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In re Estate of Allen

May 2, 2006

IN RE ESTATE OF DARLENE ALLEN, DECEASED
(JIM MORIARITY, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DARLENE ALLEN, DECEASED, PLAINTIFF-APPELLANT,
v.
ROCKFORD HEALTH SYSTEMS, INC., D/B/A ROCKFORD MEMORIAL HOSPITAL; ARTHUR F. PROUST; DEWAYNE NEAL; LORRI J. LEE; EMIL K. MOSNY; AND VALERI D. SMITH, INDIV. AND AS EMPLOYEES OF ROCKFORD HEALTH SYSTEMS, INC., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Winnebago County. No. 03-L-69. Honorable Janet R. Holmgren, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

Published opinion

On July 6, 1999, defendant, Dr. Arthur F. Proust, in an attempt to determine the existence of a potentially fatal drug interaction or overdose, ordered the forcible extraction of urine and blood samples from his patient, Darlene Allen. Allen died more than two years later while her suit against the City of Rockford and several police officers under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (2000)) was pending in federal district court. Thereafter, Allen's estate, through its special administrator, plaintiff Jim Moriarity, sued defendants, Dr. Arthur F. Proust, Rockford Health Systems, Inc., d/b/a Rockford Memorial Hospital, DeWayne Neal, Lorri J. Lee, Emil K. Mosny, and Valeri D. Smith, in the circuit court of Winnebago County, alleging medical battery. Plaintiff claims that defendants failed to obtain consent for the extraction either directly from Allen or indirectly from someone authorized to consent to the treatment for her. The circuit court granted defendants' motion for summary judgment. Plaintiff appeals. We reverse, because we find genuine issues of material fact precluding a holding that the common-law emergency exception to the informed consent rule, which is a defense to an action for medical battery, was applicable as a matter of law.

I. BACKGROUND

After placing Allen under arrest for driving under the influence of drugs, a police officer drove her to Rockford Memorial Hospital, where she signed a consent form for treatment but did not consent to the drug screening test requested by Dr. Proust. After deeming Allen incompetent to consent, Dr. Proust ordered the forcible extraction of blood and urine, as well as the administration of drugs to counteract a possible overdose. After being treated by Dr. Proust, Allen was discharged into police custody. Allen subsequently filed a section 1983 action in United States District Court against the City of Rockford, Officer Taylor, and Officer Taylor's supervisor, as well as supplemental state-law tort claims against the City of Rockford, the police officers, and numerous hospital personnel. On September 12, 2001, while summary judgment briefing was pending in that case, Allen died, and thereafter plaintiff was substituted as the named plaintiff. The district court granted summary judgment in favor of the City of Rockford and the two police officers, and refused to exercise supplemental jurisdiction over the state-law claims against defendants. Estate of Allen v. City of Rockford, No. 99--C--50324 (N.D. Ill. 2002), aff'd, 349 F.3d 1015 (7th Cir. 2003). Plaintiff then filed a medical-battery claim against defendants in the circuit court of Winnebago County.

The complaint contained the following allegations. The police brought Allen to Rockford Memorial Hospital against her will, and defendants desired to take samples of Allen's blood and urine, "ostensibly to check her welfare, but actually motivated by the desire to assist the police." Allen refused the requests of Dr. Proust and the medical personnel to provide blood and urine samples. Employees of defendant Rockford Health Systems, by use of force and against Allen's will, obtained blood and urine samples. The actions of these employees constituted a battery. Dr. Proust ordered the employees to batter Allen and, therefore, was accountable and responsible.

In their motion for summary judgment, defendants took the position that the emergency exception to the requirement of informed consent to medical treatment was applicable. In support of their motion, defendants attached as exhibits a transcript of Dr. Proust's deposition testimony, Dr. Proust's dictated report of his treatment of Allen (Emergency Department Report), the emergency department record from July 6, 1999, and an excerpt from Allen's deposition. Dr. Proust testified to the following facts during his deposition.

