Ficke v. Evangelical Health Systems

SIXTH DIVISION

December 13, 1996

No. 1-96-0238

DARLENE FICKE, Special ) Appeal from the

Administrator of the Estate of ) Circuit Court of

DOROTHY FICKE, Deceased, and ) Cook County.

DARLENE FICKE, THOMAS FICKE, and )

MICHAEL FICKE, )

)

Plaintiffs-Appellants, )

)

v. )

)

EVANGELICAL HEALTH SYSTEMS, )

d/b/a Christ Hospital, and )

JOSE ARUGUETE, M.D. ) Honorable

) Patrick E. McMann,

Defendants-Appellees. ) Judge Presiding.

JUSTICE GREIMAN delivered the opinion of the court:

This case presents the questions of whether, to what extent

and to whom a hospital and physician may be liable for alleged

violations of the Illinois Health Care Surrogate Act (the Act)

(755 ILCS 40/1 et seq. (West 1992)). The Act authorizes a

surrogate to decide, subject to certain conditions, whether to

discontinue life-sustaining medical treatment when the patient is

found to lack decisional capacity.

On December 9, 1993, plaintiffs, Darlene, Thomas and Michael

Ficke, filed a four-count complaint against Evangelical Health

Systems (the Hospital) and Dr. Jose Aruguete (Aruguete), seeking

damages for injuries sustained by plaintiffs' decedent, Dorothy

Ficke (Ficke). Plaintiffs maintained, in count I of their second

amended complaint, that the Hospital was liable to decedent's

estate for its failure to comply with certain provisions of the

Act. Count III claims that the Hospital is similarly liable to

Ms. Ficke's children for such violations. Count IV seeks damages

pursuant to the Act for physical and mental injuries incurred by

plaintiffs as a result of Aruguete's negligent treatment of Ficke

and misapprehension of the Act. Count II of the amended

complaint, brought by the estate against Aruguete, was dismissed

with leave to refile and is not before this court on appeal.

In a memorandum opinion and order entered on December 21,

1995, the trial court dismissed with prejudice counts I, III and

IV of plaintiffs' second amended complaint. On January 11, 1996,

plaintiffs timely filed their notice of appeal from the trial

court's order of dismissal. For the reasons that follow, we

affirm.

The following facts are adduced from plaintiffs' second

amended complaint. Ficke was admitted to the Hospital, under the

care of Dr. Aruguete, on March 8, 1993, with the diagnosis of a

CVA (stroke). Ficke was 81 years old with a recent history of

diabetes, arthritis, gout, hypertension, congestive heart

failure, respiratory disease and depression. A "do not

recessitate" (DNR) order was entered in Ficke's chart on March

17, 1993.

Plaintiffs' complaint alleges that on or shortly after her

admission to the Hospital, Ficke lacked decisional capacity and

suffered from a "qualifying condition" as to the operation of the

Act because she lacked the ability to communicate meaningful

thought, was unable to socially interact and lacked awareness of

self and her environment. During Ficke's stay at the Hospital,

Aruguete continued to prescribe treatment, including surgery,

which the Hospital provided. These acts of rendering life-

sustaining or life-prolonging intervention were contrary to the

plaintiffs' expressed wishes. Moreover, the failure of the

Hospital and Aruguete to inform plaintiffs of their rights under

the Act, in addition to their own, independent, noncompliance

with the Act's terms, violated the Act and caused plaintiffs'

injuries.

As a general principle of Illinois law, competent adults

have the right to refuse any type of medical care, including

life-sustaining treatment. The right to refuse medical care has

been recognized under constitutional right-to-privacy principles

and is deeply ingrained in common law principles of individual

autonomy, self-determination, and informed consent. See generally

Fatum, Kane, & LeBlang, A Review of the Illinois Health Care

Surrogate Act, 80 Ill. Bar. J. 124 (1992); see also Union Pacific

Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35

L. Ed. 734, 737 (1891) ("No right is held more sacred, or is more

carefully guarded, by the common law, than the right of every

individual to the possession and control of his own person, free

from all restraint or interference of others, unless by clear and

unquestionable authority of law").

Although the right is recognized, implementation of that

right, traditionally through judicial intervention, has been

cumbersome and often untimely, in many instances resulting in the

very manner of death sought to be avoided by patients prior to

legal vindication of their right to forgo treatment. See, e.g.,

In re Conroy, 98 N.J. 321, 342, 486 A.2d 1209, 1217 (1985);

Bartling v. Superior Court, 163 Cal. App. 3d 186, 190, 209 Cal.

