In one of the latest medical malpractice cases out of the Illinois Appellate Courts, the Third District limited the scope of the doctor-patient relationship, and in doing so prevented a mother from seeking recovery for the inability to obtain life-saving treatment for her newborn child. This case, Estate of Kundert v. Illinois Valley Community Hospital, 2012 IL App (3d) 110007 (January 10, 2012), has not yet been appealed to the Illinois Supreme Court.

In Kundert, the parents filed a medical malpractice suit on their own behalf and on behalf of their deceased son’s estate. Their infant son died at six weeks of age from bacterial meningitis.

When her infant son began experiencing the symptoms of serious illness, Mrs. Kundert called the ER of the defendant, her local hospital. The person who answered the phone at the hospital ER told Mrs. Kundert that she was overreacting, which was “typical for new mothers,” that her son’s symptoms did not require immediate medical attention, and that she should simply give her son Tylenol and periodic tepid baths, and follow up with her physician in the morning.

Based upon these instructions, Mrs. Kundert waited and took her son to her pediatrician at 8 a.m. the following morning. He examined him, called an ambulance, and had the infant transported to the emergency room. The infant was quickly transferred to another hospital for specialized care. He was treated for bacterial meningitis, but died about two weeks later. Plaintiffs alleged that the 15 hours lost between Mrs. Kundert’s call to the E.R. and the infants treatment the following morning were crucial hours which could have saved the infant’s life.

Certainly, this case is horrifying to any parent. Unfortunately, however, this case turned upon the fact that the person who answered the phone at the hospital ER also told Mrs. Kundert that the hospital did not have the personnel or equipment required to treat infants. For this reason, the Appellate Court of Illinois for the Third District affirmed the decision of the Circuit Court dismissing the case.

This is because the court found that the hospital employee informing Mrs. Kundert that it could not treat her infant daughter prevented the formation of a doctor-patient relationship, a necessary element of a medical malpractice claim.

Each of the cases upon which the court based its decision involved a defendant medical professional who did not provide medical advice directly to the patient regarding treatment. The only exception was an appellate case in which the “patient” was a volunteer helping to test medical equipment, and specifically declined to accept advice from the physician who reviewed the test results. These cases are thus completely inapplicable.

In short, although the court correctly noted that a physician-patient relationship is necessary for a medical malpractice claim, it failed to acknowledge that by offering Mrs. Kundert a diagnosis (an “overreacting mother” and providing her with specific medical advice and instructions, the hospital willingly created such a relationship.

The court fixated on the hospital’s statement that it lacked the equipment to provide medical services to infants, stating that this could not be interpreted in any way other than as declining to treat the infant. But what the court fails to recognize is that medical treatment does not include only providing inpatient hospital services, but also the simple act of consulting with patients and instructing them as to how to treat their condition at home – exactly what occurred here, despite the hospital’s statement.

To discuss a potential case with an experienced Chicago medical malpractice lawyer at Passen Law Group, call us at (312) 527-4500.