Franciski v. University of Chicago Hospitals

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 02-4358
SHERRY FRANCISKI, and CHRISTOPHER EVANAUSKAS,
Individually, and as Parents, Legal Guardians, and
Next Friends of KEEGAN M. EVANAUSKAS, Deceased,
Plaintiffs-Appellants,
v.

UNIVERSITY OF CHICAGO HOSPITALS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 01 C 510—Theresa L. Springmann, Judge.
____________
ARGUED JUNE 3, 2003—DECIDED AUGUST 1, 2003
____________

Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
BAUER, Circuit Judge. Plaintiffs Sherry Franciski and
Christopher Evanauskas filed a four-count complaint
against the University of Chicago Hospitals (UCH), alleg-
ing Intentional Interference with the Parent-Child Rela-
tionship, Intentional Infliction of Emotional Distress, False
Imprisonment, and Defamation, for events surrounding
the death of their infant son, Keegan Evanauskas. The
district court granted summary judgment in favor of
2 No. 02-4358

UCH on all four claims, and the parents appeal only
with respect to their claims for Intentional Infliction of
Emotional Distress and Defamation. We affirm.

BACKGROUND
Keegan Evanauskas was born on June 20, 2000, at
Community Hospital in Munster, Indiana. Keegan was
immediately flown to UCH and placed in the Neonatal
Intensive Care Unit (NICU) because doctors diagnosed
him with a congenital diaphragmatic hernia (CDH), a
condition in which the abdominal contents protrude into
the diaphragm. As a result of his CDH, Keegan’s left
lung did not fully develop in the womb and was only the
size of a nickel, necessitating the use of a ventilator and
a tracheostomy tube to help him breathe. Doctors also
diagnosed Keegan with reflux esophageal disease and an
obstruction of the superior vena cava, the principal vein
that drains blood from the upper body.
During the first few months of his life, Keegan under-
went several operations to correct his ailments. In par-
ticular, doctors inserted a gastric tube (“G-tube”) into
Keegan’s stomach so that he could be fed directly through
it, because normal bottle feeding created a risk of aspira-
tion. He required fourteen different medications that
were administered through his feeding tube or intrave-
nous sites in his head, arms, and legs.
Keegan spent the first seven months of his life at
UCH until he was released to his parents’ care in January
2001. Prior to his discharge, UCH arranged for the provi-
sion of medical equipment necessary to support Keegan
at home, and for part-time, home nursing care, because
his parents both worked during the day. During the
month Keegan was home, he was readmitted to the hos-
pital on two different occasions, the first in late January
2001 when Keegan swallowed water from his ventilator
No. 02-4358 3

tube. Franciski dialed 911 and an ambulance rushed
Keegan to the emergency room. At the emergency room,
Franciski became so upset with the doctors’ decision to
insert an intravenous line into Keegan that she left the
hospital. Her behavior that day caused hospital staff to
report Franciski to Indiana Child Protective Services
(ICPS), stating that she had been combative and ver-
bally abusive while in the emergency room.
Keegan’s second hospitalization occurred shortly there-
after, also in late January 2001. On this occasion, the
nurse providing part-time home care told Franciski that
Keegan did not look well and should probably be taken
to the hospital. Franciski, however, left the home to run
errands. After she had returned, Keegan stopped breath-
ing and was rushed back to the hospital. Following this
incident, the nursing agency reported Franciski to ICPS
for refusing to take Keegan to the hospital. During his
second hospitalization, doctors discovered a blood infec-
tion and he was readmitted to the Pediatric Intensive
Care Unit (PICU) at UCH in early February 2001, where
he remained until his death on June 8, 2001.
While Keegan was hospitalized at UCH his parents’
relationship with hospital staff was troubled. On numer-
ous occasions during his stay in the NICU, Franciski raised
her voice with personnel, had a speech and swallowing
therapist removed because the therapist would not al-
low Franciski to bottle feed Keegan (though such feeding
created a risk of fatal aspiration), told one of Keegan’s
doctors to “get lost,” complained about the cost of hospital
parking and telephone calls to the NICU, and complained
when Keegan’s circumcision and G-tube placement sur-
geries were delayed in order to accommodate more urgent
needs of other children.
Franciski’s behavior did not improve when Keegan
was readmitted to the PICU in February 2001. She com-
4 No. 02-4358

