*1 separate intention that such receive treatment and apart devices from weapons. other unlawful above,
For the reasons set affirm forth we the trial court’s verdict judgment. Affirmed. GALLAGHER, JJ.,
CERDA and concur. FICKE, Special Ficke, Deceased, Dorothy DARLENE Adm’r of the Estate of al., Plaintiffs-Appellants, SYSTEMS, et v. EVANGELICAL HEALTH d/b/a al., Hospital, Defendants-Appellees. Christ et (6th Division)
First District No. 1 — 96—0238 Opinion filed December 1996.
CERDA,J., dissenting part. concurring part (Arthur Berkson, Levin, Ltd., Chicago M. and Norman Gorov & Gorov Berkson, counsel), appellants. N. for (Brian
Cassiday, Gloor, Sundheim, Chicago C. Catherine Schade & L. Keller, counsel), Garvey, appellee Evangelical and Jennifer A. Health for Systems. Lenderman, Stouffer, V. Smith II & John and Donald B. both of Pretzel (Robert Chartered, Chicago Johnson, Marc Chemers and Anne Scheitlin counsel), Aruguete. appellee for Jose opinion JUSTICE GREIMAN delivered the court: whether, presents questions This case to what extent and hospital physician may whom a be for alleged liable violations (the Act) (755 Surrogate of the Illinois Care Health Act et (West 1992)). seq. decide, subject The Act authorizes a conditions, certain whether to discontinue treatment when the to lack capacity. found 9, 1993, plaintiffs, Darlene, On December Thomas and Michael Ficke, against Evangelical complaint filed four-count Health (the Systems Hospital) Aruguete (Aruguete), seeking and Dr. Jose damages injuries plaintiffs’ decedent, Dorothy for sustained Ficke (Ficke). maintained, Plaintiffs in count I their second amended complaint, Hospital was liable to for decedent’s estate its comply failure certain provisions with of the Act. III Count claims Hospital similarly liable to Ms. Ficke’s children for such pursuant Count damages physical violations. IV seeks to the Act for *3 injuries plaintiffs Aruguete’s mental incurred as result of negligent misapprehension Ficke of of the Act. Count complaint, II of brought by against Aruguete, the amended the estate was dismissed with leave to and is ap- refile not before this court on peal. opinion 21,
In a memorandum and order entered on December 1995, I, trial prejudice the court dismissed with counts III and IV of plaintiffs’ 1996, complaint. January 11, plaintiffs second On amended timely appeal their of filed notice from the trial of court’s order dis- follow, missal. For the reasons that we affirm. following
The are plaintiffs’ facts adduced from second amended complaint. Hospital, Ficke was admitted under to the care of Dr. (stroke). Aruguete, 8, 1993, diagnosis on of March with a CVA years diabetes, arthritis, 81 history Ficke was old with a recent of gout, congestive hypertension, failure, respiratory heart disease and (DNR) depression. A "do in not recessitate” order was entered Ficke’s 17, chart on March 1993. alleges shortly
Plaintiffs’ complaint that on or after her admis- Hospital, sion to Ficke lacked decisional and suffered "qualifying from a of operation condition” as to the Act because
889
meaningful
thought, was un-
ability
to communicate
she lacked
self
her environ-
socially
lacked
interact and
awareness
able to
Aruguete continued to
During
stay
Hospital,
at the
Ficke’s
ment.
provided.
treatment,
including
Hospital
prescribe
surgery, which
intervention
life-prolonging
rendering life-sustaining
These acts
Moreover, the fail-
wishes.
contrary
plaintiffs’ expressed
were
rights
plaintiffs
their
Aruguete
inform
Hospital
ure of the
to
Act,
own,
noncompliance
independent,
in
their
to
under
addition
terms,
plaintiffs’ injuries.
and caused
with the Act’s
violated
Act
law, competent
have the
general principle
of Illinois
adults
As
care,
right
any type
including
refuse
medical
recognized
right
The
refuse
care has been
treatment.
right-to-privacy
principles
deeply
and is
under constitutional
autonomy,
self-
ingrained
principles
common law
of individual
Fatum,
determination,
generally
See
S.
R.
and informed consent.
Kane,
Surrogate
A
Health Care
LeBlang,
& T.
Review the Illinois
Act,
(1992);
Botsford,
Ry.
B.J.
see
Co. v.
124
also Union Pacific
("No
251,
734,
250,
737,
1000,
141
L. Ed.
11 S. Ct.
1001
U.S.
