Opinion

Shicheng Guo v. Kamal

  • 2020 IL App (1st) 190090
Court
Appellate Court of Illinois
Filed
Oct 30, 2020
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Published
Cited by
9 cases
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More cited than 58.8%

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Appellate Court Date: 2020.10.30

14:57:27 -05'00'

Shicheng Guo v. Kamal, 2020 IL App (1st) 190090

Appellate Court SHICHENG GUO, as Special Administrator of the Estate of Shiqian

Caption Bao, Deceased, Plaintiff-Appellant, v. KAMRAN KAMAL, M.D.;

INTERNATIONAL TELERADIOLOGY, LLC; SWEDISH

COVENANT HOSPITAL; ADVOCATE HEALTH AND

HOSPITALS CORPORATION, d/b/a Lutheran General Hospital;

GEORGE BOVIS, M.D.; CENTER OF BRAIN AND SPINE

SURGERY, S.C.; ROBERT KELLOGG, M.D.; and RUSH

UNIVERSITY MEDICAL CENTER, Defendants (Kamran Kamal,

M.D., International Teleradiology, LLC, and Swedish Covenant

Hospital, Defendants-Appellees).

District & No. First District, First Division

Nos. 1-19-0090, 1-19-0365 cons.

Filed March 2, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 15-L-4606; the

Review Hon. Patricia O’Brien Sheahan, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Phillips Law Offices, of Chicago (Terrance M. Quinn and Kurt R.

Appeal Ensign, of counsel), for appellant.

Donohue Brown Mathewson & Smyth LLC, of Chicago (Karen Kies

DeGrand, Stetson F. Atwood, and Jack A. Battaglia, of counsel), for

appellees Kamran Kamal and International Teleradiology, LLC.

Lowis & Gellen LLP, of Chicago (Kevin J. Clancy, Lee A. Williams,

and Leighanne E. Root, of counsel), for other appellee.

Panel JUSTICE PIERCE delivered the judgment of the court, with opinion.

Justices Hyman and Walker concurred in the judgment and opinion.

OPINION

¶1 This is an appeal from the entry of summary judgment in favor of defendants, Swedish

Covenant Hospital (Swedish Covenant), Kamran Kamal, M.D., and International

Teleradiology, LLC (International Teleradiology), in a wrongful death and survival action

brought by plaintiff, Shicheng Guo, as administrator of the estate of the deceased, Shiqian Bao.

The operable complaint alleged that Bao was brought to Swedish Covenant’s emergency

department after experiencing a severe headache. Bao underwent a CT scan, which Dr. Kamal

read and found to be normal. Bao was then released from Swedish Covenant. A few hours

later, another doctor reviewed Bao’s CT scan and found signs of a brain bleed, and Bao was

called back to Swedish Covenant for treatment. Bao chose not to pursue further treatment at

Swedish Covenant and instead immediately presented herself to the emergency department at

Lutheran General Hospital (Lutheran General). Doctors at Lutheran General did another series

of tests, did not diagnose a brain bleed, and discharged her from the hospital without treatment.

Bao died three days later of an alleged brain hemorrhage.

¶2 The circuit court entered summary judgment in favor of Dr. Kamal and International

Teleradiology, finding that Dr. Kamal was not liable for medical negligence because his failure

to identify Bao’s brain bleed was not a proximate cause of Bao’s death. The circuit court also

entered summary judgment in favor of Swedish Covenant and found that there was no

unbroken causal link that could establish that Swedish Covenant or its alleged agents

proximately caused injury to Bao. For the following reasons, we reverse and remand for further

proceedings.

¶3 I. BACKGROUND

¶4 The following basic facts are undisputed. On July 10, 2013, Bao was taken by ambulance

to the emergency department at Swedish Covenant complaining of a sudden onset headache.

An emergency department physician ordered a CT scan of Bao’s head. Around 11:20 p.m., Dr.

