Collins v. Lake Forest Hospital
Case Date: 12/31/1969
Court: Supreme Court
Docket No: 97375 Rel
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Docket No. 97375-Agenda 28-September 2004. ANDREA COLLINS, Indiv. and as Special Adm'r of the Estate of Opinion filed December 2, 2004. JUSTICE KILBRIDE delivered the opinion of the court: The limited issue on appeal before this court is whether thedefendant Lake Forest Hospital (hospital) had a duty to inquire intothe availability of a surrogate decisionmaker and implement thesurrogate's treatment decisions under the Health Care Surrogate Act(Act) (755 ILCS 40/1 et seq. (West 2000)). The circuit court of LakeCounty dismissed the amended complaint against the hospital filed bythe decedent's estate as well as by individual members of his family,and the appellate court reversed. We, in turn, reverse the appellatecourt judgment and reinstate the trial court's order dismissing theplaintiff's amended complaint against the hospital. BACKGROUND The decedent, Joseph J. Collins, Jr., suffered a traumatic headinjury after falling at home and underwent emergency brain surgery atthe hospital on April 20, 1999. When Joseph's initial attendingphysician, Dr. Gary Schaffel, examined him, Joseph had littleneurological function and was unconscious and breathing with aventilator. Dr. Schaffel expressed no opinion on whether the patienthad the ability to consent to medical treatment and did not make anyentry in the patient's medical chart concerning his decisionmakingability. The next day, Dr. Gerald Osher replaced Dr. Schaffel asJoseph's attending physician. Dr. Osher wrote in Joseph's chart thathe had discussed the case with the surgeon and decided to remove thepatient from the ventilator. He also noted an entry in the chart datedApril 23 stating there had been "lengthy discussion with family (30minutes) in which [he] explained the grim prognosis. They are inagreement with the care plans." He could not recall the familymembers who had been involved in that discussion. In addition, Dr.Osher expressed no opinion on whether the patient had the ability toconsent to treatment. Joseph's wife called the hospital at approximately 8:35 a.m. onApril 23, 1999, and requested that her husband not be removed fromthe ventilator until she and their children, who had recently arrivedfrom out of town, could get to the hospital that morning. Whatactually transpired was that an extubation order was entered at 10:55a.m., the patient was extubated at 11 a.m., and he died at 11:03 a.m.Joseph's wife and children did not arrive at the hospital until 11:10a.m. The decedent's wife, children, and estate filed a complaint againstLake Forest Hospital, naming Dr. Osher as one of the respondents-in-discovery. See 735 ILCS 5/2-402 (West 2000). The hospital filedmotions to dismiss pursuant to sections 2-615, 2-619, and 2-622 ofthe Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619,2-622 (West 2000)). The trial court denied the motions as to countI of the complaint, alleging medical battery, and counts III and VI,alleging violations of the Act (755 ILCS 40/1 et seq. (West 2000)).The court later allowed the plaintiffs to file an amended complaint andto convert Dr. Osher to a defendant. Counts I through III of the amended complaint were brought bythe estate against the hospital. Counts IV through VI were brought bythe estate against Dr. Osher and mirrored counts I through III. Thesurviving plaintiffs brought parallel counts VII and IX against thehospital and counts VIII and X against Dr. Osher. Dr. Osher filed amotion to dismiss counts V and VI, alleging negligence and violationsof the Act. The hospital followed with a similar motion, but it did notseek to dismiss count III, alleging that the hospital had violated theAct, because that count had been upheld in the original complaint. The trial court granted both defendants' motions to dismiss withprejudice, and the hospital then filed a motion to dismiss count III ofthe amended complaint with prejudice. That motion was subsequentlygranted, leaving only counts I and IV, alleging medical battery againstthe hospital and Dr. Osher respectively, still pending in the trial court.The plaintiffs' motion to reconsider was denied, and they appealed.The appellate court reversed. 343 Ill. App. 3d 353. Dr. Osher did notseek to appeal the appellate court's judgment. Accordingly, count VIof the amended complaint, alleging that Dr. Osher had violated theAct, was remanded to the trial court for further proceedings. The hospital filed a petition for leave to appeal, and this courtallowed its petition. See 177 Ill. 2d R. 315(a). The only issue beforethis court is the dismissal of count III. That count alleges that thehospital failed to fulfill its duties under the Act. ANALYSIS The hospital first argues that it had no duties under the Act in thiscase. It maintains that the attending physician has the primary roleunder the Act and is required to determine whether, to a reasonabledegree of medical certainty, the patient has decisional capacity, as wellas to confer with the surrogate decisionmaker on treatment mattersand to implement any decision by the surrogate to forgo life-sustainingtreatment. 755 ILCS 40/20(c), (d), (f) (West 2000). The only duty theAct imposes on a "health care provider" such as the hospital is to"make a reasonable inquiry as to the availability of possiblesurrogates." 