35
sacred,
carefully guarded, by the com-
right is held more
or is more
law,
right
every
possession
mon
than the
individual
his own
all restraint
interference of
person,
control of
free from
law”).
others,
unquestionable authority
unless
clear and
right,
Although
right
recognized,
implementation
intervention,
traditionally
through judicial
has been cumbersome
many
resulting
very
manner
untimely,
and often
instances
sought
by patients prior
legal
vindication of
death
to be avoided
See,
321,
right
forgo
Conroy,
their
treatment.
In re
98 N.J.
e.g.,
342,
(1985);
Court,
1209,
163
Bartling
Superior
486 A.2d
1217
v.
Cal.
186, 190,
(1984);
220,
Kennedy
App.
Rptr.
209 Cal.
221
John F.
Me
(Fla. 1984);
Bludworth,
921,
Hospital
452
923
Satz
morial
So. 2d
v.
(Fla.
D'Alessandro,
Perlmutter,
1980);
379
359
Corbett v.
487
So. 2d
(Fla.
368,
1986);
L.H.R.,
439,
App.
So. 2d
In re
253 Ga.
321 S.E.2d
115,
(1984);
629, 631,
In re
117-18
Spring,
380 Mass.
N.E.2d
(1980);
369,
64, 66,
Storar,
363,
In re
52 N.Y.2d
420 N.E.2d
810,
(1984);
Hamlin,
In re
102 Wash. 2d
689 P.2d
N.Y.S.2d
Illinois,
legislative response
in this area first took
form
(Will
Act) (755
seq.
et
Living
of the Illinois
Act
Will
1992)).
recognized
the fundamen
The Will Act
that individuals "have
*4
rendering of their
right
relating tal
to control
the decisions
care,
delaying
including
to have death
own
decision
terminal condi
procedures
or withdrawn in instances
a
withheld
1992).
Act,
the Will
individuals
tion.” 755 ILCS
Under
concerning
can
life-sustaining
document
their wishes
treatment
they develop
capacity
a terminal
and lack
before
condition
(West 1992). However,
living
make such
decision. 755 ILCS 35/3
proved
adequately
wills soon
too inflexible to
address the needs of
wishing
individuals
make
They
advance health care decisions.
illness,
applicable only
requires
were
in cases of terminal
which
Moreover, they
death
permit
be imminent.
not
health
would
care
providers
hydration
to withhold
withdraw artificial nutrition or
when such action would be the sole cause of death. See
Subsequently, legislature passed the Illinois IV of article (Powers Law) Attorney Attorney Powers of for Health Care Law (755 (West 1992)), permits ILCS an which individual to dele 45/4—1 limitation, gate, all powers may "without an individual have to be any informed consent type about refuse or withdraw powers may health for all a parent care the individual and have to control or consent health for a care minor child.” 755 ILCS 45/ (West 1992). Thus, 4—3 present absent the limitations in the Will Act, Attorney provides comprehensive Powers Law a more delegating Yet, effective means of health-care decisions. under either scheme, statutory provision no is made for individuals who lack decision-making capacity living and who have not executed a will or power attorney for health care. supreme
Two
"gap”
court decisions addressed this
and found a
right
to refuse
in our state’s common law
in
provisions
of the Probate Act of
et
5/1—1
(West 1992)).
seq.
(1989);
Longeway,
In re Estate
Ill.
2d 33
re
Greenspan,
Estate
Ill.
The court held that a sur
rogate
right
lacking
can exercise the
for
individual
(1)
only
terminally ill
if:
the individual is
as
defined
sec
2(h)
(2)
Act;
of the
diagnosed
Will
the individual has been
as ir
(3)
reversibly
vegetative state;
persistently
comatose or
physician
attending
individual’s
and at
two
consulting
least
other
(4)
physicians
diagnosis;
right
have concurred
the individual’s
(5)
any
State;
outweighs
interests
what the individual would
through
convincing evidence;
have decided is ascertained
clear and
allowing
a court
an order
enters
to exercise the
right
Longeway,
individual’s
to refuse or terminate treatment.
