Lash v. Motwani

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DIENNA M. LASH, )

)

Plaintiff, )

)

vs. ) Case No. 3:18-CV-01466-MAB

)

HARESH MOTWANI, ET AL., )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

Dienna Lash, as an administrator of her late husband Glenn Lash’s estate, filed this

medical malpractice suit against physicians Haresh Motwani and Robert Panico, as well

as, Sparta Community Hospital District (“Sparta Hospital” or “the hospital”) under the

Illinois Wrongful Death Act, 740 ILL. COMP. STAT. 180/1, and the Illinois Survival Act, 755

ILL. COMP. STAT. 5/27-6. The Court previously granted summary judgment in favor of Dr.

Panico (Doc. 106). Now before the Court are Dr. Motwani and Sparta Hospital’s motions

for summary judgment and supporting memoranda (Docs. 82, 83, 89, 90). For the reasons

outlined below, Sparta Hospital’s motion for summary judgment is granted (Doc. 82) and

Dr. Motwani’s motion for summary judgment is denied (Doc. 89).

FACTS

As an initial matter, the undisputed facts in this case are not clearly laid out.

Defendant Sparta Hospital argues in its reply brief that summary judgment is not

contested as Plaintiff does not dispute its uncontested facts (Doc. 93, p. 1). Sparta Hospital

is correct that Plaintiff does not clearly contest the facts set forth by Sparta Hospital by

going through each fact one-by-one and addressing whether it is disputed or undisputed,

as is customary. Rather, Plaintiff sprinkles her contested factual allegations throughout

her responses to both Sparta Hospital and Dr. Motwani’s motions. This lack of clarity in

the facts required the Court to dedicate an inordinate amount of time and energy toward

reviewing the factual record, including the exhibits supporting the briefs.1

Additionally, Plaintiff submitted six pages of medical records to the Court (Doc.

92-6). It is essentially the discharge instructions given to Mr. Lash, the nursing notes, and

the list of orders given by Dr. Motwani (see id.). Dr. Panico previously submitted a couple

additional pages of medical records (Docs. 79-2, 79-3, 79-4). The Court often had to rely

on the recitations of the medical records provided in the deposition testimony of the

various medical providers and expert witnesses. The Court has captured, to the best of

its abilities, the following factual allegations from all parties and the record as a whole.

I. Parties & Timeline of Events

Sparta Hospital was, and is, organized and operating as a Hospital District

pursuant to the Illinois Hospital District Act, 70 ILL. COMP. STAT. 910/1, et seq. (Doc. 83-

2). The parties agree that Sparta Hospital is a “local public entity” as defined by the

aforementioned Act (Doc. 83, p. 9). In 2016, Dr. Motwani was an independently

contracted physician granted privileges to practice emergency medicine in the emergency

department at Sparta Hospital (Doc. 83-3). Dr. Robert Panico (who, again, has already

1 The Seventh Circuit Court of Appeals has astutely observed that “[j]udges are not like pigs, hunting for

truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

been dismissed) was an independently contracted physician granted privileges to

practice radiology at Sparta Hospital (Id.).

Plaintiff’s decedent and husband, Glenn Lash, was a resident of Pennsylvania

(Doc. 1). In August 2016, Mr. Lash traveled to Sparta, Illinois to attend a trap shooting

event (Doc. 83-1, pp. 12-13). He arrived in Sparta on Friday, August 5, 2016 (Doc. 83-1, p.

17). Four days later, on Tuesday, August 9th, Mr. Lash went to the emergency room at

Sparta Community Hospital around midday complaining of chest discomfort and

shortness of breath that began two days earlier (Doc. 92-6; Doc. 83-9, p. 2).

Ms. Lash testified that her husband went to Sparta Hospital because it was the

closest hospital to where he was staying while visiting southern Illinois (Doc. 83-1, pp.

44–45). She further testified that she did not think her husband cared whether the doctors

at the hospital were independent contractors or employees; he just wanted medical care

(Id. at p. 45). At the hospital, Mr. Lash signed and initialized a consent form for his visit

(Doc. 83-4; see also Doc. 83-1, pp. 45–46). Section 2.4 of the consent form states in relevant

part:

Physicians on staff, including but not limited to the emergency physicians,

hospitalists, pathologists, radiologists, anesthesia providers, and other

specialty or consulting physicians are NOT employees or agents of the

hospital and are independent contractors who have been granted the

privilege of using the facility of the treatment of their patients. I

acknowledge that the employment or agency status of physicians or other

providers who treat me is not relevant to my selection of this facility for my

care. I recognize that all physicians on the medical staff exercise their own

independent medical judgment with respect to my treatment.

(Doc. 83-4) (emphasis added.)

Dr. Motwani was the physician responsible for Mr. Lash’s care on August 9, 2016

(Doc. 83-5, pp. 135-136). Mr. Lash was also seen by nurses and other staff members at

Sparta Hospital during the time he was in the ER (see Doc. 92-6). He was triaged at

12:37pm and communicated to a nurse that his shortness of breath, which started two

days prior, was getting worse but the chest discomfort had subsided (Doc. 92-6; Doc. 79-

4). He did not report any significant past medical history, such as a prior history of

coronary artery disease, heart attack, peripheral vascular disease, stroke, diabetes,

hypertension, or hyperlipidemia (see Doc. 92-6, Doc. 79-4; Doc. 83-7, pp. 1–2; Doc. 83-8, p.

14). And he did not know of any family history of premature coronary artery disease or

sudden cardiac death (see Doc. 92-6, Doc. 79-4; Doc. 83-7, pp. 1–2; Doc. 83-8, p. 14).

It was noted that Mr. Lash was a former smoker and obese with a BMI of 36, as he

weighed approximately 265 pounds and was 6 feet tall (Doc. 92-6; Doc. 79-4). Mr. Lash’s

vital signs were taken and recorded; in pertinent part, his blood pressure was 151/66 and

his oxygen saturation level was 94% (Doc. 92-6; Doc. 79-4). Plaintiff’s experts testified that

his blood pressure was elevated (Doc. 83-10, p. 15; see also Doc. 83-8, p. 12). His primary

care expert testified his oxygen saturation was low (Doc. 83-10, p. 14), while his

cardiology expert testified it was “borderline normal” (Doc. 83-8, p. 13). The nurse also

noted that Mr. Lash “appeared anxious,” but there was no further description of the

characteristics of or assessment for anxiety (Doc. 92-6, p. 3).

The nurse then notified Dr. Motwani that Mr. Lash was in the ER, and per protocol,

she initiated orders for an EKG, blood work, and a chest x-ray (Doc. 79-9, pp. 7, 13–14; see

also Doc. 92-6, pp. 3, 5–6). Dr. Motwani then took Mr. Lash’s history of his presenting

illness and past medical history and conducted a medical examination (Doc. 83-5, p. 136).

