First Division August 7, 2006
No. 1-05-3718
RAYNOLDO VARELA, a Minor, by his Mother ) and Next Friend, Rachel A. Nelson, and ) RACHEL A. NELSON, Individually, ) Appeal from ) the Circuit Court Plaintiffs-Appellants ) of Cook County ) v. ) 02 L 003426 ) ) Honorable ST. ELIZABETH'S HOSPITAL OF CHICAGO, INC., ) Kathy M. Flanagan, Luis E. Gomez, M.D., and Mesa EmCare, ) S.C., ) Judge Presiding ) Defendants-Appellees.
JUSTICE McBRIDE delivered the opinion of the court:
In this medical negligence suit, the plaintiffs, Raynoldo
Varela, a minor, and his mother Rachel A. Nelson, appeal from an
order of the circuit court granting summary judgment to the
defendants, emergency room physician Dr. Luis E. Gomez, M.D., his employer Mesa EmCare, S.C. (Mesa EmCare), and the hospital where
Dr. Gomez treated Raynoldo on June 8, 1997, St. Elizabeth's 1 Hospital of Chicago, Inc. (St. Elizabeth's). The summary
judgment ruling was based on the court's determination that the
emergency room physician and St. Elizabeth's nurses did not owe a
common law duty of care to their minor patient to discover a past
injury and report it as suspected child abuse to his mother and
the Illinois Department of Children and Family Services (DCFS),
1 The hospital, located at 1431 North Claremont Avenue, is
now part of Saints Mary and Elizabeth Medical Center. 1-05-3718 and that the healthcare personnel's conduct was not the proximate
cause of physical abuse subsequently inflicted by Raynoldo's
father. The court also denied the plaintiffs leave to file a
proposed third amended complaint, which alleged Raynoldo's
injuries were attributable in part to the negligence of unnamed
physicians and nurses on a subsequent workshift at the hospital
who did not follow up when a radiologist's report about
Raynoldo's chest X ray noted the presence of healed rib
fractures. The court characterized the new allegations as a new
theory that was untimely and would not cure the deficient
allegations of duty and proximate cause. In their appeal,
Raynoldo and Rachel contend the court's misapprehension of
Illinois law regarding duty and proximate cause led the court to
erroneously enter summary judgment for the defense and abuse its
discretion by denying leave to file the proposed amended
pleading.
The record on appeal discloses the following. Raynoldo was
born prematurely on March 31, 1997, to Rachel and her boyfriend
Kikole Varela. At the time, Rachel was 17 years old and Kikole
was 18 years old. Out of concern that Raynoldo was experiencing
seizures, he was placed on a phenobarbital regimen. During a
"well baby" checkup on April 18, 1997, Rachel reported that
Raynoldo was sometimes gasping for air and breathing fast. The
2 1-05-3718 doctor's notes reflect that Raynoldo was a healthy 18-day-old boy
and that he was experiencing "periodic breathing," which was a
normal condition that he would probably outgrow. On the morning
of June 8, 1997, when Raynoldo was nine weeks old, his parents
brought him to the emergency room at St. Elizabeth's, with
complaints of difficulty breathing and increased crying since
noon the previous day, when Rachel started him on a new infant
formula, Similac with iron. According to Rachel, she also told
"the emergency room nurse and doctor" about a "clicking feeling
in [her] baby's back." The medical records indicate Rachel
denied Raynoldo experienced a fever, vomiting, lethergy, or
recent seizures. Dr. Gomez examined Raynoldo and noted he was an
active infant with a strong grasp. Raynoldo moved all his
extremities and his crying was consolable. His chest was clear,
his lungs were working well, and his oxygen saturation was 100%.
His pupils were equal, round, and reactive to light. Raynoldo
drank Pedialyte while in the emergency room and Dr. Gomez ruled
out the need to hydrate the child with a saline solution. The
doctor noted that Raynoldo's abdomen was soft and that there were
active bowel sounds. However, he also noted that Raynoldo's
abdomen was moderately distended and that there was some initial
voluntary guarding of the abdomen when the doctor started his
exam. Dr. Gomez found no evidence of blood in the stool, and
blood testing he ordered showed a normal white blood count,
normal hemoglobin, and normal blood sugar. Dr. Gomez also
3 1-05-3718 ordered a chest X ray because of the initial complaint of
difficulty breathing. He wanted to assure Rachel that Raynoldo
was breathing normally and was not suffering from an acute or
"significant process such as pneumonia or some other cause for an
inability to breathe." According to Dr. Gomez's deposition
testimony, he studied the X-ray film for pneumonia, a dropped
lung, or anything that would have suggested abnormal lung tissue,
and he saw no evidence of an explanation for difficulty
breathing. He did not see any indication of the healed fractures
on Raynoldo's lower left ribs, but if he had, Dr. Gomez stated he
would have asked about prior injuries, because absent some other
explanation, rib fractures in an infant are indicative of abuse.
