FIRST DIVISION
February 25, 2008
No. 1-07-0294
JACQUELINE WILKERSON, Successor Special ) Appeal from the
Administrator of the Estate of Beverly ) Circuit Court of
Newsome, Deceased, ) Cook County.
)
Plaintiff-Appellant, )
)
v. ) No. 03 L 7107
)
THE COUNTY OF COOK, d/b/a Cook County )
Hospital; JAYA AHUJA, and )
HENRY CHING, ) The Honorable
) Marcia Maras,
Defendants-Appellees. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
In this medical malpractice case, the plaintiff, Jacqueline
Wilkerson, successor special administrator of the estate of
Beverly Newsome, deceased, appeals from an order granting summary
judgment in favor of the defendants, County of Cook, d/b/a Cook
County Hospital, Jaya Ahuja, M.D., and Henry Ching. On appeal,
the plaintiff contends that summary judgment was improper because
(1) a question of fact exists as to whether the defendants were
negligent in their treatment of the decedent and (2) Dr. Ahuja's
contradictory testimony created a credibility issue,
appropriately resolved only by the trier of fact. We affirm.
BACKGROUND
The controversy before us concerns whether Cook County
No. 1-07-0294
Hospital and its employees, Henry Ching, a cytotechnician, and
Dr. Jaya Ahuja, a pathologist, were negligent in the treatment of
Ms. Newsome following an abnormal Pap smear that revealed the
presence of "Inflammatory and degenerative changes. Reactive
changes. Anucleated squames" by failing to conduct a follow-up
Pap smear and, potentially, a cervical biopsy. According to the
plaintiff, the failure to conduct such a follow-up, constituted
negligent treatment from which liability may occur under the
Local Governmental and Governmental Employees Tort Immunity Act
(Tort Immunity Act) (745 ILCS 10/6-106(d) (West 2004)).
On November 18, 1996, Ms. Newsome went to Cook County
Hospital complaining of lower abdominal pain and vaginal
discharge. The results of a Pap smear taken during her initial
examination yielded the following: "Inflammatory and degenerative
changes. Reactive changes. Anucleated squames." Dr. Ahuja and
Ching reviewed the Pap smear and made nonspecific findings. Ms.
Newsome's diagnosis was pregnancy and a vaginal infection,
bacterial vaginosis. Dr. Ahuja did not diagnose cancer or a
precancerous condition. Ching, as a technician, did not make a
diagnosis.
Ms. Newsome was treated for the vaginal infection. Ms.
Newsome underwent additional prenatal visits at Cook County
Hospital, but ultimately delivered her child at West Suburban
Medical Center in April 1997. She was later diagnosed by West
Suburban Medical Center staff with cervical cancer. Ms. Newsome
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No. 1-07-0294
sought treatment for cervical cancer until her death on June 24,
1997.
On May 16, 2005, the plaintiff filed the present form of her
complaint, the first amended complaint at law. In Counts I and
II of her complaint, the plaintiff alleges that the defendants
were negligent in one or more of the following respects.
"a. Failing to properly or adequately
administer pap smears during Plaintiff's
Decedent's treatment; or
b. Failing to properly or adequately
interpret the laboratory tests done during
Plaintiff's Decedent's treatment; or
c. Failing to properly or adequately
follow-up or treat the abnormal pathology
reports made during Plaintiff's Decedent's
treatment; or
d. Failing to obtain adequate or proper
consults with specialists."
The defendants filed a motion for summary judgment based on
the Tort Immunity Act. 745 ILCS 10/1-101 et seq. (West 2004).
In their motion, the defendants argued they were entitled to the
protections of the Tort Immunity Act because they never diagnosed
Ms. Newsome as having cancer or a precancerous condition and,
thus, no follow-up testing or treatment was required. See 745
ILCS 10/6-105, 6-106(a) (West 2004). The only treatment Ms.
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No. 1-07-0294
Newsome received from the defendants was for a vaginal infection
and the plaintiff does not contend that the treatment of the
infection was negligent.
In her reply, the plaintiff argued that the evidence
established that Ms. Newsome was diagnosed with pregnancy and an
abnormal Pap smear. She was then treated with prenatal visits
and monitoring. The plaintiff argues that as part of the
treatment plan, the defendants were required to conduct a repeat
Pap smear or cervical biopsy and that their failure to do so
proximately led to Ms. Newsome's death. The plaintiff contends
that because the defendants' negligence related to their
treatment of Ms. Newsome, not her diagnosis, they are not
entitled to immunity under the Tort Immunity Act.
In reviewing the defendants' motion for summary judgment,
the trial court considered the depositions of Henry Ching, Dr.
Jaya Ahuja, and Dr. Ronald S. Leuchter.
During his deposition, Ching testified that he was the
cytotechnologist who analyzed Ms. Newsome's Pap smear slides at
Cook County Hospital in November 1996. Ching explained that his
job as a cytotechnologist requires him to screen slides and then
mark his impressions, whether normal or abnormal. He does not
make any recommendation or opinion as to why a reading could have
resulted in an abnormal impression as he is not trained to do so.
Ching explained that the procedure at Cook County Hospital
requires him to fill out a "requisition form" noting his
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No. 1-07-0294
impressions after review of a Pap smear slide. If the slide
results appear abnormal, he notes that on the back of the
requisition form and sends his impressions, along with the
slides, to the pathologist for a diagnosis.
Ching testified to the presence of several abnormalities on
Ms. Newsome's Pap smear slides. Thus, consistent with procedure,
he noted his impressions on the requisition form and forwarded
it, with the slides, to Dr. Ahuja. In response to questions
concerning results of Pap smears generally, Ching explained that
the presence of anucleated cells must be reported by a
cytotechnologist to a pathologist because, at times, these cells
may hide malignant cells. He further explained that an
"inflammatory degenerative" finding is generally considered a
normal finding, and thus, not required to be brought to the
attention of a pathologist, but a "reactive changes" finding
needs to be brought to the attention of a pathologist. He
explained that when he observes something unusual, whether benign
or malignant, he always forwards the slides to the pathologist
"for them to judge if it's malignant or not," as he is not
trained to make that determination.
In her deposition, Dr. Jaya Ahuja testified that she was the
surgical pathologist who reviewed Ms. Newsome's Pap smear slides
after the cytotechnologist forwarded them to her with his
impressions. She explained that the procedure of Cook County
Hospital requires her to review all slides cytotechnologists read
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No. 1-07-0294
as abnormal. Dr. Ahuja reviewed Ms. Newsome's Pap smear slides
and reported "Inflammatory and degenerative changes. Reactive
changes. Anucleated squames." Dr. Ahuja generated a summary
report based on her findings that was made available to the
patient's attending physician. Dr. Ahuja attributed the
inflammation of the cervix to a bacterial infection. She
explained that inflammation "is not consistent with malignancy."
Dr. Ahuja further explained that "reactive changes" and
"anucleated squames" can be seen when the cells are benign,
"dysplastic" or malignant. She explained that dysplastic is a
condition between benign and malignant. She firmly stated,
"[t]here [were] no malignancies here."
Dr. Ahuja stated that after her review of Ms. Newsome's
slides, her findings were all "nonspecific in nature," meaning
they could be deemed "normal or abnormal," depending on the
attending physician and what he or she decided to do next. Dr.
Ahuja explained that a Pap smear is "the screening process" and
that if malignant cells are present, a biopsy is performed for
"confirmation." Dr. Ahuja admitted that the standard of care
requires her to report to the attending physician the presence of
malignant or cancerous cells on the patient's slide. However, in
this situation, Dr. Ahuja felt there was no need to recommend
that the attending physician conduct a follow-up because she had
no suspicion of malignant cells after her review of Ms. Newsome's
slides. Additionally, she explained that in her experience
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No. 1-07-0294
"[these] kind of findings, 90 percent of the time are benign."
In his deposition, the plaintiff's expert, Dr. Ronald S.
Leuchter, explained that his field of work is gynecologic
oncology, meaning the practice of "GYN cancers." Dr. Leuchter
admitted that in his practice, he reviews Pap smear slides, in
conjunction with a cytopathologist, only three to six times a
year.
In this case, Dr. Leuchter did not review Ms. Newsome's Pap
smear slides but, instead, reviewed Ms. Newsome's hospital
records from Cook County Hospital and West Suburban Medical
Center, as well as the deposition testimony of Dr. Ahuja and
Henry Ching. Dr. Leuchter opined that it was likely that the
cervical cancer was present during Ms. Newsome's pregnancy and
that it "should have been manifested by an abnormal Pap smear at
her initial antenatal visit." Dr. Leuchter further explained
that it was likely that the cervical cancer was present six
months to a year before Ms. Newsome died in June 1997. Dr.
Leuchter opined that because Ms. Newsome was diagnosed with
aggressive cervical cancer within nine months of her first
antenatal visit, he would have expected her Pap smear to yield a
"significantly abnormal" result.
Dr. Leuchter testified that a nonspecific Pap smear result
can be related to malignancy or not, but "in all these cases, it
demands a Pap smear repeat *** [and] an inspection, palpation of
the cervix." Dr. Leuchter admitted "[a] biopsy is used to
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No. 1-07-0294
diagnose an invasive cancer, be it endophytic of exophytic."
Later Dr. Leuchter explained that given the results of Ms.
Newsome's Pap smear, he would have called for a repeat Pap smear
to be done four weeks later. Dr. Leuchter testified he would
consider that second Pap smear "part of her treatment --
diagnosis and treatment. It's all in one." He further explained
that if the second Pap smear yielded an abnormal result, a biopsy
would be done as "part of her care and treatment."
The trial court granted the defendants' motion for summary
judgment on January 8, 2007, pursuant to the Tort Immunity Act.
In response to the defendants' attorney's argument that "[a]gain,
it goes back to you need the condition precedent, which is some
diagnosis of the condition, which never occurred here," the court
responded, "I agree, counsel. Motion for summary judgment is
granted on all parties." The plaintiff appealed.
ANALYSIS
I
On appeal, the plaintiff maintains that a question of fact
exists as to whether the defendants' treatment of Ms. Newsome,
after her initial Pap smear came back abnormal, was negligent,
and, therefore, summary judgment was improper.
Summary judgment is proper where there are no genuine issues
of material fact and the moving party is entitled to judgment as
a matter of law. 735 ILCS 5/2-1005(c) (West 2004). The trial
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No. 1-07-0294
court may grant summary judgment after considering " the
pleadings, depositions, admissions, exhibits, and affidavits on
file in the case" and construing that evidence in favor of the
nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240, 489
N.E.2d 867 (1986). We review the circuit court's decision to
grant summary judgment de novo. Arangold Corp. v. Zehnder, 204
Ill. 2d 142, 146, 787 N.E.2d 786 (2003). In doing so, we
recognize that although summary judgment is encouraged as an aid
to expedite the disposition of a lawsuit, it is nevertheless "a
drastic means of disposing of litigation and therefore should be
allowed only when the right of the moving party is clear and free
from doubt." Purtill, 111 Ill. 2d at 240.
On appeal, the plaintiff argues that summary judgment was
improper because subsection (d) of section 6-106 limits the
immunity from medical malpractice liability set forth by the Tort
Immunity Act by providing that defendants are liable for injury
proximately caused by their negligent acts or omissions in the
administration of any treatment prescribed for physical illness.
(Emphasis added.) 745 ILCS 10/6-106(d) (West 2004). The
plaintiff contends that the allegations in her complaint and the
evidence presented to support those allegations established the
essence of her lawsuit involved the defendants' repeated failure
to properly treat, not diagnose, Ms. Newsome's cervical cancer.
The plaintiff argues that Ms. Newsome's initial Pap smear, which
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No. 1-07-0294
yielded an abnormal result, was the diagnosis and that further
treatment in the form of a second Pap smear was required. The
plaintiff contends that the defendants' failure to conduct the
additional Pap smear was negligent treatment.
The defendants reply that because Ms. Newsome was never
diagnosed with cervical cancer at Cook County Hospital, summary
judgment was proper under section 6-105 of the Tort Immunity Act,
which immunizes a defendant for failing to make an adequate
examination, and section 6-106(a), which immunizes a defendant
for failing to diagnose an illness. 745 ILCS 10/6-105, 6-106(a)
(West 2004).
In granting the defendants' motion for summary judgment, the
trial court relied on Mabry v. County of Cook, 315 Ill. App. 3d
42, 733 N.E.2d 737 (2000), and Michigan Avenue National Bank v.
County of Cook, 306 Ill. App. 3d 392, 714 N.E.2d 1010 (1999),
aff'd, 191 Ill. 2d 493, 732 N.E.2d 528 (2000).
In Mabry, this court held that the defendants, a public
hospital and its employees, were immune from medical malpractice
liability under sections 6-105 and 6-106(a) of the Tort Immunity
Act for their failure to diagnose the ailment (pulmonary
embolism) which caused the decedent's death. Mabry, 315 Ill.
App. 3d at 58-59. In Mabry, the decedent was diagnosed by the
defendants with asthma and respiratory distress. Mabry, 315 Ill.
App. 3d at 45. Tests, such as a VQ scan or an angiogram, could
have identified an embolism if one were suspected; however, none
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No. 1-07-0294
of these tests were performed. Mabry, 315 Ill. App. 3d at 46.
This court concluded, "Negligent prescription of treatment is
different from failure to prescribe treatment as a result of a
failure to diagnose." Mabry, 315 Ill. App. 3d at 55. Thus, the
court found that the claim of negligence in Mabry sought to
establish liability, not for negligent prescription of treatment,
but for the defendants' failure to diagnose and prescribe
treatment, and therefore, their conduct was immune from
liability. Mabry, 315 Ill. App. 3d at 58-59.
In Michigan Avenue, the Illinois Supreme Court held that
where a public hospital's employees fail to diagnose an illness
(breast cancer), it is immune from medical malpractice liability
under section 6-106(a) of the Tort Immunity Act. Michigan
Avenue, 191 Ill. 2d at 522. In Michigan Avenue, the decedent
visited the defendant hospital on numerous occasions, complaining
of a lump in her left breast and, sometimes, soreness or pain.
Michigan Avenue, 191 Ill. 2d at 496-99. The decedent was
informed she had fibrocystic breast disease. Michigan Avenue,
191 Ill. 2d at 496-99. No tests were performed by the hospital
to determine whether the decedent had breast cancer. Michigan
Avenue, 191 Ill. 2d at 496-99. The supreme court stated that the
word "diagnosis" is not ambiguous, and thus, must be given its
plain and ordinary meaning. Michigan Avenue, 191 Ill. 2d at 510.
"Webster's dictionary defines 'diagnosis' as the 'art or act of
identifying a disease from its signs and symptoms,' and as an
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No. 1-07-0294
'investigation or analysis of the cause or nature of a condition,
situation, or problem.' " Michigan Avenue, 191 Ill. 2d at 510,
quoting Webster's Third New International Dictionary 622 (1993).
Accordingly, the supreme court held that the defendant hospital
was immune from liability because the essence of the plaintiff's
complaint was a failure to diagnose, not a failure to treat.
Michigan Avenue, 191 Ill. 2d at 522.
The plaintiff contends that the trial court's reliance on
Mabry and Michigan Avenue was in error. Instead, the plaintiff
urges this court to find the following cases controlling, Mills
v. County of Cook, 338 Ill. App. 3d 219, 788 N.E.2d 169 (2003),
Antonacci v. City of Chicago, 335 Ill. App. 3d 22, 779 N.E.2d
(2002), and American National Bank & Trust Co. v. County of
Cook, 327 Ill. App. 3d 212, 762 N.E.2d 654 (2001). The plaintiff
argues that these cases support her contention that the
defendants were negligent in their treatment of the decedent, not
in their diagnosis, and, thus, liable under the Tort Immunity
Act.
In Mills, the defendant physician diagnosed the decedent
child with an upper respiratory infection and also made a
"differential diagnosis" of pneumonia, meaning the physician
considered pneumonia to be a contributing cause of the child's
symptoms. Mills, 338 Ill. App. 3d at 220. The defendant
conducted tests, treated the child, and then discharged him; a
few hours later, the child died. Mills, 338 Ill. App. 3d at 220-
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No. 1-07-0294
21. The plaintiff in Mills offered evidence in the form of an
expert physician's testimony that the failure of the defendant
physician to fully treat the child's pneumonia caused the child's
death. Mills, 338 Ill. App. 3d at 221. The court held that
sections 6-105 and 6-106(a) of the Tort Immunity Act were
inapplicable because the defendant physician had properly
diagnosed her patient with pneumonia, albeit a differential
diagnosis, and had started treatment for that diagnosis, which
was later determined to be negligent. Mills, 338 Ill. App. 3d at
223. In so concluding, this court found it important that
"[t]reatment was rendered pursuant to the differential
diagnosis." Mills, 338 Ill. App. 3d at 223.