On examination, Mr. Lash had clear lungs and regular heart rhythm without murmurs,

rubs, or gallops (Doc. 83-7, p. 3). Dr. Motwani verified the nurses orders for an EKG, lab

work, and a chest x-ray (Doc. 83-5, pp. 136, 158, 162–63).

A nurse conducted the EKG around 12:47pm (Doc. 92-6, p. 3). At 12:57pm, blood

samples were drawn (Id.). And at around 1:15, the chest x-ray was performed (Id.). The

nurse and Dr. Motwani both testified that Mr. Lash’s EKG was normal (Doc. 79-9, p. 7;

Doc. 83-5, pp. 138, 171, 172), as did Plaintiff’s cardiology expert, Dr. Eric Osborn (Doc. 83-

7, p. 3; Doc. 83-8, pp. 12–13).2 Dr. Osborn testified that Mr. Lash’s laboratory results were

notable for negative cardiac enzymes and troponin within normal limits, which means

they did not detect anything in the blood suggesting Mr. Lash had had a heart attack

(Doc. 83-7, p. 3; Doc. 83-8, p. 7). However, his white blood cells were slightly elevated, as

was his blood sugar (Doc. 79-4, p. 5), both of which can be associated with a cardiac event

(Doc. 83-8, pp. 14–15; Doc. 83-10, pp. 16–17). The chest x-ray was read by radiologist, Dr.

Robert Panico (Doc. 79-2; Doc. 79-3). His initial “wet read,” which is what would have

been provided to Dr. Motwani, was that there were radiographic findings of mild

2 On the other hand, Plaintiff’s primary care expert, Dr. Finley Brown, testified the EKG was “more likely

than not abnormal” (Doc. 83-9, p. 3). Dr. Brown explained that Mr. Lash’s white blood cell count was

elevated “with a shift to the left, best explained by acute cardiac disease, CHF [congestive heart failure],

and/or PE [pulmonary embolism]” (Id.).

congestive heart failure and a slightly prominent right hilum,3 and he said a CT scan

should be considered (Doc. 79-3; see also Doc. 83-5, pp. 139, 186; Doc. 83-7, p. 3).

Around 1:45pm, a little over an hour after Mr. Lash was first seen, a nurse took his

vitals again (Doc. 96-2, p. 3). His blood pressure was 122/57, which is normal, and his

oxygen saturation level was 95% (Id.; Doc. 83-8, p. 12; Doc. 83-10, p. 16). At this point, Mr.

Lash communicated that he felt better as the nurses reassured him multiple times (Doc.

96-2, p. 3).

Dr. Motwani ultimately diagnosed Mr. Lash with anxiety reaction (Doc. 83-5, pp.

136, 199-201, 208-209; Doc. 92-6). At 1:58pm, Mr. Lash was given 0.5mg of Ativan (Id.).4

His vitals were taken again around 2:00pm, and his blood pressure was 131/54, which is

normal, and his oxygen saturation level was 94% (Doc. 92-6, p. 4; Doc. 83-8, p. 12; Doc.

83-10, p. 16). He was discharged a few minutes later, after spending approximately an

hour and a half in the emergency room (see Doc. 92-6, p. 4). Dr. Motwani testified that,

essentially, Mr. Lash’s physical examination and test results (from his EKG, cardiac

enzymes, and chest X-ray, for example) were all normal and supported his decision to

discharge Mr. Lash (Doc. 83-5, p. 201).

3 Plaintiff’s cardiology expert, Dr. Eric Osborn, described the hilum as a “relatively complex part of the

lung that includes airways, lymph nodes, blood vessels, other structures” (Doc. 83-8, p. 10). He testified

that an enlarged right hilum could be caused by congestive heart failure or a cancerous mass (Id.).

4 Ativan is a brand name for Lorazepam, which is a benzodiazepine used to relieve anxiety. Medline Plus,

Lorazepam, https://medlineplus.gov/druginfo/meds/a682053.html#why (last visited Mar. 31, 2021). See

also Doc. 83-8, p. 18.

The discharge instructions indicated that Mr. Lash had been evaluated and given

additional information for “anxiety reaction” (Doc. 92-6, p. 1). He was instructed to

continue taking ibuprofen and Norco as ordered, both of which had been prescribed prior

to his emergency room visit to be taken as needed for lower back, knee, and Achilles

tendon pain (Id.; Doc. 83-9, p. 2).5 Dr. Motwani also gave him a prescription for fifteen

Xanax pills (0.25mg) to be taken as needed (Doc. 92-6, p. 1). Finally, Mr. Lash was

instructed to “Follow up with your doctor in one week even if well . . . for R Hilar LN

enlargement” (Id.).

The following evening, Mr. Lash was at a meeting, when he reported feeling dizzy

and then collapsed (Doc. 83-1, pp. 25–26). He was taken by ambulance back to Sparta

Hospital, unconscious and in cardiac arrest (Doc. 83-7, p. 3; Doc. 83-9, p. 3). Attempts to

resuscitate him were unsuccessful and he died roughly 30 hours after he had been

discharged from the emergency room with a diagnosis of anxiety (Doc. 83-7, p. 3; Doc.

83-9, p. 3).

The death certificate noted that the immediate cause of death was cardiac arrest

due to a cardiopulmonary event (Doc. 83-7, p. 3). No autopsy was performed, a decision

that the family was not a part of or consulted on prior to Mr. Lash’s body being

transported back to Pennsylvania (Doc. 83-1, pp. 27-28). Dr. John Vandover was the

emergency physician who treated Mr. Lash at Sparta Hospital the day he died (Doc. 92-

7). He testified that his clinical impression of Mr. Lash’s death was a cardiac arrest

5 It appears these medications had been prescribed to Mr. Lash sometime before his trip to the emergency

room at Sparta Hospital and he took them only as needed (see Doc. 92-6).

secondary to asystole, which he agreed meant the arrhythmia (lack of heart rhythm) was

the cause of the death (Id. at p. 47). Dr. Vandover testified that if he felt strongly that an

autopsy was necessary to determine the cause of death, he would have made a notation

in the records, and he did not make such a notation (Doc. 92-7, pp. 22-23).

II. Plaintiff’s Experts

Plaintiff disclosed two expert witnesses: a cardiologist, Dr. Eric Osborn, and a

family care physician, Dr. Finley Brown. Additionally, Plaintiff disclosed a nursing

expert, Ms. Starlyn Reynolds.