Kamal, a teleradiologist employed with International Teleradiology, interpreted Bao’s head

CT scan and found no evidence of a brain bleed. Around 3:20 a.m. on July 11, 2013, Bao was

discharged from Swedish Covenant.

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¶5 Later that same morning, after Bao’s discharge, Dr. Tae-Woo Kim, an attending radiologist

at Swedish Covenant, performed a secondary review of Bao’s CT scan and identified a

subarachnoid brain hemorrhage. At approximately 9 a.m. on July 11, based upon Dr. Kim’s

“overread,” Bao was called back to Swedish Covenant. Upon Bao’s return at 10:30 a.m., Dr.

James Vasilakis, an emergency department physician at Swedish Covenant, informed Bao of

Dr. Kim’s findings and recommended that she be admitted to Swedish Covenant for further

evaluation and treatment. However, Bao declined treatment at Swedish Covenant.

¶6 About 11 a.m. that same day, July 11, 2013, Bao presented to the emergency department

at Lutheran General, where she was seen by emergency department physician Dr. Joseph

Ogarek. Bao underwent another head CT scan at 11:15 a.m. The results of this CT scan were

interpreted as normal and no brain bleed was identified. Dr. Robert Kellogg, a neurosurgery

fellow at Lutheran General, conducted a neurosurgery consult with Bao. At that time, Dr.

Kellogg learned of Bao’s history, including the previous CT scan earlier that day from Swedish

Covenant that showed a subarachnoid bleed. Bao’s treating doctors at Lutheran General

obtained the radiology report from Swedish Covenant but not the actual CT images from

Swedish Covenant. Dr. Kellogg then ordered a CT angiogram to further evaluate her condition.

Around 2:40 p.m. on July 11, 2013, the CT angiogram was reported as normal. Based on her

examination at Lutheran General, including the normal CT scan and normal CT angiogram

reports, Bao was discharged from Lutheran General.

¶7 Bao died on July 15, 2013. Dr. Marc Reyes, the pathologist who performed her autopsy,

reported that Bao’s cause of death was an intracerebral hemorrhage and opined that it was

unrelated to any bleed found three to five days earlier.

¶8 In plaintiff’s fourth amended complaint, plaintiff alleged that Dr. Kamal’s and Swedish

Covenant’s failure to promptly identify and treat Bao’s brain bleed wrongfully caused her

death. Specifically, plaintiff alleged that Dr. Kamal’s failure to diagnose Bao’s subarachnoid

brain hemorrhage and failure to advise the emergency room of her condition deprived Bao of

treatment and aggravated the underlying medical condition that caused her death. Plaintiff

alleged that International Teleradiology was liable for Dr. Kamal’s failures under the theory of

actual or apparent agency and the doctrine of respondeat superior. Plaintiff also asserted

claims of actual or apparent agency liability against Swedish Covenant based on Dr. Kamal’s

failure to diagnose Bao’s condition. Plaintiff further alleged that Swedish Covenant was liable

under respondeat superior for Dr. Vasilakis’s failure to transmit Bao’s CT images to Bao or

to communicate these images to the doctors at Lutheran General and that this failure caused

Bao’s brain hemorrhage to go untreated until her death. Plaintiff also asserted that unidentified

actual or apparent agents of Swedish Covenant failed to communicate Bao’s test results to

Lutheran General, failed to transfer her properly to Lutheran General, and failed to follow

standards of care related to the transmission of CT records.

¶9 The trial court entered a case management order stating that all dispositive motions were

to be filed prior to October 26, 2018. The trial court did not set a schedule for controlled expert

witness discovery until October 30, 2018, after the deadline for filing dispositive motions.

¶ 10 Dr. Kamal and International Teleradiology filed a motion for summary judgment on

October 17, 2018. The motion argued that plaintiff failed to establish that Dr. Kamal

proximately caused Bao’s death because (1) there was no evidence in the record to support a

connection between the brain bleed that he failed to identify on Bao’s CT scan and the bleed

that killed Bao and (2) there was no evidence that his failure to identify the brain bleed on

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Bao’s CT scan affected her ultimate course of treatment at Lutheran General. Attached to the

motion were plaintiff’s fourth amended complaint and transcripts of the depositions of Dr.

