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SIXTH DIVISION
December 28, 2001

No. 1-00-3731

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiffs, American National Bank & Trust Company, as guardian of the estate of GustavoEstriveros, and Gloria Estriveros, individually, appeal the order of the circuit court granting summaryjudgment for defendant, the County of Cook, on plaintiffs' medical malpractice action. On appeal,plaintiffs argue that the circuit court erred in holding that sections 6-105 and 6-106(a) of the LocalGovernmental and Governmental Employees Tort Immunity Act (Tort Immunity Act), 745 ILCS 10/6-105, 10/6-106(a) (West 2000) immunize defendant from liability. We reverse and remand.

Gloria Estriveros (plaintiff) received her prenatal care at defendant's medical clinic. On October3, 1986, plaintiff went to defendant's medical clinic for an ultrasound, which showed that plaintiff's babywas in a "transverse lie," meaning that the baby was lying perpendicular to his mother's body.

A baby in a transverse lie position cannot be delivered vaginally, because there is no part of thebaby's body to form a wedge to lead the way through the cervix. Further, a woman who goes into laborin such a condition runs the risk of a cord prolapse, meaning that the umbilical cord slips through thecervix and can no longer pulsate, thereby depriving the baby of oxygen and nourishment.

Several treatment options are available for a woman with a baby in the transverse lie position,depending on how far the baby is from term. First, the doctor can monitor the mother over a period oftime to see if the baby changes position inside her womb. Second, the doctor can perform an externalversion, a procedure in which the doctor physically moves the baby by pressing on the mother'sabdominal wall. Third, the doctor can perform a cesarean section at fetal maturity.

Here, doctors monitored plaintiff's condition as her pregnancy proceeded. On December 4,plaintiff was seen by Doctor David Baum at defendant's clinic. Doctor Baum charted that plaintiff's babywas in the cephalic position, meaning that the baby was positioned with its head down in the womb. On December 11, plaintiff was seen by defendant's second-year resident, Doctor Vernita Tucker, whocharted that plaintiff's baby was in the transverse lie position. On December 18, plaintiff was seen inCook County Hospital by Doctor Pang, who charted that the baby was in the vertex position, meaningthat its head was down and thus, was not in the transverse lie position. However, plaintiff alsounderwent an ultrasound on December 18 which showed that the baby was in the transverse lie position. On December 23, plaintiff was examined at defendant's clinic by Doctor Elias Sabbagha, who chartedthat the baby was in a transverse lie.

On January 6, plaintiff again was seen by Doctor Vernita Tucker, defendant's second-yearresident. Doctor Tucker performed a Leopold's maneuver on plaintiff, i.e., she manipulated plaintiff'sabdomen in order to feel for the baby's position. Doctor Tucker determined that the baby was cephalic,meaning that he was positioned head-first or head down, and, thus, was no longer in a transverse lie. Doctor Tucker also charted that plaintiff was "status post external version," meaning that an externalversion had been performed on plaintiff two weeks earlier. However, Doctor Tucker admitted in herdeposition that there was nothing in plaintiff's medical records to indicate that an external version hadbeen performed two weeks prior to January 6. When asked why she had charted that plaintiff was "postexternal version," Doctor Tucker indicated some uncertainty, as she could not remember the specificsof the January 6 examination; Doctor Tucker stated that she "assume[d]" plaintiff must have told herabout the external version.

Plaintiff went into labor on January 27, 1987. Doctor Sabbagha, who was charting the delivery,stated that the baby was in a footling breech position; however, plaintiffs' expert, Doctor Allan Charles,testified that based on his review of all the records, the baby was in the transverse lie position.

Doctors performed an emergency C-section on plaintiff because a cord prolapse had occurred. The baby was born with severe brain damage resulting from the prolapsed cord.

