Medical Malpractice Motion 8 - plaintiff's answer to defendant's 619 motion

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Plaintiff's Response to Defendant's Motion to Dismiss Plaintiff's Complaint

Michael S. Keating, One of the Attorneys for Plaintiff.

Hurley McKenna & Mertz, P.C., Attorneys for Plaintiff, 33 N. Dearborn Street. Suite 1430, Chicago, Illinois 60602, (312) 553-4900, Atty. No. 41267.

NOW COMES plaintiff, ANNE CUPIDRO, as Special Administrator of the Estate of VINCENT CUPIDRO. Deceased, by and through her attorneys in this regard, Hurley McKenna & Mertz, and responds to defendant NORTHWEST COMMUNITY HOSPITAL'S motion to dismiss plaintiff's complaint, states as follows:

A. Plaintiff's Response to Defendant's 2-615 Motion to Dismiss for Failure to Plead Specific Facts.

1. The plaintiff filed her Complaint at Law against Northwest Community Hospital and others as well as an Attorney's Affidavit and Reports of a Reviewing Healthcare Professional pursuant to 735 ILCS 5/2-622. (See Exhibit A, plaintiff's Complaint; Exhibit B, 2-622 Report as to Dr. Brian Albert, Dr. Burton Herbstman and Northwest Heart Specialists; Exhibit C, 2-622 Report as to Dr. Anthony Malone and Northwest Radiology Associates, S.C.; and Exhibit D, 2-622 Report as to Northwest Community Hospital.)

2. The plaintiff filed two counts against Northwest Community Hospital based on the theory of apparent agency and an additional count stemming from alleged institutional negligence. Within these counts the plaintiff made specific allegations as to the apparent agents of Northwest Community Hospital. As plead by the plaintiffs, these apparent agents were referred to as “including but not limited to, co-defendant Anthony J. Malone, M.D.” (See Exhibit A, pgs. 19-26).

3. “Illinois has long recognized the doctrine of apparent authority, which refers to a type of agency relationship.” Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d at 523 citing 2A C.J.S. Agency §§ 19, 20 (1972) 1 F. Mechem, Agency §§ 56, 57 (2d ed. 1914).

4. The plaintiff alleges that Northwest Community Hospital, by its apparent agents, including Anthony J. Malone, M.D., failed to communicate the results of a chest X-Ray taken of Vincent Cupidro to the ordering physician. The plaintiff alleges, in the alternative, that either the ordering physician received the results of the chest X-Ray and did nothing or the results were never sent to the ordering physician.

5. Contrary to the defendant's motion, the plaintiff made more specific allegations regarding the basis for the agency allegations against Northwest Community Hospital by including Anthony J. Malone, M.D. as well as making allegations as to other apparent agents of Northwest Community Hospital. Including Anthony J. Malone, M.D. adds more specificity to the allegations than just naming general “apparent agents” as a part of the counts alleging apparent agency. The defendant does not cite to any Illinois cases requiring any greater specificity regarding agency.

6. Defendant Northwest Community Hospital is in a better position than the plaintiff to identify the persons responsible based on the allegations in the plaintiff's Complaint. The hospital knows (or should know) which personnel treated the deceased.

7. In this claim based on negligence, the plaintiff is not required to identify all alleged apparent agents at this stage in litigation. Again, no case requires such specificity. The plaintiff will identify all witnesses when required to make a disclosure pursuant to Illinois Supreme Court Rule 213(f).

8. The plaintiff's Complaint states a valid claim under Illinois law and the defendant's 2-615 motion should be denied.

B. Plaintiff's Response to Defendant's 2-619 Motion to Dismiss for Failure of Reviewing Healthcare Professional's Report Criticizing Anthony J. Malone, M.D. to Support Apparent Agency Complaint

9. The plaintiff filed three separate reports of her Reviewing Healthcare Professional pursuant to 735 ILCS 5/2-622. (See Exhibit B, 622 Report as to Dr. Brian Albert, Dr. Burton Herbstman and Northwest Heart Specialists; Exhibit C, 622 Report as to Dr. Anthony Malone and Northwest Radiology Associates, S.C.; and Exhibit D, 622 Report as to Northwest Community Hospital.)

10. The plaintiff's reviewing healthcare professional is licensed to practice medicine in all of its branches and has been certified by the American Board of Internal Medicine and by the American Board of Internal Medicine-Hematology. (See Exhibits C and D)

11. When a hospital is the defendant in a medical malpractice action, a physician licensed in all its branches is qualified to be the reviewing health professional. 735 ILCS 5/2-622 (a)(1); Moss v. Gibbons, 180 Ill. App. 3d 632 (1989).

12. Furthermore, for the reviewing healthcare professional's report to be sufficient it must merely discuss the involvement of each defendant in the treatment of the plaintiff and be more than a “generalized” conclusion of malpractice. Jacobs v. Rush N. Shore Medical Ctr., 284 Ill. App. 3d at 1000 (1996).

13. The plaintiff's reviewing healthcare professional's reports as to Dr. Malone and Northwest Community Hospital clearly and unequivocally discuss, in detail, the involvement of each defendant and the allegations in the plaintiff's Complaint corresponds to the findings in the reports. (Exhibits B, C and D).

C. Plaintiff's Response to Defendant's 2-619 Motion to Dismiss for Failure of Reviewing Healthcare Professional's Report Criticizing Anthony J. Malone, M.D. to Support Allegations in the Complaint.

