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The Estate of Kameryn L. Kundert, Deceased, By Dustin Kundert, Special Administrator v. Illinois Valley Community Hospital

January 10, 2012


Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois Circuit No. 09-L-54 Honorable James A. Lanuti, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Schmidt

PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

Justices Lytton and Wright concurred in the judgment and opinion.


¶ 1 Plaintiffs, Dustin Kundert and Krista Grady, brought this medical malpractice suit on behalf of their deceased child, Kameryn Kundert, and his estate against defendant, Illinois Valley Community Hospital (Illinois Valley). The circuit court of La Salle County dismissed the action pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code). 735 ILCS 5/2-615 (West 2008). Plaintiffs appeal, claiming the court erred when holding, as a matter of law, no relationship existed between the decedent, or his parents, and defendant sufficient to create a legal duty of care. We affirm.


¶ 3 Given the procedural history of this case, the facts we recite are derived from plaintiffs' second amended complaint.

¶ 4 On April 18, 2007, Krista Grady gave birth to Kameryn Kundert. Krista and Dustin Kundert are Kameryn's parents. On April 27, 2007, April 29, 2007, May 11, 2007, and May 22, 2007, Krista presented Kameryn to Illinois Valley for care pursuant to orders from Dr. Kara Fess.

¶ 5 On May 31, 2007, Kameryn exhibited signs and symptoms of a serious illness. Unable to reach Dr. Fess at Hygienic Institute Community Health Center, Krista called Illinois Valley at 7:29 p.m. that night. She informed the operator that she needed to speak to a medical professional for advice about Kameryn's symptoms.

¶ 6 The operator transferred the call to an individual in the emergency room. Krista told this unknown individual that Dr. Fess, the child's primary pediatrician, could not be reached. Krista then described Kameryn as a six-week-old newborn with a high temperature who was very fussy, unable to sleep and refusing to eat. The individual informed Krista that she was overreacting, which was typical for new mothers, to administer Tylenol and give Kameryn tepid baths. The individual was unsure of the proper dosage of Tylenol and, as such, instructed Krista to contact a pharmacy. The individual noted that the symptoms described did not require immediate medical attention and to follow up with Dr. Fess in the morning. Finally, "the individual on the telephone advised [Krista] that Illinois Valley did not have the equipment or medical personnel to provide medical services to infants." Krista called a pharmacy to determine the proper amount of Tylenol to give Kameryn.

¶ 7 Relying on the information received during the phone call, Krista postponed seeking medical treatment for Kameryn until Dr. Fess's office opened at 8 a.m. on June 1, 2007. Following an examination in Dr. Fess's office, Dr. Fess arranged for Kameryn to be transported via ambulance to Illinois Valley's emergency room. Dr. Fess advised the emergency room personnel that a septic six-week-old would be arriving. Once there, medical personnel performed a lumbar puncture, took a chest X-ray and administered intravenous fluids and oxygen. Within an hour of arriving, Kameryn was transferred to St. Francis Medical Center to receive a "higher level of specialized medical treatment not available at Illinois Valley." At St.. Francis, Kameryn was treated for bacterial meningitis. He died on June 15, 2007.

¶ 8 Plaintiffs alleged that based on the medical advice given via telephone from Illinois Valley on May 31, 2007, "approximately 15 hours of valuable time was lost which resulted in a delay of medical treatment necessary to sustain life." Plaintiffs' second amended complaint identifies numerous allegedly negligent acts committed by Illinois Valley, including failing to recognize the signs and symptoms of meningitis, improperly diagnosing Kameryn and improperly refusing to instruct Krista. While the second amended complaint contains references to the Rights of Married Persons Act (750 ILCS 65/15 (West 2008)) and agency principles, all theories of recovery are based on the tort of negligence. Illinois Valley filed a section 2-615 (735 ILCS 5/2-615 (West 2008)) motion to dismiss this complaint, arguing, inter alia, that, as a matter of law, no relationship existed between decedent and defendant. Defendant asserted that without such a legal relationship, it owed decedent no duty. Therefore, defendant contended, it could not be negligent toward decedent. The trial court agreed and granted defendant's motion to dismiss. The order granted plaintiffs leave to file a third amended complaint containing allegations "as to events occurring after the child was brought to the defendant emergency department on June 1, 2007." Plaintiffs filed a motion to reconsider, which the trial court denied. In denying plaintiffs' motion to reconsider, the trial court noted, "Plaintiff has chosen to stand on his second amended complaint. This order is final, and cause is dismissed with prejudice." This appeal followed.


¶ 10 A motion brought pursuant to section 2-615 of the Code challenges the legal sufficiency of a complaint. 735 ILCS 5/2-615 (West 2008); Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006). As such, we review de novo an order granting a section 2-615 motion to dismiss, accepting all well-pleaded facts and reasonable inferences drawn therefrom as true. Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155 (2009). We must also construe the allegations contained within the complaint in the light most favorable to the plaintiff. Id.

¶ 11 To be legally sufficient, a complaint for negligence must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by that breach. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987); Teter v. Clemens, 112 Ill. 2d 252, 256 (1986). Plaintiffs acknowledge that, generally, the "determination of whether a duty exists--whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff--is an issue of law to be determined by the court." Kirk, 117 Ill. 2d at 525. Factors used to determine whether a duty exists include the reasonable foreseeability of injury, likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant. Id. at 526. In the medical malpractice arena, a "physician's ...

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