The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Jay Medicar Transportation LLC's (hereinafter "Jay Medicar") Motion for Summary Judgment. For the reasons stated herein, the Motion is denied.
This is a wrongful death suit that was brought by Georgianne Lakatos and Daniel Freeland, Trustee in Bankruptcy for Andrew Lakatos Jr., as Co--Administrators of the Estate of Andrew Lakatos (hereinafter, collectively, the "Plaintiffs.") Plaintiffs are suing the United States for medical negligence under the Federal Tort Claims Act, and this Court is exercising pendant jurisdiction over their medical negligence claim against Jay Medicar. Plaintiffs' claims against the United States are not at issue here.
The following facts are taken from the parties' Local Rule 56.1 statements, deposition testimony, and exhibits, with disputes noted where applicable. Andrew Lakatos ("Lakatos") was discharged from Edward Hines Jr. V.A. Hospital in Hines, Illinois, ("Hines Hospital") on November 25, 2009. Jay Medicar, a transportation service for patients going to and from Hines, transported Lakatos from the hospital to his home in Lake Station, Indiana. Shortly after Lakatos' arrival home, he collapsed. He died the same day. Jay Medicar seeks summary judgment on the ground that it owed no duty of medical care or treatment to Lakatos when transporting him from the hospital to his home. While Jay Medicar admits that its driver was required to monitor Lakatos during transport and call for help if he observed signs of distress, it contends that Plaintiffs put forth no evidence to show that Lakatos experienced distress during the trip.
In February 2009, Hines Hospital entered into a contract with Jay Medicar in which the latter agreed to provide wheelchair van transportation to Hines' patients. The contract was extended to September 10, 2011 by an amendment dated April 1, 2010. The contract provided that the Jay Medicar driver should assist the patient in entering and exiting the van. It also provided that service should be "through the door," meaning that patients should be helped inside their homes at the conclusion of the trip. (The Court notes, however, that Jay Medicar dispatcher Larry Hawkins testified in his deposition that Jay Medicar drivers were required to help passengers out of the van and perhaps to their front steps, but drivers were not to enter passenger's homes. This seems to conflict with the contract's express requirement that "at the conclusion of their appointments the patient [sic] will be returned to the ward, inside his/her home, or other stated areas.") See Ex. B to Def.'s Mot. for Summ. J., at 11.
The contract provides for certain vehicle specifications, including necessary equipment and maintenance standards. Under the terms of the contract, Jay Medicar drivers are not required to have any advanced medical training. They are required to take a basic first-aid class and complete a training program on transporting elderly, disabled individuals. See id. at 10.
The contract required that the driver must ensure that Jay Medicar would transport "patient luggage, medical records, medications, prosthetic devices and comfort items from pickup points to destinations at no additional charge to the Government." See id. at 13. Additionally, it is undisputed that Jay Medicar's policies required Lopez to pull over and call 911 if a passenger appeared to be in medical distress. See Lopez Dep. at 13:13-14:5.
B. Treatment and Transport of Lakatos
On November 23, 2009, Lakatos was admitted to the emergency room at Hines Hospital. He was treated by doctors at the hospital, including Drs. Jeffrey Naour ("Naour"), Emily Tuerk, Paul Nemeth, and Scott Pawlikowski. As part of his treatment, Lakatos' doctors put him on an oxygen machine. It is not clear from the parties' briefing what caused Lakatos' death, although Naour's deposition testimony indicated he suffered from lung cancer, sleep apnea, and poor cardiac functioning.
Regardless, on November 25, 2009, it is undisputed (at least for the purposes of this motion and by these parties) that Hines Hospital discharged Lakatos without supplemental oxygen. Naour testified that the failure to provide supplemental oxygen upon discharge would amount to a breach of the standard of care. Naour testified that regardless of how long the trip was, Lakatos would have needed supplemental oxygen.
The Jay Medicar driver who transported Lakatos, Angelo Lopez ("Lopez"), testified in his deposition, taken in September 2011, that he could not remember anything about Lakatos or transporting him. He could not recall the dispatcher giving him any specific information about Lakatos or any conversations with anyone at Hines Hospital related to Lakatos' transport.
Lopez testified that he was trained to look at and communicate periodically with his passengers. If he saw that a passenger was in medical distress, he was required to pull over and call 911. In the past, he had on rare occasions refused to transport a passenger -- once because the passenger was paralyzed and could not be transported without an escort and once because the passenger had a contagious disease.
It is undisputed that Lakatos was transported with two other passengers and was the last passenger dropped off. Although he could not remember the trip in question, Lopez testified after looking at his "trip sheet" that the trip took about an hour and 15 minutes. Generally speaking, Lopez determined the route he took when he dropped off passengers and the order in which they would be dropped off. Lopez would frequently get special instructions from the dispatcher, such as if the patient required oxygen or special assistance. Lopez would go into the hospital to get the patients, and he would ask them whether they had everything they needed. He testified that it was his practice to check on passengers about every four minutes, and if a passenger did not respond because he or she was asleep, Lopez would wake up the passenger.
Lopez could not recall ever having transported a passenger who was so oxygen--deprived that the passenger's skin turned blue. He testified that if anything unusual happened during a trip, he would fill out an ...