A. Dr. Eric Osborn

Dr. Eric Osborn is a cardiologist with a subspecialty in interventional cardiology

(Doc. 79-5, pp. 29–34; Doc. 83-8, p. 4). His clinical practice is based at Beth Israel

Deaconess Medical Center, which is one of the three major teaching hospitals affiliated

with Harvard Medical School, where he is an instructor and the director of the

Interventional Cardiology Fellowship (Doc. 79-5, pp. 29–34; Doc. 83-8, p. 4).

Dr. Osborne believes that Mr. Lash most likely suffered a fatal cardiac arrhythmia

that led to sudden cardiac arrest (Doc. 83-7). He explained that arrhythmia, which is an

irregular heartbeat, leads to abnormal blood circulation and low blood pressure and then

ultimately collapse and cardiopulmonary arrest.” (Doc. 83-8, p. 6). He further explained

that sudden cardiac arrest is often attributable to two major causes: acute coronary

syndrome and pulmonary embolus (Doc. 83-8, p. 7).

According to Dr. Osborne, Mr. Lash was objectively at an increased risk of cardiac

complications given his smoking history, his weight, his recent diagnosis of

hypertension, his age, and his male gender (Doc. 83-7, p. 4). Given those characteristics,

the sudden onset of chest discomfort and shortness of breath that had been intermittent

over a couple of days, and the abnormal chest x-ray, Dr. Osborn believes the most likely

explanation for Mr. Lash’s cardiac arrest is acute coronary syndrome, specifically an

unstable angina (Doc. 83-8, p. 7). But other possible explanations include congestive heart

failure and pulmonary embolus (Doc. 83-7, p. 4; Doc. 83-8, pp. 6–7, 10). These conditions

“warrant[ed] further immediate study so a reasonable treatment plan can be established”

(Doc. 83-7, p. 4).

Dr. Osborn opined that the standard of care required Mr. Lash to be admitted to

the hospital for a period of clinical observation (at the absolute very least), but also for

additional monitoring and diagnostic testing (Doc. 83-7, p. 4; Doc. 83-8, p. 16). Dr. Osborn

further opined that the standard of care required Dr. Motwani to consult with a

cardiologist in order to determine the appropriate evaluation and management (Doc. 83-

7, p. 4).

According to Dr. Osborne, if Mr. Lash had been admitted to the hospital, the cause

of his subsequent cardiac arrest may have been identified on subsequent testing and/or

monitoring before the event, and may have prevented his cardiac arrest altogether (Doc.

83-7, p. 5). If Mr. Lash had suffered cardiac arrest while in the hospital for observation,

he would have had a significantly increased likelihood of successful resuscitation and

survival (Id.). Dr Osborne opined that, to a reasonable degree of medical certainty, Mr.

Lash’s premature discharge from the hospital, caused him an increased risk of harm and

significantly reduced his chance of survival and recovery (Id.)

B. Dr. Finley Brown

Dr. Finley Brown is a board-certified family practice physician who runs a primary

care practice in Chicago Illinois (Doc. 83-10, p. 3).

Dr. Brown stated that Mr. Lash had a “problem list,” meaning multiple risk factors,

including but not limited to, his age, his gender, his weight, and his history as a former

smoker (Doc. 83-7, pp. 2, 4) Dr. Brown is of the opinion that Mr. Lash’s vital signs at

admission to the emergency room were “quite abnormal” (Doc. 83-9, p. 2). Specifically,

his blood pressure was high and his oxygen saturation of 94% and 95% was low, which

could be explained by acute heart failure, pulmonary embolus, or chronic obstructive

pulmonary disease (Id. at pp. 2, 3). Dr. Brown is also of the opinion that the chest x-ray

was “wildly abnormal” and the EKG was also abnormal until proven otherwise, and the

abnormalities are best explained by acute cardiac disease, congestive heart failure,

and/or pulmonary embolus (Id. at pp. 3, 4). Dr. Brown stated that Mr. Lash’s elevated

blood sugar should have also been a concern because “it is well-known that many

patients presenting with impending [myocardial infarction],” which is more commonly

known as a heart attack, have an elevated blood sugar (Doc. 83-7, p. 3).

According to Dr. Brown, “[s]hortness of breath and chest pain are

cardiopulmonary disease . . . until proven otherwise” (Doc. 83-9, p. 2). And “[a]ssociated

anxiety means cardiac anxiety until proven otherwise” (Id.). Dr. Brown opined that given

Mr. Lash’s characteristics, the abnormal vitals, labs, chest x-ray, and EKG, the standard

of care required immediate cardiac and pulmonary consultations, admission to the

intensive care unit, and a detailed workup and evaluation to include serial cardiac

enzymes, d-dimer, ventilation–perfusionscan, CT of the chest, arterial blood gasses, and

pulmonary function tests, or stabilization and transfer to a tertiary care, university-

affiliated hospital in St. Louis, Missouri, for example, which was 1.25 hours away by

ambulance or 20 minutes by air transfer (Id. at pp. 2, 4).

In his expert report, Dr. Brown lists fourteen different ways that Dr. Motwani, Dr.

Panico, and employees of Sparta Hospital were negligent (Doc. 83-9, pp. 5–6). That list,

boiled down, is that the aforementioned failed to properly evaluate the results of the lab

tests and diagnostic tests, failed to appreciate what those results meant when paired with

Mr. Lash’s personal history, presentation, and vital signs, failed to recognize the signs of

a potential cardiac or pulmonary problem, and failed to admit Mr. Lash and order an

appropriate workup and evaluation, all of which resulted in an improper diagnosis and

improper treatment, which directly caused Mr. Lash’s death (Id. at pp. 5, 6).

Dr. Brown also testified that Dr. Motwani and “other caregivers at Sparta

Community Hospital” failed to provide informed consent to Mr. Lash about the

possibility that his chest pain, shortness of breath, and anxiety were life-threatening

cardiopulmonary disease, including pulmonary embolus, requiring admission to the

intensive care unit for workup and evaluation. They also failed to notify Mr. Lash about

the congestive heart failure and of the abnormal diagnostic findings, and did not present

him with options for treating these findings. Had they provided Mr. Lash with this

information, that would have empowered him to insist on aggressive care or transfer to

a tertiary care, university affiliated medical center, or at least insist upon not being

discharged until he had been further assessed and monitored (Doc. 83-9, p. 5).

C. Ms. Starlyn Reynolds

Plaintiff also provided a nursing expert, Ms. Starlyn Reynolds. Plaintiff contends

that the entirety of Ms. Reynolds’ report pertains to negligent acts and omissions by

Sparta Hospitals’ Staff (Doc. 83-11). However, as fully explained later in this Order, the

Court finds that the negligence of nurses at Sparta Hospital is not at issue in this case.

