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Michigan Avenue National Bank v. County of Cook

June 15, 2000


The opinion of the court was delivered by: Justice McMORROW

March 16, 2000.

At issue in this appeal is whether defendants, a local public entity and its employees, are immune from liability under sections 6-105 and 6-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 1992)). Plaintiff, Michigan Avenue National Bank, as special administrator of the estate of decedent Cynthia Collins, filed in the circuit court of Cook County a medical malpractice action against Cook County, Cook County Hospital, Drs. Barbara Weiss and Mohammed Ali, and nurses Mary LeBlanc, Lisa Ferrill, and Irma Garcia. Plaintiff alleged that Collins died as a proximate result of defendants' negligence. Defendants filed a motion for summary judgment, contending that because they were immune from liability pursuant to sections 6-105 and 6-106 of the Tort Immunity Act, they were entitled to judgment as a matter of law. While the summary judgment motion was pending, plaintiff voluntarily dismissed nurses Ferrill and Garcia as defendants. The trial court thereafter granted summary judgment as to the remaining defendants. On appeal, plaintiff argued that defendants were not immune from liability under the Tort Immunity Act. A majority of the appellate court affirmed the trial court's judgment. 306 Ill. App. 3d 392. We allowed plaintiff's petition for leave to appeal. 177 Ill. 2d R. 315(a). In addition, we granted the Illinois Trial Lawyers Association leave to submit a brief as amicus curiae. 155 Ill. 2d R. 345. We now affirm the judgment of the appellate court.


On September 22, 1986, Cynthia Collins visited the Fantus Family Planning Clinic, operated by Cook County Hospital. Collins, who was 21 years old at that time, underwent a physical examination, during which a nurse palpated a lump in Collins' left breast. The clinician form completed by the nurse described the lump as a "soft, non-tender, 2 x 3 cm, cystic mass." A "consultation request form" was also completed by the nurse, referring Collins to the hospital's Breast Oncology Clinic for an appointment on October 22, 1986. This form reflects that the nurse requested that the Breast Oncology Clinic "please evaluate" the mass discovered in Collins' left breast, and noted that Collins' "mother died of breast cancer."

On October 22, 1986, Collins kept her appointment at the Breast Oncology Clinic, and was examined by defendant nurse practitioner Mary LeBlanc. A report signed by LeBlanc and initialed by an unidentified doctor noted that Collins' mother had suffered from breast cancer, and described Collins' breast condition as follows: "Bilateral nodularity. No definite masses, nodes. Positive left axillary lymph node-freely moveable. Negative nipple discharge." The report from this visit indicates that Collins was diagnosed with fibrocystic breast disease, and that Collins was advised to return to the Breast Oncology Clinic three months later, in January 1987. This report further reveals that Collins was "instructed about self-breast exam monthly" and advised to "keep clinic appointment."

In December 1986, Collins made two visits to the emergency room of Cook County Hospital, and, on both occasions, was treated by Dr. Albion, who was not named as a defendant in the instant action. On December 19, 1986, Collins sought treatment because she had missed her menstrual period and was suffering from abdominal pain. Collins also indicated on this occasion that she had experienced soreness in her breasts for one months' duration. At this time, no treatment was administered for Collins' breast pain. On December 29, 1986, Collins sought treatment for abdominal cramps and vaginal discharge.

On January 22, 1987, Collins again returned to the emergency room of Cook County Hospital. The emergency department record indicates that Collins had complained of vaginal discharge, and, after examination, it was discovered that she was suffering from a threatened spontaneous abortion. The emergency department record also states that Collins had been previously diagnosed with fibrocystic breast disease. During this hospital visit, Collins was also seen by Dr. Barbara Weiss, an obstetrician/gynecologist who is a named defendant in this action. In a record entitled "Initial Pregnancy Profile," Dr. Weiss indicated that during Collins' physical examination, she discovered a "cyst" in Collins' inner, mid-right breast. At the conclusion of Collins' hospital visit, the emergency room record reflects that Collins was advised to have bed rest and drink fluids. No treatment was rendered with respect to Collins' breasts.

On February 10, 1987, Collins returned to Cook County Hospital's Fantus Clinic, where she was examined by defendant Dr. Mohammed Ali. In a form entitled "Progress Notes," Dr. Ali indicates that Collins had a "D & C" for an incomplete spontaneous abortion on January 26, 1987, and that, since that time, Collins had experienced vaginal discharge. Dr. Ali's progress notes also indicate that Collins was suffering from abdominal cramps for three weeks, and that Collins complained of "sharp" breast pain "off and on" for a three-week period. The record reveals that Dr. Ali performed a pelvic examination of Collins, wrote that Collins' breasts were "within normal limits," and recommended that Collins return to the hospital's Family Planning Clinic in three months and to the Gynecological Clinic in one year.