According to the doctor, his expertise was in emergency medical
intervention, meaning he could diagnose obvious features in X
rays and stabilize patients but was not proficient in discerning
subtle features in X rays. Dr. Gomez took into account that
Raynoldo's crying began shortly after being started on the
Similac formula with iron a day earlier and that iron is
"notorious for slowing the gut and distending the gut." Also,
"It's very common for a child to cry if the child has
[intestinal] colic and to be perceived by a parent [or other
observer] as perhaps having difficulty breathing." In addition,
a child and even an adult will "tend to hyperventilate" when his
or her "abdomen is uncomfortable." After considering Raynoldo's
history and the results of the physical exam and diagnostic
4 1-05-3718 tests, Dr. Gomez concluded that Raynoldo was suffering from
intestinal colic. Dr. Gomez discharged Raynoldo with
instructions to discontinue the new Similac formula, to give
Pedialyte, to return immediately if there was fever or vomiting,
and to follow up with a pediatrician in the morning.
The written discharge instructions informed Raynoldo's
parents that a radiologist would perform an official
interpretation of the chest X ray the following morning and that
they should have the child's doctor call for a copy of the
radiologist's report. The discharge instructions also said
either Raynoldo's parents or his doctor would be notified if
there was a discrepancy between the findings of the emergency
department physician and the radiologist.
Raynoldo was seen by a pediatrician the following day. The
pediatrician's notes describe Raynoldo as a healthy two-month
old. He was alert and active during the examination, his lungs
were clear, and his abdomen was soft and not distended. The
notes do not reflect whether the doctor was advised of the
previous day's emergency room visit.
On the morning of June 9, 1997, Dr. Ahmad Judar, a board-
certified radiologist at St. Elizabeth's, reviewed Raynoldo's X
ray and made a written report. Dr. Judar documented:
"The heart is normal in size. There
appears to be hyperinflated lungs. No
evidence of pneumonia or edema. There is
5 1-05-3718 evidence of old healed fracture at the left
lower ribs involving 7th, 8th and 9th ribs.
Conclusion: Hyperinflated lungs,
bronchiolitis should be considered. Old
healed fracture at the left lower ribs
appears to be involving the 7th, 8th and 9th
ribs at the axillary area."
When Dr. Judar was deposed on July 12, 2004, he no longer
recalled this particular report. However, he described the usual
procedure. He indicated a "flash card" or preliminary written
report of the emergency room doctor accompanies X-ray film sent
to the radiology department. If a discrepancy is seen, the
radiologist authors a report, makes a handwritten note on the
flash card, and returns the documents to the emergency room. Due
to the close proximity of Dr. Judar's office and the emergency
room, Dr. Judar's routine practice is to hand deliver
discrepancies to "the nurse or to the doctor." Dr. Judar did not
recall noting a discrepancy on Raynoldo's flash card, returning
this particular flash card to the emergency room, or if he ahd
spoken with Dr. Gomez or any other emergency room personnel about
Raynoldo. In Dr. Judar's opinion, Raynoldo's healed fractures
were at least five weeks old, could be as many as eight weeks
old, and could have resulted from birth trauma, a fall from a
couch, or abuse. Raynoldo's old injuries were revealed as little
bulging irregularities in the ribs. By the time the X ray was
6 1-05-3718 taken, the bone density had become homogeneous, there was no
difference in coloration, and what remained were "minimal
changes." The minimal changes would be "rather obvious" to a
radiologist but not to the emergency room physicians that Dr.
Judar had worked with. A view from the left ribs would have
revealed more than the chest X ray that was taken. The
radiologist's role was to report the discrepancy to the emergency
room, and the physician's role was to decide what to do about it,
including whether to order more films.
St. Elizabeth's emergency department manual likewise states
that it is the responsibility of the emergency department
physician on duty to evaluate a reported X ray discrepancy and
determine the action to be taken. The manual further provides
that if a suspected child abuse victim comes to the emergency
room, the individual is to be treated and immediate calls are to
be placed to the police department and DCFS.
The record indicates Dr. Gomez was not on duty on June 9,
1997, when the radiologist prepared his report of Raynoldo's X
ray. Dr. Gomez did not receive a copy of Dr. Judar's report and
he did not know whether anyone in the radiology department,
including Dr. Judar, followed up with anyone in the emergency
department.
On Saturday afternoon, July 26, 1997, while Kikole and
Raynoldo were sleeping, Rachel left their apartment for
approximately 30 minutes to cool off under an open fire hydrant.
7 1-05-3718 When she returned, the baby was crying and Kikole was holding
him. The baby was crying strongly and acting strangely, but he
eventually fell asleep and remained asleep until late that night.
When he awoke, Rachel fed Raynoldo some formula, but he began
projectile vomiting, and threw up more than he had just eaten.