Kamal, Dr. Kim, Dr. Vasilakis, Dr. Ogarek, Dr. Kellogg, Dr. George Bovis (the neurosurgery

attending physician at Lutheran General who supervised Dr. Kellogg), and Dr. Reyes.

¶ 11 Swedish Covenant also moved for summary judgment. The hospital argued that it was not

liable for any alleged negligence because plaintiff could not establish that Dr. Kamal and Dr.

Vasilakis were actual or apparent agents of Swedish Covenant. The hospital also argued

(1) that plaintiff failed to establish a causal connection between the brain bleed that Dr. Kamal

failed to diagnose and the bleed that killed Bao and (2) that plaintiff failed to establish a causal

connection between Swedish Covenant’s failure to transmit the CT images and the alleged

negligence of Bao’s doctors at Lutheran General. In support of its motion, Swedish Covenant

attached the operative complaint, transcripts of the depositions of Vincent Lengerich (Bao’s

boyfriend at the time of her death), Dr. Kamal, Imelda Prado (the clinical care coordinator at

Swedish Covenant’s emergency department), Dr. Vasilakis, Dr. Ogarek, Dr. Kellogg, Dr.

Bovis, Dr. Reyes, Ellen Katz (Bao’s coworker at the time of her death), plaintiff’s medical

malpractice affidavit (submitted pursuant to section 2-622 of the Code of Civil Procedure (735

ILCS 5/2-622 (West 2014))), and hospital records of the phone calls from Swedish Covenant

to Bao regarding her need to return to the hospital for treatment.

¶ 12 On December 20, 2018, the circuit court entered summary judgment in favor of Dr. Kamal

and International Teleradiology on the issue of proximate cause, finding that Bao’s decision to

decline treatment at Swedish Covenant and pursue “duplicative” treatment at Lutheran General

broke the causal chain between Dr. Kamal’s failure to diagnose and failure to treat her

condition and her death. The circuit court also found that there was no just reason to delay

enforcement or appeal of its order pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8,

2016). Plaintiff filed a timely notice of appeal.

¶ 13 On February 1, 2019, the circuit court entered summary judgment in favor of Swedish

Covenant on the issue of proximate cause, again finding that Bao’s decision to decline

treatment at Swedish Covenant and to pursue “duplicative” treatment at Lutheran General

broke the causal chain between Swedish Covenant’s failure to transmit their CT images to

Lutheran General and Bao’s death. The circuit court also found that there was no viable theory

of vicarious liability against Swedish Covenant for the actions of its alleged agents because of

the break in the causal chain. The circuit court found that there was no reason delay

enforcement or appeal of its order pursuant to Rule 304(a). Plaintiff again filed a timely notice

of appeal, and the two appeals were consolidated.

¶ 14 II. ANALYSIS

¶ 15 The issue on appeal is whether the circuit court erred in entering summary judgment in

favor of Dr. Kamal, International Teleradiology, and Swedish Covenant by finding that

plaintiff could not establish an unbroken causal link between their alleged negligence and

Bao’s death.

¶ 16 Plaintiff argues that he presented sufficient affirmative evidence to establish a question of

fact as to whether (1) the subarachnoid bleed that Dr. Kamal failed to identify was related to

the brain bleed that caused Bao’s death, (2) Dr. Kamal’s failure to initially identify Bao’s brain

bleed proximately caused her death, and (3) Swedish Covenant’s failure to transmit Bao’s CT

images to Lutheran General proximately caused her death. Plaintiff argues that the judgment

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of the circuit court should be reversed and the case should be remanded for the circuit court to

enter a finding on plaintiff’s agency theories of liability against Swedish Covenant. For the

following reasons, we agree with plaintiff. We reverse the judgment of the circuit court and

remand for further proceedings.

¶ 17 Summary judgment is a drastic measure that should only be allowed where the moving

party’s right to relief is “clear and free from doubt.” Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).