In August 1987, Collins became pregnant and obtained prenatal care at MacNeal Hospital/Rush Presbyterian through her employer's health care coverage. During a prenatal exam, Collins informed her physician of her family history of breast cancer, of the masses discovered in her breasts during her visits to Cook County Hospital, and of her previous complaints of breast pain. The physician instructed Collins to undergo a mammogram after the birth of her child. Collins delivered her baby in May 1988, and in July 1988, a biopsy revealed that Collins' left breast was cancerous and that the cancer had spread to her neck and arm area. A mastectomy was performed, and Collins thereafter underwent radiation and chemotherapy treatments. Collins died of breast cancer in November 1989.

Plaintiff filed a two-count complaint seeking recovery for damages resulting from the alleged medical malpractice of defendants. Count I, which was brought pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.), and count II, which was brought pursuant to the Survival Act (Ill. Rev. Stat. 1985, ch. 110½, par. 27-6), revolve around Collins' visits to Cook County health facilities from September 22, 1986, to February 10, 1987, and allege that defendants were negligent in five respects: (1) defendants "[f]ailed to order a mammogram when a lump was palpated in decedent's left breast"; (2) defendants "[f]ailed to properly and adequately perform examinations and tests on decedent"; (3) defendants "[f]ailed to perform a biopsy when a lump was palpated in decedent's left breast"; (4) defendants "[f]ailed to diagnose decedent's condition of breast cancer"; and (5) defendants "[f]ailed to administer proper, appropriate and necessary medical and nursing care and attention to the decedent." Plaintiff's complaint further alleged that "as a proximate cause of one or more of the foregoing negligent acts or omissions, [Collins] died on November 22, 1989."

Attached to plaintiff's complaint was an affidavit prepared in accordance with section 2-622(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-622(a)(1) (West 1992)), wherein a physician opined that, after a review of Collins' medical records, there existed a reasonable and meritorious cause for plaintiff to file this action. Specifically, the physician stated that it was his opinion that defendants "negligently failed to perform a mammogram and/or immediate biopsy of the lump in [Collins'] left breast, given her family history of breast cancer and her presentation to these Cook County Hospital physicians and health care providers with a lump in her left breast."

In their answer to plaintiff's complaint, defendants admitted that Collins had been under their care. However, defendants denied any wrongdoing with respect to Collins' care and treatment, and affirmatively alleged that they were immune from liability pursuant to sections 6-105 and 6-106 of the Tort Immunity Act. Specifically, defendants asserted that, under section 6-105, they were immunized from the "failure to make a physical *** examination, or to make an adequate physical *** examination" (745 ILCS 10/6-105 (West 1992)), and that section 6-106 provided immunity from liability "resulting from diagnosing or failing to diagnose that a person is afflicted with *** physical illness" (745 ILCS 10/6-106(a) (West 1992)).

After the parties engaged in discovery, defendants moved for summary judgment. In their motion, defendants disputed neither the facts as alleged by plaintiff in its complaint nor the opinions of plaintiff's two medical experts. Instead, defendants asserted that, even assuming the truth of those facts and opinions, they were entitled to judgment as a matter of law because they were statutorily immunized from liability pursuant to sections 6-105 and 6-106 of the Tort Immunity Act.

In support of their summary judgment motion, defendants attached the transcripts of the deposition testimony of plaintiff's two medical expert witnesses. In his deposition, Dr. Joseph E. Russ opined that the unidentified physician involved in Collins' October 1986 visit to the Breast Oncology Clinic deviated from the standard of care in two respects: by failing to perform any testing to diagnose breast cancer, such as ordering a biopsy or a mammogram, and by failing to instruct Collins to return to the clinic earlier than in three months' time. Dr. Russ also opined that nurse LeBlanc deviated from the standard of care if she failed to discuss the findings of her examination with a breast surgeon. Plaintiff's second expert, Dr. Larry S. Milner, opined that the standard of care was breached by nurse LeBlanc if LeBlanc had failed to consult with a physician during Collins' October 1986 visit to the Breast Oncology Clinic. According to Dr. Milner, LeBlanc also deviated from the standard of care by failing to request that a mammogram, biopsy or ultrasound be performed on Collins, and by failing to instruct Collins to return to the Breast Oncology Clinic in four to six weeks for further evaluation. Dr. Milner further opined that the standard of care was breached by Dr. Weiss when she discovered a cyst in Collins' breast and failed to arrange for a visit to the surgical clinic or to explain to Collins that her condition required the scheduling of such a visit. Dr. Milner also testified that Dr. Ali deviated from the standard of care, based upon Milner's belief that Ali failed to perform a breast examination on Collins during her February 10, 1987, visit to the Fantus Clinic. Finally, in their depositions, both Drs. Russ and Milner opined that the failure to diagnose Collins' breast cancer was the proximate cause of her death. After considering the evidence, the trial court granted summary judgment to defendants, and plaintiff appealed.

