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Varela v. St. Elizabeth's Hospital of Chicago

August 7, 2006


Appeal from the Circuit Court of Cook County No. 02 L 003426, Honorable Kathy M. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

In this medical negligence suit, the plaintiffs, Raynoldo Varela, a minor, and his mother Rachel A. Nelson, appeal from an order of the circuit court granting summary judgment to the defendants, emergency room physician Dr. Luis E. Gomez, M.D., his employer Mesa EmCare, S.C. (Mesa EmCare), and the hospital where Dr. Gomez treated Raynoldo on June 8, 1997, St. Elizabeth's Hospital of Chicago, Inc. (St. Elizabeth's).*fn1 The summary judgment ruling was based on the court's determination that the emergency room physician and St. Elizabeth's nurses did not owe a common law duty of care to their minor patient to discover a past injury and report it as suspected child abuse to his mother and the Illinois Department of Children and Family Services (DCFS), and that the healthcare personnel's conduct was not the proximate cause of physical abuse subsequently inflicted by Raynoldo's father. The court also denied the plaintiffs leave to file a proposed third amended complaint, which alleged Raynoldo's injuries were attributable in part to the negligence of unnamed physicians and nurses on a subsequent workshift at the hospital who did not follow up when a radiologist's report about Raynoldo's chest X ray noted the presence of healed rib fractures. The court characterized the new allegations as a new theory that was untimely and would not cure the deficient allegations of duty and proximate cause. In their appeal, Raynoldo and Rachel contend the court's misapprehension of Illinois law regarding duty and proximate cause led the court to erroneously enter summary judgment for the defense and abuse its discretion by denying leave to file the proposed amended pleading.

The record on appeal discloses the following. Raynoldo was born prematurely on March 31, 1997, to Rachel and her boyfriend Kikole Varela. At the time, Rachel was 17 years old and Kikole was 18 years old. Out of concern that Raynoldo was experiencing seizures, he was placed on a phenobarbital regimen. During a "well baby" checkup on April 18, 1997, Rachel reported that Raynoldo was sometimes gasping for air and breathing fast. The doctor's notes reflect that Raynoldo was a healthy 18-day-old boy and that he was experiencing "periodic breathing," which was a normal condition that he would probably outgrow. On the morning of June 8, 1997, when Raynoldo was nine weeks old, his parents brought him to the emergency room at St. Elizabeth's, with complaints of difficulty breathing and increased crying since noon the previous day, when Rachel started him on a new infant formula, Similac with iron. According to Rachel, she also told "the emergency room nurse and doctor" about a "clicking feeling in [her] baby's back." The medical records indicate Rachel denied Raynoldo experienced a fever, vomiting, lethergy, or recent seizures. Dr. Gomez examined Raynoldo and noted he was an active infant with a strong grasp. Raynoldo moved all his extremities and his crying was consolable. His chest was clear, his lungs were working well, and his oxygen saturation was 100%. His pupils were equal, round, and reactive to light. Raynoldo drank Pedialyte while in the emergency room and Dr. Gomez ruled out the need to hydrate the child with a saline solution. The doctor noted that Raynoldo's abdomen was soft and that there were active bowel sounds. However, he also noted that Raynoldo's abdomen was moderately distended and that there was some initial voluntary guarding of the abdomen when the doctor started his exam. Dr. Gomez found no evidence of blood in the stool, and blood testing he ordered showed a normal white blood count, normal hemoglobin, and normal blood sugar. Dr. Gomez also ordered a chest X ray because of the initial complaint of difficulty breathing. He wanted to assure Rachel that Raynoldo was breathing normally and was not suffering from an acute or "significant process such as pneumonia or some other cause for an inability to breathe." According to Dr. Gomez's deposition testimony, he studied the X-ray film for pneumonia, a dropped lung, or anything that would have suggested abnormal lung tissue, and he saw no evidence of an explanation for difficulty breathing. He did not see any indication of the healed fractures on Raynoldo's lower left ribs, but if he had, Dr. Gomez stated he would have asked about prior injuries, because absent some other explanation, rib fractures in an infant are indicative of abuse. According to the doctor, his expertise was in emergency medical intervention, meaning he could diagnose obvious features in X rays and stabilize patients but was not proficient in discerning subtle features in X rays. Dr. Gomez took into account that Raynoldo's crying began shortly after being started on the Similac formula with iron a day earlier and that iron is "notorious for slowing the gut and distending the gut." Also, "It's very common for a child to cry if the child has [intestinal] colic and to be perceived by a parent [or other observer] as perhaps having difficulty breathing." In addition, a child and even an adult will "tend to hyperventilate" when his or her "abdomen is uncomfortable." After considering Raynoldo's history and the results of the physical exam and diagnostic tests, Dr. Gomez concluded that Raynoldo was suffering from intestinal colic. Dr. Gomez discharged Raynoldo with instructions to discontinue the new Similac formula, to give Pedialyte, to return immediately if there was fever or vomiting, and to follow up with a pediatrician in the morning.