Plaintiffs brought a medical malpractice action against defendant, alleging that defendant actednegligently by: (1)improperly disregarding the diagnosis that the baby was in a transverse lie; (2)failingto properly manage the diagnosed condition of a transverse lie; (3) improperly assuming that the externalversion had been performed to treat the transverse lie; (4) failing to properly determine whether anexternal version had been performed; (5) failing to consult attending staff about the existing diagnosisof a transverse lie; (6) failing to have attending staff review plaintiff's care and treatment; (7) failing toadmit plaintiff to the hospital on January 6; (8) improperly instructing plaintiff to go home on January6; and (9) failing to see that an external version or C-section was performed prior to the cord prolapse.

Plaintiffs' expert, Doctor Charles, opined that defendant's agent, Doctor Tucker, actednegligently on January 6 by: (1) incorrectly assessing the position of the baby and failing to recognizethat the baby was in a transverse lie or breech position; (2) failing to perform a non-stress test orultrasound to confirm the position of the baby; (3) incorrectly assuming that an external version hadbeen performed; and (4) failing to consult with her attending physician.

Defendant filed a motion for summary judgment, arguing that, even assuming Doctor Charles'opinions were correct, defendant was immune from liability based on sections 6-105 and 6-106 of theTort Immunity Act. Section 6-105 states:

"Neither a local public entity nor a public employee acting within the scope ofhis employment is liable for injury caused by the failure to make a physical or mentalexamination, or to make an adequate physical or mental examination of any person forthe purpose of determining whether such person has a disease or physical or mentalcondition that would constitute a hazard to the health or safety of himself or others." 745ILCS 10/6-105 (West 2000).

Section 6-106(a) states:

"Neither a local public entity nor a public employee acting within the scope of hisemployment is liable for injury resulting from diagnosing or failing to diagnose that a person isafflicted with mental or physical illness or addiction or from failing to prescribe for mental orphysical illness or addiction." 745 ILCS 10/6-106(a) (West 2000).

Section 6-106(d) states:

"Nothing in this section exonerates a public employee from liability for injuryproximately caused by his negligent or wrongful act or omission in administering any treatmentprescribed for mental or physical illness or addiction or exonerates a local public entity whoseemployee, while acting in the scope of his employment, so causes such an injury." 745 ILCS10/6-106(d)(West 2000).

The circuit court granted defendant's motion for summary judgment. Plaintiffs filed this timelyappeal.

Summary judgment is appropriate when, viewed in the light most favorable to the nonmovingparty, the pleadings, depositions, and admissions on file reveal that no genuine issues of material factexist and that the moving party is entitled to judgment as a matter of law. Ragan v. Columbia MutualInsurance Co., 183 Ill. 2d 342, 349 (1998). The standard of review in cases involving summary judgmentis de novo. Ragan, 183 Ill. 2d at 349.

Defendant argues that summary judgment was appropriately entered in its favor becauseplaintiffs' allegations of negligence are premised on Doctor Tucker's failure to correctly diagnose thebaby's position on January 6. Defendant argues that the circuit court correctly determined that it wasimmune under section 6-106(a) of the Tort Immunity Act for such a failure to diagnose.

We disagree. In Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493 (2000), oursupreme court considered section 6-106(a), which immunizes local public entities and their employeesfor the failure to diagnose, and section 6-106(d), which holds public employees responsible fornegligently prescribing or administering treatment which causes injury. The court noted the well-settledrule that where the statutory language is clear and unambiguous, the court must give it effect as written,without reading into it limitations or conditions that the legislature did not express. Michigan AvenueNational Bank, 191 Ill. 2d at 508. The court found no ambiguity in the words "diagnosis" and"treatment" as used in section 6-106, and therefore accorded those words their plain and ordinarymeaning. Michigan Avenue National Bank, 191 Ill. 2d at 510-11. The court noted that Webster'sdictionary defines "diagnosis" as an "'investigation or analysis of the cause or nature of a condition,situation, or problem,'" and that Black's Law Dictionary defines "diagnosis" as "'[t]he determination ofa medical condition (such as disease) by physical examination or by study of its symptoms.'" MichiganAvenue National Bank, 191 Ill. 2d at 510, quoting Webster's Third New International Dictionary 622(1993) and Black's Law Dictionary 464 (7th ed. 1999). The court noted Sloan-Dorland's definition of"treatment" as "[t]he management and care of a patient for the purpose of combating disease or disorder."Michigan Avenue National Bank, 191 Ill. 2d at 512, quoting Sloan-Dorland Annotated Medical-LegalDictionary 746 (1987).