Rachel and Kikole took Raynoldo to the hospital emergency room,
where doctors discovered a subdural hematoma and 11 rib fractures
in various stages of healing. The medical personnel diagnosed
"shaken baby syndrome" and immediately reported the situation to
DCFS and the police department as a case of suspected child
abuse. Approximately a week later, Kikole confessed to shaking
the baby on three occasions -- June 15, 1997, which was after Dr.
Gomez examined Raynoldo; July 7, 1997; and July 26, 1997. Kikole
was convicted of aggravated battery to a child and incarcerated.
Raynoldo suffered permanent neurological damage and partial
blindness in his right eye. He receives ongoing treatment,
including occupational therapy and speech therapy sessions while
at school.
On March 20, 2002, Rachel and Raynoldo filed their original
complaint against Dr. Gomez and the hospital, alleging a
violation of the Abused and Neglected Child Reporting Act
(Reporting Act) (325 ILCS 5/4 (West 2002)). Attached to the
complaint was a letter written by emergency physician Eugene E.
Saltzberg, stating in relevant part:
"No attempt to evaluate a potential child
8 1-05-3718 abuse situation was made on [June 8, 1997,]
nor any other date by the staff of St.
Elizabeth's Hospital. Multiple rib fractures
indicate child abuse until proven otherwise.
Subsequently, this child was the victim of
further abuse resulting in permanent,
significant neurological injury. Had the
original injuries been looked into, it is my
opinion that, more likely than not, further
injury would not have occurred. Therefore,
it is my opinion that [Dr. Gomez, St.
Elizabeth's], and any other medical staff
members involved in [Raynoldo's] care at St.
Elizabeth's hospital provided care below the
standard acceptable for any medical
practitioner, and that the deviation from the
standard of care resulted in further
irreparable injury."
The Reporting Act does not expressly provide for a private
right of action in the event of a violation and an implied
private right of action was rejected by the Third District in Doe
1 v. North Central Behavioral Health Systems, Inc., 352 Ill. App.
3d 284, 286, 816 N.E.2d 4, 6 (2004). Although the Third District
case involved a psychology clinic which did not report that one
9 1-05-3718 of its patients was sexually abusing children and the patient
went on to abuse other children, the court's reasoning appears
equally applicable to other types of relationships. The Third
District questioned whether a private remedy would be consistent
with the underlying purpose of Reporting Act, since the statute
is designed to enhance the ability of DCFS to "'protect the
health, safety, and best interests of the child in all situations
in which the child is vulnerable to child abuse or neglect.'"
North Central Behavioral Health, 352 Ill. App. 3d at 287, 816
N.E.2d at 7, quoting 325 ILCS 5/2 (West 2002). The court pointed
out, "[n]owhere is it either explicitly stated or implied that a
purpose of the Reporting Act is to provide children or families
with compensation for *** abuse or a failure to report abuse."
North Central Behavioral Health, 352 Ill. App. 3d at 287, 816
N.E.2d at 7. In addition, although the plaintiff family argued
that finding an implied private cause of action for a failure to
report would lead to enhanced enforcement of the Reporting Act,
the court emphasized that the "same argument could be made of
almost any statute." North Central Behavioral Health, 352 Ill.
App. 3d at 287, 816 N.E.2d at 7. Furthermore, there was no
evidence "that the statute does not already adequately serve its
purpose, absent a private cause of action." North Central
Behavioral Health, 352 Ill. App. 3d at 287, 816 N.E.2d at 7.
This fact was significant because a cause of action "should only
be implied in a statute 'in cases where the statute would be
10 1-05-3718 ineffective, as a practical matter, unless such an action were
implied.'" North Central Behavioral Health, 352 Ill. App. 3d at
287-88, 816 N.E.2d at 7, quoting Fisher v. Lexington Health Care,
Inc., 188 Ill. 2d 455, 464, 722 N.E.2d 1115, 1119-20 (1999). The
Reporting Act provides criminal sanctions for wilful failure to
report, and the Third District plaintiffs gave no indication this
penalty was insufficient to ensure statutory compliance. North
Central Behavioral Health, 352 Ill. App. 3d at 288, 816 N.E.2d at
8, citing 325 ILCS 5/4.02 (West 2002). 2 Accordingly, even though
the Third District plaintiffs were "members of the class of
individuals who are to be protected by the Reporting Act, and
even though the harm suffered by the children was of the type the
statute was designed to prevent," the Third District found there
2 In addition to the criminal sanctions noted by the Third
District, we also point out that the Reporting Act provides the
potential to fine or revoke the license of a physician that
wilfully violates the statute. See 325 ILCS 5/4.02 (West 2002)
(section of the Reporting Act stating that any physician who
wilfully fails to report suspected abuse or neglect shall be
referred to the Illinois State Medical Disciplinary Board for
disciplinary action); 225 ILCS 60/22(A)(22) (West 2002)
(providing a range of penalties, including $10,000 fine and
license revocation, for physician's wilful failure to report an
instance of suspected abuse or neglect as required by law).