47-53;
Ill. 2d at
Greenspan,
Thus, legislative improved expedited while enactments surrogate decision-making where advance directives were executed attorney, through living power either a will or individuals not dependent judicial either on "covered” statute remained interven- *5 Health Care response, In the Illinois flaws. and its attendant Illinois’ common in 1991. The Act codifies Surrogate passed Act was life-sustaining treatment rights forgo and constitutional law surrogate decision-making allowing a private process establishes make life- of candidates from a hierarchical list be chosen for lack decisional sustaining decisions those who treatment attorney. living or applicable power an will not executed and have (1992) (McMorrow, J., dissent- C.A., App. In re 236 Ill. See ing); B.J. at 127. 80 Ill. capacity, lacks applies
The Act when individual "qualifying has a condi- an advance directive and has not executed follows: "Qualifying is defined as tion.” condition” in following conditions of one or more of "[T]he existence by writing patient’s record patient certified in in the medical attending qualified physician: at other physician and least one (1) injury an 'Terminal condition’ means illness or for recovery, prospect of death is which there is no reasonable imminent, application life-sustaining and the treatment only prolong dying process. would that, a condition 'Permanent unconsciousness’ means (i) certainty, high degree perma- ato of medical will last (ii) nently, improvement, thought, in which sensa- without tion, action,, interaction, purposeful awareness social (iii) absent, self for which initiat- and environment are ing treatment, continuing life-sustaining light or in of the patient’s condition, provides only medical minimal medical benefit.
(3) 'Incurable or condition’ means an illness or irreversible (i) injury cure prospect for which there is no reasonable or (ii) recovery, ultimately patient’s that will cause the death continued, life-sustaining even if (iii) treatment initiated or imposes imposes pain that severe or otherwise (iv) patient, inhumane burden on the for which initiat- treatment, light ing continuing life-sustaining or of the condition, provides only minimal medical 1992). added.) (West (Emphasis ILCS benefit.” 40/10 provides: The Act further patient qualifying has a
"The determination that a condition presumption regarding application no or non- creates life-sustaining only It application treatment. determi- after attending physician patient qualify- that the has a nation may ing surrogate consider condition that decision maker forgo life-sustaining making whether or this not treatment. decision, weigh shall the burdens on the initiating continuing against added.) (Emphasis benefits of that treatment.” ILCS 1992). backdrop It is this we are asked to determine whether, extent, predicated liability to what on a health care provider physician’s may imposed. violation of the Act be involuntary
Our review of an order of dismissal is de novo. Dace International, (1995). Inc., Apple Computer, App. Inc. v. Ill. 3d 234 In reviewing a pursuant dismissal to section 2—619 of the Code of (West 1992)), Civil Procedure determine we must 5/2 —619 allegations whether complaint, light when read plaintiff, most favors are sufficient to forth upon set a cause of action may granted. Ivanelli, which relief Regan App. be 3d 798 *6 Hospital I. Plaintiffs’ claims the plaintiffs’ I Count of complaint second amended is a survival ac- brought on alleges behalf of Ficke’s estate which that (1) Hospital negligent failing was obtain to certification of Ficke’s (2) condition,” "qualifying providing to contrary Ficke to (3) (plaintiffs), failing wishes her children inquire to into the (4) availability surrogate, failing plaintiffs of a to advise of their (5) Act, rights failing under the and to effectuate Ficke’s transfer to hospital. complaint another III allega- Count of the makes similar brought by plaintiffs tions and is capacities in their individual for the anguish they each suffered as witnesses to their mother’s unneces- sary suffering. negligence, complaint
To a for a allege state cause action must duty, facts a duty, sufficient to show the existence of a breach that injury plaintiff proximately and an by to the that was caused that Hospital Center, breach. Kirk v. & Michael Reese Medical 117 Ill. 2d (1987). 507, Hospital III, 525 The to I moved dismiss counts maintaining plaintiffs that a failed to state cause of action because impose duty hospitals prior finding Act does not a on by attending certification physician patient a lacks decisional capacity qualifying and has a condition. question largely statutory interpretation.
The us before is one of statutory The fundamental canon of construction is to ascertain and give legislature. effect to the intention of the v. Varelis Northwestern (1995). 449, Hospital, Memorial 167 Ill. 454 2d Courts will look first to (Metropolitan words the statute v. Insurance Co. Wash Life burn, 486, (1986)), language 112 Ill. 2d 492 for the used legislative legislature is Kirwan the best indication of intent.