Therefore, the Court need not discuss the specifics of Ms. Reynolds’ expert report.

LEGAL STANDARD

Summary judgment must be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(a). The Court must construe the evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in favor of that

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520

F.3d 678, 685 (7th Cir. 2008).

The initial summary judgment burden of production is on the moving party to

show the Court that there is no reason to have a trial. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986); Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). If the moving party

bears the burden of persuasion on an issue at trial, it must “lay out the elements of the

claim, cite the facts which it believes satisfies these elements, and demonstrate why the

record is so one-sided as to rule out the prospect of a finding in favor of the non-movant

on the claim.” Hotel 71 Mezz Lender LLC v. National Ret. Fund, 778 F.3d 593, 601 (7th Cir.

2015); accord Felix v. Wisconsin Dep't of Transp., 828 F.3d 560, 570 (7th Cir. 2016). Where the

moving party fails to meet that strict burden, the Court cannot enter summary judgment

for that party even if the opposing party fails to present relevant evidence in

response. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

In responding to a motion for summary judgment, the nonmoving party may not

simply rest upon the allegations contained in the pleadings, but must present specific

facts to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322–

26; Anderson, 477 U.S. at 256–57; Modrowski, 712 F.3d at 1168. A genuine issue of material

fact is not demonstrated by the mere existence of “some alleged factual dispute between

the parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a

genuine issue of material fact only exists if “a fair-minded jury could return a verdict for

the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252.

DISCUSSION

Dr. Motwani and Sparta Hospital each filed separate motions for summary

judgment. The Court will address each party’s arguments separately, for the most part,

except for defining the relationship between Dr. Motwani and Sparta Hospital as it relates

to vicarious liability and Plaintiff’s argument centered on the theory of informed consent.

Sparta Hospital’s Motion for Summary Judgment (Doc. 82)

The parties agree that Sparta Hospital is a “local public entity” as defined by the

Illinois Hospital District Act, 70 ILL. COMP. STAT. 910/1, et seq. (Doc. 83, p. 9). Sparta

Hospital argues that, as a local public entity, it is immune from suit under the Illinois Tort

Immunity Act, an argument the Court previously addressed in the context of a motion to

dismiss (Docs. 83, 41). Sparta Hospital also argues summary judgment is proper, as

Plaintiff cannot establish proximate cause because the hospital cannot be held liable for

the actions, or inactions, of Dr. Motwani since he is an independent contractor, which Mr.

Lash acknowledged with a signed consent form. Finally, Sparta Hospital argues that

Plaintiff is attempting to amend his complaint through his summary judgment responses

to include claims that the Hospital is liable for the actions of its nurses. Before the Court

addresses Sparta Hospital’s arguments related to the Tort Immunity Act, it must first

address whether it is liable for the actions of Dr. Motwani and/or the nursing staff.

I. Sparta Hospital’s Liability for Nurses’ Actions

One of Plaintiff’s major arguments is that summary judgment is not appropriate

because Sparta Hospital is on the hook not only for Dr. Motwani’s breaches of the

standard of care, but also for the breaches by Sparta Hospital’s staff, including nurses

(Doc. 92, p. 9). Sparta Hospital argues that any alleged negligence by the nursing staff is

not at issue in this case as there are no allegations of such in Plaintiff’s complaint and,

therefore, Plaintiff cannot attach liability to the hospital through any alleged actions or

inactions of the nurses (Doc. 93). Sparta Hospital argues that even if that were not true,

Plaintiff’s complaints about the nurse’s care of Mr. Lash still predominately relate to

issues surrounding his diagnosis and, therefore, Sparta Hospital cannot be held liable as

it is immune under the Tort Immunity Act for any claims related to Mr. Lash’s diagnosis

(Doc. 93, p. 3). According to Plaintiff, however, Sparta Hospital is mischaracterizing her

complaint, as she has always included factual allegations against nursing staff by

including language like, “SCHD was engaged in the business of providing medical care

to patients . . . through its officers, agents, employees and representatives” (Doc. 92, p. 9).

In order to determine if Plaintiff properly brings claims against Sparta Hospital

through the actions of its nurses, the Court must first look to the language of the

complaint. “[A] party may neither amend its pleadings by argument in opposition to

summary judgment nor introduce new theories of liability in opposition to summary

judgment.” Colbert v. City of Chicago, 851 F.3d 649, 656 (7th Cir. 2017) (quoting Whitaker v.

Milwaukee Cty., Wis., 772 F.3d 802, 808 (7th Cir. 2014)). More specifically, “parties cannot

‘add entirely new factual bas[e]s . . . not previously presented.” Colbert, 851 F.3d at 656

(quoting Whitaker, 772 F.3d at 808). Case law emphasizes that “it is factual allegations, not

legal theories, that must be pleaded in a complaint.” Whitaker, 772 F.3d at 808.

Accordingly, when a plaintiff does plead legal theories, it can later alter or refine those

theories at summary judgment without a formal amendment to the complaint. Chessie

Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852, 859 (7th Cir. 2017). The rule is different,

however, when a plaintiff seeks to introduce a new factual basis for his claim that was

not previously presented in the pleadings. Id. at 859, 860; Whitaker, 772 F.3d at 808. “An

attempt to alter the factual basis of a claim at summary judgment may amount to an

attempt to amend the complaint” and “the district court has discretion to deny the de

facto amendment and to refuse to consider the new factual claims.” Chessie, 867 F.3d at

859, 860 (citations omitted).

Here, the Court concludes that Plaintiff is attempting to change the factual theory

behind Sparta Hospital’s alleged liability in her response to the motion for summary

judgment by adding arguments that Sparta Hospital can be held liable for the actions of

its nurses. In the complaint, Plaintiff alleges Sparta Hospital is liable for the negligent

actions of its “officers, agents, employees and representatives” (Doc. 1, pp. 12–16). But

the only “officers, agents, employees or representatives” specifically identified in the

complaint are Dr. Motwani and Dr. Panico (see id.). And, the only negligent actions that

Plaintiff described are attributed to Dr. Motwani and Dr. Panico. More specifically,

Plaintiff alleges Sparta Hospital is liable for a list of 18 negligent actions committed by its

agents (Doc. 1, pp. 13–14). Those same 18 actions were directly attributed to Dr. Motwani

and Dr. Panico elsewhere in the complaint (see id. at pp. 3–4 (listing the negligent actions

of Dr. Motwani) and pp. 8–9 (listing the negligent actions of Dr. Panico)).