Doctor Tucker's actions on January 6 did not constitute "diagnosis," as she did not examineplaintiff in order to investigate, analyze, or determine plaintiff's medical condition. Rather, DoctorTucker was already aware of plaintiff's medical condition, as she testified that she had read the note fromplaintiff's most recent visit to defendant's obstetrical clinic on December 23, in which Doctor Sabbaghawrote that plaintiff's baby was in the transverse lie position. Defendants' own expert, Doctor MichaelSocol, testified that the transverse lie diagnosis was the "existing diagnosis" at the time plaintiff was seenby Doctor Tucker on January 6. Thus, Doctor Tucker's actions on January 6 consisted of treating bycaring for and managing plaintiff's previously diagnosed known condition. Under section 6-106(d),public employees are liable for injuries caused by negligently prescribing or administering treatment;accordingly, the circuit court erred in granting summary judgment for defendant pursuant to section 6-106.

Defendant argues that since the baby was mobile inside plaintiff's womb, each prenatalexamination (including Doctor Tucker's examination on January 6) involved a separate and independentdiagnosis to determine whether the baby was still in the transverse lie position. We disagree. Whenplaintiff walked into Doctor Tucker's examination room on January 6, Doctor Tucker was already awarethat plaintiff was pregnant and that her baby had been diagnosed as being in a transverse lie position. During that January 6 examination, Doctor Tucker monitored and treated plaintiff's known conditionby examining plaintiff's records and performing the Leopold maneuver to determine the baby's currentposition. The issue is whether said treatment was negligently performed. As discussed, defendant isliable for any negligent treatment administered by its agent, Doctor Tucker.

Defendant argues that Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493(2000) and Mabry v. County of Cook, 315 Ill. App. 3d 42 (2000), compel a result different than the onereached here. We disagree. In Michigan Avenue National Bank, Collins visited Cook County Hospitalon several occasions from September 1986 to February 1987 concerning lumps and pain in her breast,among other gynecological ailments. Michigan Avenue National Bank, 191 Ill. 2d at 496-498. InOctober 1986, Collins was diagnosed with fibrocystic breast disease and advised to follow up forappointments to monitor the condition. Michigan Avenue National Bank, 191 Ill. 2d at 497. In July1988, a lump in Collins' breast was diagnosed as cancerous; eventually the cancer spread, and Collinsdied in November 1989. Michigan Avenue National Bank, 191 Ill. 2d at 499. Plaintiffs filed a medicalmalpractice action against defendants (the County and its physicians), alleging that defendants werenegligent for failing to order a mammogram, failing to adequately perform examinations and tests onCollins, failing to perform a biopsy, failing to diagnose Collin's breast cancer, and failing to administerproper and appropriate medical and nursing care to Collins. Michigan Avenue National Bank, 191 Ill.2d at 499. The supreme court affirmed the grant of summary judgment to defendants. The court held:

"Because the gravamen of plaintiff's action against defendants is that defendants' failureeither to perform examinations or to adequately perform examinations led to defendant's failureto diagnose Collins' breast cancer, which, in turn, proximately caused her death, the immunityprovided to local public entities and their public employees in section 6-105 and subsection (a)of section 6-106 applies." Michigan Avenue National Bank, 191 Ill. 2d at 512.