He is board certified in emergency medicine and was on duty at the emergency department of Rockford Memorial Hospital from 9 p.m. July 5, 1999, to 6 a.m. July 6, 1999. Allen was brought to the emergency room at Rockford Memorial Hospital at an unknown time on July 6, 1999, by Officer Taylor of the Rockford police department. Allen signed a form indicating her consent to be treated. According to the patient's chart, Dr. Proust first saw Allen at 2:45 a.m. when he walked into a room where Allen was being verbally abusive to staff and was being restrained by security. Also present were Officer Taylor, a paramedic technician, a nurse, and a certified nurse aide. Dr. Proust had a conversation with the police officer, the nurses, and Allen, but not necessarily in that order. Officer Taylor indicated that Allen was driving her vehicle on a bike path when she struck a tree and left her bumper behind. Officer Taylor also told Dr. Proust that Allen was driving on the wrong side of the road at about 5 miles per hour when she was pulled over by police. The Breathalyzer test administered to Allen in the field was negative. Officer Taylor told Dr. Proust that Allen had with her a bottle of medication called Soma, which was prescribed to Allen's sister. Later in his deposition, Dr. Proust explained that Soma is a muscle relaxant that causes central nervous system depression. Seven tablets of the original twenty tablets remained in the bottle. The prescription had been filled the previous day, and if the person for whom the pills were prescribed had been taking them as directed, nine tablets were unaccounted for.

The triage nurse's report that Dr. Proust read indicated that Allen's vital signs were stable, but that her blood pressure was borderline low. A triage note made at 1:15 a.m. indicated that Allen took two Soma at, she "thinks[,] 2300," that is 11 p.m. The triage notes also indicated that "[p]atient brought in by police--unable to ambulate straight and steady" and "[n]ot oriented to time and date." Allen was uncooperative and did not respond to Dr. Proust's questions, including why some of the Soma pills were missing. Allen was intermittently alert and sleepy, was intermittently aggressive with staff, and had slurred speech. As to his indication in the Emergency Department Report that Allen was oriented to person, time, and place, Dr. Proust said that he called out Allen's name and she responded, he asked her if she knew where she was and she said "Rockford Memorial Hospital," he asked her if she knew what the date was and she said it was "July 1999." Dr. Proust could not remember at what point during his evaluation of Allen he asked her those questions, but he indicated that Allen did not respond to those questions right away.

Based on Allen's slurred speech, uncooperativeness, and intermittent sleepiness and aggressiveness, Dr. Proust became concerned that Allen had ingested other drugs in addition to the Soma. Dr. Proust said, at first, defendant would not admit to taking anything other than two Soma. Dr. Proust testified, "I have to assume the worst when I see a patient and I see a pill bottle that doesn't have all the medication it should have. And that's [sic] our job is to assume the worst and [to evaluate] what is the worst thing that could be happening with the patient, is it an overdose[?], is that a reason for impairment, et cetera[?], and to take or try to take proper action." Dr. Proust agreed that he indicated in the Emergency Department Report that the "[p]atient refused to cooperate with drug screen and alcohol level. She was advised that because of her impaired driving, as well as the fact that [there] were a number of missing Soma, as well as the possibility of other drug usage due to her somnolence and slurred speech, it was necessary to do a drug screen." After Dr. Proust explained to Allen that he needed to know what she had ingested in order to treat her properly, she refused to tell him. Dr. Proust explained to Allen that he needed a urine sample. Allen did not verbally refuse to give a urine sample but, rather, refused by attempting to get up and walk away.

Allen could not balance and was unable to walk. Dr. Proust asked Allen why she was resisting, but Allen did not answer. Dr. Proust made the determination that Allen was not competent to refuse medical treatment. Dr. Proust explained that Allen was restrained because she was "delirious, intoxicated," and clawing, punching, kicking, and spitting at the staff, and could have hurt herself or a staff member. Dr. Proust gave the instruction to catheterize Allen to obtain a urine sample, to draw blood, and to administer the drugs Narcan and Actidose. These instructions were carried out by the emergency department nurses.