There is no mention of any purported failure by the nursing staff in the original

complaint (see Doc. 1), and Plaintiff never sought to amend her complaint to add such

allegations. Plaintiff does not mention or describe any acts directly attributable to a nurse

in the complaint (see id.). Plaintiff does not identify any nurses by name or assert any

claims against any nurses (see id.). In fact, a review of the complaint reveals that Plaintiff

never even uses the word “nurse” in it, not even once (see id.). And it stands to reason

that if Plaintiff’s claims were in any way based on the nurses’ negligent actions, then she

would have included the word “nurse” in the complaint, which she conspicuously does

not do (see Doc. 1). The certificate of merit attached to the complaint contains a passing

reference to an “RN Triage record.” (Doc. 1, pp. 20–22). But that’s it – that is the extent to

which it references a nurse or nursing in any regard (Id.). It is devoid of any reference to

any alleged negligent acts or omissions by a nurse.

Simply put, the only fair reading of the complaint is that Plaintiff’s claims are

based solely on the actions and inactions of Dr. Panico and Dr. Motwani. If Plaintiff’s

claims were based on the actions of the nurses at Sparta Hospital, she certainly would

have alleged something more specific about nurses in her complaint.

Of course, a pleading can be “constructively” amended when both parties

expressly or impliedly consent to the constructive amendment. FED. R. CIV. P. 15(b)(2)

(“When an issue not raised by the pleadings is tried by the parties’ express or implied

consent, it must be treated in all respects as if raised in the pleadings. A party may

move—at any time, even after judgment—to amend the pleadings to conform them to

the evidence and to raise an unpleaded issue.”); Hutchins v. Clarke, 661 F.3d 947, 957 (7th

Cir. 2011) (applying Rule 15(b)(2) to new issue raised in summary judgment briefing);

Torry v. Northrop Grumman Corp., 399 F.3d 876, 877–879 (7th Cir. 2005) (same). The test for

permitting a constructive amendment under Rule 15(b)(2) is “whether the opposing party

had a fair opportunity to defend and whether he could have presented additional

evidence had he known sooner the substance of the amendment.” Hutchins, 661 F.3d at

957.

Neither party makes any argument regarding constructive amendment (see Docs.

82, 92, 93), and therefore the Court also declines to spend much time addressing it. Suffice

it to say Sparta Hospital expressly objects to litigating any issues pertaining to a nurse

deviating from the nursing standard of care (see Doc. 93, pp. 2-3; Doc. 83, pp. 4, 6, 7, 8,

15). And Plaintiff has not made any argument that Defendant Sparta Hospital otherwise

implicitly consented to it (see Doc. 92).

The Court thus concludes that Plaintiff’s introduction of new factual theories in

her summary judgment briefing is an “an unacceptable attempt to amend the pleadings

through summary judgment argument.” BRC Rubber & Plastics, Inc. v. Cont'l Carbon Co.,

900 F.3d 529, 541 (7th Cir. 2018) (citations omitted). Consequently, the Court opts to

exercise its discretion to deny the constructive amendment and declines to consider the

new factual claims. Sparta Hospital cannot be held liable here in this case based on the

purported negligence of its nurses.

II. Sparta Hospital’s Liability for Dr. Motwani’s Actions

Now that the nurses are out of the picture, Sparta Hospital can only be held liable

through the actions, or inactions, of Dr. Motwani. In Illinois, “a hospital can be found

‘vicariously liable for the negligent acts of a physician providing care at the hospital,

regardless of whether the physician is an independent contractor, unless the patient

knows, or should have known, that the physician is an independent contractor.’” Williams

v. Tissier, 2019 WL 6905935, ---N.E.3d--- (Ill. App. Ct. 2019), appeal denied, 144 N.E.3d 1209

(Ill. 2020) (quoting citing Gilbert v. Sycamore Mun. Hosp., 622 N.E.2d 788, 794 (Ill. 1993)).

In order to hold the hospital liable, a plaintiff must show that:

(1) the hospital, or its agent, acted in a manner that would lead a reasonable

person to conclude that the individual who was alleged to be negligent was

an employee or agent of the hospital; (2) where the acts of the agent create

the appearance of authority, the plaintiff must also prove that the hospital

had knowledge of and acquiesced in them; and (3) the plaintiff acted in

reliance upon the conduct of the hospital or its agent, consistent with

ordinary care and prudence.

Churkey v. Rustian, 768 N.E.2d 842, 845 (Ill. App. Ct. 2002) (quoting Gilbert, 622 N.E.2d at

795). Some Illinois courts have held that executed consent forms disclosing that

physicians are not employees of the hospital are “almost conclusive” in determining

whether a hospital should be held liable for the medical negligence of an independent

contractor, Steele v. Provena Hosps., 996 N.E.2d 711, 734 (Ill. App. Ct. 2013), while others

have said the form is “an important fact to consider” but “is not dispositive.” Williams,

2019 WL 6905935, at *7 (citing James v. Ingalls Mem'l Hosp., 701 N.E.2d 207, 210–11 (Ill.

App. Ct. 1998)). Courts generally look to the circumstances surrounding the executed

consent form and the provision itself to determine whether liability attaches, paying close

attention to the font of the provision and whether it includes, for example, names of

specific doctors. See, e.g., Churkey, 768 N.E.2d at 244; Williams, 2019 WL 6905935, at *10–

12.

Sparta Hospital argues that Dr. Motwani is not their agent; rather, he is an

independent contractor, which Mr. Lash acknowledged by signing the release form (Doc.

83, pp. 18-19; Doc. 83-4). Plaintiff does not seem to address this argument, only referring

to it tangentially on occasion (e.g., “Thus, Sparta Hospital’s argument that . . . Dr.

Motwani [was] not its agent[] is irrelevant. The allegations against it, and the evidence,

show breaches of duty by its nurses” (Doc. 92, p. 12)). Plaintiff certainly never directly

addressed Sparta Hospital’s argument that Mr. Lash’s signed consent form indicates that

Mr. Lash knew, or at least should have known, that Dr. Motwani was an independent

contractor (see Doc. 92).

Normally, the failure to address an argument results in waiver. See Bonte v. U.S.

Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument—as the

Bontes have done here—results in waiver.”); Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d

742, 747 (7th Cir. 2001) (a party’s failure to respond to a non-frivolous argument “operates

as a waiver”). The Court is reluctant to decide Sparta Hospital’s motion for summary

judgment on the basis that Mr. Lash was on notice that his doctor was an independent

contractor, however, because even a cursory review of cases shows that absolving a

hospital from liability based on consent forms is not a straightforward issue, and there

are a number of factors here that may weigh against reliance on the consent form.6 For

example, the independent contractor provision at issue here is one of eighteen numbered

paragraphs on a one-page form (Doc. 83-4). It is in extremely tiny font. It is not bolded,

or in capital letters. There is really nothing that calls attention to it or denotes it as more

important than the other provisions except that it contains its own line for the patient to

initial. Furthermore, it was presented to Mr. Lash to sign in the midst of an emergency

medical situation in which he was seeking care from the Hospital itself, rather than

looking to the hospital and thinking of it as simply a place where his personal doctor

provides care and treatment.