In Mabry, Ms. Pinkston went to the emergency room of Cook County Hospital on April 30,1992, complaining of dizziness and shortness of breath. Mabry, 315 Ill. App. 3d at 45. She wasdiagnosed and treated for asthma and respiratory distress. Mabry, 315 Ill. App. 3d at 45-47. Ms.Pinkston died from a pulmonary embolism on May 3, 1992. Mabry, 315 Ill. App. 3d at 47. Plaintiff fileda medical malpractice action against defendants, the County of Cook and Cook County Hospital. Theappellate court reversed a jury verdict in favor of plaintiff, holding:

"[L]ike Michigan Avenue National Bank, we believe that plaintiff's entire cause of actionis premised on defendants' failure to diagnose the pulmonary embolism and the failure toconduct physical examination tests that would have enabled the County physicians to discoverthat Pinkston had a pulmonary embolism. Accordingly, the defendants are immune fromliability under sections 6-105 and 6-106(a)." Mabry, 315 Ill. App. 3d at 53.

In contrast to Michigan Avenue National Bank and Mabry, here there was testimony (fromDoctor Charles) that plaintiff had been correctly diagnosed as having a baby in the transverse lieposition; thus, unlike Michigan Avenue National Bank and Mabry, the present case involves negligenttreatment of a known medical condition, as opposed to a failure to diagnose. As discussed, defendantis not immune for any negligent treatment.

Although there was some contrary evidence regarding whether or not plaintiff had been correctlydiagnosed (i.e., Doctor Sabbagha's statement, contrary to Doctor Charles, that the baby was in a footlingbreech position at delivery and not in a transverse lie position), such conflicting evidence raises aquestion of material fact inappropriate for resolution by summary judgment.

During oral argument on this case, defendant argued that plaintiff's allegations of negligenceprimarily involve defendant's alleged failure to conduct examinations, specifically, an ultrasound or non-stress test, and the failure to prescribe treatment, specifically, an external version or C-section. Defendantargued that its alleged failure to conduct an ultrasound or non-stress test is immunized under section6-105, which grants immunity to a local public entity and its employees who fail to make or who makeinadequate physical examinations for purposes of determining whether a person suffers from a diseaseor physical or mental condition. Defendant argued that its failure to prescribe an external version or C-section is immunized under section 6-106(a), which grants immunity to local public entities and publicemployees for the "fail[ure] to prescribe for mental or physical illness or addiction." 745 ILCS 10/6-106(a)(West 2000). Plaintiff responded that defendant's negligence consisted of acts of commission andomission which occurred after diagnosis and during her treatment, and as such, fall within the ambitof section 6-106(d). Section 6-106(d) states that, "Nothing in this section exonerates a public employeefrom liability for injury proximately caused by his negligent or wrongful act or omission in administeringany treatment prescribed for mental or physical illness ***." (Emphasis added.) 745 ILCS 10/6-106(d)(West 2000).

The appellate court opinion in Michigan Avenue Bank, 306 Ill. App. 3d 392 (1999), isinstructive. In Michigan Avenue Bank, we stated,

"Argument could be made *** that once diagnosis of a medical condition is made andtreatment of that condition is prescribed and undertaken, any subsequent diagnosis required tobe made as a result of that treatment, such as with respect to complications arising frommedications prescribed or medical procedures performed, may not be entitled to the immunityprotection of section 6-106(a). For instance, a medication could be therapeutic for a diagnosedillness but toxic to an undiagnosed illness. Treatment of the former would require the medicalprofessional to inquire as to common conditions of pathology that would be aggravated by theintake of medication prescribed for the diagnosed illness. Treatment of the diagnosed illness alsomight require the medical professional to perform further testing when adverse reactions occuras a result of the treatment prescribed for the diagnosed medical condition and to diagnose andtreat any additional medical conditions that result. The making of the subsequent diagnosiswould become part of the treatment prescribed for the medical condition initially diagnosed; and there would be no immunity if the subsequent diagnosis was incorrectly made (a negligentor wrongful act) or if the diagnosis was not made at all (an act of omission)." Michigan AvenueBank, 306 Ill. App. 3d at 402-03.

