2022 IL App (4th) 210284-U
Ill. App. Ct.2022Background
- Decedent (quadriplegic) had a Medtronic SynchroMed II intrathecal baclofen pump implanted for spasticity; a difficult refill occurred on Oct. 25, 2017.
- On Oct. 29–30, 2017, decedent presented to Memorial Medical Center with abdominal pain, headache, increased spasms, altered mentation and tachycardia; ER pump interrogation showed no device error.
- On Oct. 30, decedent was transferred to the ICU under Dr. Mouhamad Bakir (pulmonary critical care); multiple teams (cardiology, neurology, neurosurgery, pump team) were involved.
- Medtronic faxed emergency procedures for baclofen withdrawal to the hospital at 10:44 a.m., and those documents were placed in the electronic record later that day; Bakir testified he never saw them while caring for decedent.
- Neurology considered baclofen withdrawal in the differential but noted normal tone argued against it; pump interrogation by clinic staff had reported the pump functioning. A code was called and intrathecal baclofen was ultimately administered but after prolonged resuscitation; decedent died and postmortem testing showed catheter holes.
- Plaintiff (administrator) sought to convert Bakir from respondent in discovery to a defendant under 735 ILCS 5/2-402, submitting a certificate of merit alleging failure to timely recognize and treat baclofen withdrawal. The circuit court denied the conversion, finding plaintiff failed to establish the applicable standard of care and thus lacked probable cause; this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 2-402 probable cause exists to convert Bakir to a defendant | Minore’s certificate and records show probable cause Bakir negligently failed to recognize/treat baclofen withdrawal and delayed intrathecal baclofen | Discovery shows lack of basis for Minore’s assumptions; plaintiff failed to meet probable-cause threshold | Affirmed denial—no probable cause because plaintiff failed to establish the applicable standard of care |
| Whether plaintiff established the proper standard of care for Bakir | Minore’s certificate and cited Medtronic emergency procedures define the standard and show breach | Medtronic faxed procedures are not the standard of care for Bakir and Bakir never received them; expert testimony must define standard for a managing ICU physician | Held for Bakir—plaintiff did not present expert testimony establishing the standard of care for Bakir’s role; reliance on Medtronic docs insufficient |
| Whether the court exceeded its authority by making medical determinations about signs/symptoms (e.g., tone inconsistent with withdrawal) | Court improperly resolved disputed medical questions without an evidentiary hearing | Court permissibly reviewed discovery and found plaintiff’s evidence did not establish probable cause | Court’s factual review affirmed; primary disposition based on lack of established standard of care |
| Whether discovery supports Minore’s opinion that death was from baclofen withdrawal | Records and Minore’s opinion show timeline and tests consistent with withdrawal causing death | Discovery (consult notes, normal tone, pump interrogation, lack of Medtronic docs to Bakir) undercuts Minore’s factual basis | Court concluded evidence did not produce probable cause to proceed against Bakir; affirmed denial |
Key Cases Cited
- Jackson-Baker v. Immesoete, 337 Ill. App. 3d 1090 (2003) (discusses standards of review for 2-402 conversion).
- Froehlich v. Sheehan, 240 Ill. App. 3d 93 (1992) (circuit court should hold evidentiary hearing on probable cause for conversion).
- Ingle v. Hospital Sisters Health System, 141 Ill. App. 3d 1057 (1986) (probable cause standard under section 2-402).
- McGee v. Heimburger, 287 Ill. App. 3d 242 (1997) (describes probable cause as a low threshold; court is gatekeeper).
- Williams v. Medenica, 275 Ill. App. 3d 269 (1995) (definition and quantum of evidence for probable cause under 2-402).
- Medjesky v. Cole, 276 Ill. App. 3d 1061 (1995) (amount of evidence required depends on case complexity; malpractice may require more).
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (2004) (elements of medical malpractice and need for expert testimony to establish standard of care).
- Purtill v. Hess, 111 Ill. 2d 229 (1986) (expert testimony requirement in medical malpractice).