Misdiagnosis still covered for immunity
Monday, June 29, 2015
Chicago Daily Law Bulletin
by Steven P. Garmisa
This is the first of a two-part column. The second part will be published on Tuesday.
Koni Johnson sued two emergency physicians and their employer, Cook County, alleging the doctors provided negligent treatment for her medical condition — a spinal cord injury — when she went to John H. Stroger Jr. Hospital a day after a slip-and-fall.
Johnson also alleged that the county violated the Emergency Medical Treatment and Active Labor Act (42 U.S.C. Section 1395dd) by failing to provide appropriate screening and to stabilize her medical condition before discharging her.
Requesting summary judgment based on Sections 6-105 and 6-106 of the Local Governmental and Governmental Employees Tort Immunity Act, the defendants argued they provided appropriate treatment for the condition the ER doctors diagnosed — muscle spasms and back/buttocks bruises.
For local public entities and their employees, Section 6-105 provides immunity “for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination.” And Section 6-106(a) provides these defendants with immunity “for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental or physical illness or addiction or from failing to prescribe for mental or physical illness or addiction.”
As part of her response, Johnson — noting that Sections 6-106(c) and (d) say that the tort immunity statute does not exonerate governmental defendants from liability for negligent treatment — argued that the defendants provided negligent treatment for the symptoms they diagnosed. She also claimed that Emergency Medical Treatment and Active Labor Act pre-empted the Illinois statute.
Affirming an order that granted the motion for summary judgment, the Illinois Appellate Court concluded: “There was never a correct diagnosis here for which treatment was prescribed and negligently rendered. Defendants are immune from liability under Section 6-106(a) for their failure to diagnose plaintiff’s spinal cord injury and their misdiagnosis of her injury as a muscle spasm and/or back/buttock contusion.” Johnson v. Bishof, 2015 IL App (1st) 131122 (March 13, 2015).
Tuesday’s Trial Notebook turns to Justice Stuart E. Palmer’s analysis of the EMTALA issue. Here, with omissions not noted in the text, are highlights of his opinion on tort immunity:
Plaintiff correctly points out that Section 6-106 is not meant to grant blanket immunity for negligent treatment of a specific medical condition. As our Supreme Court explained in Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493 (2000):
“Although Subsection (a) of Section 6-106 grants immunity for diagnosing, or failing to diagnose, that a person is afflicted with a physical illness, the remaining subsections of Section 6-106 contain limitations on immunity where it is alleged that a local public entity and its public employees have caused a person to suffer injury due to the negligent prescription of treatment and/or the negligent administration of treatment.
“Specifically, Subsection (b) of Section 6-106 provides that a local public entity and its public employees are vested with immunity where they administer treatment prescribed for mental or physical illness or addiction, so long as such treatment is administered with ‘due care.’
“Subsection (c) of Section 6-106 states that defendants are not immunized where, having undertaken to prescribe for mental or physical illness or addiction, they have proximately caused an injury to a patient due to negligence or wrongful acts in so prescribing.
“Finally, Subsection (d) of Section 6-106 provides that defendants are liable for injury proximately caused by their negligent acts or omissions in the administration of any treatment prescribed for mental or physical illness or addiction.” 191 Ill.2d at 511.
It is on the basis of these limitations on immunity that plaintiff asserts defendants are not immune from liability for their negligence here. Asserting that defendants erroneously diagnosed her with only a back injury and began to treat her for this with pain medication alone, plaintiff claims that “this is not a failure to diagnose case but instead a negligent and inadequate treatment situation,” for which, pursuant to Sections 6-106(b), (c) and (d), defendants are not immunized.
Plaintiff claims the court erred in finding immunity where defendants diagnosed plaintiff while still in their emergency room and began administering treatment to her but did so in a negligent manner. Citing to American National Bank v. County of Cook, 327 Ill.App.3d 212 (2001), she argues that it was this treatment and the subsequent inadequate examinations and prescription of treatment that were negligent and defendants, therefore, were not immune under the Tort Immunity Act.
In American National, during a pre-natal examination, doctors at a Cook County Hospital clinic diagnosed the plaintiff with a “transverse lie” of her baby, meaning the baby could not delivered vaginally. They prescribed regular monitoring of plaintiff and the regular performance of assorted medical tests to determine the baby’s position and whether a Caesarean section would be required to deliver the baby.