plained when residents and fellows cared for Keegan
and also when certain nurses were not assigned to him.
Both parents yelled and used profanity with Keegan’s
nurse care manager, Lynn Meyrick, and Evanauskas
called one of Keegan’s nurses a “bitch” when she refused
to let him examine Keegan’s medical chart without a
physician present.
This poor behavior, however, culminated over Memorial
Day weekend on May 28, 2001. After returning from a
family vacation, Franciski and Evanauskas arrived at
UCH between 1:00 p.m. and 1:30 p.m. Upon their arrival,
they claimed that Keegan was not properly positioned in
his bed, that curdled milk was in his G-tube, that his dia-
per was wet, that his tracheostomy tubes were twisted,
that he had not been bathed all day, and that his toys,
books, and bed linens were all over his bed. According to
the mother of another child in the PICU, Keegan’s par-
ents “just started going off,” becoming very loud and using
profanity to the point that one mother removed her child
from his ventilator and took the child out of the room.
Franciski prepared a bath for Keegan and disposed of
his wet diaper and G-tube cannister. They repositioned
Keegan on the bed and removed his bed linen before
Mary Strenski, the charge nurse on duty that day, arrived
in the PICU. Strenski had been informed of their behavior
by a staff nurse, and as the charge nurse, Strenski was
responsible for dealing with any problems as a result of
nursing care. Evanauskas asked Strenski where Keegan’s
nurse was, and Strenski responded that the nurse was
on her lunch break.
Franciski then yelled that Keegan looked like “shit” and
that there was “shit everywhere.” Though Franciski
would not let her close enough to check on him, Strenski
checked Keegan’s chart, which showed that his nurse had
changed his diaper prior to going on her lunch break.
No. 02-4358 5

Franciski yelled and cursed at Strenski and demanded to
see a supervisor. Complying with that request, Strenski
called the PICU Medical Director, Dr. Madelyn Kahana,
and informed Dr. Kahana that Keegan’s parents were
very upset. Dr. Kahana sent Bruce Borowski, the Adminis-
trator on Call responsible for addressing complaints from
patients and their families, to the PICU.
When Borowski arrived and inquired as to the prob-
lem, Franciski again stated that Keegan looked like “shit”
and the two parents continued to yell and curse. Borowski
asked them to calm down so that a civil conversation
might take place, and when they refused, he warned
them that if they did not calm down security would remove
them from the hospital. By this time, a crowd had formed
outside, and amidst the screaming, Borowski asked to see
Keegan’s diaper. Franciski promptly retrieved the soiled
diaper from the trash and shoved it in Borowski’s face.
Borowski again asked them to calm down, but Franciski
replied, “I’m not fucking calming down.” She then poured
the contents of Keegan’s G-tube cannister on the floor and
stated, “What the fuck are you going to do now?” Strenski
phoned hospital security, who arrived and escorted the
parents from the premises. As he was leaving, Evanauskas
told Borowski, “I’ll see you again.”
Borowski and Strenski then reported the situation to
Dr. Kahana, who had already heard numerous com-
plaints about prior incidents of Keegan’s parents’ poor
behavior, particularly that they were loud, vulgar, ag-
gressive, and hostile with UCH staff. The following day,
Dr. Kahana requested that the UCH social worker, Lisa
Kuntz, contact ICPS and request an investigation be-
cause doctors believed that Keegan would be able to
return home shortly and Dr. Kahana had reservations
6 No. 02-4358

about his parents’ ability to control their anger.1 Kuntz
also learned that hospital administration had decided
to prohibit the parents from visiting Keegan until a con-
versation about proper behavior had taken place.
Kuntz contacted both parents to schedule a meeting
about proper behavior, but they repeatedly refused to
meet. On June 5, 2001, they were allowed to visit
Keegan with a security escort for one-half hour, though the
nurse on duty allowed them to stay for a full hour, because
Keegan’s health had deteriorated unexpectedly. During
this visit, Evanauskas attempted to photograph Keegan
to document his condition, but security confiscated the
camera until the visit concluded. On June 6, 2001, despite
the parents’ refusal to meet with hospital personnel about
their behavior, UCH lifted all visiting restrictions.
On June 8, 2001, Meyrick called Franciski at approxi-
mately 9:00 a.m. and informed her that Keegan was not
doing well and that she should come to the hospital im-
mediately. Franciski arrived shortly after 10:30 a.m., but
she was too late; Keegan had passed away shortly be-
fore she arrived.
The Plaintiff-Appellants then filed a four-count com-
plaint in the district court alleging the following: 1) that
UCH directly and intentionally interfered with the rela-
tionship between them and Keegan and deprived them of
the care, custody, companionship, and society of their son;
2) that UCH acted in an extreme and outrageous manner
and intended to inflict severe emotional distress on them;
3) that UCH falsely imprisoned Keegan when it failed
to discharge him; and 4) that UCH defamed them by

