Illinois Tort Immunity Act Protects Public Hospitals and Institutions Except for Negligent Care and Treatment

In most cases of medical malpractice that occur at private institutions, the hospital, its physicians and medical providers could be held liable for injuries caused by choosing not to take an order for proper tests, by not making the correct diagnosis and by not rendering the appropriate medical treatment. But in a hospital such as Cook County Hospital (John Stroger Hospital) or any other public hospital or medical provider, the outcome could be much different. Under the Illinois Tort Immunity Act, a public institution like the John Stroger Hospital/Cook County Hospital could be responsible for injuring a patient only if it were found that it was negligent in treating the patient. However, the hospital would not be held liable if injury or death came upon a patient for the omission of not ordering tests or improperly or incorrectly diagnosing a patient.

Under the Illinois Tort Immunity Act, public entities and their employees are “immunized” from liability in the event of hospital or medical negligence for an act or omission by an employee, physician or other hospital-employed medical provider when the claim is for a misdiagnosis or in choosing not to correctly diagnose an illness or condition that causes injury to a patient.

In one stark example of how this immunization arises is the case of Michigan Avenue National Bank v. Cook County, 191 Ill.2d 493 (2000), where the Illinois Supreme Court weighed in on the case of a young woman who made a number of visits to Cook County Hospital indicating that she had a mass that had developed in her left breast. She returned to the hospital a number of times, but it was not until two years later that the lump was diagnosed as breast cancer.

Unfortunately for this patient, the cancer spread despite a mastectomy, chemotherapy and radiation, and the patient eventually died. The name of the case may seem to be misleading in that Michigan Avenue National Bank was not a patient. The bank was court-appointed and acted as the administrator of the estate of the decedent. The lawsuit was for wrongful death, which would have benefited the next-of-kin under the Illinois Wrongful Death Act. In addition, an Illinois Survival Act case could have produced a recovery for the heirs of the decedent.

However, the Illinois Supreme Court upheld the lower court’s decision dismissing the medical malpractice lawsuit because of the Illinois Tort Immunity Act and the fact that the claim was for misdiagnosis, not wrongful treatment. The result of this case and others that fall in line is harsh. The reality of the Illinois Tort Immunity Act and the subsequent Illinois court decisions on this point make it clear that a public hospital that is negligent in choosing not to make the proper diagnosis of a disease, illness or injury cannot be held responsible. The Illinois Tort Immunity Act by way of interpretation by the court distinguishes between diagnosis and treatment.

A way to rationalize the Illinois Tort Immunity Act is to understand that its legislative purpose was to ensure that taxpayers and the public generally would be protected from judgments against public institutions like Cook County Hospital. This law seems unjust and unfair because as is the case in Cook County, the John Stroger Hospital (Cook County Hospital) serves the general public and most often takes care of poor or underprivileged patients. Insured and perhaps wealthier patients may seek medical services at private hospitals like Rush University Medical Center, which is right next door to Stroger Hospital, for what might be conceived to be better treatment. However, in the situation of the Michigan Avenue National Bank case, if the outcome of the misdiagnosis of breast cancer was made at Rush University Medical Center, the hospital could be held liable, whereas Cook County Hospital was immune.

Kreisman Law Offices has been handling medical malpractice cases, birth injury lawsuits and nursing home abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Bellwood, Bridgeview, Arlington Heights, Elk Grove Village, Elmwood Park, Elmhurst, Chicago (Wicker Park, Rogers Park, Logan Square, West Town, South Loop, Bridgeport, Lawndale) Rosemont and River Grove, Ill.

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