11 1-05-3718 was no implied private cause of action for violation of the
Reporting Act. North Central Behavioral Health, 352 Ill. App. 3d
at 288, 816 N.E.2d at 8.
Dr. Gomez moved to dismiss Rachel and Raynoldo's original
complaint on the ground that the Reporting Act does not give rise
to a private cause of action, and his motion was granted.
With leave of court, Rachel and Raynoldo filed a first
amended complaint on August 22, 2002. The first amended
complaint omitted the prior references to the Reporting Act and
indicated the defendants negligently breached a common law duty
that medical professionals owe to their patients. Count I of the
first amended complaint was directed at Dr. Gomez based on his
"professional[] negligen[ce]" in caring for Raynoldo, and count
II was directed at St. Elizabeth's based on the "professional[]
negligen[ce]" of its emergency room nursing staff in caring for
Raynoldo. More specifically, the plaintiffs alleged Dr. Gomez
was subject to a "duty to possess the knowledge and apply the
skill and care that reasonably qualified physicians practicing in
their respective specialities in the Chicago metropolitan
community, or similar communities, would possess and apply in
similar cases under similar circumstances." It was further
alleged that St. Elizabeth's nursing staff was subject to a "duty
*** to possess the knowledge and apply the skill and care that
reasonably well qualified nurses practicing in the Chicago
metropolitan area or similar communities would ordinarily possess
12 1-05-3718 and apply in similar cases under similar circumstances."
According to the plaintiffs, Dr. Gomez and the nursing staff
violated their alleged duties to Raynoldo when they:
"a. Negligently failed to advise the
minor's parent, Rachel A. Nelson, of the
suspected abuse of the minor, Raynoldo
Varela, when X-rays revealed that Raynoldo
had several fractured ribs;
b. Negligently failed to investigate
and evaluate a potential child abuse
situation when X-rays revealed that Raynoldo
had several fractured ribs; and,
c. Negligently failed to report
suspected abuse of Raynoldo Varela to [DCFS]
when X-rays revealed that Raynoldo had
several fractured ribs."
In both counts I and II of the first amended complaint, the
plaintiffs sought damages for Raynoldo's medical expenses, pain
and suffering, loss of a normal life, and lost earning capacity.
In count III, Rachel sought compensation for Raynoldo's medical
expenses, pursuant to the family expense statute (750 ILCS 65/15
(West 2002)).
On November 21, 2003, the plaintiffs deposed Dr. Gomez. Dr.
Gomez informed the plaintiffs that he did not receive the
radiologist's report that was written after Dr. Gomez's treated
13 1-05-3718 Raynoldo.
According to the plaintiffs, they voluntarily filed a second
amended complaint on July 24, 2003, which added Mesa EmCare as a
defendant, because the plaintiffs learned through discovery that
Mesa EmCare contracted to operate the emergency room at St.
Elizabeth's and that Dr. Gomez was employed by Mesa EmCare rather
than the hospital. Although the plaintiffs had also learned
through discovery that Dr. Gomez was not on duty when Dr. Judar
reviewed Raynoldo's chest X ray, the plaintiffs did not add any
allegations regarding the physicians or nurses that were on duty
at that point in time.
Dr. Gomez and Mesa EmCare filed a motion for summary
judgment, and St. Elizabeth's joined in the motion. Rachel and
Raynoldo responded and moved for leave to file a third amended
complaint. As indicated above, after considering the parties'
arguments, the court ruled against the plaintiffs as to both
motions and this appeal followed. The court's written order
states:
"It is alleged that the [defendants'
negligent failure to discover a prior injury
and report it as suspected child abuse to the
child's mother and DCFS] resulted in the
child's father abusing the child at a later
date. There is no duty here. While doctors
14 1-05-3718 and hospitals have certain reporting
requirements with regard to child abuse
pursuant to the [Reporting Act], these
[statutory] requirements do not translate
into a standard of care with respect to
treating a patient nor do the failure to meet
those requirements become the basis of a
private right of action. There is no
evidence here of a failure to diagnose which
resulted in a medical injury. Instead,
liability is based on the failure to discover
a past injury and report that injury as
suspected child abuse which resulted in a
third-party inflicting abuse at a later point
in time. There is no duty here on that
basis. In addition, the evidence in the
record does not support proximate cause.
There is no causal nexus between the
Defendants' failure to discover and report
past suspected abuse and the injury sustained
at a later date as a result of future abuse.
There is nothing in the 213 answers or other
evidence which [is] capable of supporting
this. Further, the Plaintiffs seek to amend
the pleading [so as] to change the theory of
15 1-05-3718 liability against EmCare from merely being
based on vicarious liability for Dr. Gomez's
acts and omissions to liability for the
failures of any EmCare physician with respect
to a June 9, 1997 radiologist's report. Not
only is this a new theory which has been
sought to be pled much too late, but even if
it were pled, the lack of proximate cause and
duty still applies. Accordingly, any
proposed amendment would not preclude summary
judgment."