Summary judgment is appropriate where “the pleadings, depositions, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)

(West 2014). “A genuine issue of material fact exists where the facts are in dispute or where

reasonable minds could draw different inferences from the undisputed facts.” (Internal

quotation marks omitted.) Buck v. Charletta, 2013 IL App (1st) 122144, ¶ 56. When

determining the existence of a genuine issue of material fact, courts construe the pleadings,

exhibits, depositions, affidavits, and admissions against the movant and in favor of the

nonmovant. Purtill, 111 Ill. 2d at 240. We review the circuit court’s ruling on summary

judgment de novo. Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL 120394,

¶ 16.

¶ 18 In a medical negligence action, the plaintiff must prove (1) the standard of care against

which the defendant’s conduct should be measured, (2) the defendant negligently failed to

comply with that standard, and (3) the plaintiff’s injury was proximately caused by this failure.

Purtill, 111 Ill. 2d at 241-42. The critical inquiry on proximate cause is whether a defendant’s

alleged negligence was “a material and substantial element in bringing about the injury, and,

if so, was the injury of a type that a reasonable person would see as a likely result of his or her

conduct?” First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 258-59 (1999). Where a

plaintiff alleges that medical negligence caused a lost opportunity for treatment, the plaintiff

may establish proximate cause through evidence, “to a reasonable degree of medical certainty,

that the defendant’s failure to render a timely diagnosis more probably than not compromised

the effectiveness of treatment received or increased the risk of harm to the plaintiff.” Scardina

v. Nam, 333 Ill. App. 3d 260, 269 (2002).

¶ 19 “Proximate cause is ordinarily a fact question to be decided by a jury, but if there is no

material issue of fact or only one conclusion is clearly evident, it may be decided as a matter

of law.” Buck, 2013 IL App (1st) 122144, ¶ 58. In a medical malpractice action, the plaintiff

bears the burden to present expert testimony that establishes the standard of care and that

breach thereof was the proximate cause of the plaintiff’s injury. Id. ¶ 59. The causal connection

must be established to a reasonable degree of medical certainty and “must not be contingent,

speculative, or merely possible.” (Internal quotation marks omitted.) Id. “[T]he weight to be

given to medical expert testimony is for the trier of fact to determine, and where the evidence

is conflicting it is within the jury’s province to resolve the conflict.” Wodziak v. Kash, 278 Ill.

App. 3d 901, 913-14 (1996).

¶ 20 Plaintiff alleges that Dr. Kamal’s failure to diagnose Bao’s condition and refer her for

treatment on July 10 proximately caused Bao’s death by depriving her of the opportunity for

immediate treatment for her subarachnoid hemorrhage and underlying high blood pressure,

which caused the subsequent brain hemorrhage that killed her. Plaintiff characterizes the lost

opportunity for treatment on the night of July 10 as distinct from the opportunity for treatment

on the morning of July 11. On summary judgment, plaintiff bears the burden of presenting

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evidence, to a reasonable degree of medical certainty, that Dr. Kamal’s failure to diagnose

Bao’s subarachnoid hemorrhage on July 10 was a material and substantial element in bringing

about her subsequent death and that her death was a likely result of Dr. Kamal’s conduct.

¶ 21 We find that plaintiff has presented sufficient evidence on this issue with Dr. Larkins’s

affidavit. Dr. Larkins opines to a reasonable degree of medical certainty that the subarachnoid

brain hemorrhage that Dr. Kamal failed to diagnose on July 10 and the intracerebral brain

hemorrhage that caused Bao’s death on July 15 “resulted from the same underlying process or

condition,” high blood pressure; that had Dr. Kamal identified the brain bleed on her CT scan,

Bao would have been admitted for treatment on the night of July 10 and she would have been

successfully treated for the underlying high blood pressure condition that caused her

subsequent, fatal hemorrhage; and that Dr. Kamal’s failure to diagnose Bao’s subarachnoid

hemorrhage proximately caused her death. This evidence shows that Dr. Kamal’s failure to

diagnose Bao’s bleed and underlying high blood pressure increased the risk of harm to Bao.