Doctors consistently performed the prescribed tests and verified that the baby was in the transverse lie position. However, shortly before the plaintiff went into labor, one of the defendant doctors determined, incorrectly and without performing the prescribed tests, that the baby was no longer in the transverse lie position.
When the plaintiff went into labor, the baby was undeliverable due to its birth position. An emergency Caesarean section was performed but the baby suffered brain damage.
The defendants argued they were immune from liability under Sections 6-105 and 6-106. The court disagreed.
The court found the doctor’s actions in failing to determine that the baby was still in a transverse lie position was not a “diagnosis” for which the defendants would be immune under Section 6-106(a) as the doctor had not examined the plaintiff in order to investigate, analyze or determine her medical condition.
Instead, it found the doctor was already aware of the plaintiff’s medical condition, specifically the existing “transverse lie” diagnosis, and the doctor’s actions consisted of “treating” by caring for and managing the previously diagnosed known condition. The court stated that, once the initial diagnosis of transverse lie was made, each subsequent pre-natal examination did not involve a separate and independent diagnosis to determine whether the baby was still in a transverse lie position.
The court explained, “once diagnosis of a medical condition is made and treatment of that condition is prescribed and undertaken, any subsequent diagnosis required to be made as a result of that treatment, such as with respect to complications arising from medications prescribed or medical procedures performed, may not be entitled to the immunity protection of Section 6–106(a).”
For example, treatment of the diagnosed illness might require further medical testing in order to diagnose and treat any additional medical conditions that result from the treatment prescribed for the diagnosed medical condition. Id. at 220.
“The making of the subsequent diagnosis would 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 negligent or wrongful act) or if the diagnosis was not made at all (an act of omission).” Id. at 219.
“Following the same logic, once diagnosis of a medical condition is made and treatment of the condition is prescribed and undertaken, any subsequent prescription or examination required to be made pursuant to that condition is part of the patient’s treatment.” Id. at 220.
The court stated that the plaintiff had been diagnosed with transverse lie prior to her examination by the doctor and the prescribed treatment for her condition consisted of regular monitoring of her condition, testing and manual maneuvers to determine the baby’s position and whether a Caesarean section would be required.
The doctor’s alleged failure to schedule or perform such testing or manipulation constituted an act of omission in administering the plaintiff’s prescribed treatment for her previously diagnosed condition. American National, 327 Ill.App.3d at 220.
“Under Section 6-106(d), in the course of administering the treatment prescribed there is no immunity if the subsequent prescription or examination was incorrectly made (a negligent or wrongful act) or if the prescription or examination was not made at all (an act of omission).” Id.
The court found the doctor’s conduct was, therefore, afforded no immunity under Section 6-106(d).
Contrary to plaintiff’s argument, this is not a case where the defendants negligently prescribed and administered treatment to the plaintiff after a correct diagnosis as in American National. It is, instead, a failure to diagnose case, as the trial court correctly found.
All of plaintiff’s claims of negligent treatment are directed to defendants’ improper treatment of her spinal cord injury. Defendants treated plaintiff for her signs and symptoms but consistently diagnosed those signs and symptoms as muscle spasm and back/buttock contusion, not spinal cord injury.
In retrospect, defendants were wrong and plaintiff did have a spinal cord injury. They misdiagnosed her. However, as our Supreme Court explained in Michigan Avenue National Bank, a misdiagnosis is a “wrong or mistaken diagnosis” for which defendants are immune from liability under Section 6-106(a).
Having ruled out a neurological injury, defendants consistently treated plaintiff for the muscle spasm and back/buttock contusion injury with which they had misdiagnosed her.
There is no evidence that the treatment defendants provided for the signs and symptoms they attributed to muscle spasm and back/buttock contusion was negligent for that diagnosis. In other words, there being no evidence to the contrary, defendants treated the wrong diagnosis correctly.
Defendants’ arguably proven negligence was in their failure to perform adequate medical examinations or testing leading to their failure to diagnose plaintiff’s spinal cord injury, for which they are immune from liability under Sections 6-105 and 6-106(a).