2015 IL App (1st) 131122

No. 1-13-1122

Opinion Filed March 13, 2015

Modified upon Denial of Rehearing June 26, 2015

FIFTH DIVISION

IN THE APPELLATE COURT

OF ILLINOIS

FIRST JUDICIAL DISTRICT

KONI JOHNSON,

Plaintiff-Appellant,

v.

CHRISTINE PABIN BISHOF, M.D., Individually and as an 

Agent and/or Employee of Cook County, d/b/a John H. 

Stroger, Jr., Hospital; COOK COUNTY, d/b/a John H. 

Stroger, Jr., Hospital, by and Through its Agent and/or 

Employee, Christine Pabin Bishof, M.D.; JONATHAN 

BANKOFF, M.D., Individually and as an Agent and/or 

Employee of Cook County, d/b/a John H. Stroger, Jr., 

Hospital; and COOK COUNTY, d/b/a John H. Stroger, Jr., 

Hospital, by and Through its Agent and/or Employee,

Jonathan Bankoff, M.D.,

Defendants-Appellees.

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Appeal from the

Circuit Court

of Cook County

No. 08 L 006337

Honorable

Kathy M. Flanagan,

Judge Presiding.

PRESIDING JUSTICE PALMER delivered the judgment of the court with opinion.

Justices McBride and Gordon concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Koni Johnson filed an action against defendants Christine Pabin Bishof, 

M.D., Jonathan Bankoff, M.D., and the County of Cook, doing business as John H. 
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Stroger, Jr., Hospital (the county) alleging negligence, negligent infliction of emotional 

distress and violation of the Emergency Medical Treatment and Active Labor Act 

(EMTALA) (42 U.S.C. § 1395dd (2012)) in defendants' diagnosis and treatment of her in 

the emergency room of John H. Stroger, Jr., Hospital (Stroger Hospital). The court 

entered summary judgment for defendants on all counts asserted against them in 

plaintiff's fifth amended complaint. On appeal, plaintiff argues the court erred in granting 

summary judgment on (1) counts I and III, as defendants are not immune from liability 

under sections 6-105 and 6-106 of the Local Governmental and Governmental

Employees Tort Immunity Act (745 ILCS 10/6-105, 6-106 (West 2012)) (Tort Immunity 

Act) for their negligence in failing to appropriately treat her, (2) counts II and IV, as 

defendants are not immune from liability under the Tort Immunity Act for their negligent 

infliction of emotional distress on her and (3) count V, as questions of fact exist 

regarding whether she was given a medical screening examination within defendants' 

capability to provide and was stabilized before being discharged from the emergency 

room as required by EMTALA. We affirm. 

¶ 2 BACKGROUND

¶ 3 This appeal concerns the trial court's grant of summary judgment to defendants 

on plaintiff's fifth amended complaint sounding in medical negligence, negligent infliction 

of emotional distress and violation of EMTALA.1 Plaintiff filed the complaint in 

 1

 "[S]ection 1867 of the Social Security Act, codified at 42 U.S.C. § 1395dd [is]

better known as the Emergency Medical Treatment and Active Labor Act (EMTALA)."

Arellano v. Department of Human Services, 402 Ill. App. 3d 665, 675 (2010). A "limited 

'anti-dumping' statute," EMTALA's " 'core purpose is to get patients into the system who 

might otherwise go untreated and be left without a remedy because traditional medical 

malpractice law affords no claim for failure to treat.' " Jinkins v. Evangelical Hospitals 

Corp., 336 Ill. App. 3d 377, 385 (2002) (quoting Bryan v. Rectors & Visitors of the 
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September 2009, directing counts I through V at defendants and counts VI through VIII 

at four codefendants. Only the five counts directed at defendants are at issue here.

¶ 4 In the complaint, plaintiff stated that she presented to the emergency room at 

Stroger Hospital, a hospital owned and operated by the county, on or about March 4, 

2007, complaining of back spasms, numbness in her right lower extremity, cramping in 

her right thigh and severe pain in her back. Plaintiff had slipped on ice the previous day. 

She did not have medical insurance. Plaintiff alleged she was seen by Drs. Bishof and 

Bankoff, emergency room physicians at the hospital and agents and/or employees of 

the county. She asserted she complained to Drs. Bishof and Bankoff that her leg was 

numb, it felt like her leg was getting weak and she could not move her toes. Before 

being discharged from the emergency room, she claimed she could not walk. She 

alleged that Drs. Bishof and Bankoff "did not perform a proper initial medical screening 

examination" on her, "ordered a Computerized Axial Tomography (CAT scan) only upon 

[her] insistence" and "failed to screen and treat [her] for a spinal cord injury." Plaintiff 

claimed Drs. Bishof and Bankoff accused her "of faking her injuries" and discharged her 

with Valium and a diagnosis of muscle spasm and did not give her any follow-up 

information or instructions upon discharge. She asserted that Drs. Bishof and Bankoff 

"had the duty to possess and apply the knowledge and use the skill of a reasonable well 

 