14. The plaintiff adopts and incorporates paragraphs 9-13 of her Response to the Defendant's Motion to Dismiss.

15. The reviewing healthcare professional's report as to Anthony J. Malone, M.D. provides the basis for the plaintiff to plead in the alternative. The plaintiff alleges that either the ordering physician received the results of the chest X-Ray and did nothing or the results were never sent by Dr. Malone to the ordering physician. The report succinctly states, “If the report was not sent to Dr. Albert, the care provided by Dr. Malone and Northwest Radiology Associates, S.C. fell below the standard of care.” (See Exhibit C).

D. Plaintiff's Response to Defendant's 2-619 Motion to Dismiss for Lack of Qualification of Reviewing Healthcare Professional with Respect to Claim of Institutional Negligence.

16. The plaintiff adopts and incorporates paragraphs 9-13 of her Response to the Defendant's Motion to Dismiss.

17. A medical report is not necessarily required for a claim of institutional negligence. A 2-622 Certificate of Merit is required for claims seeking damages for injuries or death by reason of “healing art malpractice.” 735 ILCS 5/2-622 (a). This claim against the Northwest Community Hospital is for institutional negligence - not for healing art malpractice.

18. Institutional negligence is also known as direct corporate negligence. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.2d 278, 291 (2000) (holding that doctrine of institutional negligence may be applied to HMO's). As stated by the Court in Jones:

Since the landmark decision of Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211 N.E.2d 253 (1965), Illinois has recognized that hospitals may be held liable for institutional negligence.Darling acknowledged an independent duty of hospitals to assume responsibility for the care of their patients. Ordinarily, this duty is administrative or managerial in character. Advincula v. United Blood Services, 176 Ill. 2d 1, 28, 223 Ill. Dec. 1, 678 N.E.2d 1009 (1996) (and authorities cited therein). To fulfill this duty, a hospital must act as would a “reasonably careful hospital” under the circumstances. Advincula, 176 Ill. 2d at 29. Liability is predicated on the hospital's own negligence, not the negligence of the physician. Jones, 191 Ill.2d at 291-92.

Thus, the failure of hospitals and their managers to act in a reasonably careful manner is institutional negligence.

19. Illinois courts recognize a duty on the part of medical facilities to use reasonable care to discern the medical qualifications of persons who perform medical services within the facility and to review treatment rendered by such persons. Holton v. Resurrection Hospital, 88 Ill.App.3d 655, 659 (1st Dist. 1980), citing Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 332 (1965). The facility's failure to carry out this duty may lead to liability in negligence when injury results. Holton, 88 Ill.App.3d at 659.

20. Health care institutions have an ongoing duty to assess the competency of their physicians. Pickle v. Curns, 106 Ill.App.3d 734 (2d Dist. 1982). A hospital may be liable for injuries suffered by a patient when the hospital violates its independent duty to review and supervise medical care administered to its patients. Ingram v. Little Company of Mary Hospital, 108 Ill.App.3d 456, 458-59 (1st Dist. 1982), citing Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326 (1965).

21. A hospital, in fulfilling this duty, must conform to the legal standard of “reasonable conduct” in light of the apparent risk. See Ohligschlager v. Proctor Community Hospital, 55 Ill. 2d 411, 420 Darling, 33 Ill. 2d at 331; see also IPI Civil 3d No. 105.03.01, Notes on Use (“a duty to exercise ordinary care”). What a hospital must do to satisfy the duty is act as would a “reasonably careful” hospital under circumstances similar to those shown by the evidence. See IPI Civil 3d No. 105.03.01, Notes on Use (directing the additional use of a modified IPI Civil 3d No. 10.02 ). Whether a hospital is reasonably careful may be shown by a wide variety of evidence, including, but not limited to, expert testimony, hospital bylaws, statutes, accreditation standards, custom and community practice. Darling, 33 Ill. 2d 326, 211 N.E.2d 253; Andrews v. Northwestern Memorial Hospital, 184 Ill. App. 3d 486, 132 Ill. Dec. 707, 540 N.E.2d 447 (1989).

Thus, in an institutional negligence case, and unlike a medical malpractice case, the plaintiff need not present expert testimony to establish the liability of the defendant institution.

22. The technical requirements of the Section 2-622(b) should not be mechanically applied to deprive the plaintiff of her substantive rights. Simpson v. Illinois Health Care Services, Inc., 225 Ill. App. 3d at 689 (1992); Requena v. Franciscan Sisters Health Care Corp. (1991). The purpose of the enactment was not to burden the plaintiff with insurmountable hurdles prior to filing but to reduce the number of frivolous lawsuits. Id.

WHEREFORE, plaintiff, ANNE CUPIDRO, as Special Administrator of the Estate of VINCENT CUPIDRO, Deceased, by her attorneys in this regard, Hurley McKenna & Mertz, prays that this Court enter an order denying defendant NORTHWEST COMMUNITY HOSPITAL'S motion to dismiss plaintiff's complaint or, in the alternative, leave to amend the plaintiff's complaint and file supplemental reviewing healthcare professionals reports..

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MICHAEL S. KEATING

One of the Attorneys for Plaintiff

HURLEY McKENNA & MERTZ, P.C.

Attorneys for Plaintiff

33 N. Dearborn Street. Suite 1430

Chicago, Illinois 60602

(312) 553-4900

Atty. No. 41267

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