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.
COUNTS I-III and V
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 Survival Act, the defendants must owe some duty to the decedent.
A cause of action on behalf of a beneficiary to recover damages for the wrongful death of a decedent did not exist at common law. Wilbon v. D.F. Bast Co., 73 Ill. 2d 58, 61, 22 Ill. Dec. 394, 382 N.E.2d 784 (1978). Also at common law, a decedent's cause of action for negligence abated upon death. Nat'l Bank of Bloomington v. Norfolk & W.R. Co., 73 Ill. 2d 160, 172, 23 Ill. Dec. 48, 383 N.E.2d 919 (1978). Today, beneficiaries can bring a common-law action under the Wrongful Death Act for damages arising from the decedent's death, Ill. Rev. Stat. ch. 70 para. 1 et al., and the personal representatives of the decedent can maintain those common-law actions for personal injuries which the decedent maintained at the time of death pursuant to the Survival Act. Howe v. Clark Equipment Co., 104 Ill. App. 3d 45, 59, 59 Ill. Dec. 835, 432 N.E.2d 621 (4th Dist. 1982). As applied to our situation, these actions adopt as the elements of their prima facie case the elements of a typical negligence cause of action. Flynn v. Vancil, 41 Ill. 2d 236, 240, 242 N.E.2d 237 (1968) (wrongful death action); Old Second Nat'l Bank v. Aurora Township, 156 Ill. App. 3d 62, 65, 509 N.E.2d 692 (2nd Dist. 1987) (to establish a cause of action under the Wrongful Death Act, a party must establish a duty of the defendant toward the decedent, a breach of that duty, and damages resulting from that breach); Ill. Rev. Stat. ch. 110-1/2 para. 27-6 (under the Survival Act, the personal representative of decedent can bring a negligence action to recover damages for injury to the decedent).
In our case, no party has cited to any authority which recognizes a common-law duty on the part of a private hospital to provide treatment to a patient.
And the only authorities cited to the court, primarily the opinions of legal commentators, stand for the opposite conclusion: that the common law generally does not recognize a duty on the part of a private hospital to treat anyone. Dowell, Indigent Access to Hospital Emergency Room Services, Clearinghouse Review, October 1984 at 483; Note, To Treat or Not to Treat: A Hospital's Duty to Provide Emergency Care, 15 U.C. Davis L. Rev. 1047 (1982); Annotation, Liability of Hospital for Refusal to Admit or Treat Patient, 35 A.L.R.3d 841 (1971).
We therefore conclude that absent some statutory mandate, the defendants did not have a duty to treat Johnson's daughter.
In her response, Johnson argues UCH had a statutory duty to treat her child pursuant to the Illinois Emergency Medical Treatment Act ("Treatment Act"), Ill. Rev. Stat. ch. 111-1/2, para. 86. The Treatment Act provides as follows:
Every hospital . . . shall provide a hospital emergency service . . . and shall furnish such hospital emergency services to any applicant who applies for the same in case of injury or acute medical condition where the same is liable to cause death or severe injury or serious illness.
Ill. Rev. Stat. ch. 111-1/2, para. 86. However, the Treatment Act does not solve Johnson's dilemma because the Act provides a remedy for its violations: a fine not exceeding $ 10,000. Ill. Rev. Stat. ch. 111-1/2, para. 87.
Under Illinois law, when the legislature creates statutory duties in derogation of the common law, and also creates statutory remedies for violations of the statute, the remedy so prescribed is exclusive. Kosicki v. S.A. Healy Co., 380 Ill. 298, 44 N.E.2d 27, 29 (1942), People ex rel. Cantazaro v. Centrone, 48 Ill. App. 2d 484, 199 N.E.2d 226, 227 (1st Dist. 1964). Since the Treatment Act creates a statutory duty in derogation of the common law, its remedy is exclusive.
Finally, we decline to impose a new common-law duty on the already overburdened hospitals that participate in Chicago's trauma network. Our declination comports with the Seventh Circuit's instruction to defer creating new Illinois torts to the Illinois courts or Illinois legislature. Cenco Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.), cert. denied, 459 U.S. 880, 74 L. Ed. 2d 145, 103 S. Ct. 177 (1982) (creating new Illinois torts is something for the Illinois courts or Illinois legislature to do rather than the federal courts).
In Count IV, Johnson claims the UCH defendants violated the COBRA Act by refusing to treat Lenise, by ordering Lenise to be transferred away from the UCH while she was in an unstable condition, and by transferring her when such a transfer was not in her best interests. Complaint at para. 71a-c. The UCH defendants argue Johnson failed to state a claim for which relief can be granted because an essential element of a COBRA Act claim is that the patient must first come to the emergency room. We agree.
The COBRA Act states in pertinent part as follows:
In the case of a hospital that has a hospital emergency department, if any individual . . . comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination . . . (42 U.S.C. § 1395dd(a), emphasis added.)