Ultimately though, the Court need not definitively resolve whether Dr. Motwani

was an independent contractor or an agent of Sparta Hospital, because even if he was an

agent, it is clear that under the Tort Immunity Act, Sparta Hospital would be immune

6 For example, in the case cited to by Sparta Hospital, the plaintiff signed a consent form that indicated her

doctors were independent contractors. Churkey, 768 N.E.2d at 244. The court held this form established a

separate relationship between the hospital and the doctors, because the form itself included the specific names

of the three different practice groups who were designated as independent contractors. Id. at 244, 245. In

another case, the court did not find that the signed consent form unequivocally established that the plaintiff

was informed that the doctors were independent contractors. Williams, 2019 WL 6905935, at *10–12. The

Williams court examined whether the independent contractor provision was mixed in with other consent

provisions, where it appeared in the form, the precise language of the provision, the font size of the

provision, whether it was bolded or in capital letters, and whether the provision required a separate

signature from the patient. Id. The length of the form and its multiple contents, which the court called

“ambiguities,” led the court to conclude that whether the hospital provided meaningful notice to the

plaintiff that her doctor was an independent contractor was a material issue of fact. Id.

from liability as Plaintiff’s complaints are squarely centered in Dr. Motwani’s failure to

diagnose Mr. Lash appropriately.

III. Absolute Immunity under the Illinois Tort Immunity Act

The Illinois Tort Immunity Act immunizes local public entities and public

employees from liability for certain types of medical negligence. In particular they are

immune from liability if they fail to conduct a physical examination, or fail to conduct an

adequate physical examination, in order to determine whether a person is suffering from

a medical condition that poses a threat to their health. 745 ILL. COMP. STAT. 10/6-105 745

ILL. COMP. STAT. 10/6-105;7 Michigan Ave. Nat. Bank v. Cty. of Cook, 732 N.E.2d 528, 539

(Ill. 2000); Mills v. Cty. of Cook, 788 N.E.2d 169, 171 (Ill. App. Ct. 2003). They are also

immune from liability if they fail to diagnose a medical condition, if they misdiagnose a

medical condition, or if they fail to prescribe treatment for a medical condition. 745 ILL.

COMP. STAT. 10/6-106(a);8 Michigan Ave. Nat. Bank, 732 N.E.2d at 539; Mills, 788 N.E.2d at

171. They are not, however, immune from liability for negligently or wrongfully

prescribing treatment or for any negligence, wrongful act, or omission in administering

7 Section 6-105 states: “Neither a local public entity nor a public employee acting within the scope of his

employment is liable for injury caused by the failure to make a physical or mental examination, or to make

an adequate physical or mental examination of any person for the purpose of determining whether such

person has a disease or physical or mental condition that would constitute a hazard to the health or safety

of himself or others.” 745 ILL. COMP. STAT. 10/6-105.

8 Section 6-106(a) states: “Neither a local public entity nor a public employee acting within the scope of his

employment is liable 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.” 745 ILL. COMP. STAT. 10/6-106(a).

the prescribed treatment. 745 ILL. COMP. STAT. 10/6-106(c), (d);9 Michigan Ave. Nat. Bank,

732 N.E.2d at 539; Mills, 788 N.E.2d at 171.

Case law demonstrates the determination of whether there is immunity under the

Act turns on whether a correct diagnosis was made and whether treatment was

prescribed. See Antonacci v. City of Chicago, 779 N.E.2d 428, 434 (Ill. App. Ct. 2002) (“In

short, once the correct diagnosis is made and treatment for it is prescribed, all immunity

bets are off.”). Doctors or entities are immunized, however, when they overlook or

incorrectly diagnose a medical condition and consequently fail to provide appropriate

medical care.10 On the other hand, doctors are not immunized when they make a correct

diagnosis but negligently prescribe or administer treatment for that diagnosis.11

9 Section 6-106(c) states: “Nothing in this section exonerates a public employee who has undertaken to

prescribe for mental or physical illness or addiction from liability for injury proximately caused by his

negligence or by his wrongful act in so prescribing or exonerates a local public entity whose employee,

while acting in the scope of his employment, so causes such an injury.” 745 ILL. COMP. STAT. 10/6-106(c).

And section 6-106(d) states: “Nothing in this section exonerates a public employee from liability for injury

proximately caused by his negligent or wrongful act or omission in administering any treatment prescribed

for mental or physical illness or addiction or exonerates a local public entity whose employee, while acting

in the scope of his employment, so causes such an injury.” 745 ILL. COMP. STAT. 10/6-106(d).

10 See Johnson v. Bishof, 33 N.E.3d 624, 643 (Ill. App. Ct. 2015) (immunity where the doctors misdiagnosed

patient with muscle spasms and back/buttock contusion and provided her with appropriate treatment for

that injury, but patient really had a spinal cord injury; they “treated the wrong diagnosis correctly.”);

Wilkerson v. Cty. of Cook, 884 N.E.2d 808, 815 (Ill. App. Ct. 2008) (immunity where the doctors diagnosed

and appropriately treated patient for pregnancy and a vaginal infection, but failed to diagnose that she also

had cervical cancer, which ultimately killed her; “[t]he alleged negligence . . . was not based on the

treatment [the patient] received, but on the treatment that she should have received had the defendants

correctly examined and diagnosed all of her medical conditions.”); Mabry v. Cty. of Cook, 733 N.E.2d 737,

745 (Ill. App. Ct. 2000) (immunity where patient was misdiagnosed with asthma and appropriately treated

for that condition and the doctors never diagnosed or implemented a course of treatment for her true

ailment of a pulmonary embolism, which ultimately killed her).

11 See Mills, 788 N.E.2d at 172 (no immunity where differential diagnosis of pneumonia was correctly made

and treatment was prescribed pursuant to that diagnosis, but the treatment was inadequate); Am. Nat. Bank,

762 N.E.2d at 662 (Ill. App. Ct. 2001) (no immunity where the doctor correctly diagnosed the patient as

having a baby in the transverse lie position and appropriately prescribed treatment consisting of regular

Sparta Hospital argues that a “fair reading” of Plaintiff’s complaint establishes that

Plaintiff’s action is a failure to perform examinations or otherwise diagnose Mr. Lash with

a cardiopulmonary condition, which Plaintiff argues resulted in his death (Doc. 83, p. 11).

Sparta Hospital contends that Dr. Motwani “made an ultimate diagnosis of anxiety

reaction,” and, “it is also undisputed that Dr. Motwani only treated Mr. Lash for anxiety”

(Id. at p. 12).

