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Israel Hernandez, A Minor, By and Through His Mother, Luz Gonzalez v. Dr. Delia Tapia and Ascension Health

December 15, 2010


The opinion of the court was delivered by: Judge Joan H. Lefkow


Plaintiff, Israel Hernandez ("Israel"), a minor, by and through his mother, Luz Gonzalez ("Luz"), filed a three-count complaint against Dr. Delia Tapia and Ascension Health, Inc. ("Ascension") alleging that Dr. Tapia and Ascension are liable for injuries that Israel suffered during and after his birth at St. Cabrini Hospital.*fn1 Count I of Israel's complaint alleges that Dr. Tapia failed to properly render appropriate and timely anesthesia care during plaintiff's birth. Counts II and III allege that Ascension is liable for negligent acts that were performed by other medical personnel at the hospital. Before the court are Ascension's and Dr. Tapia's motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiff's claims are precluded by the doctrine of res judicata and that plaintiff has forfeited his right to bring the instant claims by entering into a release agreement upon termination of a prior proceeding. For the following reasons, Ascension's motion [# 24] is granted and Dr. Tapia's motion [# 22] is denied.


I. Israel's Birth at St. Cabrini Hospital

On May 23, 1995, Luz presented to St. Cabrini Hospital with the signs and symptoms of labor. Luz received care and treatment from the medical personnel at the hospital, including Dr. Tapia, an anesthesiologist. Luz was Dr. Tapia's patient and Dr. Tapia had a duty to provide medical care in accordance with accepted standards of medical practice. Dr. Tapia failed to provide appropriate and timely anesthesia to Luz, and Israel was injured as a result of her actions.

The nurses, employees, and staff physicians at St. Cabrini Hospital, including but not limited to Drs. James A. Threatte and Kenneth E. Johnson, were also careless and negligent in the medical treatment that they provided to Luz and Israel. In particular, the medical personnel at St. Cabrini Hospital failed to properly assess and report their patients' conditions, consult with a specialist capable of determining their conditions, timely order appropriate tests, properly assess and report the test results, and timely deliver Israel even though there were signs of fetal distress. The medical personnel at St. Cabrini Hospital carelessly and negligently prescribed medications, and Israel was injured as a result.

II. The Relationship Between Ascension and St. Cabrini Hospital

Defendant Ascension is a Missouri non-profit that was created in 1999 by uniting several Catholic healthcare ministries located in the United States. It has created the largest Catholic healthcare ministry in the United States, divided into approximately thirty-eight individual healthcare ministries located primarily in the Midwest and the Northeast. Ascension's relationship with St. Cabrini Hospital has evolved as follows.

In 1995, several Catholic hospitals and healthcare providers in the Chicago area agreed to consolidate their operations and coordinate the delivery of medical services pursuant to a written Affiliation Agreement. The Affiliation Agreement reorganized the Columbus-Cabrini Health System and renamed it Catholic Health Partners ("CHP"), which is an Illinois non-profit. CHP was in turn the sole corporate member of the Columbus-Cabrini Medical Center ("CCMC"), an Illinois non-profit that operated four community-based hospitals in Chicago as divisions of CCMC. St. Cabrini Hospital was one of the hospitals operated by CCMC. CHP operated as a shell corporation without any assets other than its interest in CCMC, and CHP and CCMC operated as a single corporation.

Pursuant to the Affiliation Agreement, CHP and CCMC sold the land and buildings that comprised St. Cabrini Hospital and transferred the operation of St. Cabrini Hospital to St. Anthony Hospital. The financial condition of CHP and CCMC subsequently deteriorated, in part because the Affiliation Agreement required that they pay $1,500,000 of the proceeds of the sale of St. Cabrini's assets to the Missionary Sisters of the Sacred Heart.

By 2001, CHP and CCMC were concerned that they would have to liquidate. As a result, they made an agreement with Ascension to transfer substantially all of their assets, as well as control of St. Anthony Hospital, to Ascension. Ascension allowed CHP and CCMC to join its network of Catholic health care providers and agreed to pay all of the debts and liabilities of CHP and CCMC. Ascension also entered into an Assumption Agreement with CHP and CCMC, whereby Ascension agreed to assume liability for all damages and injuries resulting from medical malpractice claims against CHP, CCMC, and any other entity or person that had provided medical services to patients at St. Cabrini Hospital. The Assumption Agreement had an effective date of July 1, 2002 and Ascension thereby agreed to assume liability for the claims that plaintiff has asserted against Dr. Tapia and for injuries caused by the other medical personnel who attended Israel's birth at St. Cabrini Hospital.

Also on July 1, 2002, CHP, CCMC, and Ascension executed the First Amendment to the 1995 Affiliation Agreement. The Amendment reorganized CCMC and renamed it Catholic Health Partners Services ("CHPS") and provided that CHPS would operate St. Anthony Hospital. The Amendment gave Ascension extensive reserved powers over CHP and CHPS, including the power to sell, transfer, or change the use of their assets and the power to appoint or remove the majority of the members of their board of directors.*fn3 Ascension exercised total control over CHP and CHPS and their assets and included their financial operations as part of Ascension's consolidated financial statements. CHP and CHPS were therefore merged into or consolidated with Ascension and, pursuant to this merger, Ascension became directly responsible for injuries arising from medical malpractice claims against medical service providers at St. Cabrini Hospital, including plaintiff's medical malpractice claims against Dr. Tapia and other medical personnel. CHP separated from Ascension under a Separation Agreement dated May 28, 2009. Ascension relinquished its control over CHP and CHPS and CHP thereafter operated St. Anthony Hospital as a freestanding Catholic hospital.

III. Procedural History

This case has a lengthy procedural history that is recounted here because it is relevant to the court's analysis of the pending motions.

Plaintiff first filed suit in Cook County Circuit Court in 2001. Plaintiff's first amended complaint named the following defendants: CHPS, doing business as Columbus-Cabrini Medical Center and St. Cabrini Hospital, Dr. James A. Threatte, Dr. Bladel, and Dr. Kenneth E. Johnson. Ascension's Mot. to Dismiss Ex. 2. Ascension was added as a defendant in December 2006. Id. Ex. 8. On January 31, 2007, plaintiff filed a Tenth Amended Complaint, which alleges that (i) various staff physicians and employees at St. Cabrini Hospital, including Dr. Tapia, were negligent in providing medical care to plaintiff and his mother, (ii) Ascension controlled both CHPS and CHP and the assets and liabilities of both CHPS and CHP had been transferred to Ascension as of July 1, 2002, and (iii) Ascension had assumed the obligation to pay for damages resulting from the acts of agents and employees of St. Cabrini Hospital. Id. Ex. 1 ΒΆΒΆ 3--4, 19, 27, 32. On March 14, 2007, plaintiff agreed to voluntarily dismiss his claims against Ascension and CHP without prejudice. Id. Exs. 10, 18 at 4--5. The transcript of the hearing before Judge Richard Elrod, the trial judge, indicates that this was done to expedite the determination of liability while leaving plaintiff with the opportunity to re-file against Ascension in the event that a jury verdict exceeded the remaining defendants' insurance coverage. Pl.'s Reply to Ascension's Mot. to Dismiss Ex. C at 4 (statement by the guardian ad litem that, "When counsel says without prejudice, that would mean even post verdict were the case to go forward to trial, [Ascension] would still be susceptible to answering ...

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