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Gragg v. Calandra

July 06, 1998

GERALDINE GRAGG, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF ANN GUINTOLA, DECEASED, PLAINTIFF-APPELLANT,
v.
DAVID CALANDRA, RABINDRA MALHOTRA, AND HINSDALE HOSPITAL, DEFENDANTS-APPELLEES (J. HOUCK, DEFENDANT).



The opinion of the court was delivered by: Justice Inglis

Appeal from the Circuit Court of Du Page County No. 96--L--52 Honorable Rodney W. Equi, Judge, Presiding.

JUSTICE INGLIS delivered the opinion of the court:

Plaintiff, Geraldine Gragg, individually, and as special administrator of the estate of Ann Guintola, deceased, appeals the order of the trial court of DuPage County that dismissed the first count of her third amended complaint in favor of defendant Hinsdale Hospital (Hinsdale) and counts II through IV in favor of defendants Hinsdale and physicians David Calandra and Rabindra Malhotra (collectively defendants). Plaintiff alleged that defendants administered unwanted medical procedures to her father, Florian Guintola, including open heart surgery and the continuation of life support. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Plaintiff alleged the following. Hinsdale owned and operated a hospital emergency room and medical care facility, including the Rooney Heart Institute. Hinsdale employed various physicians and other health care providers to see and treat patients. Hinsdale held itself out to the public as a medical facility providing emergency, specialized cardiac care, and inpatient care by qualified and competent physicians. Hinsdale represented to the public that it provided equipment and staff, including a cardiac catheterization laboratory, "to make the most of the golden hour after a heart attack."

On December 28, 1992, plaintiff and her mother went with Florian to the emergency room at Hinsdale where he was seen and examined by defendant doctors, who were apparent agents of Hinsdale and who led plaintiff and her mother to believe that they were agents of the hospital. Florian was examined by a physician who asked Ann to sign a consent for certain cardiac tests, including an angiogram. Plaintiff and her mother relied upon Hinsdale to provide heart catheterization equipment and staff, including reasonably qualified and competent heart specialists and physicians who would exercise due care and skill in the treatment of Florian. Plaintiff and her mother consented to catheterization by defendants as a result of such reliance. During the catheterization, performed by defendant Malhotra, Florian suffered a cardiac arrest and became unconscious and non-responsive.

Following this, there was no reasonable likelihood that Florian would survive. Defendant Calandra and defendant J. Houck (who is not a party to this appeal) nevertheless proceeded to perform open heart bypass surgery on Florian.

Plaintiff alleged that defendants performed open heart surgery on Florian without first obtaining consent. Plaintiff also alleged that Hinsdale had a duty to Florian to permit only authorized treatment and surgical procedures with informed consent and was under a duty to obtain consent to surgery.

Florian sustained irreversible brain damage, remained non-responsive, and could not survive without life support. Florian had a living will that stated that in the absence of his ability to give directions regarding extraordinary measures to sustain life, his family should honor his wishes to withhold such measures. Plaintiff and Ann repeatedly asked defendants to remove Florian from life support to honor his wishes. After requests were made by Florian's regular physician to discontinue life support, a meeting was held with plaintiff, Ann, and others, including a nurse for defendant Calandra and an attorney for Hinsdale, to discuss Florian's living will. Following the meeting, Dr. Glassford, the medical staff director of Hinsdale, informed plaintiff and her mother that the hospital and doctors would not honor the living will. Florian never regained consciousness and died on January 5, 1993.

Plaintiff, in her capacity as administrator of Ann's estate and individually, brought count I of the third amended complaint against defendants under section 15 of the Rights of Married Persons Act (herein called the Family Expense Act) (750 ILCS 65/15 (West 1996)). Count II, brought by the estate, alleges that defendants violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1996)). Counts III, brought by plaintiff individually, and IV, brought by the estate, are based on intentional infliction of emotional distress. Defendants filed separate motions to dismiss. The trial court dismissed counts I through IV of the complaint against Hinsdale with prejudice. The trial court also dismissed counts II through IV against the other defendants with prejudice, finding that there was no just cause for delay of enforcement or appeal under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Count I against defendant physicians remains pending in the trial court. Plaintiff timely appeals.

We note that defendants' motions to dismiss were made pursuant to sections 2--615 and 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 619 (West 1996)). The legal theories for proceeding on a motion to dismiss under sections 2--615 and 2--619 differ. A section 2- -615 attacks the legal sufficiency of the complaint by asserting that it fails to state a cause of action upon which relief can be granted. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083 (1994). Under section 2--619, a party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter which avoids or defeats the claim. T&S Signs, Inc., 261 Ill. App. 3d at 1083. Similar to a motion brought under section 2--615, a motion to dismiss under section 2--619 admits all well-pleaded facts. Geick v. Kay, 236 Ill. App. 3d 868, 874 (1992). A reviewing court is not required to defer to the trial court's judgment on a motion to dismiss, and we will review the matter de novo. T&S Signs, Inc., 261 Ill. App 3d at 1084.

Plaintiff first contends that the trial court improperly dismissed count I against Hinsdale. In count I, plaintiff seeks recovery individually and as special administrator of Ann's estate for hospital expenses incurred by Florian under the Family Expense Act.

Initially, we note that plaintiff individually lacks standing to bring a claim under the Family Expense Act. Expenses of the family are those for which the husband and wife are liable. 750 ILCS 65/15 (West 1996). Thus, only a spouse may maintain an action against a tortfeasor under the statute for family expenses incurred due to injuries the victim's spouse sustained. See Brown v. Metzger, 118 Ill. App. 3d 855, 860 (1983). Just as parents cannot maintain an action for expenses incurred by their adult children, adult children may not maintain an action for their parents' medical bills. See Rodgers v. Consolidated R.R. Corp., 136 Ill. App. 3d 191, 196 (1985). Here, plaintiff does not plead that she is obligated individually to pay Florian's medical expenses and therefore cannot bring an individual claim under the Family Expense Act. The trial court properly dismissed count I as to plaintiff individually.

Plaintiff as special administrator of Ann's estate alleged two separate injuries under count I. The first injury is based on the open heart bypass surgery performed without consent. The second injury arose from placing Florian on life support without consent. Plaintiff alleged that had she or Ann been informed of the proposed open heart surgery and Florian's condition, they would have withheld their consent for the surgery and life support measures. Plaintiff alleges that, as a direct and proximate result of defendants' actions of performing surgery without consent and refusing to discontinue life support, Ann became obligated for medical expenses. Hinsdale counters that the cause of action under the Family Expense Act does not survive the death of Ann. Hinsdale contends that, if a cause of action is created by statute and neither that statute nor any other provides for its survival, the action abates upon the death of the party, citing Shapiro v. Chernoff, 3 Ill. App. 3d 396 (1972). Hinsdale argues that, because neither the Family Expense Act nor the Survival Act (755 ILCS 5/27--6 (West 1996)) provides a remedy for survival, the action abated on the death of the Ann. We disagree.

The law determining the abatement or survival of actions is governed by common-law rules and statutory provisions changing the common law. Shapiro, 3 Ill. App. 3d 396 at 401. Application of the correct rule depends upon the nature of the action to which it is applied. Therefore, we ...


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