The Court must decide whether this case is mainly about treatment or diagnosis,

as that is the central question as to whether the Tort Immunity Act applies. The Court

looks first to Plaintiff’s complaint. Here, the key for the Court is to look to the gravamen

of the complaint and evidence before the Court to determine whether Plaintiff mainly

pleads issues and presents evidence related to incorrect diagnosis or incorrect treatment.

See e.g., Michigan Ave. Nat. Bank, 732 N.E.2d at 511; Johnson v. Bishof, 33 N.E.3d 624, 645

(Ill. App. Ct. 2015). The Court agrees with Sparta Hospital that, ultimately, Plaintiff’s

allegations in the complaint relate to issues with Ms. Lash’s diagnosis, such as the failure

to consider appropriate differential diagnoses; the failure to recognize, appreciate, and

address abnormalities in the diagnostic testing; the failure to properly evaluate Mr. Lash’s

presentation and risk factors; and the failure to perform necessary testing and engage

necessary consultations (Doc. 1). It all boils down to a charge that the doctor failed to

perform or failed to adequately perform examinations and evaluations that led to the

failure to identify Mr. Lash’s acute cardiopulmonary disease, which is the ultimate

monitoring, testing, and manual maneuvers to determine the baby's position and whether a Caesarean

section would be required, but then failed to schedule or perform such testing or manipulation).

allegation of the complaint. The gravamen of Plaintiff's complaint is a failure to diagnose,

for which the Hospital is immune under the Tort Immunity Act.

The evidence also demonstrates this is a failure to diagnose case, not a failure to

treat case. The medical records and corresponding testimony show that Dr. Motwani did

not diagnose Mr. Lash with or provide any treatment for a cardiopulmonary condition.

Dr. Motwani’s notes indicate that his “clinical impression” was “anxiety reaction” (Doc.

79-4, pp. 5–6). And he testified that he “made a diagnosis of anxiety reaction” after

considering all available information, including Mr. Lash’s complaints, medical history,

vital signs, physical examination findings, lab work, EKG, and chest x-ray (Doc. 83-5, p.

201). Dr. Motwani further testified that he considered but ruled out any diagnosis related

to Mr. Lash’s heart. Specifically, he said that the enlarged right hilum identified on the x-

ray had nothing to do with Mr. Lash’s heart (Doc. 83-5, p. 196). Dr. Panico similarly

testified that it was an “incidental finding” unrelated to any cardiopulmonary concerns,

and he mentioned it only as a precaution on the off-chance it could potentially lead to an

early cancer diagnosis (Doc. 79-7, pp. 6, 10–11). Additionally, while Dr. Panico thought

there was evidence of congestive heart failure on the x-ray, Dr. Motwani found that Mr.

Lash did not have any clinical signs of CHF based on his physical examination, so

“congestive heart failure was not diagnosed” (Doc. 83-5, pp. 187, 222).

There is also nothing in the record that suggests Dr. Motwani provided treatment

to Mr. Lash for any cardiopulmonary condition. Rather, the only treatment provided to

Mr. Lash was the lorazepam administered to him at Sparta Hospital and the prescription

for Xanax given to him at discharge. While the discharge instructions also mentioned the

right hilar enlargement, it was only to say that it was a finding identified on the chest x-

ray and Mr. Lash should contact his own physician to determine whether any further

evaluation, diagnosis, or treatment was warranted. In other words, Dr. Motwani declined

to evaluate the right hilar enlargement in order to diagnose any potential disease

associated with it or to provide any treatment for it.

Moreover, there is no expert testimony that Mr. Lash was given the appropriate

diagnosis, but the incorrect treatment. See American Nat’l Bank & Trust Comp. of Chicago v.

Co. of Cook, 762 N.E.2d 654, 661 (Ill. App. 1st Dist. 2001). In fact, Dr. Brown testified that

Dr. Motwani’s only diagnosis was anxiety (Doc. 83-10, pp. 9, 20). The expert testimony in

this case relates to Dr. Motwani mishandling Mr. Lash’s complaints, misinterpreting the

significance of his vital signs and diagnostic test results, and failing to conduct additional,

proper, and necessary consultations, monitoring, and testing, all of which speak to issues

with the doctor’s failure to properly diagnose Mr. Lash. The record is clear, whether right

or wrong, that Dr. Motwani unequivocally ruled out any heart-related issues in his

diagnosis of Mr. Lash. And “[a] differential diagnosis that is not chosen and/or treated

as the ultimate diagnosis is a misdiagnosis by definition.” Hemminger v. Nehring, 927

N.E.2d 233, 239 (Ill. App. Ct. April 8, 2010) (citing Willis v. Khatkhate, 869 N.E.2d 222, 230

(Ill. App. Ct. 2007)).

Ultimately, the Court must conclude that Sparta Hospital is immunized from

Plaintiff’s claims under the Tort Immunity Act.

IV. Informed Consent

Plaintiff puts forth an additional argument separate from his arguments about

vicarious liability based on the actions, or inactions, of Dr. Motwani, that Sparta Hospital

is liable based on a theory of informed consent that is not subject to the Tort Immunity

Act (Doc. 92). Specifically, Plaintiff alleged that Sparta Hospital “Failed to provide

informed consent to Glenn [Lash] that his symptoms suggested life-threatening

cardiopulmonary disease requiring workup and evaluation.” (Doc. 1, p. 4). For example,

according to Plaintiff, no one told Mr. Lash about the congestive heart failure finding or

explained to him the potential significance of his enlarged right hilum (Doc. 92, pp. 3-4).

And Plaintiff’s experts testified that Mr. Lash would have been “empowered” to insist on

a different treatment plan if he had been provided with the pertinent information (Id.).

According to Plaintiff, it is best left to the jury “to determine whether any alleged

undisclosed information would have altered the plaintiff’s decision to undergo the

proposed treatment had it been disclosed” (Doc. 92, p. 5, citing Coryell v. Smith, 653 N.E.2d

1317, 1321 (1995)). Plaintiff’s argument misses the mark.