755 ILCS 40/25(a) (West 2000). The hospital contendsthat even this limited duty did not arise here because the duty existsonly after the attending physician has made the determination that thepatient lacks decisional capacity. Since neither attending physician inthis case ever made that determination, the hospital maintains it boreno duty under the Act. As the appellate court noted, the hospital raised this issue for thefirst time on appeal, and the court resolved the matter because it waslikely to arise on remand. 343 Ill. App. 3d at 360. Before this court,the plaintiffs argue that the hospital has again changed the issue fromthe one presented in its petition for leave to appeal, alleging a directconflict between the appellate decision and the requirement of awritten finding in Ficke v. Evangelical Health Systems, 285 Ill. App.3d 886 (1996), to whether the hospital owed any duty under the Actbecause the attending physician never determined the patient lackeddecisional capacity. We interpret the plaintiffs' argument to be one ofwaiver. This court has long held that waiver is a limitation on theparties, not on this court. Hux v. Raben, 38 Ill. 2d 223, 224 (1967).At this time we choose to address the issue of a health care provider'sduty under the Act because it is critical to the development of a soundbody of precedent concerning the proper interpretation, and thusimplementation, of legislation concerning vital care and treatmentdecisions for patients lacking decisional capacity, including thetermination of life-sustaining procedures. See Golden Rule InsuranceCo. v. Schwartz, 203 Ill. 2d 456, 463 (2003). Because this appealinvolves the grant of a motion to dismiss, we review it de novo.Feltmeier v. Feltmeier, 207 Ill. 2d 263, 266 (2003). The plaintiffs contend that the hospital has skirted "the truefactual basis" of this appeal, that is, whether the attending physiciansknew Joseph lacked decisional capacity. Under the Act, "decisionalcapacity" is "the ability to understand and appreciate the nature andconsequences of a decision regarding medical treatment or forgoinglife-sustaining treatment and the ability to reach and communicate aninformed decision in the matter as determined by the attendingphysician." 755 ILCS 40/10 (West 2000). A patient "is presumed tohave decisional capacity in the absence of actual notice to the contrarywithout regard to advanced age." 755 ILCS 40/20(c) (West 2000).The plaintiffs assert that the evidence shows the attending physicians"were aware" Joseph lacked decisional capacity because he had nochance of recovery and no neurological function after his admissionto the hospital. The plaintiffs contend that this "awareness" by theattending physicians was sufficient to trigger the hospital's duty toinquire into "the availability of possible surrogates." 755 ILCS40/25(a) (West 2000). That is an incorrect interpretation of theapplicable provisions of the Act. While the patient in this case mayhave lacked decisional capacity, that is not the key to triggering thehospital's statutory duty. Under the Act, "A determination that an adult patient lacks decisionalcapacity shall be made by the attending physician to areasonable degree of medical certainty. The determinationshall be in writing in the patient's medical record and shallset forth the attending physician's opinion regarding thecause, nature, and duration of the patient's lack of decisionalcapacity." (Emphases added.) 755 ILCS 40/20(c) (West2000). When a patient lacks decisional capacity, the hospital must first inquireinto "the availability and authority of a health care agent under thePowers of Attorney for Health Care Law." 755 ILCS 40/25(a) (West2000). In this case, a health care agent had not been authorized.Consequently, the next sentence of the statute must be considered.According to that sentence, if the patient lacked decisional capacityas determined under the Health Care Surrogate Act at issue in thiscase, the hospital would be required to "make a reasonable inquiry asto the availability of possible surrogates listed." 755 ILCS 40/25(a)(West 2000). The proper interpretation of that sentence lies at theheart of this controversy. The error in the plaintiffs' interpretation is that they focus on thehospital's alleged notice of the patient's actual condition rather thanon the existence of a written determination by the attending physicianthat the patient lacked decisional capacity. See 755 ILCS 40/20(c)(West 2000). Section 20(c) of the Act specifically requires theattending physician's determination to be made in writing. 755 ILCS40/20(c) (West 2000). This writing requirement promotes thelegislature's stated intent in enacting this statute. The Act is intended,in relevant part, to provide a process for making private medical andlife-sustaining treatment decisions "without judicial involvement ofany kind." 755 ILCS 40/5(b) (West 2000). To effectuate this goal, thelegislature has chosen to mandate that a single individual, namely, thepatient's attending physician, determine in writing whether the patientlacks decisional capacity. 