Appeal from the Circuit Court of Randolph County. No. 07-L-7 Honorable William A. Schuwerk, Jr., Judge, presiding.
The opinion of the court was delivered by: Justice Stewart
The text of this dec ision m ay be changed or corrected prior to the filing of a Petition for Re hea ring o r the disposition of the same.
JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Welch and Donovan concurred in the judgment and opinion.
¶ 1 Cora Taylor, individually and on behalf of her minor son, Logan Taylor, appeals from the trial court's orders granting a summary judgment in favor of Randolph-Monroe Bi-County Health Department, also known as Bi-County Health Department (Bi-County Health), and dismissing with prejudice the counts of the plaintiffs' amended complaint directed at BiCounty Health. The allegations of the amended complaint directed at Nancy Birner, Logan's pediatrician, and Red Bud Internal Medicine and Pediatrics (Red Bud Pediatrics) have not been dismissed. In the complaint against Bi-County Health, the plaintiffs alleged negligent failure to administer pneumococcal conjugate (PCV7), commonly referred to as Prevnar, as part of the group of childhood vaccines given to Logan and that, as a result, he contracted pneumococcal bacterial disease, more commonly referred to as meningitis. As a result of contracting meningitis, Logan has brain damage, is developmentally delayed, and has bilateral hearing loss. The issues on appeal concern whether Bi-County Health had a duty to administer Prevnar to Logan as an individual, whether Bi-County Health assumed a special duty or voluntarily undertook a duty on behalf of Logan, and the propriety of the dismissal of the counts of the amended complaint directed at Bi-County Health. We affirm and remand.
¶ 4 Logan was born on December 30, 2004. Dr. Birner, who worked for Red Bud Pediatrics, was his pediatrician. Dr. Birner saw Logan on January 14, 2005, for his two-week checkup and again on March 2, 2005, for his two-month checkup. When Logan was two months old, Cora began taking him to Bi-County Health for his immunizations rather than having Dr. Birner give him the vaccines. The parties agree that, on three separate dates in 2005, Logan received several vaccines at Bi-County Health. Those vaccines included diphtheria, tetanus, and pertussis (DTP), polio, Haemophilus influenzae type B (HIB), and hepatitis B (Hep B). He did not receive Prevnar, the vaccine recommended by the Centers for Disease Control (CDC) and the American Academy of Pediatrics (AAP) for the prevention of several strains of meningitis. In 2005, both Red Bud Pediatrics and Bi-County Health participated in the federally funded Vaccines for Children (VFC) program, under which free vaccines were provided to eligible children ages 18 and younger. Additionally, in 2005, the VFC program, the CDC, and the AAP each recommended that all children receive the Prevnar vaccine at 2 months, 4 months, and 6 months and that all children receive a booster of Prevnar sometime between 12 and 15 months. However, children in Illinois were not required to have the Prevnar vaccine before entering daycare or public school in 2005.
¶ 5 Thomas G. Smith, the administrator of Bi-County Health, testified in a deposition that, in 2005, Bi-County Health administered Prevnar only to children who were attending daycare because children attending daycare are at greater risk of contracting pneumococcal disease. When Cora brought Logan to Bi-County Health for his vaccines, she filled out a questionnaire at each visit in 2005 in which she stated that Logan was not attending daycare. Smith testified that, although Logan qualified to receive VFC vaccines because he was a Medicaid recipient, Bi-County Health did not administer the Prevnar vaccine to him because he was not enrolled in daycare. Smith explained that there are two classes of vaccines administered under the VFC program: those that are required for all children and those, like Prevnar, that are recommended for all children but are not required. He testified that, in 2005, Illinois children were considered "fully immunized" without having had the Prevnar vaccine if the rest of the immunizations required for enrollment in daycare or school were current.
¶ 6 Smith testified that Bi-County Health developed its policy of providing Prevnar to otherwise qualifying children only if they were enrolled in daycare based on information from the CDC and the Illinois Department of Public Health (Public Health Department). He stated that, in 2005, Bi-County Health had only two nurses on staff to administer vaccines. He explained that they "tried to weigh the risks involved" against their resources. The "competing interests" involved in the development of the policy included Bi-County Health's resources, personnel, and funding; the availability of supplies; and their goal of "reducing morbidity and mortality in the community."