In a medical malpractice claim based on the doctrine of informed consent, the

plaintiff is basically contending that they agreed to a particular treatment that they would

not otherwise have consented to had they known the material risks of the treatment. See

Crim v. Dietrich, 67 N.E.3d 433, 438–39 (Ill. App. Ct. 2016) (to prevail on an informed

consent claim, the plaintiff must prove that “(1) the physician had a duty to disclose

material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct

and proximate result of the failure to disclose, the patient consented to treatment

[he] otherwise would not have consented to; and (4) plaintiff was injured by the proposed

treatment.” (citing Davis v. Kraff, 937 N.E.2d 306, 314–15 (Ill. App. Ct. 2010))). In other

words, “a plaintiff must prove that a physician should have informed the patient, prior

to administering medical treatment, of the diagnosis, the general nature of the

contemplated procedure, the risks involved, the prospects of success, the prognosis if the

procedure is not performed and alternative medical treatment.” Crim, 67 N.E.3d at 434

(internal quotation marks and citation omitted). See also Davis, 937 N.E.2d at 315 (“The

gravamen in an informed consent case requires the plaintiff to ‘point to significant

undisclosed information relating to the treatment which would have altered her decision

to undergo it.’”) (quoting Coryell v. Smith, 653 N.E.2d 1317 (Ill. App. Ct. 1995))).

An informed consent claim presupposes that a proper diagnosis was made and

that treatment for the diagnosed condition was suggested or ordered without informing

the patient of the potential side effects and negative outcomes of that treatment. And it

requires the plaintiff to consent to and undergo that treatment. See, e.g., Davis, 937 N.E.2d

at 314–16 (plaintiff claimed she would not have undergone LASIK surgery had her doctor

informed her she had an increased risk of nighttime vision problems following the

surgery due to her “abnormally large night-adjusted pupils”); Coryell, 653 N.E.2d at 1318

(plaintiff claimed she would not have undergone back surgery had her doctor informed

her there was a possibility of developing necrosis and a large scar). None of that

happened here. No physician diagnosed Mr. Lash with a life-threatening

cardiopulmonary disease. No physician recommended or ordered treatment for a life-

threatening cardiopulmonary disease. Therefore, it was impossible for Mr. Lash to

consent to any treatment for a cardiopulmonary disease and later come to regret that

treatment. And informed consent simply cannot come into play because it would require

the Court to find that Sparta Hospital is liable for treatment that was never given for a

diagnosis that was never made.

As such, this theory cannot keep Sparta Hospital in the case, and Sparta Hospital

will be dismissed from the present matter as it is immune from suit under the Tort

Immunity Act.

Dr. Motwani’s Motion for Summary Judgment (Doc. 90)

Dr. Motwani’s sole argument in his motion for summary judgment is that Plaintiff

cannot establish proximate cause (Doc. 90).

Under Illinois law, to prove a claim of medical malpractice a plaintiff has the

burden of establishing, through expert testimony, (1) the applicable standard of care

against which the professional's conduct must be measured; (2) an unskilled or negligent

deviation from the standard; and (3) an injury proximately caused by the

deviation. Sullivan v. Edward Hosp., 806 N.E.2d 645, 653 (Ill. 2004) (citing Purtill v. Hess,

489 N.E.2d 867, 872 (Ill. 1986)). “Proximate cause in a medical malpractice case must be

established by expert testimony to a reasonable degree of medical certainty, and the

causal connection must not be contingent, speculative, or merely possible.” Morisch v.

United States, 653 F.3d 522, 531 (7th Cir. 2011) (citing Johnson v. Loyola Univ. Med. Ctr., 893

N.E.2d 267, 272 (Ill. App. Ct. 2008)). To establish proximate cause, the plaintiff must show

“cause in fact and legal cause.” Morisch, 653 F.3d at 531 (quoting Bergman v. Kelsey, 873

N.E.2d 486, 500 (Ill. App. Ct. 2007)). “Cause in fact exists when there is a reasonable

certainty that a defendant's acts caused the injury or damage.” Morisch, 653 F.3d at

531 (quoting Coole v. Cent. Area Recycling, 893 N.E.2d 303, 310 (Ill. App. Ct. 2008)). Legal

cause exists when “an injury was foreseeable as the type of harm that a reasonable person

would expect to see as a likely result of his or her conduct.” Morisch, 653 F.3d at

531 (quoting LaSalle Bank, N.A. v. C/HCA Devel. Corp., 893 N.E.2d 949, 970 (Ill. App. Ct.

2008)).

Plaintiff has disclosed two physician experts, both of whom testified that, to a

reasonable degree of medical certainty, Plaintiff died because he was discharged from the

hospital by Dr. Motwani (Doc. 83-7; Doc. 83-9). Dr. Motwani, however, contends that

Plaintiff’s experts’ reports are insufficient pursuant to Rule 26(a)(2), and therefore they

cannot be used to establish proximate cause, and Plaintiff’s cause fails at summary

judgment (Doc. 90, p. 7). Specifically, Dr. Motwani argues that Dr. Finley Brown had no

opinion as to the cause of Mr. Lash’s death (Id.). And Dr. Osborn’s report lists multiple

potential causes of Mr. Lash’s death, however, his report could only speculate as to

whether any of those potential causes may have been discovered prior to his death (Id. at

p. 9). Dr. Motwani argues that “it is clear that [Dr. Osborn’s] opinions are equivocal”—

"Mr. Lash may have had a pulmonary embolus, or unstable angina, or primary cardiac

arrhythmia not related to unstable angina or pulmonary embolus” (Id.). Therefore,

according to Dr. Motwani, Dr. Osborn cannot testify, to a reasonable degree of medical

certainty that Motwani’s conduct was the proximate cause of Mr. Lash’s death (Id.).

The Court is unpersuaded by Dr. Motwani’s argument. It is true that neither Dr.

Brown nor Dr. Osborn could definitively say what condition caused the cardiac

arrythmia that led to the heart attack that killed Mr. Lash. And really, how could they?

Dr. Motwani did not admit Mr. Lash to the Hospital for the observation, testing, and

evaluation necessary to identify that condition. Furthermore, Plaintiff does not have to

prove the precise cause of her husband’s death. She just has to prove that Dr. Motwani’s

deviations from the standard of care proximately caused Mr. Lash’s injury. Dr. Brown

and Dr. Osborn both opined that Motwani’s failure to consult with a cardiologist and

failure to admit Mr. Lash for additional observation, work-up, and evaluation was

negligent, given Mr. Lash’s presentation and abnormal test results. Dr. Brown and Dr.

Osborn further opined that Dr. Motwani’s failures were the proximate cause of an

increased risk of harm and significantly reduced Mr. Lash’s chance of surviving. That is

enough to survive summary judgment.

CONCLUSION

For the aforementioned reasons, Sparta Hospital’s motion for summary judgment

(Doc. 82) is GRANTED. Sparta Hospital is DISMISSED with prejudice as a Defendant

in this matter and judgment will be entered in its favor at the close of the case. Dr.

Motwani’s motion for summary judgment (Doc. 89) is DENIED. As such, this case will

proceed to trial on Plaintiff’s claims against Dr. Motwani alone.

IT IS SO ORDERED.

DATED: March 31, 2021

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge