Rush-Copley Medical Center not liable for doctor's delayed treatment of woman's kidney stone, appeals court rules

By Karen Kidd | Nov 16, 2018

ELGIN – An Aurora hospital remains not liable in a doctor's decision to wait until the following day to remove a woman's kidney, prolonging her pain and causing serious injuries, a three-justice state appeals court panel has ruled.

The Illinois Second District Appellate Court panel affirmed an earlier Kane County Circuit Court ruling in favor of Rush-Copley Medical Center, finding the plaintiff in the case, Norma Martin, failed to raise issue about whether the doctor, Naveen Divakaruni, was the medical center's employee. A medical center disclosure form which Martin signed upon her admission in 2014 "clearly indicated" the physician was not the medical center's agent, the appeals court's judgment said.

That Divakaruni was not an agent of Rush-Copley was backed up by an affidavit by Ryan Asmus, the medical center's vice president of legal affairs, according to the judgment.

"Generally, a hospital is not liable for the negligence of a physician who is not its employee or agent," the 15-page judgment issued Nov. 7 said. "A plaintiff who seeks to hold a hospital vicariously liable for a physician’s negligence must prove actual or apparent agency. Divakaruni had not been an actual agent of Rush; he was employed by Dreyer and not Rush, as shown by Asmus' affidavit. Thus, to hold Rush liable, plaintiff would have to rely on apparent agency."

Second District Justice Donald C. Hudson wrote the court's judgment, in which Justice Michael Burke and Justice Joseph E. Birkett concurred.

The decision was issued as an unpublished order under Illinois Supreme Court Rule 23, which limits its use as precedent.

Martin's allegations against the medical center and Divakaruni stem from her diagnosis late June 20, 2014. She was suffering from a kidney stone and a urinary tract infection, according to the background portion of the judgment. Divakaruni evaluated her at 10 p.m.

"Divakaruni did not then perform a cystoscopy with a stent placement to relieve the obstruction caused by the kidney stone but negligently waited until the next day," Hudson wrote in his order.

At about 4 a.m. the following day, Divakaruni began to suffer vomiting, shortness of breath and other symptoms.

"Despite being notified of the foregoing, Divakaruni delayed arranging for the 'emergent decompression' of plaintiff until 12:50 p.m.," the judgment said. "After performing a cystoscopy, he placed a stent into her ureter and inserted a catheter to drain the pus that had accumulated behind the kidney stone."

In her litigation against the medical center and Divakaruni, Martin alleged that the delay in treatment resulted in a spread of the infection and septic shock with multiple organ failure. Martin claimed that Divakaruni had been negligent and that the medical center was vicariously liable.

Much of the defense's case depended on a single-page form, Disclosure of Physician Employment Status, that Martin signed when she was admitted to Rush-Copley, which does not list Divakaruni as a medical center employee.

The Kane County judge granted the medical center's motion for summary judgment after the medical center argued that Divakaruni had not been its actual or apparent agent. Martin appealed, saying the judge was wrong in ruling there had been no apparent agency between the medical center and Divakaruni.

During her deposition, Martin testified that she was tired or confused when she was presented physician employment state form but admitted she did initial and sign it.

"There was no evidence that she was mentally incapacitated," the appellate court panel said in its judgment. "Her nonspecific testimony that she had felt confused would be at best a shaky foundation for a finding that she did not know what she was doing. Against that testimony was Divakaruni's near-contemporaneous statements that plaintiff was alert and oriented, was able to describe her pain and recounted that she had had a kidney stone in 2003. To the extent that plaintiff’s ability to understand the consent form was relevant to the issue of holding out, the evidence was so one-sided that it did not raise a genuine issue of material fact."

According to Kane County court records, Martin is represented by attorney Steven Trakhtman, of Chicago.

Rush-Copley is represented by attorney Brian J. Hickey, of the firm of Cassiday Schade, of Chicago.

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Cassiday Schade Circuit Court of Kane County Illinois Second District Appellate Court Rush-Copley Medical Center

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