Rptr. 220, 221 (1984); John F. Kennedy Memorial Hospital v.

Bludworth, 452 So.2d 921, 923 (Fla. 1984); Satz v. Perlmutter,

379 So.2d 359 (Fla. 1980); Corbett v. D'Alessandro, 487 So.2d

368, 369 (Fla. App. 1986); In re L.H.R., 253 Ga. 439, 321 S.E.2d

716 (1984); In re Spring, 380 Mass. 629, 631, 405 N.E.2d 115,

117-118 (1980); In re Storar, 52 N.Y.2d 363, 369, 420 N.E.2d 64,

66, 438 N.Y.S.2d 266, 268 (1984); In re Hamlin, 102 Wash.2d 810

(1984).

In Illinois, legislative response in this area first took

the form of the Illinois Living Will Act (Will Act) (755 ILCS

35/1 et seq. (West 1992)). The Will Act recognized that

individuals "have the fundamental right to control the decisions

relating to the rendering of their own medical care, including

the decision to have death delaying procedures withheld or

withdrawn in instances of a terminal condition." 755 ILCS 35/1

(West 1992). Under the Will Act, individuals can document their

wishes concerning life-sustaining treatment before they develop a

terminal condition and lack the capacity to make such a decision.

755 ILCS 35/3 (West 1992). However, living wills soon proved too

inflexible to adequately address the needs of individuals wishing

to make advance health care decisions. They were applicable only

in cases of terminal illness, which requires that death be

imminent. Moreover, they would not permit health care providers

to withhold or withdraw artificial nutrition or hydration when

such action would be the sole cause of death. See 80 Ill. Bar. J.

at 125.

Subsequently, the Illinois legislature passed article IV of

the Powers of Attorney for Health Care Law (Powers of Attorney

Law) (755 ILCS 45/4-1 (West 1992)), which permits an individual

to delegate, "without limitation, all powers an individual may

have to be informed about and to consent to or refuse or withdraw

any type of health care for the individual and all powers a

parent may have to control or consent to health care for a minor

child." 755 ILCS 45/4-3 (West 1992). Thus, absent the limitations

present in the Will Act, the Powers of Attorney Law provides a

more comprehensive and effective means of delegating health-care

decisions. Yet, under either statutory scheme, no provision is

made for individuals who lack decision-making capacity and who

have not executed a living will or a power of attorney for health

care.

Two supreme court decisions addressed this "gap" and found a

right to refuse life-sustaining treatment in our state's common

law and in the provisions of the Probate Act of 1975 (755 ILCS 5

et seq., (West 1992)). In re Estate of Longeway, 133 Ill. 2d 33

(1989); In re Estate of Greenspan, 137 Ill. 2d 1 (1990). The

court held that a surrogate can exercise the right for an

individual lacking decisional capacity only if: (1) the

individual is terminally ill as defined in section 2(h) of the

Will Act; (2) the individual has been diagnosed as irreversibly

comatose or in a persistently vegetative state; (3) the

individual's attending physician and at least two other

consulting physicians have concurred in the diagnosis; (4) the

individual's right outweighs any interests of the State; (5) what

the individual would have decided is ascertained through clear

and convincing evidence; and (6) a court enters an order allowing

the surrogate to exercise the individual's right to refuse or

terminate treatment. Longeway, 133 Ill. 2d at 47-53; Greenspan,

137 Ill. 2d at 16.

Thus, while legislative enactments improved and expedited

surrogate decision-making where advance directives were executed

through either a living will or power of attorney, individuals

not "covered" by either statute remained dependent on judicial

intervention and its attendant flaws. In response, the Illinois

Health Care Surrogate Act was passed in 1991. The Act codifies

Illinois' common law and constitutional rights to forgo life-

sustaining treatment and establishes a private decision-making

process allowing a surrogate to be chosen from a hierarchical

list of candidates to make life-sustaining treatment decisions

for those who lack decisional capacity and have not executed an

applicable living will or power of attorney. See In re C.A., 236

Ill. App. 3d 594, 622 (1992) (McMorrow, J., dissenting); 80 Ill.

Bar. J. at 127.