1
ICPS conducted an investigation but ultimately determined that
the claim was “unsubstantiated,” and by June 4, 2001, Keegan’s
caseworker had informed UCH personnel that Keegan could be
sent home as soon as he was medically ready.
No. 02-4358 7

reporting them to ICPS and that act caused them shame,
humiliation, indignity, and loss of good name and reputa-
tion. UCH filed a motion for summary judgment on all four
counts, which the district court granted in its entirety. Only
the district court’s decision with respect to their claims
for Intentional Infliction of Emotional Distress and Def-
amation was appealed.

ANALYSIS
We review de novo the district court’s award of sum-
mary judgment in favor of UCH, drawing all reasonable
inferences and construing all facts in a light most favor-
able to the Appellants. Vakharia v. Swedish Covenant
Hosp., 190 F.3d 799, 805 (7th Cir. 1999). Summary judg-
ment is proper if no genuine issue of material fact exists
and the movant is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(c) (2003). Appellants argue that
the district court erred by determining: 1) that UCH’s
conduct was not sufficiently extreme or outrageous as to
the claim for Intentional Infliction of Emotional Distress
(IIED); and 2) that the Appellants did not rebut an Illi-
nois statutory presumption of good faith, running in favor
of Dr. Kahana, for reporting suspected child abuse with
respect to their claim for Defamation. The parties do not
argue over the existence of genuine issues of material fact
but provide only questions of law.
Under Illinois law, to state a claim for IIED a party
must show that: 1) the defendant’s conduct was extreme
and outrageous; 2) the defendant intended to inflict
severe emotional distress, or knew there was a high prob-
ability its conduct would do so; and 3) the defendant’s
conduct caused severe emotional distress. Doe v. Calumet
City, 641 N.E.2d 498, 506 (Ill. 1994). “Whether conduct is
extreme and outrageous is judged on an objective stan-
dard based on all the facts and circumstances of a particu-
8 No. 02-4358

lar case.” Id. at 507. In particular, the Illinois Supreme
Court has noted three factors used to evaluate the al-
leged outrageousness of a defendant’s conduct. First, the
more power or control the defendant has over the plaintiff,
the more likely the conduct will be deemed extreme.
McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). Second,
and in conjunction with the first consideration, courts
must consider whether the defendant reasonably believed
its objective was legitimate. Id. at 810. Finally, courts
must consider whether the defendant was aware the
plaintiff was “peculiarly susceptible to emotional dis-
tress, by reason of some physical or mental condition or
peculiarity.” Id. at 811. The Illinois Supreme Court also
provided the following guidance: “We do not mean to
imply that these considerations are exclusive, however, nor
do we mean to imply that any or all of these factors
are necessarily critical to a cause of action for [IIED].” Id.
Appellants argue that the district court did not prop-
erly weigh the first and third McGrath factors in their
favor; they do concede, however, that UCH’s goal of pro-
tecting its patients and staff from their disruptive out-
burst was legitimate. We cannot agree. First, the rules
of UCH with respect to their ability to visit Keegan must
be considered in conjunction with UCH’s legitimate need
to maintain order within its halls, particularly in a de-
partment like the PICU where the patients are so
fragile. Keegan was not the only child in the room when
his parents began to yell and curse at hospital staff. In
fact, he was one of seven or eight babies in the room, and
his parents’ behavior caused one mother to remove her
child from a ventilator and retreat to the hallway, where
presumably she felt safer. Nor was this the first such
outburst. Dr. Kahana noted that over the course of Kee-
gan’s hospitalization at UCH, she had received numerous
complaints from staff about the aggressive and inconsid-
erate behavior of his parents. We find that any distress
No. 02-4358 9

