Jinkins v. Lee

JUSTICE WOLFSON, dissenting:

Admittedly, this is a close case, but the majority’s thoughtful analysis of the reported decisions does not lead me to the same conclusion. I respectfully dissent.

A plaintiff cannot evade the application of sovereign immunity by bringing an action against an employee or agent of the State when the claim actually is against the State itself. Healy v. Vaupel, 133 Ill. 2d 295, 308 , 549 N.E.2d 1240 (1990).

One way to avoid sovereign immunity is to characterize the case as concerning a physician’s duty to treat his patient, no matter the setting, and then cite Madden v. Kuehn, 56 Ill. App. 3d 997 , 372 N.E.2d 1131 (1978), and Watson v. St. Annes Hospital, 68 Ill. App. 3d 1048 , 386 N.E.2d 885 (1979). But I do not believe that is what this case is about.

Here, the defendants never treated George. Nor did they place him for treatment in certain hospital programs, as the defendants did in Janes v. Albergo, 254 Ill. App. 3d 951 , 626 N.E.2d 1127 (1993). They screened and evaluated George in order to decide whether to admit him involuntarily. The source of the defendants’ duty derived from their positions as mental health professionals charged by the State with making the administrative decision of whether to admit a patient against his or her will. This is not the same as a general duty to treat patients. The defendants’ duty would not exist outside their employment by the State. A judgment for the plaintiff in this case would operate to control the actions of the defendants’ State employer. This is particularly true where, as here, the plaintiff has filed an action against the State in the Court of Claims for the same injury alleged in this case.

It is true the supreme court in Healy expressly refused to overrule Madden. But it was not exactly an overwhelming vote of approval when the court said about the holding in Madden: “Without commenting on the correctness of that decision, we decline to extend Madden to the present case.” Healy, 133 Ill. 2d at 313 .

I do not understand the majority’s disdain for Kilcoyne v. Paelmo, 204 Ill. App. 3d 139 , 562 N.E.2d 231 (1990). There, as here, a state mental health facility was sued because it released a patient. The patient then proceeded to kill his father-in-law. There, as here, the plaintiff claimed this was a failure to properly diagnose and treat the patient. The court held:

“The services performed by the mental health care professionals here involved the determination of whether a person should be institutionalized by the State and the additional obligations incurred in making this determination. We do not believe that these duties equate with those duties generally owed to patients by their doctors. The alleged duties here arose solely by virtue of defendants’ State employment.” Kilcoyne, 204 Ill. App. 3d at 144-45 .

The plaintiff contends the Kilcoyne court mistakenly assumed private physicians do not have the same power as state-employed physicians to involuntarily admit their patients. I do not find that in Kilcoyne. The decision was based on the employees’ duty to determine whether the power of the State should be used to confine a patient against his will at a state facility. That is not a duty to treat. I would follow Kilcoyne.

Here, the decision to release George was an administrative decision made on behalf of the State. The fact that private institutions might make similar decisions does not matter. It is the source of the duty that matters. Here, the source is the power of the State. I would affirm the trial judge’s decision that sovereign immunity applies.