755 ILCS 40/20(c) (West 2000). Thismandate averts the potential dilemma of multiple decisionmakerscoming to varying conclusions regarding a patient's decisionalcapacity. If the Act permitted multiple decisionmakers, the attendingphysician and various members of the hospital staff involved in thepatient's care could arrive at very different conclusions, likelynecessitating judicial intervention in direct contradiction to the Act'sgoal of avoiding "judicial involvement of any kind" (755 ILCS 40/5(b)(West 2000)). In anticipation of this problem, the legislature hasplaced the responsibility for determining when a patient lacksdecisional capacity solely on the patient's attending physician. Thus, the relevant issue in this case is whether the hospital hadnotice that Joseph's attending physician made a written determinationthat Joseph lacked the capacity to make his own health care andtreatment decisions. See 755 ILCS 40/20(c) (West 2000). The recordindicates that neither attending physician involved in this case evermade that written determination. The propriety of their failure to makethat determination has no bearing on the only question before us inthis case, namely, the hospital's duty under the Act. The hospital'sduty to inquire into the availability of the appropriate surrogatedecisionmaker was not triggered here because the attending physiciandid not make a written determination that the patient lacked decisionalcapacity, as explicitly required by the Act. See 755 ILCS 40/20(c)(West 2000). Moreover, even if the hospital's duty to inquire had beentriggered, it appears that the duty was fulfilled. The statute requiresthe health care provider, in this case the hospital, to "make areasonable inquiry as to the availability of possible surrogates listed"in the remainder of the section. 755 ILCS 40/25(a) (West 2000).When the appropriate surrogate has been identified, the hospital mustrecord "the name, address, telephone number, and relationship of thatperson to the patient *** in the patient's medical record." 755 ILCS40/25(b) (West 2000). It appears that the hospital did, in fact, recordthe relevant information concerning Andrea Collins, the propersurrogate decisionmaker under the statute. The Act also required thehospital to try to contact that surrogate by telephone within 24 hoursafter the patient was determined to lack decisional capacity. 755 ILCS40/25(a) (West 2000). Since no such determination was ever made bythe attending physician, however, that duty was never triggered. As for the plaintiffs' claim that the hospital violated its duty tofollow the surrogate's instructions, while the statute mandates that theattending physician "promptly implement [a surrogate's] decision toforgo life-sustaining treatment on behalf of the patient" under certainspecified conditions, there is no analogous provision for health careproviders such as the hospital. See 755 ILCS 40/20(f) (West 2000)(stating that "[o]nce the provisions of this Act are complied with, theattending physician shall thereafter promptly implement the decisionto forgo life-sustaining treatment on behalf of the patient unless he orshe believes that the surrogate decision maker is not acting inaccordance with his or her responsibilities under this Act, or is unableto do so for reasons of conscience or other personal views orbeliefs"). Since the hospital bore no duties under the Act in theabsence of a written determination by the attending physician that thepatient lacked decisional capacity, the trial court properly dismissedcount III, alleging statutory violations by the hospital. Finally, the parties address the applicability of the appellate courtdecision in Ficke v. Evangelical Health Systems, 285 Ill. App. 3d 886(1996), to the issue of the hospital's statutory duty. In Ficke, thedecedent's estate and surviving adult children filed a complaint againstboth the hospital and the attending physician, claiming, in relevantpart, various violations of the Act when the patient was given life-sustaining treatment contrary to her wishes and the wishes of herchildren. There, as here, the attending physician did not make adetermination that the patient lacked decisional capacity. Theappellate court affirmed the trial court's dismissal of the cause ofaction against the hospital, finding that "the attending physician, notthe hospital or its staff" had the duty to determine that the patientlacked decisional capacity and suffered from one of three qualifyingconditions that would have permitted a surrogate decisionmaker torefuse life-sustaining interventions. Ficke, 285 Ill. App. 3d at 893-94.This portion of the opinion coincides with our analysis in this case. CONCLUSION We hold that the Act does not impose a duty on a health careprovider, such as the hospital in this case, to inquire into theavailability of a surrogate decisionmaker until after the attendingphysician has made a written determination under the Act that thepatient lacks decisional capacity. Since no such determination wasmade in this case, the hospital owed no duty to inquire, and the trialcourt properly dismissed count III of the plaintiffs' amendedcomplaint. Therefore, the portion of the appellate court judgmentreinstating count III of the plaintiffs' amended complaint is reversed,and the cause is remanded to the circuit court for further proceedingson the counts that remain pending. Appellate court judgment affirmed in part |