Varela v. St. Elizabeth's Hospital of Chicago

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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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).

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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

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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

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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

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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

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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

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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

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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.

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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).

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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

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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

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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

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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

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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

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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

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since "[the abusive babysitter] Higgs was not the patient of

anyone at Great Lakes Naval Hospital, *** the exception is

inapplicable." Cuyler, 362 F.3d at 954.

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

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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

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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

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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

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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.

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