The Act applies when the individual lacks decisional

capacity, has not executed an advance directive and has a

"qualifying condition." "Qualifying condition" is defined as

follows:

"the existence of one or more of the following

conditions in a patient certified in writing in the

patient's medical record by the attending physician and

by at least one other qualified physician:

(1) 'Terminal condition' means an illness or

injury for which there is no reasonable prospect of

recovery, death is imminent, and the application of

life-sustaining treatment would only prolong the dying

process.

(2) 'Permanent unconsciousness' means a condition

that, to a high degree of medical certainty, (i)

will last permanently, without improvement, (ii) in

which thought, sensation, purposeful action, social

interaction, and awareness of self and environment are

absent, and (iii) for which initiating or continuing

life-sustaining treatment, in light of the patient's

medical condition, provides only minimal medical

benefit.

(3) 'Incurable or irreversible condition' means an

illness or injury (i) for which there is no reasonable

prospect of cure or recovery, (ii) that ultimately will

cause the patient's death even if life-sustaining

treatment is initiated or continued, (iii) that imposes

severe pain or otherwise imposes an inhumane burden on

the patient, and (iv) for which initiating or

continuing life-sustaining treatment, in light of the

patient's medical condition, provides only minimal

medical benefit." (Emphasis added.) 755 ILCS 40/10

(West 1992).

The Act further provides:

"The determination that a patient has a qualifying

condition creates no presumption regarding the

application or non-application of life-sustaining

treatment. It is only after a determination by the

attending physician that the patient has a qualifying

condition that the surrogate decision maker may

consider whether or not to forgo life-sustaining

treatment. In making this decision, the surrogate

shall weigh the burdens on the patient of initiating or

continuing life-sustaining treatment against the

benefits of that treatment." (Emphasis added.) 755 ILCS

40/10 (West 1992).

It is against this backdrop that we are asked to determine

whether, and to what extent, liability predicated on a health

care provider or physician's violation of the Act may be imposed.

Our review of an order of involuntary dismissal is de novo.

Dace International, Inc. v. Apple Computer, Inc., 275 Ill. App.

3d 234 (1995). In reviewing a dismissal pursuant to section 2-619

of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), we

must determine whether the allegations in the complaint, when

read in the light that most favors plaintiff, are sufficient to

set forth a cause of action upon which relief may be granted.

Regan v. Ivanelli, 246 Ill. App. 3d 798 (1993).

I. Plaintiffs' claims against the Hospital

Count I of plaintiffs' second amended complaint is a

survival action brought on behalf of Ficke's estate which alleges

that the Hospital was negligent in (1) failing to obtain

certification of Ficke's "qualifying condition," (2) providing

treatment to Ficke contrary to the wishes of her children

(plaintiffs), (3) failing to inquire into the availability of a

surrogate, (4) failing to advise plaintiffs of their rights under

the Act, and (5) failing to effectuate Ficke's transfer to

another hospital. Count III of the complaint makes similar

allegations and is brought by plaintiffs in their individual

capacities for the anguish they each suffered as witnesses to

their mother's unnecessary suffering.

To state a cause of action for negligence, a complaint must

allege facts sufficient to show the existence of a duty, a breach

of that duty, and an injury to the plaintiff that was proximately

caused by that breach. Kirk v. Michael Reese Hospital & Medical

Center, 117 Ill. 2d 507, 525 (1987). The Hospital moved to

dismiss counts I and III, maintaining that plaintiffs failed to

state a cause of action because the Act does not impose a duty on

hospitals prior to the finding and certification by the attending

physician that a patient lacks decisional capacity and has a

qualifying condition.

The question before us is largely one of statutory

interpretation. The fundamental canon of statutory construction

is to ascertain and give effect to the intention of the

legislature. Varelis v. Northwestern Memorial Hospital, 167 Ill.

2d 449, 454 (1995). Courts will look first to the words of the

statute (Metropolitan Life Insurance Co. v. Washburn, 112 Ill. 2d

486, 492 (1986)), for the language used by the legislature is the

best indication of legislative intent. Kirwan v. Welch, 133 Ill.

2d 163, 165 (1989). When such language is clear, no resort to

other tools of interpretation is necessary. Henry v. St. John's

Hospital, 138 Ill. 2d 533, 541 (1990).

Section 25 of the Act requires the health care provider to

"make a reasonable inquiry as to the availability of possible

surrogates listed in items (1) through (4) of this subsection."

