Appeal from the Circuit Court of Cook County. No. 96 L 13830 Honorable Sophia Hall, Judge Presiding.
The opinion of the court was delivered by: Justice O'brien
Plaintiffs, American National Bank & Trust Company, as guardian of the estate of Gustavo Estriveros, and Gloria Estriveros, individually, appeal the order of the circuit court granting summary judgment for defendant, the County of Cook, on plaintiffs' medical malpractice action. On appeal, plaintiffs argue that the circuit court erred in holding that sections 6-105 and 6-106(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act), 745 ILCS 10/6-105, 10/6-106(a) (West 2000) immunize defendant from liability. We reverse and remand.
Gloria Estriveros (plaintiff) received her prenatal care at defendant's medical clinic. On October 3, 1986, plaintiff went to defendant's medical clinic for an ultrasound, which showed that plaintiff's baby was in a "transverse lie," meaning that the baby was lying perpendicular to his mother's body.
A baby in a transverse lie position cannot be delivered vaginally, because there is no part of the baby's body to form a wedge to lead the way through the cervix. Further, a woman who goes into labor in such a condition runs the risk of a cord prolapse, meaning that the umbilical cord slips through the cervix and can no longer pulsate, thereby depriving the baby of oxygen and nourishment.
Several treatment options are available for a woman with a baby in the transverse lie position, depending on how far the baby is from term. First, the doctor can monitor the mother over a period of time to see if the baby changes position inside her womb. Second, the doctor can perform an external version, a procedure in which the doctor physically moves the baby by pressing on the mother's abdominal wall. Third, the doctor can perform a cesarean section at fetal maturity.
Here, doctors monitored plaintiff's condition as her pregnancy proceeded. On December 4, plaintiff was seen by Doctor David Baum at defendant's clinic. Doctor Baum charted that plaintiff's baby was in the cephalic position, meaning that the baby was positioned with its head down in the womb. On December 11, plaintiff was seen by defendant's second-year resident, Doctor Vernita Tucker, who charted that plaintiff's baby was in the transverse lie position. On December 18, plaintiff was seen in Cook County Hospital by Doctor Pang, who charted that the baby was in the vertex position, meaning that its head was down and thus, was not in the transverse lie position. However, plaintiff also underwent an ultrasound on December 18 which showed that the baby was in the transverse lie position. On December 23, plaintiff was examined at defendant's clinic by Doctor Elias Sabbagha, who charted that the baby was in a transverse lie.
On January 6, plaintiff again was seen by Doctor Vernita Tucker, defendant's second-year resident. Doctor Tucker performed a Leopold's maneuver on plaintiff, i.e., she manipulated plaintiff's abdomen in order to feel for the baby's position. Doctor Tucker determined that the baby was cephalic, meaning that he was positioned head-first or head down, and, thus, was no longer in a transverse lie. Doctor Tucker also charted that plaintiff was "status post external version," meaning that an external version had been performed on plaintiff two weeks earlier. However, Doctor Tucker admitted in her deposition that there was nothing in plaintiff's medical records to indicate that an external version had been performed two weeks prior to January 6. When asked why she had charted that plaintiff was "post external version," Doctor Tucker indicated some uncertainty, as she could not remember the specifics of the January 6 examination; Doctor Tucker stated that she "assume[d]" plaintiff must have told her about the external version.
Plaintiff went into labor on January 27, 1987. Doctor Sabbagha, who was charting the delivery, stated that the baby was in a footling breech position; however, plaintiffs' expert, Doctor Allan Charles, testified that based on his review of all the records, the baby was in the transverse lie position.
Doctors performed an emergency C-section on plaintiff because a cord prolapse had occurred. The baby was born with severe brain damage resulting from the prolapsed cord.
Plaintiffs brought a medical malpractice action against defendant, alleging that defendant acted negligently by: (1)improperly disregarding the diagnosis that the baby was in a transverse lie; (2)failing to properly manage the diagnosed condition of a transverse lie; (3) improperly assuming that the external version had been performed to treat the transverse lie; (4) failing to properly determine whether an external version had been performed; (5) failing to consult attending staff about the existing diagnosis of a transverse lie; (6) failing to have attending staff review plaintiff's care and treatment; (7) failing to admit plaintiff to the hospital on January 6; (8) improperly instructing plaintiff to go home on January 6; and (9) failing to see that an external version or C-section was performed prior to the cord prolapse.
Plaintiffs' expert, Doctor Charles, opined that defendant's agent, Doctor Tucker, acted negligently on January 6 by: (1) incorrectly assessing the position of the baby and failing to recognize that the baby was in a transverse lie or breech position; (2) failing to perform a non-stress test or ultrasound to confirm the position of the baby; (3) incorrectly assuming that an external version had been performed; and (4) failing to consult with her attending physician.
Defendant filed a motion for summary judgment, arguing that, even assuming Doctor Charles' opinions were correct, defendant was immune from liability based on sections 6-105 and 6-106 of the Tort Immunity Act. Section 6-105 states:
"Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would ...