Dr. Vasilakis also testified that because Dr. Kim diagnosed her with a subarachnoid brain

bleed, Bao would have been admitted for treatment. This testimony, in conjunction with Dr.

Larkins’s opinion that Bao would have been admitted for treatment at Swedish Covenant if Dr.

Kamal had diagnosed her subarachnoid hemorrhage, shows that Dr. Larkins’s opinion that Dr.

Kamal’s negligence likely resulted in Bao’s death is not merely speculative or conclusory.

Thus, plaintiff presented evidence to a reasonable degree of medical certainty that Dr. Kamal’s

failure to diagnose Bao’s brain hemorrhage increased the risk of harm to Bao by depriving her

of an opportunity for immediate treatment of her high blood pressure condition and that Bao’s

death was the likely result of Dr. Kamal’s alleged negligence. Therefore, plaintiff established

a question of fact as to whether Dr. Kamal’s alleged negligence proximately caused Bao’s

death. The testimony of the Lutheran General physicians to the effect that they would have

done nothing different had they had all the information from Swedish Covenant only adds

additional consideration for the jury to resolve on this material question of fact.

¶ 22 In entering summary judgment in favor of Dr. Kamal and International Teleradiology, the

circuit court found that “Bao herself broke the causal chain between Dr. Kamal’s allegedly

inadequate care and her eventual death” by refusing to be admitted to Swedish Covenant for

treatment on July 11, “even if both bleeds were caused by the same condition, and even if Dr.

Kamal should have been able to further identify and treat the condition.” This finding was at

best premature because plaintiff had met its evidentiary burden on summary judgment to

establish proximate cause and because Dr. Kamal had not established through expert medical

testimony that Bao’s refusal of treatment on July 11 was an effective intervening cause that

broke the causal connection between his alleged negligence and Bao’s death. Johnson v.

Ingalls Memorial Hospital, 402 Ill. App. 3d 830, 843 (2010) (“Although the issue of proximate

cause is generally a question of fact, at the summary judgment stage the plaintiff must present

some affirmative evidence that it is ‘more probably true than not true’ that the defendant’s

negligence was a proximate cause of the plaintiff’s injuries. [Citations.]” (Internal quotation

marks omitted.)).

¶ 23 “Proximate cause is that cause which produces an injury through a natural and continuous

sequence of events unbroken by any effective intervening cause.” Mengelson v. Ingalls Health

Ventures, 323 Ill. App. 3d 69, 75 (2001). There may be more than one proximate cause of an

injury, and a defendant “is liable for its negligent conduct whether it contributed in whole or

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in part to the injury as long as proximate cause exists.” Chambers v. Rush-Presbyterian-

St. Luke’s Medical Center, 155 Ill. App. 3d 458, 465 (1987).

“If the negligence charged does nothing more than furnish a condition which made the

injury possible and that condition causes an injury by the subsequent independent act

of a third party, the creation of that condition is not the proximate cause of the injury.

[Citation.] The subsequent independent act becomes the effective intervening cause

which breaks the causal connection, and itself becomes the proximate cause.” Kemp v.

Sisters of the Third Order of St. Francis, 143 Ill. App. 3d 360, 361 (1986) (citing Merlo

v. Public Service Co. of Northern Illinois, 381 Ill. 300 (1942)).

¶ 24 Here, plaintiff alleged, with support from Dr. Larkins’s affidavit, that the negligence of Dr.

Kamal did more than furnish a condition which made Bao’s death possible; it materially and

substantially increased the risk of harm to Bao by depriving her of a definitive opportunity for

treatment that could have alleviated the underlying high blood pressure condition that allegedly

caused her death. Dr. Kamal presented no evidence of a subsequent, intervening cause that

broke the causal connection between his alleged negligence and Bao’s death. Rather, Dr.