755 ILCS 40/25(a) (West 1992). However, this duty arises only

when "a patient has a qualifying condition and lacks decisional

capacity." 755 ILCS 40/25(a) (West 1992). The Act provides that

the "determination that an adult patient lacks decisional

capacity shall be made by the attending physician to a reasonable

degree of medical certainty." (Emphasis added.) 755 ILCS 40/20(c)

(West 1992). Further, "[t]he existence of a qualifying condition

shall be documented in writing in the patient's medical record by

the attending physician and shall include its cause and nature,

if known." 755 ILCS 40/20(e) (West 1992). The Act clearly, and in

mandatory terms, obligates the attending physician to medically

diagnose both lack of decisional capacity and the existence of a

qualifying condition, including its cause. We find this entirely

appropriate and almost inescapable since it is the physician's

province to treat and diagnose his or her patients. This is

particularly true when the determination involves a potential

life or death decision.

Accordingly, it is for the attending physician, not the

hospital or its staff, to determine whether the Act applies to a

particular patient. Absent the attending physician's

determinations that a patient lacks decisional capacity and

suffers from one of three qualifying conditions, the patient is

"presumed to have decisional capacity in the absence of actual

notice to the contrary without regard to advanced age." (Emphasis

added.) 755 ILCS 40/20(c) (West 1992); In re Estate of Austwick,

275 Ill. App. 3d 665, 668 (1995). Thus, contrary to plaintiffs'

argument, shared by the dissent, constructive "notice" or what

the Hospital perhaps should have known is insufficient to trigger

the Hospital's duties under the Act.

The Act does not, as the dissent observes, require hospitals

to make "some effort to initiate the process of surrogate

decision making." (Slip op. at --). Conversely, initiation or

identification of the process of surrogate decision making is the

responsibility of the patient's attending physician. The

legislature is quite clear on this point, and we find such

delineation necessary to avoid potential conflicts between

physicians and other health care providers that might serve to

frustrate or prolong what was intended to be a swift, doctor-

patient diagnosis.

Because there is no duty on the part of the hospital to

inquire into the availability of a surrogate until a finding has

been made by the attending physician that the patient lacks

decisional capacity and has a qualifying condition, the trial

court was correct to dismiss the claims against the Hospital,

brought by both the estate and the plaintiffs individually.

II. Plaintiffs' claims against Dr. Aruguete

Count IV of plaintiffs' amended complaint alleges that

plaintiffs, as witnesses to Ficke's "continued pain and

suffering," were, by virtue of Aruguete's negligent conduct,

"caused to and did suffer grievous and painful injury, physical

and mental, and do and will, in the future, continue to so

suffer." Initially, we observe that the death of a parent is

indeed an event occasioned by the continued suffering or grieving

of the decedent's family. However, it is another matter whether

the Act authorizes a cause of action for such injury.

The Act does not contain an express right allowing family

members of patients to assert a cause of action for violation of

its terms. However, a private right of action may be implied if

the plaintiff is a member of the class for whose benefit the Act

was enacted, the cause of action is consistent with the

underlying purpose of the Act, the plaintiff's injury is one the

Act was designed to prevent, and a cause of action is necessary

to provide an adequate remedy for violations of the Act. Corgan

v. Muehling, 143 Ill. 2d 296, 312-13 (1991); Sawyer Realty Group,

Inc. v. Jarvis Corp., 89 Ill. 2d 379, 391 (1982).

Although we believe that a patient's estate has a private

right of action under the Act, the same cannot be said for a

patient's family members or loved ones. Although plaintiffs are

correct that the Act was intended to aid both the incompetent

patient and other "involved parties" (755 ILCS 40/5(a) (West

1992)), a cause of action for such "involved parties" was not

similarly contemplated.

In the present case, allowing plaintiffs a cause of action

under the Act is not "necessary to provide an adequate remedy for

violations of the Act." Corgan, 143 Ill. 2d at 312-13. This can

be accomplished where a patient or a patient's estate brings a

direct action against a physician for violations under the Act.

Moreover, extending a cause of action to witnesses of a patient's

suffering raises serious practical concerns, including when and

for whom does one "draw the line"? That is, who is able to

maintain an action for damages? Immediate family members,

individuals with five or more visits to the patient's "death

bed," or only those friends or relatives who actually cared about

the decedent? At best, this would prove to be an inexact process

and one that conflicts with the traditional rule of limiting

claims in the medical arena to the "patient-hospital or patient-

doctor relationship." Kirk, 117 Ill. 2d at 528. Accordingly, we

affirm the trial court's dismissal of count IV.

