Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice O'brien
Plaintiff, Latricia Mills, as special administrator of the estate of Malcolm James, appeals the order of the circuit court dismissing her negligence complaint against defendant County of Cook. On appeal, plaintiff argues that the trial court erred in finding that section 6-106(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/6-106(a)(West 2000)) immunizes defendant from liability. We reverse and remand.
On November 11, 1996, plaintiff brought her son, five-month-old Malcolm James, to defendant's hospital because Malcolm had a cold and was coughing and wheezing. Defendant's emergency room physician, Doctor Isong, examined Malcolm and determined that he had some upper airway congestion "in keeping with" an upper respiratory infection. Doctor Isong made a differential diagnosis of pneumonia, meaning that she considered pneumonia to be a possible contributing cause of Malcolm's ailments. Doctor Isong ordered a chest Xray, CBC and blood culture, and nebulizer treatments for the wheezing. The nebulizer treatments consisted of albuterol, a bronchodilator, delivered with oxygen through a mask. Malcolm was also given saline drops in his nose to loosen secretions so his nose could be suctioned.
After the treatments were administered, Doctor Isong determined that Malcolm's condition had improved and she discharged him from the hospital. Upon discharge, Doctor Isong wrote prescriptions for a bronchodilator, Tylenol, and an oral antibiotic. Malcolm died a few hours after his discharge.
During his deposition testimony, plaintiff's expert, Doctor Eugene Saltzberg, agreed that "the failure on the part of the physicians at Cook County Hospital to fully treat Malcolm James' pneumonia was the proximate cause of his death." Specifically, Doctor Saltzberg testified that the nebulizer treatment prescribed by Doctor Isong was only a partial treatment of Malcolm's condition and did not fully comply with the standard of care. Doctor Saltzberg testified that the proper treatment would have been to admit Malcolm to the hospital while "providing him with ongoing respiratory support as he needed it and to provide him [with] parenteral (intravenous) antibiotics."
Plaintiff filed her complaint alleging that defendant's negligent treatment proximately caused Malcolm's death. The trial court dismissed plaintiff's complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2000)), finding that section 6-106(a) of the Tort Immunity Act immunizes defendant from liability. Plaintiff filed this timely appeal.
Section 2-619 of the Code provides a means for the disposition of issues of law and easily proved issues of fact. People ex rel. Devine v. Time Consumer Marketing, Inc., 336 Ill. App. 3d 74, 78, 782 N.E.2d 761, 764 (2002). A section 2-619 motion admits the legal sufficiency of the complaint but raises some affirmative matter, appearing on the face of the complaint or established by external submissions, which defeats the plaintiff's claim. Time Consumer Marketing, 336 Ill. App. 3d at 78, 782 N.E.2d at 764. On review of an order granting dismissal pursuant to section 2-619, we must determine whether a genuine issue of material fact existed which should have precluded dismissal and, if not, whether the dismissal was proper as a matter of law. Time Consumer Marketing, 336 Ill. App. 3d at 78, 782 N.E.2d at 764.
This case involves the interplay between 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 constitute a hazard to the health or safety of himself or others." 745 ILCS 10/6-105 (West 2000).
"Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental or physical illness or addiction or from failing to prescribe for mental or physical illness or addiction." 745 ILCS 10/6-106(a) (West 2000).
"Nothing in this section exonerates a public employee who has undertaken to prescribe for mental or physical illness or addiction from liability for injury proximately caused by his negligence or by his wrongful act in so prescribing or exonerates a local public entity whose employee, while acting in the scope of his employment, ...