O'HARA v. Holy Cross Hospital

JUSTICE MILLER, specially concurring:

I agree with the majority that the circuit court erred in entering summary judgment in favor of defendants Holy Cross Hospital and Emergency Medicine, S.C., the entity that provided emergency room services at Holy Cross. I do not agree with the majority’s rationale for that result, however, and therefore I write separately.

Emergency Medicine and Holy Cross argue that they had no duty to protect the plaintiff from the accident that occurred here. In support of that contention, they insist that it was not reasonably foreseeable that the plaintiff would faint and that requiring health care providers to prevent this sort of occurrence would be unreasonably burdensome. I agree with the majority that, a question of fact was raised in the proceedings below and that summary judgment in favor of the two defendants involved in the present appeal was therefore improper. In allowing a portion of the plaintiff’s action against these two defendants to proceed, however, the majority distinguishes between nonpatients who are mere bystanders and nonpatients who participate in some manner in the medical procedure. I do not agree that the scope of the defendants’ duty in this regard may properly depend on whether the nonpatient is a mere bystander or a participant in the medical procedure.

The majority notes that the defendants owed to the plaintiff the duty to exercise ordinary care to prevent injuries occurring as the reasonably foreseeable consequences of their actions. (See Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 390 ; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 86 .) In determining that the present defendants could not have been in breach of a duty they owed to a mere bystander, the majority exaggerates the consequences that it fears would result from finding liability in those circumstances. To succeed in an action for negligence, a plaintiff must establish the existence of a duty, breach of the duty, and damages proximately caused by the breach. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374 .) Imposition of a duty does not by itself establish breach of the duty; to say that a duty is owed says nothing about the manner in which that duty may be fulfilled or violated in a particular case.

It bears noting that Dr. Koenigsberg, the emergency room physician, stated in his discovery deposition that, in accordance with custom, he asked the plaintiff to remain outside in the waiting room while her son was being tended to in a nearby treatment room. Dr. Koenigsberg explained that such a practice is ordinarily followed to avoid the type of problem that occurred here. Dr. Koenigsberg also stated that once the plaintiff insisted on entering the treatment room, he advised her to position herself in such a way that her risk of injury would be minimized if she did in fact become ill. Thus, contrary to the majority’s reasoning, the emergency room physician certainly recognized that the possibility of illness in a nonpatient who is present during medical treatment exists regardless of whether the person is a mere bystander or an active participant.

“After the event, hindsight makes every occurrence forseeable, but whether the law imposes a duty does not depend upon forseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.” (Lance v. Senior (1967), 36 Ill. 2d 516, 518 .) Dr. Koenigsberg’s deposition testimony demonstrates that the medical community realizes the risk of the harm that allegedly occurred here and the manner in which an occurrence of that sort may be avoided. The majority opinion offers no persuasive reason for confining the scope of such a duty to nonpatient participants, and thus I do not agree with the majority’s conclusion that imposition of the duty asserted here should turn on the supposed distinction between bystanders and participants.

I question, as a final matter, the majority’s suggestion that a hospital or similar health care provider will be strictly liable for fainting-related injuries once it is established that the nonpatient was asked to take part in the medical procedure. (See, e.g., 137 Ill. 2d at 343 (“Having concluded that an emergency room of a hospital has a duty to protect nonpatients from fainting once they are invited to participate in the care and treatment of the patient, the question remains whether defendants invited plaintiff to participate in the care and treatment of her son”).) The defendants’ duty, rather, is to exercise due care; it may be breached by conduct that induces a person to faint. As I have indicated, such a breach may, in appropriate circumstances, be found with respect to nonpatient bystanders as well as to participants. Inviting the participation of a bystander is simply evidence that may show a breach of the duty.

JUSTICE RYAN joins in this special concurrence.