This blog post was written by HeplerBroom Summer Associate Caitlin Jarman. Partner Elizabeth Dyer Kellett also contributed to the post.
The Seventh Circuit’s decision on the distinction between “treatment” and “diagnosis” determined its application of the Illinois Tort Immunity Act.
Glen Lash presented to Sparta Community Hospital District (“Sparta hospital”) with complaints of shortness of breath and chest discomfort. Lash v. Sparta Cmty. Hosp. Dist., 38 F.4th 540, 541 (7th Cir. 2022). Upon arrival, Lash’s vital signs were taken and were determined to be “abnormal.” Lash, 38 F.4th at 541. An EKG, blood work, and chest x-ray were ordered to further evaluate Lash’s condition. Id. Although the test results did not show any signs of a previous heart attack, his white blood cells and blood sugar were slightly elevated—indicative of a potential cardiac event. Id.
After reviewing Lash’s x-ray results, Dr. Robert Panico identified mild congestive failure and an enlarged right hilum. Id. (Mild congestive heart failure is a condition in which the heart muscle does not properly pump blood, and an enlarged right hilum can be indicative of heart failure or cancer.) Id. Based on this information, Dr. Panico recommended a CT scan to rule out a mass. Id. Dr. Motwani was Lash’s main physician responsible for his treatment and ultimately diagnosed him with an “anxiety reaction.” Id. Dr. Motwani prescribed Lash medications and provided instructions for his treatment; however, no one informed Lash of his congestive heart failure or enlarged right hilum prior to his discharge. Id. Lash went into cardiac arrest the next day and was taken to the emergency room, where he was pronounced dead. Id.
Plaintiff Dienna Lash, Glen Lash’s widow, brought medical malpractice claims against Drs. Panico and Motwani in the United States District Court for the Southern District of Illinois on behalf of her husband’s estate. Id. at 541–542. She also filed a complaint alleging vicarious liability and violations of informed consent against the hospital. Id. at 542. After the district court entered summary judgment in favor of the hospital, Plaintiff appealed. Id. at 541–542.
In evaluating both sides’ arguments, the Seventh Circuit focused only on Sparta hospital’s argument pertaining to the Illinois Tort Immunity Act. Specifically, the Seventh Circuit highlighted Section 6-105, which states that local public entities (i.e., Sparta hospital) are not liable
for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others.
745 ILCS 10/6-105.
The Seventh Circuit stated that this provision was effectively repeated in Section 6-106(a), but it noted that Section 6-106(d) states “the Act does not ‘exonerate’ an entity for an ‘injury proximately caused by [an employee’s] negligent or wrongful act or omission in administering any treatment prescribed for mental or physical illness or addiction.’” Lash, 38 F.4th at 543 (citing 745 ILCS 10/6-106(d)). The Seventh Circuit explained that, under the Act, local public entities are immune “from liability based on an employee’s negligent ‘diagnosis,’ not negligent ‘treatment.’” Id. at 543. In an effort to differentiate the terms, the Seventh Circuit turned to their plain meanings, quoting Webster’s Third New International Dictionary: (1) diagnosis is defined as “the ‘art or act of identifying a disease from its signs and symptoms,’ and as an ‘investigation or analysis of the cause or nature of a condition, situation, or problem.’”; and (2) treatment is defined as “the action or manner of treating a patient medically or surgically.” Id.
In order to evaluate whether the negligence alleged in this case related to diagnosis or treatment, the Seventh Circuit considered the medical staff’s efforts, including multiple diagnostic testing, medication, and an anxiety diagnosis, as well as Lash’s comorbidities. The Court also referred to the fact that Plaintiff’s complaint took issue with the testing performed to reach the conclusion that this case involved alleged negligent diagnosis as opposed to treatment. Id.
The Seventh Circuit also looked at the Illinois Court of Appeals’ decision in Mabry v. County of Cook for guidance and found that case to be “nearly indistinguishable” from the Lash case. Id. at 543–544. In Mabry, Ada Pinkson was misdiagnosed with asthma and prescribed an anti-inflammatory drug after undergoing a chest x-ray. Mabry v. Cnty. of Cook, 315 Ill. App. 3d 42, 44–45 (2000). Pinkson later died from an undiagnosed pulmonary embolism. Mabry, 315 Ill. App. at 44–45. In finding that the hospital was immune from liability, the Illinois Court of Appeals reasoned that the hospital provided proper treatment related to an asthma diagnosis but that failure to properly diagnose the pulmonary embolism led to the patient’s death. Id. at 56. In both Mabry and Lash, decedents had a history of risk factors, underwent diagnostic testing, and the doctors made a misdiagnosis—circumstances in which immunity bars any suits against the hospitals. Lash, 38 F.4th at 544.
Plaintiff unsuccessfully argued that decedent was improperly treated based on Dr. Motwani’s diagnosis of lymphadenopathy (swelling of the lymph nodes). Id. Plaintiff argued that the medical staff were negligent in treating her husband’s lymphadenopathy since they only prescribed treatments for his anxiety diagnosis. Id. However, the Seventh Circuit rejected this argument because cardiopulmonary disease, not lymphadenopathy, caused Glen Lash’s death. Id. Since Plaintiff could not provide evidence demonstrating a connection between lymphadenopathy and her husband’s fatal heart condition, the Court found the hospital to be immune under the Illinois Tort Immunity Act. Id.
Plaintiff was also unsuccessful in her informed-consent claim. Informed-consent claims require a plaintiff to show “(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment [he] otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment.” Crim ex rel. Crim v. Dietrich, 409 Ill.Dec. 221, 67 N.E.3d 433, 438–39 (2016) (quoting Davis v. Kraff, 405 Ill.App.3d 20, 344 Ill.Dec. 600, 937 N.E.2d 306, 314–15 (2010)). However, because decedent did not receive any treatment related to his fatal cardiopulmonary disease, the Seventh Circuit found that “no doctor could have failed to disclose information that might have changed [decedent’s] decision.”. Lash, 38 F.4th at 544.
The Court’s application of the Illinois Tort Immunity Act in determining a hospital’s immunity for vicarious liability claims turned on the important distinction between what constitutes treatment versus what constitutes a diagnosis. Many diseases have overlapping symptoms, which can lead to the unfortunate circumstance of a physician misdiagnosing a patient. However, this Act helps to protect hospitals in cases where the actions of its agents were not negligent in their treatment, merely misguided in their diagnosis.