In American National Bank, the plaintiff's doctor determined
that her unborn child was in a "transverse lie," a position that
could result in lack of oxygen to the child during a vaginal
delivery. American National Bank, 327 Ill. App. 3d at 213. The
complaint alleged that after this original diagnosis had been
made, a second doctor was negligent in failing to perform an
ultrasound or stress test to ascertain whether the child's
position had changed, failing to manipulate a change to the
child's position and in attempting natural delivery, which
resulted in severe brain damage to the child. American National
Bank, 327 Ill. App. 3d at 215. In reversing the trial court's
grant of summary judgment in favor of the defendants, this court
held that section 6-106(d) of the Tort Immunity Act applied and,
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No. 1-07-0294
thus, the defendants were not immune from liability. This court
stated:
"[O]nce diagnosis of a medical condition
is made and treatment of the condition is
prescribed and undertaken, any subsequent
prescription or examination required to be
made pursuant to that condition is part of
the patient's treatment." American National
Bank, 327 Ill. App. 3d at 220.
Accordingly, American National Bank also involved the negligent
treatment of a known medical condition, as opposed to a failure
to diagnose. American National Bank, 327 Ill. App. 3d at 218.
In Antonacci, the plaintiff's complaint and the physician's
report alleged that the defendant paramedics correctly diagnosed
the decedent as having a heart attack and began to "treat" him.
Antonacci, 335 Ill. App. 3d at 28. The defendant paramedics
failed to perform an EKG or defibrillation on the decedent.
Antonacci, 335 Ill. App. 3d at 28. Relying on section 6-106(d),
the plaintiff contends that the defendant paramedics' failure to
treat the decedent was not immunized by the Tort Immunity Act.
Antonacci, 335 Ill. App. 3d at 28. The defendant contends that
an EKG is a diagnostic tool, not a method of treatment, and thus,
no "treatment" was prescribed or begun by the paramedics.
Antonacci, 335 Ill. App. 3d at 28. Thus, the defendant claims
that the plaintiff's claim amounts to a failure to diagnose,
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No. 1-07-0294
which is fully immunized under section 6-106(a), or a failure to
conduct an examination, immunized under section 6-105.
Antonacci, 335 Ill. App. 3d at 28. This court determined that
"[t]here may or may not have been a 'diagnosis' and prescribed
'treatment' that would exclude tort immunity" and, thus, remanded
the case to the trial court for further proceedings. Antonacci,
335 Ill. App. 3d at 31.
In Mills and American National Bank, dismissal based on the
Tort Immunity Act was precluded because the defendant doctors
properly examined and diagnosed their patients. Therefore, the
issue in those cases was not improper diagnoses, but improper
treatment. Accordingly, because the Tort Immunity Act does not
immunize a defendant for the negligent treatment of a patient,
liability was warranted. See 745 ILCS 10/6-106(d) (West 2004).
In contrast to the cases she cites for support, the
plaintiff has offered no evidence that treatment was rendered
pursuant to a diagnosis or differential diagnosis of cancer. The
defendants diagnosed Ms. Newsome only with pregnancy and a
vaginal infection and, thus, treated her only for those
conditions. Accordingly, contrary to the plaintiff's assertion,
Mills and American National Bank are not controlling here because
no treatment was undertaken pursuant to a correct diagnosis.
Additionally, we find Antonacci provides no assistance in
determining the issue before us now because no position was taken
by this court as to whether the Tort Immunity Act provided
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No. 1-07-0294
immunity for the defendant paramedics' actions.
Furthermore, the plaintiff's attempt to distinguish Michigan
Avenue and Mabry is unpersuasive. The alleged negligence in this
case, similar to that in Michigan Avenue and Mabry, was not based
on the treatment Newsome received, but on the treatment that she
should have received had the defendants correctly examined and
diagnosed all of her medical conditions. Accordingly, as the
trial court was, we are similarly persuaded by the reasoning of
the Michigan Avenue and Mabry courts.