893 clear, (1989). no language is 163, such When Welch, Ill. 2d John’s necessary. Henry v. St. interpretation to other tools resort 533, 138 Ill. 2d Hospital, provider health care requires 25 of the Act Section sur availability possible inquiry as to the a "make reasonable (4) ILCS this subsection.” through rogates 40/25(a) in items listed (West 1992). patient "a only when However, duty arises this ILCS capacity.” 755 lacks decisional qualifying a condition has 40/25(a) (West 1992). that the "determination provides The Act by the at shall be made capacity patient lacks decisional adult certainty.” degree medical to a reasonable tending physician 1992). 40/20(c) (West added.) Further, ex "[t]he ILCS (Emphasis writing in be documented qualifying a condition shall istence of and shall attending physician record 40/20(e) (West nature, if known.” 755 include its cause 1992). terms, obligates attend mandatory clearly, Act The medically both lack of decisional ing physician diagnose condition, including its cause. We qualifying a and the existence of is the inescapable since it entirely appropriate and almost find this This is diagnose patients. his or her province to treat and physician’s potential life the determination involves particularly true when death decision. hospital attending physician, not
Accordingly, it is for the staff, particular patient. applies the Act its to determine whether patient lacks attending physician’s determinations that Absent the condi- qualifying of three capacity and suffers from one capacity in the tions, to have decisional "presumed advanced contrary regard without notice to the absence of actual 40/20(c) (West added.) 1992);In re Estate (Emphasis 755 ILCS age.” (1995).Thus, contrary plaintiffs’ Austwick, App. *7 dissent, or what the by constructive "notice” argument, shared the trigger the to perhaps known is insufficient Hospital should have Hospital’s the Act. duties under observes, hospitals to not, require
The Act as the dissent does mak- surrogate decision process initiate the of make "some effort to of Conversely, initiation or identification ing.” App. Ill. 3d at 897. responsibility of the surrogate making is the process the of decision on this legislature quite clear patient’s attending physician. The necessary potential to avoid point, and we find such delineation that providers health care physicians and other conflicts between swift, to be a was intended might prolong to frustrate or what serve diagnosis. doctor-patient inquire hospital the duty part no on the of
Because there is availability finding by into the of a until a made has been attending physician the that patient the lacks decisional condition,1 a qualifying and has the trial court was correct to dismiss against Hospital, the claims brought both the estate and the plaintiffs individually. Plaintiffs’ Aruguete
II. claims Dr. Count plaintiffs’ complaint alleges IV of amended plaintiffs, as pain suffering,” witnesses to Ficke’s "continued were, by conduct, Aruguete’s negligent virtue of "caused to did grievous painful injury, mental, suffer physical and do and will, future, in the Initially, continue to so suffer.” we observe that a parent the death of indeed an event occasioned the continued suffering However, grieving family. of decedent’s it is another injury. matter whether the Act authorizes a cause of action for such right family The Act does an express allowing not contain patients members of assert a action cause of for violation its However, private right may terms. if implied action be plaintiff is a member the class for whose benefit the Act was enacted, the purpose cause of action is consistent the underlying with Act, plaintiff’s injury designed is one the Act was prevent, necessary provide adequate cause action is remedy 296, for violations of the Act. Corgan Muehling, v. (1991); Sawyer Realty Group, 312-13 Jarvis Ill. 2d Corp., Inc. (1982). 379, 391
Although
patient’s
private right
we
that a
has a
believe
estate
Act,
family
action under the
same
cannot be said for a
Although plaintiffs
members or
are
loved ones.
correct that the Act
incompetent
was intended to
aid both
and other "involved
act,
Although
independent duty
no
Federal
such
exists under this
1990,
Act, passed
Patient
requires
Self-Determination
all
care
health
providers
receiving
competent
inform all
adult
medicaid
medicare to
patients,
procedures,
even those admitted for minor
about
on an
state laws
any
rights
individual’s decisional
and advance directives and to record
such
patient might
only provides
have.
directive
The federal Act
termination
Budget
of federal revenue as a sanction for its
Omnibus
Reconcili
violation.
508,
ation Act
Pub No.
1395cc
§
L.
104 Stat.
U.S.C.A.
101—
1995)).
Supp.
instances,
private
1992 &
some
made
efforts have been
following
supplement
physician’s
process.
example,
role
this
For
Quinlan case, approximately
Jersey’s
hospitals
85% of New
acute-care
prognosis
attending physician’s
established
committees
review
prognosis
life-support
when
In re
withdrawal
is under consideration. See
Jobes,
394, 421,
434, 448
Matter
108 N.J.
529 A.2d
*8
40/5(a)
such
1992)),
action for
a cause of
parties”
contemplated.
similarly
not
parties” was
"involved
under
of action
case, allowing plaintiffs a cause
present
In the
remedy for viola-
adequate
an
"necessary
provide
not
the Act is
ac-
can be
312-13. This
143 Ill. 2d at
Corgan,
of the Act.”
tions
brings a direct ac-
estate
patient’s
a
a
or
complished where
Moreover,
the Act.
under
physician
for violations
against
suffering raises
aof
extending a
of action to witnesses
cause
one
concerns,
for whom does
including when and
practical
serious
for dam-
is,
maintain an action
is able to
the line”? That who
"draw
members,
more visits
with five or
ages?
family
individuals
Immediate
bed,”
or relatives who
only
those friends
patient’s "death
to the
best,
prove to be an
this would
actually
the decedent? At
cared about
the traditional
rule of
that conflicts with
process
inexact
and one
"patient-hospital
limiting
in the medical arena
claims
Kirk,
Accordingly, we
Affirmed.