¶ 7 Smith testified about a memo drafted in 2001 by Pamela Birchler, Bi-County Health's director of nursing. Smith stated that the 2001 memo was in effect in 2005 when Logan was receiving vaccines at Bi-County Health. In the 2001 memo, Birchler informed the Bi-County Health staff members about the Prevnar vaccine and listed the VFC eligibility criteria for its administration. In the memo, among other considerations, Birchler requested the staff to "encourage" their clients to consider immunizing their children with Prevnar if they attended daycare "at least 4 hours/week." Smith testified that, other than the 2001 memo, Bi-County Health had no written policy statement about the decision to administer Prevnar only to children enrolled in daycare.
¶ 8 Birchler testified that, for Bi-County Health to participate in the VFC program, they had to complete a form stating that they would "go along with the guidelines." She explained that Illinois did not have any state regulations governing which vaccines Bi-County Health was supposed to administer to children but that there were state regulations determining which vaccines were required for children to enroll in daycare or public school. Prevnar was not required for children to enroll in daycare or public school. Birchler testified that Logan did not receive the Prevnar vaccine from Bi-County Health because he was not enrolled in daycare and he did not have a high-risk disease. She testified that, in 2006, Bi-County Health changed its policy and began administering the Prevnar vaccine to all children regardless of daycare enrollment at ages 2 months, 4 months, and 6 months, with a booster given between 12 and 15 months, if the child otherwise met the VFC criteria.
¶ 9 During the months that Logan was receiving his vaccinations at Bi-County Health, Cora was also taking him to Dr. Birner for regular checkups and when he was sick. On December 14, 2005, Cora brought Logan to Red Bud Pediatrics for a daycare physical. By that time, Logan had received all the vaccines required for his enrollment at daycare, but he had not yet received a Prevnar vaccination. Cora brought Logan back to Dr. Birner's office on December 28, 2005. At that visit, Cora told Dr. Birner that Logan had fevers on and off since Christmas, that he was teething, that he was pulling at his ear, that his appetite had decreased, and that he was sleeping more. Dr. Birner diagnosed him with a right ear infection. She gave Cora antibiotics for Logan and saw him again on January 3, 2006, for his 12-month checkup. Cora brought Logan back to Dr. Birner's office twice in January 2006, three times in February 2006, and twice in March 2006, and each time Logan continued to have ear infections. Dr. Birner testified that she thought the ear infections were getting worse because he had started attending daycare and was getting reinfected due to his exposure to other children at daycare.
¶ 10 On April 3, 2006, Cora brought Logan, who was 16 months old, to Red Bud Pediatrics for his vaccinations. Dr. Birner explained that Cora's insurance had changed so that Logan was no longer covered under Medicaid for vaccines, but he was still qualified to receive VFC vaccines through Red Bud Pediatrics. On that day, a physician's assistant administered the DTP and Prevnar vaccines to Logan. Kathy Thies, a nurse at Red Bud Pediatrics, testified that the reason the physician's assistant administered Prevnar to Logan on April 3, 2006, was that, when she reviewed Logan's chart, she realized that he had not been receiving the Prevnar vaccine. Thies testified that, in 2005, Bi-County Health informed Red Bud Pediatrics by fax about what vaccines Logan had received and when they had been administered. Thies stated that Red Bud Pediatrics was aware in 2005 that Logan had not received any Prevnar vaccinations. She testified that, if Logan had received his immunizations at Red Bud Pediatrics, he would have received the Prevnar vaccine at ages two months, four months, and six months, along with the other vaccines he had received at Bi-County Health.
¶ 11 In an affidavit, Cora stated that she was "not familiar with all of the vaccines Logan was to receive" and that she "relied on Dr. Birner and her office, as well as [Bi-County Health], to be knowledgeable as to what immunizations Logan was to receive." She stated that no one at either office ever told her that Logan was not receiving Prevnar even though the CDC recommended it. She averred that she was unaware of Bi-County Health's policy of administering Prevnar only to children enrolled in daycare, that she never refused any immunizations for Logan, including Prevnar, and that if she had known about Prevnar, she would have demanded that he receive it.
¶ 12 On June 14, 2006, Cora brought Logan to Red Bud Pediatrics. Logan had a fever and was vomiting, holding his throat as if it hurt, and pulling on or holding both ears. The next day, Cora took Logan to the emergency room because he was difficult to arouse and looked dehydrated. Logan was transferred that day to Cardinal Glennon Children's Hospital, where he tested positive for meningitis. Thereafter, he spent several months in the hospital and at the Knights of Columbus Development Center for rehabilitation.
¶ 14 There is an extensive record of trial court proceedings in this case, but our review in this appeal is limited to the issues between Bi-County Health and the plaintiffs. Therefore, we recount only the procedural history relevant to the issues we are to decide. On January 5, 2009, Bi-County Health filed a motion for a summary judgment, alleging that it is a public entity created by statute (55 ILCS 5/5-25001 et seq. (West 2008)). In the motion, Bi-County Health alleged that one of its functions is to "prevent the transmission of communicable diseases." Bi-County Health alleged that, due to "competing interests and limited resources," it allocated the Prevnar vaccine in a manner that would strategically cover the broadest portion of Monroe and Randolph Counties. It alleged that its policy of giving Prevnar only to children enrolled in daycare gave priority to the highest-risk children who posed the greatest danger of spreading meningitis. Bi-County Health argued that, in 2005, because Logan was not enrolled in daycare, "he was not eligible for Prevnar" and, accordingly, did not receive the "elective Prevnar vaccine when he received his other vaccinations (which were required for school and daycare admission in Illinois)." Bi-County Health attached to the motion for a summary judgment a copy of section 695.10 of Title 77 of the Illinois Administrative Code, which sets forth the "Basic Immunization" requirements for children two months of age and older entering school or a "child care facility" in Illinois. 77 Ill. Adm. Code 695.10, amended at 26 Ill. Reg. 10792, eff. July 1, 2002. That section lists 10 required vaccines, but the Prevnar vaccine is not included in that list.
¶ 15 In the motion for a summary judgment, Bi-County Health argued that, because it is a "creature of statute," it had the discretionary authority to restrict administration of the Prevnar vaccine. Bi-County Health argued that it owed no duty to Logan as an individual because its duty is solely to the public it serves and that because it had no duty to Logan, the plaintiffs could maintain no action in negligence against it. Bi-County Health also argued that its policy of limiting Prevnar to children enrolled in daycare was a discretionary act that was not actionable:
"[Bi-County Health] was not required by statute or other authority to provide Prevnar to all individuals. To the contrary, [Bi-County Health] had the statutory authority to 'initiate and carry out programs and activities of all kinds, not inconsistent with law, that may be deemed necessary or desirable in the promotion and protection of health and in the control of disease including tuberculosis.' 55 ILCS 5/5-25013(B)(1) [(West 2008)]. The 'deemed necessary or desirable' language illustrates the discretion involved in developing such programs."
Bi-County Health asserted that allowing the plaintiffs' case to proceed against it improperly created a "precedent of individuals controlling public resources based upon their individual--not public--interests," which entitled it to a summary judgment.
¶ 16 Bi-County Health also argued that it was entitled to a summary judgment because it was immune from liability pursuant to section 6-104(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/6-104(a) (West 2008)). Bi-County Health argued that it was entitled to the immunity of section 6-104(a) because it is a local public entity being sued for an injury allegedly resulting from a policy decision to perform or not perform an act to promote the public health of the community, a proper exercise of its discretion.
¶ 17 In response, the plaintiffs argued that Bi-County Health owed a "special duty" that it had "voluntarily assumed" when it agreed to vaccinate Logan. They contended that, although Bi-County Health had no duty to initiate a vaccine program, when it enrolled in the VFC program, it acquired a "mandatory obligation to act in a non-negligent manner when administering vaccines." The plaintiffs also argued that Bi-County Health was not entitled to statutory immunity because it failed to exercise due care in carrying out the voluntary immunization ...