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September 26, 1991

EMERALD DENISE JOHNSON, as Administratrix of the Estate of LENISE XAVIER NELSON, a minor deceased, Plaintiff,

George M. Marovich, United States District Judge.

The opinion of the court was delivered by: MAROVICH


 This court must decide whether Emerald Denise Johnson, as the administratrix of the estate of her daughter, Lenise Xavier Nelson (hereafter both the estate and Emerald D. Johnson will be referred to as "Johnson") has stated a claim for medical malpractice under Illinois common law and the Comprehensive Omnibus Budget Reconciliation Act (the "COBRA Act"), 42 U.S.C. § 1395dd, against the University of Chicago Hospital ("UCH"), Dr. James Walters ("Walters") and Nurse Denise McCall ("McCall") (hereafter these three defendants will be referred to collectively as the "UCH defendants"). We find that the UCH defendants owed no common-law duty to Johnson's daughter; therefore, we dismiss Counts I-III and V of the third amended complaint. We also find that Johnson failed to state a cause of action under the COBRA Act and therefore dismiss Count IV.


 The UCH is a resource hospital for the South Chicago Mobile Intensive Care System ("System") established pursuant to the Illinois Emergency Medical Services Act ("EMS Act"), Ill. Rev. Stat. ch. 111-1/2, § 5501 et seq. The System coordinates emergency medical services for participating hospitals on the south side of Chicago. As a resource hospital, UCH receives calls from paramedics and directs paramedics to the closest available hospital.

 On February 2, 1990, Lenise Nelson, a two-month-old infant, stopped breathing. Johnson telephoned the Chicago Fire Department on the 911 emergency medical services telephone number. Chicago Fire Department paramedics responded to the call. Upon arrival at Johnson's home, the paramedics began cardiopulmonary resuscitation and loaded Lenise into an ambulance. The paramedics then radioed the telemetry operator for the UCH. Defendant McCall, a registered nurse in emergency medicine, was the telemetry operator on duty at the time. McCall informed the paramedics that UCH was on partial by-pass. McCall therefore instructed the paramedics to take Lenise to St. Bernard's Hospital ("St. Bernard's"), the nearest hospital which was not on by-pass. The paramedics followed that instruction and took Lenise to St. Bernard's. It is uncontroverted that the paramedics never physically presented Lenise to the UCH emergency room and that Lenise was never physically present at UCH.

 Lenise was treated at St. Bernard's emergency room by co-defendants Dr. Niluendo Cay, Dr. Amarjt Singh, and Dr. Rudolfo Uy. Thereafter, Lenise was transferred from St. Bernard's to Cook County Hospital, where she died.

 Johnson filed suit against UCH, Dr. James Walter, Nurse McCall, St. Bernard's, Dr. Cay, Dr. Singh, Dr. Uy, and the Medicus Group, Inc. Dr. Walters is the medical director for the System. In Counts I-III, Johnson brings wrongful death causes of action against UCH, Walters, and McCall. Count V alleges an action for common-law negligence under Ill. Rev. Stat. ch. 110-1/2, para. 27-6 ("Survival Act"). In Count IV, Johnson brings an action pursuant to the COBRA Act against the same defendants. Johnson directs Counts VI-IX, which include other COBRA counts, to the remaining defendants.

 Johnson's basic claim against the UCH defendants is that at the time of the paramedics' call, only UCH's pediatric intensive care unit, and not the UCH emergency room, was on by-pass. Therefore, Johnson alleges that UCH should have accepted Lenise as a patient. Furthermore, Johnson claims that St. Bernard's does not have a pediatric intensive care unit and thus was an inappropriate location to send a pediatric patient such as Lenise.

 The UCH defendants move to dismiss Counts I-III and V on the basis that they owed no duty to Lenise under the common law and to dismiss Count IV on the basis that Johnson failed to state a claim under the COBRA Act.

 We should not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gorski v. Troy, 929 F.2d 1183, 1186 (7th Cir. 1991) (citing Conley v. Gibson, 355 U.S. 41, 45-56, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). For Counts I-III and V, the issue we must decide is whether the UCH defendants owed any duty to Johnson. Unless the UCH defendants owed Johnson some duty, then Johnson cannot prove any set of facts which would entitle her to relief. Whether Johnson properly stated a cause of action under the COBRA Act is at issue in Count IV. We address these issues separately below.


 Johnson admits that Counts I-III and V allege common-law actions for wrongful death and under the Survival Act. Johnson's Response Memorandum at page 4. However, to have a common-law cause of action for wrongful death or under the ...

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