Kamal speculates that Bao would have refused an offer of treatment that he never made. Dr.

Kamal presented no evidence to show, to a reasonable degree of medical certainty, whether

Dr. Kim’s subsequent overread that disclosed a hemorrhage and Bao’s later refusal of

treatment at Swedish Covenant was an effective intervening cause that broke the causal

connection, if any, between his alleged negligence and Bao’s death. In short, plaintiff

established through Dr. Larkins’s expert affidavit a material question of fact on whether Dr.

Kamal’s reading of the CT scan increased the risk of harm to Bao and proximately caused her

death four days later. Dr. Kamal presented nothing to refute this on summary judgment, and

even if he had, a question of material fact would remain for a jury to decide.

¶ 25 Questions of fact exist as to whether (1) Dr. Kamal’s failure to identify Bao’s brain bleed

deprived Bao of treatment proximately caused her death and (2) Dr. Kamal’s failure to

diagnose and treat Bao was a proximate cause of the fatal bleed on July 14. Whether the events

that occurred after Bao was released from Swedish Covenant in the early morning of July 11

broke any causal connection between Dr. Kamal’s alleged negligence and Bao’s death was not

supported by any medical evidence sufficient to warrant summary judgment in favor of Dr.

Kamal and International Teleradiology on the issue of proximate cause.

¶ 26 For the same reasons, the trial court erred in dismissing the vicarious liability claims against

Swedish Covenant based on the finding that Dr. Kamal’s alleged negligence was not a

proximate cause of Bao’s death. We note that expert discovery on the issue of proximate cause

was not completed at the time the parties complied with the circuit court’s standing order. The

parties candidly admitted at oral argument that no objection to the standing order was made

regarding the date for submission of dispositive motions despite the fact that expert discovery

had not been completed. Notwithstanding this failure to object, we find the completion of

expert discovery is critical to the issue of proximate cause, and after completion of expert

discovery the parties may, if they so choose, again raise the issue proximate cause if they can

in good faith argue that a material issue of fact does not exist.

¶ 27 The circuit court also granted summary judgment in favor of Swedish Covenant because it

found “no causal link” between the failures of Swedish Covenant’s alleged employees and

agents and Bao’s death. The circuit court found that because Bao’s doctors at Lutheran General

testified that viewing the CT images from Swedish Covenant would not have changed their

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treatment, “there’s no question of fact as to whether Swedish Covenant or any of its doctors

could have affected the causal chain once Ms. Bao declined treatment from them.” Plaintiff

argues that the circuit court erred in (1) not entering a finding on its agency theories of liability

against the hospital and (2) failing to find that a question of fact exists as to whether Swedish

Covenant’s failure to give the CT images to Bao or transmit the images to Lutheran General

proximately caused Bao’s death. We agree.

¶ 28 “In medical negligence cases, a hospital may face liability under two separate and distinct

theories: (1) vicarious liability for the medical negligence of its agents or employees; and

(2) liability for its own institutional negligence.” Longnecker v. Loyola University Medical

Center, 383 Ill. App. 3d 874, 885 (2008). “The concept of proximate cause is the same under

professional and institutional negligence.” Id.

¶ 29 Plaintiff alleged that Swedish Covenant is liable for the acts and omissions of its alleged

agents and employees, including Dr. Kamal and Dr. Vasilakis, for failing to diagnose and treat

Bao’s brain hemorrhage. The circuit court entered no finding as to whether Dr. Kamal and Dr.

Vasilakis were agents of Swedish Covenant but instead entered summary judgment in favor of

Swedish Covenant by finding that Bao’s refusal to accept treatment at Swedish Covenant broke

the causal chain between the alleged negligence of Swedish Covenant’s alleged agents and

Bao’s death. As discussed above, Dr. Larkins opined that there was a causal connection with

both Dr. Kamal’s negligence and the failure of Swedish Covenant to transmit the CT images

and Bao’s fatal bleed. There is no basis in the record to establish that Bao’s refusal of care on

July 11 severed the causal connection between the alleged negligence of the agents or

employees of Swedish Covenant and Bao’s death. Because we reverse this finding of the circuit

court, the factual question as to Dr. Kamal’s and Dr. Vasilakis’s alleged agency and the

questions of fact that remain as to whether the alleged agents of Swedish Covenant proximately

caused harm to Bao remain unresolved and likely will best be resolved by the trier of fact. We

therefore reverse the trial court’s entry of summary judgment in favor of Swedish Covenant on

plaintiff’s vicarious liability claims against Swedish Covenant.

