Michigan Ave. Nat. Bank v. County of Cook

• Decision Date: 30 June 1999
• Docket Number: No. 1-98-1974.,1-98-1974.
• Citation: 714 N.E.2d 1010,239 Ill.Dec. 713,306 Ill. App.3d 392
• Parties: MICHIGAN AVENUE NATIONAL BANK, as Special Administrator of the Estate of Cynthia Collins, Deceased, Plaintiff-Appellant, v. COUNTY OF COOK, a body politic; County of Cook, a body politic d/b/a Cook County Hospital; Barbara Weiss, M.D. f/k/a Barbara Ellison, M.D.; Mohammed Ali, M.D.; and Mary LeBlanc, R.N., Defendants-Appellees (Lisa Ferrill, R.N., and Irma Garcia, R.N., Defendants).
• Court: United States Appellate Court of Illinois

714 N.E.2d 1010

306 Ill. App.3d 392

239 Ill.Dec. 713

MICHIGAN AVENUE NATIONAL BANK, as Special Administrator of the Estate of Cynthia Collins, Deceased, Plaintiff-Appellant, v. COUNTY OF COOK, a body politic; County of Cook, a body politic d/b/a Cook County Hospital; Barbara Weiss, M.D. f/k/a Barbara Ellison, M.D.; Mohammed Ali, M.D.; and Mary LeBlanc, R.N., Defendants-Appellees (Lisa Ferrill, R.N., and Irma Garcia, R.N., Defendants).

No. 1-98-1974.

Appellate Court of Illinois, First District, Second Division.

June 30, 1999.

Rehearing Denied August 20, 1999.

Jeffrey M. Goldberg, Michael V. Marsh, Jeffrey M. Goldberg & Associates, Ltd., Chicago, for appellant.

Richard A. Devine, State's Attorney of Cook County (Patricia M. Shymanski, Chief, Civil Actions Bureau, Peter D. Fischer, Deputy Chief, Civil Actions Bureau, of counsel), for appellee.

Mark Szaflarski, Joel H. Greenburg, Ltd., Chicago, for amicus curiae Illinois Trial Lawyers Association.

Presiding Justice GORDON delivered the opinion of the court:

Plaintiff, Michigan Avenue National Bank, as Special Administrator of the Estate of Cynthia Collins, deceased, filed a medical malpractice lawsuit against the County of Cook, a body politic; Cook County Hospital; Barbara Weiss, M.D.; Mohammed Ali, M.D.; Mary LeBlanc, R.N.; Lisa Ferrill, R.N.; and Irma Garcia, R.N. Four years after the lawsuit was filed, the defendants moved for summary judgment, contending that they were immune from liability under sections 6-105 and 6-106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/6-105, 106 (West 1992)). While that motion was pending, Ferrill and Garcia were voluntarily dismissed as defendants. Thereafter, the trial court granted summary judgment to the remaining defendants. The plaintiff appeals, arguing that the defendants were not immune from liability. For the reasons discussed below, we affirm the grant of summary judgment in defendants' favor.

BACKGROUND FACTS

Plaintiff's two-count complaint sought recovery for damages resulting from the negligence of the defendants. Count I was brought pursuant to the Wrongful Death Act (Ill.Rev.Stat.1985, ch. 70, par. 1 et seq. now at 740 ILCS 180/1 et seq. (West 1996)), and count II was brought pursuant to the Survival Act (Ill.Rev.Stat.1985, ch. 110 ½, par. 27-6 now at 755 ILCS 5/27-6 (West 1996)). Both counts alleged that defendants were negligent in the following manner:

"a. Failed to order a mammogram when a lump was palpated in decedent's left breast;

b. Failed to properly and adequately perform examinations and tests on decedent;

c. Failed to perform a biopsy when a lump was palpated in decedent's left breast;

d. Failed to diagnose decedent's condition of breast cancer; and

e. Failed to administer proper, appropriate and necessary medical and nursing care and attention to the decedent."

The section 2-622(a)(1) affidavit (735 ILCS 5/2-622(a)(1) (West 1992)) attached to plaintiff's complaint opined that the defendants "negligently failed to perform a mammogram and/or an immediate biopsy of the lump in [Collins'] left breast, given her family history of breast cancer and her presentation to these Cook County Hospital physicians and health care providers with a lump in her left breast."

