DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

Here are a few recent cases of importance and note - June 2003.

Following are summaries of opinions recently issued by the Illinois Supreme Court:

People ex rel. Sherman v. Cryns, 2003 Ill. Lexis 450, Docket No. 93412 (2/21/03). Midwife who monitored baby before and during delivery, and then attended mother and baby during birth, violated the Nursing and Advanced Practice Nursing Act because she was not licensed. Yvonne Cryns considered herself to be a "traditional midwife." She was not licensed as a nurse. She was retained by a couple to give advice and to help the mother through a "water birth" at the couples’ home. It was a breech birth, and the baby died during delivery.

The Illinois Department of Professional Regulation took the position that Cryns was practicing nursing, and sought an injunction against her to enjoin her from further violation of the Nursing Act. The circuit court found that Cryns’s activities were not "nursing," therefore did not violate the Act, and entered a directed finding against the Department. The appellate court reversed. The supreme court affirmed, and ruled that Cryns’s conduct during the birth "constituted prima facie evidence of ‘professional nursing’ within the meaning of the Act.

The supreme court began with the premise that the General Assembly has broad regulatory power over the health-care professions. The court did a lengthy analysis of how "nursing" and "advanced practice nursing" are defined by the Act. Cryns gave health advice to the mother through birth; she monitored the baby’s heart using a fetoscope and Doppler; when the baby was not breathing at birth, Cryns attempted to resuscitate him using an Ambu bag. The court concluded that Cryns was assessing the healthcare needs of mother and baby, making nursing evaluations, and provided counseling, patient and health education – all conduct for which the Act requires a nursing license.

The court rejected arguments that the Nursing Act is unconstitutionally vague and that Cryns was being denied her liberty and property interests in her employment. The court concluded: "… [T]he General Assembly’s intent to ensure the health, safety and welfare of the public by regulating the practice of nursing would be frustrated if the statute did not apply to the conduct of defendant at bar during the birth" of this baby.

In re Parentage of M.J., 2003 Ill. Lexis 21, Docket No. 92947 (2/6/03). Under the Parentage Act, failure to secure written consent of father to artificial insemination precludes establishment of parent-child relationship and bars imposition of support obligation. Mother may pursue common law actions for child support. Alexis Mitchell and Raymond Banary had a romantic relationship for 10 years. Some seven years into the relationship, Alexis gave birth to twins. She had become pregnant through artificial insemination. She claimed that Raymond gave oral consent to the artificial insemination. There was no written consent.

The couple split in 1996, and Raymond stopped providing financial support for the children. Alexis sued Raymond for child support. She alleged common law theories of breach of oral agreement and promissory estoppel. She also sought a declaration of paternity and child support under the Illinois Parentage Act.

The Parentage Act provides for establishment of a parent-child relationship by consent, if the consent is in writing. The supreme court ruled that the written-consent requirement is mandatory, not merely directory. In this case, because Raymond had not given written consent for the artificial insemination procedure, Alexis’s Parentage Act claim could not proceed.

However, the Act did not preclude Alexis’s common law actions seeking child support. The court was persuaded by the absence of a clear expression by the legislature to bar common law claims. "We therefore determine that the best interests of children and society are served by recognizing that parental responsibility may be imposed based on conduct evidencing actual consent to the artificial insemination procedure."

Reichert v. The Court of Claims of the State of Illinois, 2003 Ill. Lexis 453, Docket No. 93319 (2/21/03). Common law writ of certiorari premature because Court of Claims proceeding was continuing. Plaintiff was injured when his clothing was entangled in a tractor that was owned and operated by the University of Illinois. He sued the University in the Court of Claims. The Court of Claims Act limits tort damages to $100,000. Plaintiff claimed his case fell within an exception to the $100,000 cap for cases arising from the operation by a state employee of a vehicle owned, leased, or controlled by the state. His complaint asked for damages in excess of $100,000.

The University’s motion to strike the damages claim was granted by the Court of Claims. Plaintiff filed an amended complaint that again asked for damages in excess of $100,000. The University again moved to strike. While this motion was pending, plaintiff petitioned for a writ of certiorari in the circuit court from the first order by the Court of Claims. The petition named the Court of Claims as respondent, and alleged that the court’s decision to cap damages at $100,000 was against the manifest weight of the evidence and deprived plaintiff of a constitutionally guaranteed protected property right.

The Illinois Supreme Court explained the concept and proper use of a common law writ of certiorari. But in the end, the court held that the circuit court should not have entertained the action because the Court of Claims had not entered a final judgment. The amended complaint and the pending motion to strike defeated the finality of the order granting the first motion to strike. Lacking a final order in the Court of Claims, the circuit court did not have jurisdiction over the petition for a writ of certiorari.

Eads v. Heritage Enterprises, Inc., 2003 Ill. Lexis 455, Docket No. 92691 (2/21/03). Action under the Nursing Home Act does not have to comply with the Healing Arts Medical Malpractice Act. Betty Lou Eads was a patient at Memorial ContinuCare, a nursing home. Betty suffered from a number of problems, and required help from the ContinuCare staff to go from her bed to the bathroom. Allegedly, the staff did not react quickly enough when Betty requested assistance, so she left her bed on her own. On one such attempt, Betty fell and fractured her hip and sustained other injuries.

Pursuant to the Illinois Nursing Home Care Act, Betty sued ContinuCare for negligence. Her complaint did not attach a certificate of merit required by the Healing Arts Malpractice Act, which is contained in the Illinois Code of Civil Procedure. The Nursing Home Care Act does not require a certificate of merit.

A split supreme court held that a plaintiff who sues under the Nursing Home Care Act does not have to comply with the Malpractice Act, and therefore a certificate of merit was not necessary to support Betty’s complaint. The court acknowledged that some claims under the Nursing Home Care Act may be similar to malpractice claims against hospitals and doctors. However, the court focused on the purposes underlying the two statutes, and concluded that actions under the Nursing Home Care Act should not be frustrated by the requirements in the Medical Arts Healing Act. "The Nursing Home Care Act sought to achieve its purposes by expanding the criminal and civil liability of nursing home owners and licensees … Under the Act, litigation was viewed as an engine of reform. Just the opposite was true of the medical malpractice reform legislation … Rather than expand opportunities for plaintiffs to seek redress, the medical malpractice reform legislation was designed to protect defendants."

Steve Merican is a sole practitioner in Oak Brook, Illinois. Steve’s practice is concentrated in appeals in state and federal courts. His URL is http://www.illinoislocalcounsel.com.