The written discharge instructions informed Raynoldo's parents that a radiologist would perform an official interpretation of the chest X ray the following morning and that they should have the child's doctor call for a copy of the radiologist's report. The discharge instructions also said either Raynoldo's parents or his doctor would be notified if there was a discrepancy between the findings of the emergency department physician and the radiologist.

Raynoldo was seen by a pediatrician the following day. The pediatrician's notes describe Raynoldo as a healthy two-month old. He was alert and active during the examination, his lungs were clear, and his abdomen was soft and not distended. The notes do not reflect whether the doctor was advised of the previous day's emergency room visit.

On the morning of June 9, 1997, Dr. Ahmad Judar, a board- certified radiologist at St. Elizabeth's, reviewed Raynoldo's X ray and made a written report. Dr. Judar documented:

"The heart is normal in size. There appears to be hyperinflated lungs. No evidence of pneumonia or edema. There is evidence of old healed fracture at the left lower ribs involving 7th, 8th and 9th ribs.

Conclusion: Hyperinflated lungs, bronchiolitis should be considered. Old healed fracture at the left lower ribs appears to be involving the 7th, 8th and 9th ribs at the axillary area."

When Dr. Judar was deposed on July 12, 2004, he no longer recalled this particular report. However, he described the usual procedure. He indicated a "flash card" or preliminary written report of the emergency room doctor accompanies X-ray film sent to the radiology department. If a discrepancy is seen, the radiologist authors a report, makes a handwritten note on the flash card, and returns the documents to the emergency room. Due to the close proximity of Dr. Judar's office and the emergency room, Dr. Judar's routine practice is to hand deliver discrepancies to "the nurse or to the doctor." Dr. Judar did not recall noting a discrepancy on Raynoldo's flash card, returning this particular flash card to the emergency room, or if he ahd spoken with Dr. Gomez or any other emergency room personnel about Raynoldo. In Dr. Judar's opinion, Raynoldo's healed fractures were at least five weeks old, could be as many as eight weeks old, and could have resulted from birth trauma, a fall from a couch, or abuse. Raynoldo's old injuries were revealed as little bulging irregularities in the ribs. By the time the X ray was taken, the bone density had become homogeneous, there was no difference in coloration, and what remained were "minimal changes." The minimal changes would be "rather obvious" to a radiologist but not to the emergency room physicians that Dr. Judar had worked with. A view from the left ribs would have revealed more than the chest X ray that was taken. The radiologist's role was to report the discrepancy to the emergency room, and the physician's role was to decide what to do about it, including whether to order more films.

St. Elizabeth's emergency department manual likewise states that it is the responsibility of the emergency department physician on duty to evaluate a reported X ray discrepancy and determine the action to be taken. The manual further provides that if a suspected child abuse victim comes to the emergency room, the individual is to be treated and immediate calls are to be placed to the police department and DCFS.

The record indicates Dr. Gomez was not on duty on June 9, 1997, when the radiologist prepared his report of Raynoldo's X ray. Dr. Gomez did not receive a copy of Dr. Judar's report and he did not know whether anyone in the radiology department, including Dr. Judar, followed up with anyone in the emergency department.