Summary judgment is properly granted when the pleadings,
depositions, admissions, and affidavits on file establish that
there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-
1005(c) (West 2002); Siklas v. Ecker Center for Mental Health,
Inc., 248 Ill. App. 3d 124, 129, 617 N.E.2d 507, 510 (1993). An
order granting summary judgment is addressed de novo on appeal.
Rivera v. Arana, 322 Ill. App. 3d 641, 646, 749 N.E.2d 434, 439
(2001).
In order to succeed on a common law negligence claim, the
plaintiff must show a duty owed by the defendant to the
plaintiff, a breach of that duty, and an injury proximately
resulting from that breach. Swett v. Village of Algonquin, 169
16 1-05-3718 Ill. App. 3d 78, 82, 523 N.E.2d 594, 597 (1988). Rachel and
Raynoldo contend the Reporting Act is not at issue and that the
premise of their case is the defendants' negligent "violation of
a common law duty." Rachel and Raynoldo make numerous statements
in their appellate briefs such as "there is clearly a common law
duty owed by Dr. Gomez (Mesa EmCare and St. Elizabeth's Hospital)
to their patient," they "owed him a common law duty born from the
physician/patient relationship." Also, "the common law already
requires a duty of care and [the Reporting Act] simply helps
define what the duty is." As the plaintiffs, however, Rachel and
Raynoldo bear the burden of showing that Dr. Gomez owed a common
law duty of care to his patient that would subject the doctor to
liability for the abuse the patient subsequently suffered at the
hands of his own father. It is not enough for the plaintiffs to
state their subjective belief about the type and scope of duty
that was owed. Whether a legal duty exists is a question of law
to be determined by the court. Swett, 169 Ill. App. 3d at 82,
523 N.E.2d at 597. The plaintiffs must provide legal authority
substantiating that the courts of this jurisdiction have
determined that physicians owe this particular duty to their
patients, or the plaintiffs must provide legal reasoning
substantiating that this court should now determine that
physicians owe this particular duty to their patients. If the
plaintiffs cannot substantiate the duty element of their
negligence claim, we do not need to address the additional
17 1-05-3718 elements of their claim, including breach of that duty and an
injury proximately resulting from that breach.
The Third District case discussed above, North Central
Behavioral Health Systems, would appear to dispense with the
plaintiffs' theory, since it would be illogical to argue that
although the Illinois legislature has not expressly or impliedly
created a private right of action for violation of the Reporting
Act (North Central Behavioral Health Systems, 352 Ill. App. 3d at
286, 816 N.E.2d at 6), individuals may nevertheless assert a
private right of action for violation of the Reporting Act, so
long as those individuals allege they are proceeding at common
law rather than on a statutory basis. Nevertheless, the
plaintiffs cite Dimovski and Culyer for the proposition that Dr.
Gomez owed Raynoldo a common law duty of care to "diagnose
[healed] rib fractures and thus determine that [the child] was
being physically abused" and then "report such child abuse to the
police, DCFS and the parents." Doe v. Dimovski, 336 Ill. App. 3d
292, 783 N.E.2d 193 (2003); Cuyler v. United States, 362 F.3d 949
(7th Cir. 2004). While these cases concern a failure to report
abuse, they do not support the present appeal, because they do
not indicate the hospital personnel owed this particular duty of
care to their minor patient.
In Dimovksi, a Westmont (Du Page County) high school student
was sexually abused by a teacher and brought a "negligent
retention" action against the school board that employed him.
18 1-05-3718 Dimovski, 336 Ill. App. 3d at 294, 783 N.E.2d at 195. The
student alleged the school board "owed a duty to its students to
provide and employ appropriate educational services and competent
teachers and counselors and to safeguard its students from
harmful conduct that might be undertaken by its teachers."
Dimovski, 336 Ill. App. 3d at 294-95, 783 N.E.2d at 196. The
student alleged the school board breached these duties in part by
failing to hire competent personnel and failing to investigate
and report to DCFS previous complaints against the teacher
regarding sexual misconduct with another student. Dimovski, 336
Ill. App. 3d at 295, 783 N.E.2d at 196. The trial court found,
however, that the school board was immunized from liability for
its employee's misconduct in part by section 2-201 of the Local
Governmental and Governmental Employees Tort Immunity Act (745
ILCS 10/2-201 (West 2000) (Tort Immunity Act)), and dismissed the
complaint. Dimovski, 336 Ill. App. 3d at 295, 783 N.E.2d at 196-
97.
Focusing on the alleged failure to report suspected child
abuse and the Reporting Act's inflexible wording, the appellate
court found that because the Reporting Act did not allow the
school district any discretion or policymaking as to whether to
report suspected child abuse, section 2-201 of the Tort Immunity
Act was not a basis for dismissing the student's complaint.