¶ 30 Plaintiff also argues that the affidavit of Dr. Larkins created a question of fact as to whether

Swedish Covenant’s failure to transmit Bao’s CT images to either Bao or Lutheran General

was a proximate cause of Bao’s death. Swedish Covenant responds that because the CT images

did not contain undisclosed information, the testimony of Dr. Bovis and Dr. Kellogg that the

CT images would not have changed their treatment plan precludes the existence of a question

of fact in this regard. For the following reasons, we agree with plaintiff.

¶ 31 Plaintiff cites Buck, 2013 IL App (1st) 122144, in arguing that a question of fact exists as

to proximate cause notwithstanding the contention of the doctors at Lutheran General. In Buck,

the plaintiff consulted an orthopedic surgeon, Dr. Troy, after complaining of neck pain. Id. ¶ 3.

Dr. Troy ordered an MRI, the results of which were sent to a radiologist, Dr. Charletta, for

interpretation. Id. According to Dr. Charletta’s report, the MRI indicated the possibility of lung

cancer and required follow-up diagnostic care. Id. ¶ 10. Dr. Charletta electronically made his

report available to Dr. Troy’s office, but he did not fax or call Dr. Troy to personally

communicate his findings. Id. ¶ 11. Dr. Troy and a medical assistant in his office testified that

they remembered Dr. Troy reading the results of the MRI report to plaintiff and advising her

to seek follow-up treatment. Id. ¶¶ 15, 30. Plaintiff, an oncology nurse, testified that no one

ever told her of the possible tumor that Dr. Charletta identified on her MRI, nor did anyone

advise her to seek further care. Id. ¶ 35. Plaintiff did not undertake any follow up care until a

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year later, at which point her treatment was unsuccessful. Id. ¶ 3. Defendants moved for

summary judgment on the issue of proximate cause, arguing that Dr. Charletta’s failure to

personally communicate the MRI results did not affect Dr. Troy’s actions and therefore did not

proximately cause plaintiff’s death. Id. ¶ 52. In response, plaintiff presented expert affidavits

to show that Dr. Charletta breached the standard of care to plaintiff’s detriment by failing to

personally communicate the MRI findings. Id. ¶¶ 49-50. The trial court entered summary

judgment in favor of defendants. Id. ¶ 54.

¶ 32 On appeal, we reversed and ruled that a question of fact existed as to whether Dr.

Charletta’s failure to personally communicate the MRI results to Dr. Troy to ensure his receipt

of those findings proximately caused the plaintiff’s death. Id. ¶ 60. We found that a question

of fact existed as to whether Dr. Troy had ever read plaintiff’s MRI report because of the

conflicting testimony from Dr. Troy and his medical assistant and plaintiff. Id. ¶ 71. We found

that “it was improper for the trial court to effectively give dispositive effect to Dr. Troy’s

testimony that he would not have done anything differently because the plaintiff supplied the

trial court with specific evidence that Dr. Troy did, in fact, do something different than he

claimed to have done.” Id. In other words, we found that plaintiff had presented sufficient

evidence to create a question of fact as to whether Dr. Charletta’s failure to personally

communicate the MRI findings resulted in Dr. Troy’s failure to refer the plaintiff for treatment

and thus proximately caused the plaintiff’s death. The contradictory evidence in the record

gave rise to a question of fact as to whether there was “a communication failure that allowed

the information in Dr. Charletta’s report to fall between the cracks, to the detriment of the

patient.” Id. ¶ 73. Thus, we found the trial court erred in entering summary judgment on

proximate cause. Id.