Although the plaintiff adamantly asserts that a disputed
factual matter exists in this case, we find no real dispute as to
the facts on the relevant question before this court, whether the
defendants were entitled to immunity under the Tort Immunity Act.
The evidence, when viewed in a light most favorable to the
plaintiff, supports the conclusion that immunity was warranted
because the essence of the plaintiff's action against the
defendants was the defendants' failure to properly examine and
diagnose Ms. Newsome with cervical cancer, not the negligent
treatment of it. Whether immunity was warranted was strictly a
matter of law and, thus, properly resolved by summary judgment.
The trial court properly applied the case law and concluded that
the defendants never made a diagnosis for which they were
negligent in their treatment. Thus, we find the defendants'
failure to diagnosis Ms. Newsome's precancerous or cancerous
condition immune from liability under sections 6-105 and 6-106(a)
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No. 1-07-0294
of the Tort Immunity Act. 745 ILCS 10/6-105, 6-106(a) (West
2004).
II
Next, the plaintiff contends that the trial court improperly resolved a credibility issue with
regard to Dr. Ahuja's testimony by granting summary judgment in favor of the defendants. We
disagree.
Although Dr. Ahuja testified that the characteristics present on Ms. Newsome's Pap smear
slides could be present in cancerous, precancerous or normal conditions, she clearly testified that
she never suspected a cancerous or precancerous condition. Therefore, we find that her
testimony was consistent with the defendants' position -- that no treatment was undertaken to
treat the cancer because it was never diagnosed.
Additionally, there was no other evidence presented that a cancerous or precancerous
condition was diagnosed. Ching testified that after reviewing Ms. Newsome's Pap smear slides,
he concluded that they yielded an abnormal result. However, he explained that he was not trained
to make a determination as to what could have triggered the abnormal results. The slides were
then reviewed by Dr. Ahuja, who noted her findings and concluded that the conditions that
prompted Ching to consider the Pap smear abnormal were the result of Ms. Newsome's vaginal
infection. The infection was treated and no further diagnoses were made. Dr. Leuchter testified
that in his opinion, Ms. Newsome's Pap smear slides should have shown the presence of
precancerous or cancerous cells, but he admitted that he never reviewed the slides. Accordingly,
his deposition testimony presented no evidence that disputed the facts as presented by Ching and
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No. 1-07-0294
Dr. Ahuja. Thus, we find summary judgment proper as the right of the moving party "is clear and
free from doubt." Purtill, 111 Ill. 2d at 240.
CONCLUSION
In conclusion, applying the plain language of sections 6-105 and 6-106(a) of the Tort
Immunity Act to the facts before us, we find the defendants immune from medical malpractice
liability. Accordingly, because no material factual dispute was presented, summary judgment was
properly granted in favor of the defendants. Affirmed.
WOLFSON and R. GORDON, JJ., concur.
18
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
JACQUELINE WILKERSON, Successor Special Administrator
of the Estate of Beverly Newsome, Deceased,
Plaintiff-Appellant,
v.
THE COUNTY OF COOK, d/b/a Cook County Hospital;
JAYA AHUJA, and HENRY CHING,
Defendants-Appellees. .
________________________________________________________________
No. 1-07-0294
Appellate Court of Illinois
First District, First Division
Filed: February 25, 2008
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
Wolfson and R. Gordon, JJ., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Marcia Maras, Judge Presiding
_________________________________________________________________
For DEFENDANTS - Patrick T. Driscoll, Jr., Chief, Civil Actions Bureau
APPELLEES Patrick M. Blanchard, Chief, Special Litigation Division
Sandra J. Weber, Supervisor, Medical Litigation Section
Thomas A. Rieck, Assistant State's Attorney, Of Counsel
RICHARD A. DEVINE
State's Attorney of Cook County
Richard J. Daley Center–Room 500
Chicago, Illinois 60602
For PLAINTIFF - Thomas G. Siracusa, Of Counsel
APPELLANT POWERS ROGERS & SMITH, P.C.
70 West Madison, 55th Floor
Chicago, Illinois 60601