Dimovski, 336 Ill. App. 3d at 297, 783 N.E.2d at 198; 325 ILCS
5/1 et seq. (West 2002); 745 ILCS 10/2-201 (West 2002).
19 1-05-3718 Notably, the duty element of the negligent retention action
was not in dispute and the court did not discuss whether the
school board in fact "owed a duty to its students to provide and
employ appropriate educational services and competent teachers
and counselors and to safeguard its students from harmful conduct
that might be undertaken by its teachers." Dimovksi, 336 Ill.
App. 3d at 294-95, 783 N.E.2d at 196. In addition, the Westmont
school board's relationship with the abusive teacher is not
analogous to Dr. Gomez's relationship with Raynoldo's abuser; Dr.
Gomez did not employ, supervise, or otherwise control Raynoldo's
abuser. Therefore, there is no discussion or analogous
relationship in Dimovski that would lead us to conclude that Dr.
Gomez owed the type of duty to his minor patient that the
plaintiffs are now arguing was owed. Dimovski has no apparent
relevance to the contention that Dr. Gomez owed a common law duty
to his patient to detect a healed injury, to diagnose it as an
indication of child abuse, and to report it as such to the
child's mother and child welfare authorities.
The other case the plaintiffs cite is even less helpful to
their appeal. In Cuyler, a babysitter, Higgs, abused the son of
a military family so severely that the child had to be
hospitalized at the Great Lakes Naval Base. Cuyler, 362 F.3d at
951. Although Higgs attributed the boy's injuries to an
accidental fall from some steps, the staff at the military
hospital suspected he was the victim of abuse rather than an
20 1-05-3718 accident. Cuyler, 362 F.3d at 951. The hospital staff asked the
father whether he also suspected abuse, and the father responded
that he did not know. Cuyler, 362 F.3d at 951. The hospital
staff asked the father whether he wanted them to report the
incident as abuse, and he replied, "'if that's what you're
supposed to do, do your job.'" Cuyler, 362 F.3d at 951.
Nevertheless, the hospital staff did not report their suspicions,
in violation of the Reporting Act. Cuyler, 362 F.3d at 951; 325
ILCS 5/1 et seq. (West 2002). Within a month, Higgs babysat for
a second military family and inflicted fatal injuries on their
child. Cuyler, 362 F.3d at 951. Higgs was convicted of
involuntary manslaughter for the death of the child, and the
parents of this second child brought a wrongful death action.
Cuyler, 362 F.3d at 951. The parents brought suit in the federal
court system, under the Federal Tort Claims Act which, "with
limitations that we can ignore, makes the federal government
liable for the torts of its employees to the same extent that
they would be liable under the law of the place where the tort
was committed, in this case Illinois." Cuyler, 362 F.3d at 951.
Thus, although the suit proceeded in the federal court system,
Illinois state law was controlling. Cuyler, 362 F.3d at 951.
Litigation led to a $4 million judgment in the parents' favor,
and an appeal was taken. Cuyler, 362 F.3d at 951.
The parents tried to persuade the federal appeals court that
because the Reporting Act is intended for the protection of
21 1-05-3718 children such as theirs, the hospital staff's violation of their
reporting obligation was prima facie evidence of negligence under
the common law of Illinois. Cuyler, 362 F.3d at 951; 325 ILCS
5/1 et seq. (West 2002). The federal court rejected this
argument. The court reasoned that generally there is no common
law duty to warn or rescue others from injuries inflicted by
third parties, and unless the plaintiff family came within an
exception to the general rule of no duty, which it did not, the
court could not look to the statute for the definition of the
standard of care. Cuyler, 362 F.3d 949.
More specifically, the court reasoned as follows. "A
conventional principle of tort law, in Illinois as elsewhere, is
that if a statute defines what is due care in some activity, the
violation of the statute either conclusively or (in Illinois)
presumptively establishes that the violator failed to exercise
due care." Cuyler, 362 F.2d at 952. The federal court
stressed, however, "But the statutory definition does not come
into play unless the tort plaintiff establishes that the
defendant owes a [common law] duty of care to the person he
injured *** because tort liability depends on the violation of a
duty of care to the person injured by the defendant's wrongful
conduct." Cuyler, 362 F.2d at 952. Ordinarily the scope of a
tort duty of care is stated in a jurisdiction's case law, and
"although the legislature can and sometimes does create a duty of
care to a new class of injured persons, the mere fact that a
22 1-05-3718 statute defines due care does not in and of itself create a duty
enforceable by tort law." (Emphasis in original.) Cuyler, 362
F.3d at 952.
