Imagine someone going to a hospital with complaints of severe pain in their chest, with pain radiating down their left arm, and with shortness of breath - the classic signs of a heart attack. What do you think would happen if the doctors at the hospital failed to properly test for a heart attack, failed to properly diagnose a heart attack, and a week later the patient dies? Surely a medical malpractice lawsuit would follow against the doctors and the hospital.
What do you think the chances are that the hospital could successfully defend itself against a medical malpractice lawsuit on grounds that it was responsible only for treatment to the patient, but not for failing to order tests or make a proper diagnosis? The answer to this question depends on what type of hospital is involved. If the hospital is a private institution, as are most hospitals in Chicago, it would certainly be liable for negligently failing to order proper tests, arrive at a proper diagnosis and render proper treatment. However, if the hospital is a public institution, such as Cook County Hospital or Provident Hospital, the hospital could only be liable for negligent treatment, but not for failing to order tests or to diagnose.
How can this be? Welcome to the Illinois Tort Immunity Act. Under this law, certain public entities and their employees are "immunized," in other words, relieved from liability from a medical malpractice claim, for the same conduct that, if performed by employees of private companies, would give rise to liability. This law affects a wide array of public institutions such as park districts, cities, forest preserves and, in the instance that we are talking about, public hospitals.
A leading case in this area is Michigan Avenue National Bank vs. County of Cook, 191.Ill.2d.493 (Ill. 2000), involving a young woman who made several visits to Cook County Hospital complaining of pain and a mass in her left breast. Although she returned to the hospital several times, it was not until nearly two years later that the cancer in her breast was diagnosed.
Eventually the cancer spread and despite a mastectomy and other cancer treatment, the patient died. (When an accident victim dies and an auto accident lawsuit is filed, sometimes a bank is named as the plaintiff for purposes of the suit, rather than an individual as next of kin). Despite the apparent flagrant violation of sound medical treatment, the Illinois Supreme Court upheld a lower court decision dismissing the medical malpractice lawsuit. While not condoning the care which had been provided, the court pointed to the specific provisions of the Tort Immunity Act, which immunized Cook County Hospital for its failure to order tests and/or to diagnose the patient's breast cancer.
Similarly, in the case of Mabry vs. County of Cook, 733 N.E.2d.737 (1st Dist., 2000), a woman entered Cook County Hospital complaining of dizziness and shortness of breath. She was initially diagnosed with asthma and given a test to determine her breathing capacity. Unfortunately, the hospital did not consider whether the patient's complaints were caused by other conditions, and she died. The Illinois Appellate Court, following the Illinois Supreme Court's lead in the Michigan Avenue National Bank lawsuit, stated that since the essence of wrongdoing against the hospital was its failure to conduct tests and to properly diagnose the patient, the hospital was immune from liability for medical malpractice.
Consider that a public hospital which fails to properly treat a patient for whom it has made a proper diagnosis can be held liable for its negligence. But a public hospital that negligently fails even to make a proper diagnosis cannot be held liable. The Tort Immunity Act artificially distinguishes between diagnosis and treatment. You would think that since treatment follows from diagnosis, liability could be imposed whenever a medical care provider is negligent in either diagnosis or treatment. After all, from the perspective of the patient, there is no difference in outcome. Yet public hospitals cannot be sued for their failure to order tests and/or to diagnose its patients.
The only way to understand the harshness of this result is to understand that the purpose of the Illinois Tort Immunity Act is to relieve public institutions of liability for their wrongdoing. The Illinois Tort Immunity Act is a law created not by the courts but by the Illinois State legislature.
The real purpose is to shield taxpayer money from payment of judgments against public institutions. Absent laws like the Tort Immunity Act, of which most states have in one form or another, there is a risk the taxpayer would have to pay higher taxes to satisfy judgments against public institutions. Because it is the taxpayer who has to satisfy such judgments, the Tort Immunity Act has come into existence. In the case of public hospitals, this may appear discriminatory, since most people who use public hospitals do so not by choice, but because they can't afford private health care. Thus, the Tort Immunity Act restricts poor people who by necessity receive treatment in public facilities from suing their doctors or hospitals for the same type of negligence for which wealthier people, who can afford, or have insurance to treat at private institutions, could sue.
For more information, contact an experienced medical malpractice attorney at Lipkin & Apter in Chicago, IL. We work with clients throughout central and southern Illinois.