Dr. Proust was concerned with the possibility of Allen losing consciousness and losing control of her airway. As an example, Dr. Proust explained that if Allen took an overdose of tricyclic medication, she could suddenly lose consciousness, lose blood pressure, not control her airway, and possibly aspirate if she vomited. Dr. Proust said that if he did not test for it, and she had taken a tricyclic, even though he might be observing her, he might intervene too late. When asked if his examination of Allen was indicative of a medical emergency requiring immediate intervention to prevent death or serious harm, to a reasonable degree of medical certainty, Dr. Proust said:

"The aspects of her evaluation were the lack of cooperation, the slurred speech, the intermittent wakefulness and sleepiness, the inability to either answer questions or refusing to answer questions, the unaccounted for missing Soma, the potential low blood pressure that I had initially, the fact that she was--the history I had of the officer's impression of driving impaired, northbound in a southbound lane, whatever the officer told me, you know, those aspects led me to believe that she could have potentially taken a serious overdose. And I needed to know if she did or not, which would help guide my treatment.

If, for example, she was depressed and took an overdose of an antidepressant, that may initially allow someone to present like this; but later on they can become unconscious or obtunded.

And if I missed that and state someone is medically stable to leave my emergency department and later on they have an outcome like that, then I'm certainly not taking care of the patient in their best interests.

And so the evaluation proceeded because I wanted to make sure I wasn't missing any potentially life-threatening conditions."

Dr. Proust explained further that he did not know if there was an immediate need to intervene but, rather, there was the potential that there was an immediate need to intervene. As such, he wanted to administer Narcan, a reversal agent for narcotic overdose. Narcan also serves as a diagnostic tool because suspicion of a narcotic overdose increases where a person wakes up and remains conscious and alert after receiving Narcan. The Narcan was administered during the process of obtaining the urine for a drug screen. Allen received the Narcan at 3:27 a.m.

Because he could not rule out the life-threatening possibility of a Soma and tricyclic interaction without getting a lab test, Dr. Proust believed that there was an immediate need to administer lab tests to Allen and dose her with Narcan and Actidose. When asked whether he could indicate to a reasonable degree of medical certainty that observing Allen for another hour or few hours would have had any detrimental effect on her health at the time he elected to forcibly take the blood and urine, Dr. Proust responded, "It could have. I'm dealing with them prospectively, not retrospectively. It's prospectively. It could have been deleterious to wait and observe." Dr. Proust explained that "I don't want to observe someone have an airway compromise. I want to try to intervene or know I want to try to intervene before that happens. I want to try to anticipate that happening. I want to see if there is [sic] other medications involved that could, you know, potentially be a problem." When asked if, to a reasonable degree of medical certainty, it was necessary to take the urine at the time it was taken or whether it could have been delayed, Dr. Proust said:

"It was a judgment. I made a judgment to get the information based on my assessment of the patient and her lack of cooperativity [sic], her aggressiveness, her somnolence, her inconsistency with the amount of Soma [that] was left, all that information I gave you before.

It was a judgment on my part to try to get as much information as I could so I knew what I was dealing with or to try to know what I was dealing with and, if necessary, to make an intervention. And I was prepared to make an intervention prior to that if I needed to based on her presentation or possible change in her presentation."

When asked about waiting for the patient to regain decision making capacity, Dr. Proust said:

"From the time I went into the room to the approximate time that a urine [sample] was obtained was a period of observation, and during that course there was no evidence of cooperatibility [sic] or capacity in that frame of time. There was that period of observation.

And had she taken other types of medications that I indicated, then I would want to interact as soon as possible to prevent any untoward side effects from them. So I did observe her, and there wasn't any evidence of her capacity based on the things I said before."

When asked whether proper protocol is to obtain surrogate consent when a patient is unable to consent and there is no immediate need to intervene, Dr. Proust said:

"I don't know of any proper protocol. All's [sic] I know is that she had a potential life-threatening problem by possible overdose. And if I didn't proceed with my evaluation or ...


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