"The distinction is well explained in Marquay
v. Eno, [139 N.H. 708, 713, 662 A.2d 272, 277
(1995)]: 'whether or not the common law
recognizes a cause of action, the plaintiff
may maintain an action under an applicable
statute where the legislature intended
violation of that statute to give rise to
civil liability. The doctrine of negligence
per se, on the other hand, provides that
where a cause of action does exist at common
law, the standard of conduct to which a
defendant will be held may be defined as that
required by statute, rather than as the usual
reasonable person standard.' *** Otherwise
every statute that specified a standard of
care would be automatically enforceable by
tort suits for damages -- every statute in
effect would create an implied private right
of action -- which clearly is not the law.
The only modification required to make the
passage that we quoted from the Marquay case
an accurate statement of Illinois law is that
23 1-05-3718 in Illinois the violation of a statutory
standard of care is prima facie evidence of
negligence rather than negligence per se."
Cuyler, 362 F.3d at 952.
"From this analysis it follows that only if the Illinois
common law of torts imposed on the medical personnel of the Great
Lakes Naval Hospital a duty of care to the [second family's]
child would the Illinois [Reporting Act] specify the level of
care that they owed to the child -- specify, that is, that due
care required taking steps to prevent Higgs from further
babysitting until the circumstances in which the [first family's]
child had been injured were clarified." Cuyler, 362 F.2d at 952-
53. "In general, however, tort law imposes on people only a duty
to take reasonable care to avoid injuring other people and not a
duty to [warn or] rescue others from injuries by third parties."
Cuyler, 362 F.3d at 953. "In other words, there is no general
duty in the common law *** to be a 'good Samaritan.'" Cuyler,
362 F.3d at 953.
The federal court briefly discussed the Tarasoff exception
to the general rule that there is no common law duty of care to
warn or rescue others from injuries inflicted by third parties.
Cuyler, 362 F.3d at 954, citing Tarasoff v. Regents of University
of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Ca. Rptr. 13
(1976). According to Tarasoff, when a psychotherapist determines
that his patient presents a serious danger of violence to
24 1-05-3718 another, the therapist incurs a duty to contact the intended
victim, notify the police, or take other steps reasonably
necessary under the circumstances. Tarasoff, 17 Cal. 3d 425, 551
P.2d 334, 131 Cal. Rptr. 14. The federal court then found,
"Higgs [the violent babysitter] was not the patient of anyone at
Great Lakes Naval Hospital, and so the [Tarasoff] exception is
inapplicable." Cuyler, 362 F.3d at 954.
Thus, Cuyler stands for the propositions that (1) there is
no duty under the Illinois common law of torts or the Reporting
Act (325 ILCS 5/1 et seq. (West 2002)) to rescue others from
being injured by third parties, and (2) a plaintiff proceeding
under the common law must first establish that the defendant owed
a common law duty of care to the person he injured before a court
will look to a statute to define the specific level of care that
was owed. Therefore, the case that is at the center of the
plaintiffs' duty of care argument actually supports summary
judgment for Dr. Gomez and the other defendants.
It appears that Rachel and Raynoldo misread Cuyler, since
they contend the court determined the hospital staff "did not owe
a common law duty to Cuyler [the second family's child] since he
was not their patient." See Cuyler, 362 F.3d 949. As summarized
above, however, the court began with the general rule that there
is no duty under the Illinois common law of torts to warn or
rescue others from being injured by third parties, then
considered whether an exception should be made, but concluded
25 1-05-3718 since "[the abusive babysitter] Higgs was not the patient of
anyone at Great Lakes Naval Hospital, *** the exception is
Cuyler works against Rachel and Raynoldo for the additional
reason that the federal appeals court, like the Third District in
North Central Behavioral Health Systems, 352 Ill. App. 3d at 288,
816 N.E.2d at 8, determined that the Reporting Act does not
create a private right of action for damages. Cuyler, 362 F.3d
at 955. As an alternative to their common law duty argument, the
military family argued their child's death was caused by the
hospital's violation of the abuse-notification statute with
respect to the other military family's abused child. Cuyler, 362
F.3d at 951. Like the Third District, the federal appeals court
determined the Reporting Act did not create an express or implied
private cause of action for a failure to report. It pointed
out:
"Maybe such encompassing liability would be a
good thing; it would doubtless lead to more
reporting. It is usually the case that
piling on punishments will increase
compliance with a statute. But if that were
the only consideration, all statutes would be
interpreted to crate private rights of
action." Cuyler, 362 F.3d at 955.
The court also remarked, "It may be significant that since being
26 1-05-3718 enacted [almost 30 years ago], the abuse-notification statute has
been amended several times, any one of which would have provided
an occasion for plugging in a damages remedy had there been
legislative sentiment for such a remedy; evidently there was
not." Cuyler, 362 F.3d at 955.
In short, the federal appeals court rejected the plaintiffs'
common law duty and statutory duty arguments, and there is
nothing in its reasoning that supports the current plaintiffs'
appeal. Cuyler is not a basis for concluding that Dr. Gomez owed
a common law duty to his minor patient to detect a healed injury,
to diagnose it as an indication of child abuse, and to report it
as such to the minor's mother and child welfare authorities.