Following the same logic here, once diagnosis of a medical condition is made and treatment ofthe condition is prescribed and undertaken, any subsequent prescription or examination required to bemade pursuant to that condition is part of the patient's treatment. Under section 6-106(d), in the courseof administering the treatment prescribed there is no immunity if the subsequent prescription orexamination was incorrectly made (a negligent or wrongful act) or if the prescription or examination wasnot made at all (an act of omission). See 745 ILCS 10/6-106(d) (West 1992) ("[n]othing in this sectionexonerates * * * for injury proximately caused by * * * negligent or wrongful act or omission inadministering any treatment prescribed"). Here, as discussed, plaintiff was diagnosed with a transverselie prior to her examination by Doctor Tucker on January 6. The prescribed treatment consisted ofregularly monitoring plaintiff's condition and performing non-stress tests, ultrasounds, and the Leopold'smaneuver to determine whether the baby's position had changed and to determine whether an externalversion or C-section ultimately should be performed. Doctor Tucker's alleged failure to schedule orperform an ultrasound, non-stress test, external version, or C-section constituted an act of omission inadministering plaintiff's prescribed treatment for the previously diagnosed transverse lie and, as such,is afforded no immunity under section 6-106(d).

PARAGRAPH DISCUSSING THE APPELLATE COURT OPINION IN MICHGANAVENUE NATIONAL BANK DELETED.

Before concluding, we address plaintiffs' argument that sections 6-105 and 6-106(a) violate dueprocess, equal protection, and constitute special legislation by distinguishing between patients injuredby medically negligent diagnosis and patients injured by medically negligent treatment. Neither partyargues that sections 6-105 and 6-106(a) affect a fundamental right or discriminates against a suspectclass. Therefore, the rational basis test is the appropriate standard for determining plaintiffs' due process,equal protection, and special legislation challenges to sections 6-105 and 6-106(a). County of Bureauv. Thompson, 139 Ill. 2d 323, 335 (1990); Bernier v. Burris, 113 Ill. 2d 219, 228 (1986).

Under the rational basis test, judicial review of a legislative classification is limited and generallydeferential. The challenged classification need only be rationally related to a legitimate state goal andif any state of facts can reasonably be conceived to justify the classification, it must be upheld. Committee for Education Rights v. Edgar, 174 Ill. 2d 1, 37 (1996).

Here, the legislature reasonably could have determined that some medical conditions areextremely difficult to diagnose and examine, and, as such, that local public entities and their employeesshould be protected from liability for medically negligent diagnosis and examination. The legislaturealso reasonably could have determined that once an accurate medical diagnosis and/or examination ismade, and the patient's condition is known and treatment prescribed, the justification for immunity nolonger exists and therefore the local public entities and their employees who treat said patient owe hima duty of reasonable care and are liable for any negligent treatment. Accordingly, sections 6-105 and 6-106(a) are constitutional, as a rational basis exists for distinguishing between patients injured bymedically negligent diagnosis and patients injured by medically negligent treatment.

For the foregoing reasons, we reverse the order of the circuit court granting summary judgmentfor defendant and remand for further proceedings.

Reversed and remanded.

BUCKLEY, J., concurs. 

O'MARA FROSSARD, specially concurs.

JUSTICE O'MARA FROSSARD, specially concurring:

I write separately to make the point that where, as in this case, an accurate medical diagnosis isalleged to have been made, followed by a prescribed course of treatment, there is no exoneration fromliability under subsection (d) of section 6-106(d) of the Tort Immunity Act for injury proximately causedby a negligent or wrongful act or omission in administering any treatment prescribed.

The fact that an accurate medical diagnosis together with a prescribed course of treatment as theresult of that diagnosis was alleged in this case distinguishes it from Mabry, where failure to diagnose wasthe gravamen of the alleged medical malpractice and immunity was thereby afforded under subsection(a) of section 6-106(a) of the Tort Immunity Act.