The facts established by the deposition testimony of plaintiff's experts attached to defendants' motion for summary judgment and the exhibits attached to plaintiff's response to defendants' motion and plaintiff's motion to reconsider and vacate the summary judgment,¹ showed that Collins made several visits between September 22, 1986 and February 10, 1987 to Cook County Hospital and the Fantus Clinics operated by Cook County Hospital. Collins visited the Fantus Family Planning Clinic on September 22, 1986, when she was 22 years old. On that date, nurse Lisa Ferrill performed a routine breast examination and palpated a lump in Collins' left breast. The clinician form completed by Ferrill described the lump as "soft, non-tender, 2 x 3 cm, cystic mass." Ferrill referred Collins to Cook County Hospital's breast clinic. On the "Consultation Request Form," also completed by Ferrill on that date, Ferrill requested that the mass in Collins' left breast be evaluated. This form noted that Collins' mother died of breast cancer. On October 22, 1986, Collins went to the breast clinic and was examined by nurse Mary LeBlanc. LeBlanc's report, signed by LeBlanc and initialed by an unidentified doctor, indicated that Collins had been referred from the family planning clinic because of a left breast mass. That report also indicated that Collins' mother had breast cancer. It described Collins' breast condition as "bilateral nodularity, no definite masses, nodes, positive left axillary lymph node—freely movable, negative nipple discharge." According to the report, Collins was instructed to return to the breast clinic in January 1987, three months later. No evidence was presented to show that Collins returned to the breast clinic as instructed. In fact, questioning of plaintiff's experts during the taking of their depositions suggests the contrary.

Collins was seen in the emergency department at Cook County Hospital on December 19, 1986, complaining of missed menstrual period, abdominal pain and sore breasts. She was examined by doctor Albion, who was not named as a defendant in the instant action. Collins returned to the emergency department on December 29, 1986, complaining of abdominal cramps and vaginal discharge, and was again examined by Albion. On January 22, 1987, Collins visited the prenatal clinic of Cook County Hospital complaining of vaginal discharge and suffering from a threatened spontaneous abortion. The history and physical examination portion of the report completed by doctor Barbara Weiss, an obstetrician/ gynecologist and defendant herein, indicated that Collins had fibrocystic disease of the breast and that Collins had a cyst in her inner, mid-right breast. The diagnosis portion of the report showed "11-12 wks gestation" and indicated that Collins was advised to have bed rest and drink fluids. Collins returned to the Fantus Health Center on February 10, 1987 and was examined by doctor Mohammed Ali, another defendant. Doctor Ali's "Progress Notes" indicated that Collins had had a "D & C" on January 26, 1987 and that she had been suffering from vaginal discharge, cramps and sharp breast pain. Ali's report indicated the performance of a pelvic examination, a finding that Collins' breasts were "within normal limits," and a recommendation that Collins return to the gynecological clinic in one year.

Collins became pregnant in August 1987 and sought medical care at MacNeal Hospital/Rush Presbyterian (MacNeal) through her employer's insurance plan. Collins delivered a child in May 1988. In July 1988, a lump in Collins' left breast was diagnosed at MacNeal to be cancerous and it was determined there that the cancer had spread to her arm and neck area. A mastectomy was performed at MacNeal on July 18, 1988, followed by radiation and chemotherapy. Collins died of breast cancer at the age of 25 on November 22, 1989.

In their motion for summary judgment, premised on their affirmative defense of tort immunity, the defendants did not dispute the plaintiff's allegations concerning Collins' multiple visits to Cook County Hospital and its various clinics between the period of September 22, 1986 to February 10, 1987. For purposes of their motion, they did not dispute the fact that a lump was found in Collins' left breast on September 22, 1986; that Collins had breast cancer on or before October 22, 1986; that Collins suffered from fibrocystic disease on or before October 22, 1986; that there was a failure to diagnose Collins' cancer on October 22, 1986; or that the failure to diagnose between October 1986 to January 1987 was the proximate cause of Collins' death. The defendants also did not dispute the deposition testimony of plaintiff's expert, doctor Larry S. Miller, that the standard of care was breached by doctor Ali based upon Miller's belief that Ali failed to perform a breast examination in February 1987; by doctor Weiss when she felt a cyst and failed to schedule a surgical clinic visit; and by nurse LeBlanc for failure to consult with a physician (assuming she had failed to do so) and failure to request a mammogram, ultrasound, or biopsy or to instruct Collins to return in four to six weeks for reassessment. Finally, the defendants did not dispute the deposition opinion testimony of doctor Joseph E. Russ, plaintiff's second expert, that the unnamed physician involved in Collins' October 22, 1986 visit deviated from the standard of care by failing to do anything to diagnose the breast cancer, such as ordering a mammogram or biopsy and by instructing Collins to return in three months, and that nurse LeBlanc deviated from the standard of care if she didn't discuss her examination findings with a breast surgeon. The defendants argued that they were immune from liability in accordance with section 6-106(a) of the Tort Immunity Act which immunizes local public entities and public employees from liability resulting from diagnosing or failing to diagnose. 745 ILCS 10/6-106(a) (West 1992). Defendants further argued that, assuming they performed inadequate examinations upon Collins, they were immune from liability regarding those actions in accordance with section 6-105 of the Tort Immunity Act which immunizes local public entities and public employees from the "failure to make a physical * * * examination or to make an adequate physical * * * examination." 745 ILCS 10/6-105 (West 1992).

In response, the plaintiff argued that defendants' liability was premised on "more than mere `failure to diagnose.'" It argued that the defendants were liable for "making a faulty diagnosis of fibrocystic breast disease which resulted in Defendants [sic] failure to preform [sic] the appropriate medical...