caused by UCH’s apparent power over them was out-
weighed by UCH’s legitimate efforts to maintain order
in the PICU by removing them when they refused to calm
down. They also submit that they were particularly sus-
ceptible to emotional distress because of Keegan’s precari-
ous situation and that UCH was obviously aware of
this susceptibility and acted outrageously by depriving
them of visitation during Keegan’s final days. While we
would not wish their emotional ordeal on any parent, we
note that, at the time of the Memorial Day incident, doc-
tors believed Keegan could be discharged soon. No one
was aware that in only a little over a week he would take
a turn for the worse and pass away. Furthermore, the
hospital repeatedly contacted them and requested a meet-
ing to discuss proper behavior, which they steadfastly
refused to attend. UCH allowed them to visit Keegan on
June 5, 2001, with a security escort, and even doubled
the length of the scheduled visit. On June 6, despite the
Appellants’ refusal to meet, UCH lifted all visiting re-
strictions when it became clear that Keegan would not
have much longer to live.
UCH owes a duty to its patients to provide proper med-
ical care, and maintaining a sound and safe environment
in the PICU is essential to fulfilling that duty. UCH has
every right to request that visiting family members ob-
serve a sense of decorum in its facility, even when they
are dissatisfied with the care accorded a loved one. When
family members refuse to act responsibly, as Keegan’s
parents did here, UCH has the right and obligation to
quell any disturbance. Despite Keegan’s delicate condition,
we cannot say that UCH acted in an extreme and outra-
geous manner.
Next, the Appellants argue that the district court improp-
erly determined that they failed to rebut the good-faith
presumption accorded reporting physicians under the
Illinois Abused and Neglected Child Reporting Act, there-
10 No. 02-4358

by terminating their claim for Defamation. Under Illinois
law, “[a]ny physician . . . having reasonable cause to be-
lieve a child known to them in their professional or offi-
cial capacity may be an abused child or a neglected child
shall immediately report or cause a report to be made . . . .”
325 ILL. COMP. STAT. 5/4 (2003). The statutory definition
of “abused child” contemplates the risk of future harm to
the child, such that the statute applies in situations
where no direct evidence of previous abuse exists but
a physician fears for the future safety of the child. 325
ILL. COMP. STAT. 5/3 (2003) (“ ‘Abused child’ means a child
whose parent . . . creates a substantial risk of physical
injury to such child by other than accidental means which
would be likely to cause death, disfigurement, impairment
of physical or emotional health, or loss or impairment
of any bodily function.”); In Interest of M.K., 649 N.E.2d 74,
79 (Ill. App. Ct. 1995).
Any physician “participating in good faith in the making
of a report or referral . . . shall have immunity from any
liability, civil, criminal or that otherwise might result
by reason of such actions.” 325 ILL. COMP. STAT. 5/9 (2003);
Lehman v. Stephens, 499 N.E.2d 103, 111 (Ill. App. Ct.
1986) (“In light of the substantial State interest in uncov-
ering child abuse or neglect, and in protecting the chil-
dren of this State, we find that the ‘good faith’ immunity
provided for mandated and permitted reporters under
the Act is clearly justified . . . .”). While the statutory
presumption of good faith is rebuttable, the party seeking
to rebut the presumption must present evidence “sufficient
to support a finding of the nonexistence of the presumed
fact.” Lehman, 499 N.E.2d at 112 (internal quotations
omitted). In other words, the Appellants must offer evi-
dence that tends to show Dr. Kahana reported them to
ICPS in bad faith—a showing they simply cannot make.
They argue that Dr. Kahana did not have “reasonable
cause” to report them to ICPS and that the timing of the
No. 02-4358 11

report (following the Memorial Day incident) was retalia-
tory. To the contrary, although Dr. Kahana’s decision to
report them did come on the heels of their Memorial Day
outburst in the PICU, it also followed long-standing
complaints from UCH staff about their similar behavior
on prior occasions. Dr. Kahana noted that Keegan was a
medically complex child in need of constant care and
attention—something parents quick to “fly off the handle”
might be ill equipped to perform.2
The Appellants argue that Dr. Kahana made the report
without any affirmative evidence of abuse, such as an
injury, and that they loved Keegan. As we noted above,
however, Illinois law adequately contemplates the pos-
sibility of future abuse, the risk which Dr. Kahana
foresaw in Keegan’s case. And finally, as the Lehman court
noted, statements regarding parents’ “love and concern for
their child, while hopefully correct, are irrelevant to the
precise inquiry presented.” Id. at 113-14. Given their
behavior over the several months that Keegan was hos-
pitalized at UCH, and in particular the Memorial Day
incident, Dr. Kahana had reasonable cause to report
them in good faith to ICPS.
Accordingly, the district court properly awarded summary
judgment to UCH.
AFFIRMED.

2
In the one month Keegan had been sent home in late January
2001-February 2001, he was hospitalized twice and both inci-
dents led to separate reports by medical professionals regarding
Franciski’s behavior. Though Dr. Kahana was apparently not
aware of these reports when she asked Kuntz to file a report,
they nonetheless demonstrate that other medical professionals
shared a similar assessment.
12 No. 02-4358

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—8-1-03