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McDaniel v. Ong

December 30, 1999

DAVID AND DEBRA MCDANIEL, AS GUARDIANS OF PAMELA MCDANIEL, A DISABLED PERSON,
PLAINTIFFS-APPELLANTS,
v.
ANITA ONG, DEFENDANT-APPELLEE (CALIFORNIA GARDENS NURSING CENTER, ) DH1, INC., AND CD1, INC., DEFENDANTS).



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County. Honorable Michael J. Hogan, Judge Presiding.

Plaintiffs David and Debra McDaniel, as guardians of Pamela McDaniel, a disabled person, brought suit against defendant Dr. Anita Ong for negligence in failing to diagnose Pam's pregnancy while she resided in a nursing home. The circuit court granted Ong's motion for summary judgment because it found insufficient evidence to demonstrate damages as a result of Ong's alleged negligence. David and Debra now appeal, arguing that questions of fact precluded summary judgment.

For the reasons that follow, we affirm.

In November 1995, David and Debra filed a third amended complaint against California Gardens Nursing Center (California Gardens), DH1, Inc. (DH1), CD1, Inc. (CD1), *fn1 and Ong. The complaint alleged that Pam was born in 1961 with severe developmental disabilities including blindness, mental retardation, and cerebral palsy. Pam required total assistance with all activities of daily living, and she was admitted to California Gardens, a long-term care facility, in 1979. David and Debra were appointed as her successor guardians on October 7, 1994.

The complaint further alleged that, in April 1994, David and Debra were notified by Mount Sinai Hospital that Pam had been admitted and she was at least four months pregnant. On more than one occasion since that time, Pam required emergency visits to the hospital due to her condition and need for prenatal health care. In August 1994, Pam delivered a baby girl.

In counts I and II of the complaint, David and Debra alleged that California Gardens, DH1, and CD1 committed various statutory and regulatory violations, as well as various acts of negligence related to the pregnancy. These counts are not before this court.

In count III, David and Debra alleged that Ong, the physician in charge of Pam's medical care at California Gardens, was negligent in her treatment in one or more of the following ways:

"(a) Failed to see and examine PAM as often as necessary by her condition to assure adequate health care including her gynecological status;

(b) Failed to review PAM's total program of care, progress and problems in maintaining or improving her physical status including review of her menstruation patterns;

(c) Failed to see and examine PAM as often as required by her condition to assure care to maintain or improve her level of functioning;

(d) Failed to examine and visit PAM as necessary to assure adequate health care, including PAM's gynecological health, contrary to [77 Ill. Adm. Code §300.1010(e) (eff. November 3, 1992)];

(e) Failed to review PAM's total care program and revise the program to maintain or improve PAM's status, including her gynecological status, contrary to [42 C.F.R. §483.40(b)(1) (1994)];

(f) Failed to examine and visit PAM as needed to maintain or improve her level of functioning, contrary to [42 C.F.R. §483.40 (c) (1994)];

(g) Failed to monitor, evaluate and appropriately treat and diagnose PAM'S medical and physical condition, including conducting adequate physical examinations for signs and symptoms of pregnancy; and,

(h) Otherwise improperly and carelessly treated PAM."

David and Debra further alleged that, as a direct and proximate result of Ong's acts or omissions, Pam sustained injuries including sexual assault, undiagnosed high risk pregnancy, and lack of prenatal care. Pam suffered disability and disfigurement, pain and suffering, and medical expenses.

In February 1997, Ong moved for summary judgment. Ong first argued that an affidavit prepared by Martin Siglin, M.D., required summary judgment in her favor. Siglin opined that Ong complied with the standard of care in her examinations and treatment of Pam. Ong also argued that David and Debra could not establish that Ong's acts or omission caused any damages. Ong pointed to an excerpt from David's deposition testimony indicating that even if the pregnancy had been detected sooner it would not have been terminated. Ong claimed that David stated in his deposition that he and his family never discussed having Pam undergo an abortion and that it was something of which they would not have thought. Ong argued then that even if she had done everything that David and Debra claimed she should have done and the pregnancy had been detected sooner, the outcome would have been the same. None of the alleged damages are causally related to any of Ong's alleged negligent acts.

Ong attached the following excerpt from David's deposition:

"Q. Did you ever have any discussions within your family about the potential of Pam having an abortion?

A.No.

Q.Is there any reason why not?

A.It's something that we just wouldn't think ...


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