In affirming the judgment of the circuit court, a majority of the appellate court rejected plaintiff's argument that the immunity conferred in section 6-105 of the Tort Immunity Act is limited to preventive public health screenings. Rather, the majority determined that section 6-105 of the Act "is broad in scope and immunizes local public entities and public employees who fail to make or who make inadequate physical or mental examinations for purposes of determining whether a person suffers from a disease or physical or mental condition." 306 Ill. App. 3d at 401.

The appellate court majority also found that, because plaintiff's cause was premised upon the theory that Collins died due to defendants' failure to conduct further diagnostic testing and evaluation to determine whether she suffered from breast cancer in addition to fibrocystic breast disease, defendants' conduct was immunized under subsection (a) of section 6-106, which provides that defendants are not liable for injuries resulting from failing to diagnose a physical illness. The majority rejected plaintiff's argument that the negligent treatment exception contained in subsection (d) of section 6-106 negated the immunity conferred upon defendants pursuant to section 6-106(a). The majority found that, based upon the evidence presented, no medical treatment had been prescribed or undertaken by defendants in connection with Collins' fibrocystic breast condition. 306 Ill. App. 3d at 403.

In dissent, Justice Cousins wrote that the majority's interpretation of sections 6-105 and 6-106 of the Tort Immunity Act incorrectly disregarded the Illinois Constitutional provision that states that "[e]very person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person." Ill. Const. 1970, art. I, §12. Specifically, the dissenting justice found the majority's interpretation of section 6-105 to be unduly broad, and instead agreed with plaintiff's contention that section 6-105 confers immunity to public entities and their employees only in the limited instance where preventive examinations are provided to the public at large in order to determine whether persons have diseases that will constitute a hazard to either themselves or others. 306 Ill. App. 3d at 408-09 (Cousins, J., dissenting).

The dissenting justice also disagreed with the majority's holding that defendants were immunized pursuant to section 6-106(a). Instead, the justice concluded that a genuine issue of material fact existed with respect to whether defendants were liable, pursuant to subsections (b), (c), and/or (d) of section 6-106, for negligently treating Collins' breast condition. 306 Ill. App. 3d at 410 (Cousins, J., dissenting). Therefore, in the view of the dissenting justice, summary judgment was inappropriately granted to defendants.


The issue presented in this case is whether sections 6-105 and 6-106 of the Tort Immunity Act immunize defendants, a public hospital and its employee physicians and nurses, from liability for the medical malpractice alleged in this action. Local governmental entities are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes limitations upon that liability. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998). The immunities afforded to units of local government under the Tort Immunity Act operate as an affirmative defense which, if properly raised and proven by the public entity, precludes a plaintiff's right to recover damages. Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43-44 (1998). The resolution of the dispute in the instant cause depends on statutory construction. Because the construction of a statute is a question of law, we review the merits of this cause de novo. Paris v. Feder, 179 Ill. 2d 173, 177-78 (1997).

It is well established that the primary objective of this court when construing the meaning of a statute is to ascertain and give effect to the legislature's intent. Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237 (1996). In determining the intent of the legislature, we begin with the language of the statute, the most reliable indicator of the legislature's objectives in enacting a particular law. Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996). The statutory language must be given its plain and ordinary meaning, and, where the language is clear and unambiguous, we must apply the statute without resort to further aids of statutory construction. Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 184-85 (1999). One of the fundamental principles of statutory construction is to view all provisions of an enactment as a whole. Words and phrases should not be construed in isolation, but must be interpreted in light of other relevant provisions of the statute. Antunes v. Sookhakitch, 146 Ill. 2d 477, 484 (1992). In ...

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