For the reasons set forth above, we affirm the trial court's

order of dismissal.

Affirmed.

GALLAGHER, J., concurs.

CERDA, J., concurs in part and dissents in part.

JUSTICE CERDA, concurring in part and dissenting in part:

I concur with the majority's affirming of the dismissal of

counts III and IV, but I dissent on the affirming of the

dismissal of count I against Christ Hospital.

A private right of action can be implied under a statute if

(1) plaintiff is a member of the class for whose benefit the

statute was enacted; (2) it is consistent with the underlying

purpose of the statute; (3) plaintiff's injury is one the statute

was designed to prevent; and (4) it is necessary to provide an

adequate remedy for violations of the statute. Corgan v.

Muehling, 143 Ill. 2d 296, 312-13, 574 N.E.2d 602 (1991). When a

statute is enacted for the protection of a particular class of

individuals, a violation of its terms may result in civil

liability even if that remedy is not mentioned in the statute.

Corgan, 143 Ill. 2d at 313, citing Heimgaertner v. Benjamin

Electric Manufacturing Co., 6 Ill. 2d 152, 155, 128 N.E.2d 691

(1955). It is not necessary to show a specific legislative

intent to create a private right of action. Sawyer Realty Group,

Inc. v. Jarvis Corp., 89 Ill. 2d 379, 386, 432 N.E.2d 849 (1982).

If there is no indication that the remedies available are only

those expressed in the statute, then where it is consistent with

the statute's underlying purpose, a private right of action can

be implied. Sawyer, 89 Ill. 2d at 386.

The public policy underlying certain statutes demands

implication of a private remedy to compensate an aggrieved person

who belongs to the class of persons whom the statute was designed

to protect. Sawyer, 89 Ill. 2d at 386-87. Consideration of the

underlying policy of the statute and the overriding purpose is

important in determining whether a private right of action

exists. Sawyer, 89 Ill. 2d at 387. Illinois courts have

continually demonstrated a willingness to imply a private remedy

where there exists a clear need to effectuate the purpose of a

statute. Sawyer, 89 Ill. 2d at 389.

I conclude that there is a viable cause of action for a

patient who lacks decisional capacity and who has a qualifying

condition when health care providers did not comply with the

Act's requirements. Dorothy Ficke was a member of the class for

whose benefit the statute was enacted. A private cause of action

is consistent with the underlying purpose of the statute, the

injury to Dorothy Ficke is one the statute was designed to

prevent, and a private cause of action is necessary to provide an

adequate remedy for violations of the statute.

Count I against the hospital alleged that Dorothy Ficke

lacked decisional capacity and suffered from a qualifying

condition within the meaning of the Act in that she was "lacking

in communication of meaningful thought, social interactions

and/or awareness of self and her environment." For such a

patient, the health care provider, which is defined as including

not only physicians but nurses and hospitals (755 ILCS Ann. 40/10

(West Supp. 1996)), must make a reasonable inquiry as to the

availability and authority of a health care agent or, if

unavailable, the availability of possible surrogate decision

makers. 755 ILCS Ann. 40/25(a) (West 1992).

The hospital argues that this duty of health care providers

is not triggered before the existence of the qualifying condition

and the lack of decisional capacity is certified in writing in

the patient's medical record by the attending physician and by at

least one other qualified physician. While it is only after

these written certifications are made that a surrogate decision

maker may consider whether to forgo life-sustaining treatment

(755 ILCS Ann. 40/10 (West Supp. 1996)), the hospital need not

and should not wait to make the reasonable inquiries until the

written certifications are made when the hospital knows or should

know that the patient in its care lacks decisional capacity and

probably has one of the three qualifying conditions.

Although the attending physician is in charge of a patient's

treatment, the hospital has sufficient knowledge of the condition

of its patients to determine whether it is probable that a

surrogate decision maker is needed. Nurses monitor the patient's

condition, and physicians and nurses make notes in the patient's

medical record. Hospitals should facilitate the process of

surrogate decision making and should not be allowed to sit by and

disregard the rights of a patient. The Act requires hospitals to

make some effort to initiate the process of surrogate decision

making. I would reverse the circuit court order dismissing Count

I against Christ Hospital.