¶ 33 We find that a question of fact exists as to whether Swedish Covenant’s failure to

communicate the CT images to Lutheran General proximately caused Bao’s death. Here, like

in Buck, plaintiff introduced an expert affidavit to create a question of fact on proximate cause.

In his affidavit, Dr. Larkins stated that a reasonably qualified physician would have obtained

and reviewed the Swedish Covenant CT images and would have relied on those images to

admit and treat Bao for a brain bleed. Thus, plaintiff argues that Swedish Covenant’s failure to

transmit the CT images proximately caused Bao’s death. In response, Swedish Covenant

argues that its failure to transmit the CT images to the doctors at Lutheran General did not

proximately cause Bao’s death because the Lutheran General doctors testified that they would

not have done anything differently if they had been in possession of those images. Swedish

Covenant cites the testimony of Bao’s doctors at Lutheran General, Dr. Kellogg and Dr. Bovis.

Dr. Kellogg stated that because of the discrepancy between the Swedish Covenant CT report

and the Lutheran General CT scan, the only recommendation he would have made was for a

CT angiogram, which was performed anyway. Similarly, Dr. Bovis testified that his treatment

of Bao using the CT angiogram was “the definitive standard.” Dr. Bovis described the CT

angiogram as a more “sensitive” study that is used to investigate “any possible cause of

bleeding” and that “it’s so unreliable what we get from an outside hospital, we just repeat the

images. That’s out of our routine.”

¶ 34 We find that there is a factual question as to whether the doctors at Lutheran General would

have treated Bao differently if they had the actual CT images from Swedish Covenant in

addition to the CT report. As in Buck, entry of summary judgment in favor of Swedish

Covenant was effectively the result of the circuit court giving dispositive weight to the

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testimony of the Lutheran General physicians without consideration of the plaintiff’s expert

witness’s affidavit. We find that resolution of the conflict between the Lutheran General

doctors’ testimony that they would not have changed their treatment plan and plaintiff’s

expert’s testimony as to what the standard of care required to treat Bao involves factual

findings and credibility determinations that should be left to the jury. Furthermore, Dr. Kellogg

opined that had the Lutheran General doctors been given the Swedish Covenant CT images,

the standard of care required a review of those images before examining Bao, and a comparison

of the Swedish Covenant CT images to the Lutheran General CT images. Similarly, Dr. Larkins

testified that the standard of care called for the Lutheran General doctors to review the Swedish

Covenant CT images “before making a final disposition for [Bao].” Thus, there is some

evidence in the record that, despite Swedish Covenant’s arguments, under the applicable

standard of care the Lutheran General doctors would have acted differently if they were in

possession of Bao’s CT images.

¶ 35 We reject Swedish Covenant’s argument that Buck is inapposite because the Lutheran

General doctors knew of Bao’s brain bleed from her Swedish Covenant CT report, and

therefore the Swedish Covenant CT images were not undisclosed information. The CT images

were undisclosed information in this case because the images are different from the CT report

itself, and as the facts of this case demonstrate, CT images may be interpreted differently by

different doctors.

¶ 36 We find that there is a question of fact as to whether Swedish Covenant’s failure to transmit

the CT images resulted in the Lutheran General doctors’ failure to diagnose and treat Bao, and

thus proximately caused Bao’s death. We reverse the judgment of the circuit court in favor of

Swedish Covenant on the issue of proximate cause and remand for further proceedings.

¶ 37 III. CONCLUSION

¶ 38 Based on the foregoing, we find that the circuit court erred in entering summary judgment

in favor of Dr. Kamal, International Teleradiology, and Swedish Covenant on the issue of

proximate cause. We also find that the circuit court erred in entering summary judgment in

favor of Swedish Covenant for its failure transmit Bao’s CT images to Lutheran General. We

therefore reverse judgment of the circuit court and remand for further proceedings.

¶ 39 Reversed and remanded.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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