GALLAGHER, J., concurs.2 dissenting CERDA, concurring part specially
JUSTICE part: affirming of counts majority’s of the dismissal
I concur with the
I
IV,
affirming of the dismissal of count
III
I dissent on the
but
Hospital.
Christ
(1)
if
implied under a statute
private right
A
of action can be
the statute was
class for whose benefit
plaintiff is a member of the
(2)
the stat-
enacted;
underlying purpose of
it is
with the
consistent
(3)
designed
prevent;
ute;
injury
the statute was
plaintiff’s
is one
remedy
adequate
for violations
necessary
provide
it is
312-13,
296,
Ill. 2d
N.E.2d
Muehling,
v.
Corgan
the statute.
(1991).
particu-
protection
a statute is enacted for
When
li-
individuals,
may result in civil
of its terms
lar class of
a violation
Corgan,
remedy
not mentioned
the statute.
ability even if that
Benjamin Electric
citing
v.
Heimgaertner
143 Ill. 2d at
Manufac-
prior to his
originally
argument
in this case
heard oral
2Justice Rizzi
record,
Gallagher
was substituted and has reviewed
retirement.
Justice
argument.
recording of the oral
briefs and audio
(1955).
Co.,
152, 155,
turing
The
certain
implica-
demands
statutes
private remedy
compensate
of a
aggrieved person
to
an
who
belongs
persons
to the class of
whom
designed
the
was
statute
to
protect. Sawyer, 89 Ill.
underlying
2d at 386-87.
of the
Consideration
policy
overriding
of the statute and the
purpose
important
is
in
determining
right
private
whether a
Sawyer,
action exists.
Ill.
2d at
continually
387. Illinois courts have
willingness
demonstrated a
imply private remedy
where there exists a
need
clear
to effectu-
ate
of a
purpose
Sawyer,
the
statute.
I conclude that there is a cause of a patient viable action for who capacity lacks decisional and has a qualifying who condition when providers comply health care requirements. did not with Act’s the Dorothy Ficke was member the class for whose benefit the stat- private ute was A enacted. cause of action is consistent with the statute, underlying purpose injury Dorothy of the the Ficke is one designed the statute prevent, private was and a cause of action is necessary provide adequate remedy for violations of the stat- ute. against Hospital alleged Dorothy
Count I the Ficke lacked capacity decisional and a qualifying suffered from condition within meaning in "lacking Act that she was in communication of meaningful thought, social interactions of self awareness and and/or her For patient, provider, environment.” such a the health care which including is only physicians hospitals defined as not but nurses (755 (West 1996)), Supp. Ann. must make reasonable in- 40/10 quiry availability authority or, as agent of a health care if unavailable, availability possible surrogate decision makers. 1992). 40/25(a) (West 755 ILCS Ann. duty Hospital argues providers
The this health care is not triggered qualifying before the existence of the condition and the capacity writing lack patient’s of decisional is certified by attending physician medical record at least one other only qualified physician. it after While is these written certifications surrogate may are made maker that a decision consider whether to forgo Supp. ILCS Ann. 1996)), make hospital need not and should not wait to the reason- are made when inquiries until the written certifications able in its care lacks knows or know that hospital should qualifying of the probably has one three conditions. charge treat- attending physician patient’s of a
Although the ment, knowledge of the of its hospital sufficient condition has surrogate deci- it that a patients probable to determine whether condition, and patient’s sion maker is needed. Nurses monitor make notes in the medical record. physicians and nurses surrogate making process decision Hospitals should facilitate disregard rights of a be to sit and should not allowed hospitals make some effort to initiate the patient. requires The Act the circuit process making. decision I would reverse Hospital. I dismissing order count Christ court (The Illinois, A.P., Petitioner-Appellee, People a Minor of the State re *10 A.P., Respondent-Appellant). Second District No. 2 — 95—0148
Opinion January filed 1997.