Rachel and Raynoldo quote extensively from the deposition
testimony of Dr. Gomez, one of the hospital's nurses, and the
parties' expert witnesses, and contend, "There really was no
dispute as to the standard. Everyone agreed that if child abuse
was suspected the standard of care required the abuse to be
reported to DCFS, the police, and the parents." (Emphasis
added.) In this case, however, Dr. Gomez did not discern the
prior, healed injury to Raynoldo's ribs and Dr. Gomez had no
suspicion of child abuse. Therefore, testimony regarding what
should have been done "if child abuse was suspected" is
irrelevant. We emphasize that Rachel and Raynoldo are not
contending that Dr. Gomez misdiagnosed Raynoldo's intestinal
colic in the emergency room on June 8, 1997, and that they have
27 1-05-3718 no criticism of the physician's diagnosis and treatment of the
intestinal colic. Therefore, this case differs from instances
such as Cuyler, where medical personnel discerned the symptoms of
child abuse and suspected child abuse, but failed to report their
suspicions to child welfare authorities, in violation of the
Reporting Act. Cuyler, 362 F.3d 949, 325 ILCS 5/1 et seq. (West
2002). Rather, Rachel and Raynoldo are contending Dr. Gomez
should have also discerned the five-to-eight-week-old rib
fractures, recognized them as indications of child abuse, and
reported them as such, in addition to diagnosing and treating the
symptoms of intestinal colic.
The exception to the cited deposition testimony is Dr. Frank
J. Baker's statement that Dr. Gomez's failure to discern the
infant's healed rib fractures was in breach of the standard of
care of emergency room physicians. Dr. Baker is an emergency
room physician and is the plaintiffs' retained expert witness.
Dr. Baker first offered this opinion on August 31, 2005,
According to Dr. Baker, Dr. Gomez should have first considered
the "bony structures" in Raynoldo's chest X ray, and if he had,
"he would have seen the obvious abnormality." Thus, Rachel and
Raynoldo are effectively asking this court, on the basis of Dr.
Baker's testimony, to create a new common law cause of action for
violating the statute at issue. They argue this is proper even
though Illinois state and federal courts have soundly rejected
previous attempts to imply a private cause of action from the
28 1-05-3718 statutory language (North Central Behavioral Health Systems, 352
Ill. App. 3d 284, 816 N.E.2d 4; Cuyler, 362 F.3d 949), and even
though the Illinois legislature has subsequently met without
amending the statute to create a private cause of action. We
have no legal basis or authority to create common law liability
for a statutory violation. Rachel and Raynoldo's common law
action was based on the breach of a duty that does exist.
Since the plaintiffs would be unable to meet all the
elements of their negligence action, summary judgment was
properly granted for the defense. Accordingly, we do not need to
reach the plaintiffs' additional contentions that the defendants'
conduct was the proximate cause of the physical abuse
subsequently inflicted by Raynoldo's father.
The plaintiffs' last contention on appeal is that they
should have been allowed to file their proposed third amended
complaint, because it merely conformed the allegations with the
opinion of their expert, Dr. Baker, which had been "fleshed out
and crystalized at deposition." The plaintiffs cite portions of
Dr. Baker's deposition testimony indicating the emergency room
personnel that worked on June 9, 1997, which was after Dr.
Gomez's contact with Raynoldo on June 8, 1997, were liable for
the injuries Raynoldo's father subsequently inflicted, because
the personnel had not acted on the radiologist's June 9, 1997,
report noting, "Old healed fracture at the lower left ribs
appears to be involving the 7th, 8th and 9th ribs at the axillary
29 1-05-3718 area."
The circuit court has broad discretion as to whether to
allow an amendment to a complaint, and its ruling on the
plaintiff's request will not be disturbed on appeal absent an
abuse of that discretion. Charleston v. Larson, 297 Ill. App. 3d
540, 555, 696 N.E.2d 793, 803 (1998). The following factors are
relevant to our review of the circuit court's ruling: (1)
whether the proposed amendment would cure the defective pleading,
(2) whether the defendant would be prejudiced or surprised by the
proposed amendment, (3) whether the proposed amendment is timely,
and (4) whether the plaintiff had other opportunities to amend.
Charleston, 297 Ill. App. 3d at 555, 696 N.E.2d at 803 (affirming
denial of leave to amend where proposed amendment would not cure
defective allegations as to duty of care and plaintiff had
exercised previous opportunity to amend).
Since the proposed amendment does not indicate Dr. Gomez
owed a common law duty to Raynoldo to warn or rescue Raynoldo
from injuries that would be subsequently inflicted, the proposed
amendment would not meet the first of these four factors.
Accordingly, we conclude Rachel and Raynoldo have not
demonstrated that it was an abuse of discretion for the circuit
court to deny leave to file the proposed amendment.
Affirmed.
CAHILL, P.J. and JOSEPH GORDON, J., concur.