune from liability under the Tort Immunity Act for their negligent infliction of emotional distress on her and (3) count V, as questions of fact exist regarding whether she was given a medical screening examination within defendants' capability to provide and was stabilized before being discharged from the emergency room as required by EMTALA. We affirm.
¶ 3 This appeal concerns the trial court's grant of summary judgment to defendants on plaintiff's fifth amended complaint sounding in medical negligence, negligent infliction of emotional distress and violation of EMTALA.1 Plaintiff filed the complaint in September 2009, directing counts I through V at defendants and counts VI through VIII at four codefendants. Only the five counts directed at defendants are at issue here.
¶ 4 In the complaint, plaintiff stated that she presented to the emergency room at Stroger Hospital, a hospital owned and operated by the county, on or about March 4, 2007, complaining of back spasms, numbness in her right lower extremity, cramping in her right thigh and severe pain in her back. Plaintiff had slipped on ice the previous day. She did not have medical insurance. Plaintiff alleged she was seen by Drs. Bishof and Bankoff, emergency room physicians at the hospital and agents and/or employees of the county. She asserted she complained to Drs. Bishof and Bankoff that her leg was numb, it felt like her leg was getting weak and she could not move her toes. Before being discharged from the emergency room, she claimed she could not walk. She alleged that Drs. Bishof and Bankoff “did not perform a proper initial medical screening examination” on her, “ordered a Computerized Axial Tomography
(CAT scan ) only upon [her] insistence” and “failed to screen and treat [her] for a spinal cord injury.” Plaintiff claimed Drs. Bishof and Bankoff accused her “of faking her injuries” and discharged her with Valium and a diagnosis of muscle spasm and did not give her any follow-up information or instructions upon discharge. She asserted that Drs. Bishof and Bankoff “had the duty to possess and apply the knowledge and use the skill of a reasonable well qualified emergency room physician under the same or similar circumstances.” Plaintiff also stated that, on March 5, 2007, she presented to the emergency room at Lincoln Park Hospital, from which she was discharged with a diagnosis of “numbness, possibly fictitious,” and she then returned to the emergency room at Stroger Hospital, complaining of the inability to move her legs. She was diagnosed at Stroger Hospital with a spinal cord contusion and paralysis on March 6, 2007.
¶ 5 In counts I and III of plaintiff's fifth amended complaint, she asserted negligence claims against defendants. She claimed she suffered permanent injuries and lost earnings as a proximate result of defendants' negligent failure to do one or more of the following: “(1) properly perform an initial medical screening examination; (2) properly screen her for her signs and symptoms; (3) properly treat her for her signs and symptoms; (4) properly treat her for a spinal cord injury
; (5) properly consult with a neurologist or neurosurgeon for her signs and symptoms; or (6) refer her to a neurologist or neurosurgeon for treatment of her signs and symptoms.”2
¶ 6 In counts II and IV, plaintiff asserted negligent infliction of emotional distress against defendants, alleging the same negligent acts and omissions as set forth in her negligence counts. She claimed she suffered and will continue to suffer permanent injuries, lost earnings and “severe mental and emotional anguish due to her injuries” as a proximate result of one or more of the negligent acts or omissions.
¶ 7 In count V, plaintiff asserted the county “had a duty to provide for an appropriate medical screening for [her] within the capability of [Stroger Hospital's] emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition existed” and that it failed to provide her with an appropriate medical screening examination within the capability of the hospital's emergency department. She asserted the county was negligent in failing to (1) properly perform an appropriate medical screening examination pursuant to EMTALA or (2) properly stabilize, treat, and refer her to a neurologist or neurosurgeon in violation of EMTALA. Plaintiff sought damages for the permanent injuries she suffered as a proximate result of these negligent acts or omissions and for the severe mental and emotional anguish she allegedly suffered and will continue to suffer due to those injuries.
¶ 8 Defendants answered, denying the allegations. They filed affirmative defenses, asserting that, as a “local public entity” and employees of that public entity acting within the scope of their employment, they were immune from liability for any injury which may have been caused to plaintiff by their failure to diagnose or treat her condition pursuant to sections 6–105 and 6–106(a) of the Tort Immunity Act (745 ILCS 10/6–105
, 6–106(a) (West 2012)).3 The parties then conducted extensive discovery.
¶ 9 In plaintiff's discovery deposition, she testified that she slipped on a patch of ice on March 3, 2007, and fell flat on her back. The next day, she went to the emergency room at Stroger Hospital, complaining of back spasms, legs tingling and back pain. Dr. Bishof examined her but plaintiff could not recall what examinations Dr. Bishof performed. At some point, plaintiff received intravenous infusions of Valium
and morphine for her pain and two X-rays were taken of her back. Plaintiff was then examined by Dr. Bankoff.
¶ 10 Plaintiff testified that Dr. Bankoff told her there was “nothing wrong” with her and she had to “get out of here.” He stated “I don't know that you think you're up to” and told her “you're lying, you're faking.” Plaintiff stated that, by this time, many hours after she first arrived in the emergency department, she could not walk but “they wouldn't listen to [her].” Plaintiff testified that Dr. Bankoff “kept insisting” that there was nothing wrong with her and that she could stand. He told her to stand and she “said no, I can't stand, no, I can't.” He did not believe her when she said she could not stand. With plaintiff's boyfriend on one side and Dr. Bankoff on the other, they took plaintiff by the arms and stood her up. Dr. Bankoff then told her boyfriend “to let go,” which he did, and plaintiff collapsed to the ground. Plaintiff testified that the doctor looked at her and told her
¶ 11 Plaintiff testified that a CAT scan
was then taken and a “second male doctor” told her the results, telling her there was nothing wrong with her and “we're not going to do an MRI [magnetic resonance imaging ] because you don't need one.”4 This second male doctor then discharged her with instructions “to see a doctor, * * * take it easy, take aspirin or something, if conditions get worse come back, but I couldn't walk, and they wouldn't listen to me, and he kept writing on the paper that I felt fine.” She said, 5
¶ 12 Plaintiff testified: ...
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