A state appeals panel has ruled a father cannot continue a lawsuit against the hospital that provided care for his newborn son, despite the facility’s delay in inquiring about the mysterious circumstances surrounding a woman who claimed to be the child’s mother but actually murdered the real mother, cutting the baby from the womb to claim as her own.
Yovany Lopez Colunga filed a 30-count complaint against Advocate Health and Hospitals Corporation and several medical professionals associated with Advocate Christ Medical Center in Oak Lawn. He accused Advocate of intentional infliction of emotional distress.
In ruling on a motion to dismiss the complaint, Cook County Circuit Court Judge Kathy Flanagan certified two questions for review by a three-justice panel of the Illinois First District Court of Appeals.
Justice Raymond Mitchell wrote the panel’s opinion, issued May 19; Justices Freddrenna Lyle and David Navarro concurred.
“The crime underlying this case is of unspeakable horror,” Mitchell wrote. “Clarisa Figueroa lured a young expectant mother to her home on the pretense of selling her baby clothes and, instead, murdered the mother, cut her unborn son from her womb, and claimed the baby as her own. Figueroa called for emergency medical assistance, reporting that she had given birth unexpectedly at home. When the baby arrived at Advocate Christ Medical Center, he was not breathing. Doctors resuscitated him and admitted him into the neonatal intensive care unit."
The record further shows the hospital discharged Figueroa within three days, and she made medical decisions for the baby for two weeks “until Chicago Police detectives questioned the medical staff, prompting the baby’s neonatologist to take protective custody,” Mitchell wrote. “Genetic testing confirmed that Figueroa was not the baby’s biological mother. Police subsequently arrested Figueroa for the murder of the baby’s mother.”
When Colungua learned his son’s location, he assumed responsibility for medical decisions and the same doctors cared for the infant until he died a month later.
In sending the matter up on appeal, Judge Flanagan asked the appellate justices to consider whether the hospitable could be liable for conduct alleged to have taken place before it knew Colunga’s identity, and if the complaint would be based on failure to take certain action, rather than intentional conduct.
Colunga alleged the hospital and medical providers intentionally inflicted emotional distress because they “permitted Figueroa to make medical decisions on the baby’s behalf despite the information in Figueroa’s medical records — including her age, lack of verifiable prenatal history, and prior tubal ligation — which should have indicated to the medical providers that she was physically unable to be the baby’s biological mother.”
The panel said Flanagan’s first question alone should resolve the issue, determining the hospital couldn’t be liable for allegations from someone it hadn’t yet identified and who was not physically present.
“Recklessness can support a claim where a defendant knew that severe emotional distress is certain or substantially certain to result and acted in conscious disregard of that risk,” Mitchell wrote. But a claim for “intentional infliction of emotional distress requires conduct undertaken with either purpose or recklessness, because it is the defendant’s culpable state of mind from which a fact finder might infer that the conduct was ‘extreme and outrageous’ as opposed to merely negligent.”
Establishing that state of mind, the panel continued, requires showing “the defendant’s knowledge of at least the person who is substantially certain to suffer emotional distress.”
The panel said the second question was moot and remanded the case to Judge Flanagan for further action.
Colunga is represented by attorneys Sean P. Driscoll, of Driscoll Law Group, and Yvette Loizon, of the Clifford Law Offices, both of Chicago.
Advocate is represented by attorney Krista R. Frick, of the firm of Cunningham, Meyer & Vedrine, of Chicago.
The medical providers are represented by attorneys Aimee K. Lipkis and Melissa H. Dakich, of Cray Huber Horstman Heil & VanAusdal, of Chicago.