Koni Johnson filed suit against two emergency physicians and their employer, Cook County, alleging the doctors were negligent in their treatment of her spinal cord injury. She had gone to John H. Stroger Jr. Hospital, a/k/a Cook County Hospital a day after she slipped and fell injuring her back.
Johnson alleged that the county violated the Emergency Medical Treatment and Active Labor Act (42 U.S.C. Section 1395dd) by choosing not to provide appropriate screening and to stabilize her medical condition before discharging her.
Cook County, which owns and operates Stroger Hospital, requested summary judgment based on Sections 6-105 and 6-106 of the Local Governmental and Governmental Employees Tort Immunity Act. The defendants argued they had provided appropriate treatment for the condition the emergency room doctors diagnosed, which was muscle spasm and back and buttocks bruises.
For local public entities and their employees, Section 6-105 provides immunity “for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination.” Section 6-106(a) provides these defendants with immunity “for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental or physical illness or addiction or from failing to prescribe for mental or physical illness or addiction.”
Johnson argued that the tort immunity statute does not exonerate governmental defendants from liability for negligent treatment and argued that defendants provided negligent treatment for the symptoms they diagnosed. Johnson also claimed that the Emergency Medical Treatment and Active Labor Act pre-empted the Illinois statute.
The trial judge granted summary judgment and the appellate court affirmed in concluding: There was never a correct diagnosis here for which treatment was prescribed and negligently rendered. Defendants are immune from liability under Section 6-106(a) for their failure to diagnose plaintiff’s spinal cord injury and their misdiagnosis of her injury of a muscle spasm and/or back/buttock contusion.
The court stated that plaintiff was correct in stating that Section 6-106 is not meant to grant blanket immunity for negligent treatment of a specific medical condition. The Illinois Supreme Court explained that in the case of Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493 (2000).
The plaintiff claimed that the defendants erroneously diagnosed her with only a back injury and began to treat her with pain medication alone. The plaintiff claims that “this is not a failure to diagnose case, but instead a negligent and inadequate treatment situation,” for which, pursuant to section 6-106(b), (c) and (d), defendants are not immunized.
Johnson claimed that the court erred in finding immunity where defendants diagnosed plaintiff while still in their emergency room and began administering treatment to her but did so in a negligent manner; citing to American National Bank v. County of Cook, 327 Ill.App.3d 212 (2001), Johnson argued that it was this treatment and the subsequent inadequate examinations and prescription of treatment that were negligent and defendants therefore, were not immune under the Tort Immunity Act.
In American National, during a prenatal examination, doctors at a Cook County Hospital clinic diagnosed plaintiff with a “transverse lie” for the baby, meaning the baby could not be delivered vaginally. They prescribed regular monitoring of mother and the regular performance of assorted medical tests to determine the baby’s position and whether a Caesarean section would be required to deliver the baby. Doctors consistently performed a prescribed test and verified that the baby was in the transverse lie position. However, shortly before the mother went into labor, one of the defendant doctors determined, incorrectly and without performing the prescribed test, that the baby was no longer in the transverse lie position.
When the plaintiff went into labor, the baby was undeliverable due to its birth position. An emergency Caesarean section was performed but the baby suffered brain damage.
The defendants in that case argued that they were immune from liability under Sections 6-105 and 6-106. The court disagreed. The court found the doctor’s actions in failing to determine that the baby was still in a transverse lie position was not a right “diagnosis” for which the defendants would be immune under Section 6-106(a) as the doctor had not examined the plaintiff in order to investigate, analyze or determine her medical condition. Instead, the court found that the doctor was already aware of the plaintiff’s medical condition, specifically the existing “transverse lie” diagnosis, and the doctor’s actions consisted of “treating” by caring for and managing the previously diagnosed known condition. The court stated that, once the initial diagnosis of transverse lie was made, each subsequent pre-natal examination did not involve a separate and independent diagnosis to determine whether the baby was still in a transverse lie position.
The American National Bank court concluded that “once a diagnosis of a medical condition is made and treatment of that condition is prescribed and undertaken, any subsequent diagnosis required to be made as a result of that treatment, such as with respect to complications arising from medications prescribed or medical procedures performed, may not be entitled to the immunity protection of Section 6-106(a).
“Following the same logic, once diagnosis of a medical condition is made and treatment of the condition is prescribed and undertaken, any subsequent prescription or examination required to be made pursuant to that condition is part of the patient’s treatment.” American National, id. at 220.
In the Johnson case, contrary to the American National matter, is a case of a failure to diagnose as opposed to where the defendants negligently prescribed an administered treatment to plaintiff after a correct diagnosis.
All of plaintiff’s claims of negligent treatment are directed to defendants’ improper treatment of her spinal cord injury. Defendants treated plaintiff for her signs and symptoms, but consistently diagnosed the signs and symptoms as muscle spasm and back/buttock contusion, not a spinal cord injury.
In retrospect, defendants were wrong and the plaintiff did have a spinal cord injury. They misdiagnosed her. However, as our Supreme Court explained in Michigan Avenue National Bank, a misdiagnosis is a “wrong or mistaken diagnosis” for which defendants are immune from liability under Section 6-106(a).
There is no evidence that the treatment defendants provided Johnson for the signs and symptoms they attributed to muscle spasm and back/buttock contusion was negligent for that diagnosis. In other words, there being no evidence to the contrary, defendants treated the wrong diagnosis correctly. Defendants’ arguably proven negligence was in their failure to perform adequate medical examinations or testing leading to their failure to diagnose plaintiff’s spinal cord injury for which they are immune.
Accordingly, the trial judge’s granting of the motion for summary judgment for the County of Cook was affirmed.
Johnson v. Bishof, 2015 IL App (1st) 131122 (March 13, 2015).
Kreisman Law Offices has been handling birth injury cases, medical negligence cases and nursing home abuse and negligence 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 Flossmoor, Niles, Northbrook, Northfield, Glenview, Lincolnwood, Lincolnshire, Markham, Maywood, Broadview, Brookfield and Burr Ridge, Ill.
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