On Saturday afternoon, July 26, 1997, while Kikole and Raynoldo were sleeping, Rachel left their apartment for approximately 30 minutes to cool off under an open fire hydrant. When she returned, the baby was crying and Kikole was holding him. The baby was crying strongly and acting strangely, but he eventually fell asleep and remained asleep until late that night. When he awoke, Rachel fed Raynoldo some formula, but he began projectile vomiting, and threw up more than he had just eaten. Rachel and Kikole took Raynoldo to the hospital emergency room, where doctors discovered a subdural hematoma and 11 rib fractures in various stages of healing. The medical personnel diagnosed "shaken baby syndrome" and immediately reported the situation to DCFS and the police department as a case of suspected child abuse. Approximately a week later, Kikole confessed to shaking the baby on three occasions -- June 15, 1997, which was after Dr. Gomez examined Raynoldo; July 7, 1997; and July 26, 1997. Kikole was convicted of aggravated battery to a child and incarcerated. Raynoldo suffered permanent neurological damage and partial blindness in his right eye. He receives ongoing treatment, including occupational therapy and speech therapy sessions while at school.

On March 20, 2002, Rachel and Raynoldo filed their original complaint against Dr. Gomez and the hospital, alleging a violation of the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/4 (West 2002)). Attached to the complaint was a letter written by emergency physician Eugene E. Saltzberg, stating in relevant part:

"No attempt to evaluate a potential child abuse situation was made on [June 8, 1997,] nor any other date by the staff of St. Elizabeth's Hospital. Multiple rib fractures indicate child abuse until proven otherwise. Subsequently, this child was the victim of further abuse resulting in permanent, significant neurological injury. Had the original injuries been looked into, it is my opinion that, more likely than not, further injury would not have occurred. Therefore, it is my opinion that [Dr. Gomez, St. Elizabeth's], and any other medical staff members involved in [Raynoldo's] care at St. Elizabeth's hospital provided care below the standard acceptable for any medical practitioner, and that the deviation from the standard of care resulted in further irreparable injury."

The Reporting Act does not expressly provide for a private right of action in the event of a violation and an implied private right of action was rejected by the Third District in Doe 1 v. North Central Behavioral Health Systems, Inc., 352 Ill. App. 3d 284, 286, 816 N.E.2d 4, 6 (2004). Although the Third District case involved a psychology clinic which did not report that one of its patients was sexually abusing children and the patient went on to abuse other children, the court's reasoning appears equally applicable to other types of relationships. The Third District questioned whether a private remedy would be consistent with the underlying purpose of Reporting Act, since the statute is designed to enhance the ability of DCFS to "'protect the health, safety, and best interests of the child in all situations in which the child is vulnerable to child abuse or neglect.'" North Central Behavioral Health, 352 Ill. App. 3d at 287, 816 N.E.2d at 7, quoting 325 ILCS 5/2 (West 2002). The court pointed out, "[n]owhere is it either explicitly stated or implied that a purpose of the Reporting Act is to provide children or families with compensation for *** abuse or a failure to report abuse." North Central Behavioral Health, 352 Ill. App. 3d at 287, 816 N.E.2d at 7. In addition, although the plaintiff family argued that finding an implied private cause of action for a failure to report would lead to enhanced enforcement of the Reporting Act, the court emphasized that the "same argument could be made of almost any statute." North Central Behavioral Health, 352 Ill. App. 3d at 287, 816 N.E.2d at 7. Furthermore, there was no evidence "that the statute does not already adequately serve its purpose, absent a private cause of action." North Central Behavioral Health, 352 Ill. App. 3d at 287, 816 N.E.2d at 7. This fact was significant because a cause of action "should only be implied in a statute 'in cases where the statute would be ineffective, as a practical matter, unless such an action were implied.'" North Central Behavioral Health, 352 Ill. App. 3d at 287-88, 816 N.E.2d at 7, quoting Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 464, 722 N.E.2d 1115, 1119-20 (1999). The Reporting Act provides criminal sanctions for wilful failure to report, and the Third District plaintiffs gave no indication this penalty ...

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