University of Virginia, 95 F.3d 349, 351 (4th Cir. 1996)). To that end, EMTALA provides 

that any individual who comes to a hospital's emergency department requesting an 

examination or treatment for a medical condition must be provided "an appropriate 

medical screening examination within the capability of the hospital's emergency 

department, including ancillary services routinely available to the emergency 

department, to determine whether or not an emergency medical condition *** exists." 42 

U.S.C. § 1395dd(a) (2012). If an emergency medical condition exists, then the hospital 

must stabilize the patient prior to transfer or discharge. 42 U.S.C. § 1395dd(b) (2012).
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qualified emergency room physician under the same or similar circumstances." Plaintiff 

also stated that, on March 5, 2007, she presented to the emergency room at Lincoln 

Park Hospital, from which she was discharged with a diagnosis of "numbness, possibly 

fictitious," and she then returned to the emergency room at Stroger Hospital, 

complaining of the inability to move her legs. She was diagnosed at Stroger Hospital 

with a spinal cord contusion and paralysis on March 6, 2007.

¶ 5 In counts I and III of plaintiff's fifth amended complaint, she asserted negligence 

claims against defendants. She claimed she suffered permanent injuries and lost 

earnings as a proximate result of defendants' negligent failure to do one or more of the 

following: (1) properly perform an initial medical screening examination; (2) properly 

screen her for her signs and symptoms; (3) properly treat her for her signs and 

symptoms; (4) properly treat her for a spinal cord injury; (5) properly consult with a 

neurologist or neurosurgeon for her signs and symptoms; or (6) refer her to a 

neurologist or neurosurgeon for treatment of her signs and symptoms."

2

¶ 6 In counts II and IV, plaintiff asserted negligent infliction of emotional distress 

against defendants, alleging the same negligent acts and omissions as set forth in her 

negligence counts. She claimed she suffered and will continue to suffer permanent 

injuries, lost earnings and "severe mental and emotional anguish due to her injuries" as 

a proximate result of one or more of the negligent acts or omissions.

¶ 7 In count V, plaintiff asserted the county "had a duty to provide for an appropriate 

medical screening for [her] within the capability of [Stroger Hospital's] emergency 

 2

 Defendant's expert witness, neurologist Charles C. Wang, M.D., explained in 

his discovery deposition that "symptoms" are complaints of the patient while "signs" are 

the objective findings of a medical examination.
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department, including ancillary services routinely available to the emergency 

department, to determine whether or not an emergency medical condition existed" and 

that it failed to provide her with an appropriate medical screening examination within the 

capability of the hospital's emergency department. She asserted the county was 

negligent in failing to (1) properly perform an appropriate medical screening examination 

pursuant to EMTALA or (2) properly stabilize, treat, and refer her to a neurologist or 

neurosurgeon in violation of EMTALA. Plaintiff sought damages for the permanent

injuries she suffered as a proximate result of these negligent acts or omissions and for 

the severe mental and emotional anguish she allegedly suffered and will continue to 

suffer due to those injuries.

¶ 8 Defendants answered, denying the allegations. They filed affirmative defenses, 

asserting that, as a "local public entity" and employees of that public entity acting within 

the scope of their employment, they were immune from liability for any injury which may 

have been caused to plaintiff by their failure to diagnose or treat her condition pursuant 

to sections 6-105 and 6-106(a) of the Tort Immunity Act (745 ILCS 10/6-105, 6-106(a)

(West 2012)).3 The parties then conducted extensive discovery.

 3

 Section 6-105 provides:

"Neither a local public entity nor a public employee acting within the 

scope of his employment is liable for injury caused by the failure to 

make a physical or mental examination, or to make an adequate 

physical or mental examination of any person for the purpose of 

determining whether such person has a disease or physical or 

mental condition that would constitute a hazard to the health or 

safety of himself or others." 745 ILCS 10/6-105 (West 2012).

Section 6-106(a) provides:

"(a) Neither a local public entity nor a public employee acting within 

the scope of his employment is liable for injury resulting from 

diagnosing or failing to diagnose that a person is afflicted with 

mental or physical illness or addiction or from failing to prescribe for 
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¶ 9 In plaintiff's discovery deposition, she testified that she slipped on a patch of ice 

on March 3, 2007, and fell flat on her back. The next day, she went to the emergency 

room at Stroger Hospital, complaining of back spasms, legs tingling and back pain. Dr. 

Bishof examined her but plaintiff could not recall what examinations Dr. Bishof 

performed. At some point, plaintiff received intravenous infusions of Valium and 

morphine for her pain and two X-rays were taken of her back. Plaintiff was then 

examined by Dr. Bankoff. 

¶ 10 Plaintiff testified that Dr. Bankoff told her there was "nothing wrong" with her and 

she had to "get out of here." He stated "I don't know that you think you're up to" and told 

her "you're lying, you're faking." Plaintiff stated that, by this time, many hours after she 

first arrived in the emergency department, she could not walk but "they wouldn't listen to 

[her]." Plaintiff testified that Dr. Bankoff "kept insisting" that there was nothing wrong 

with her and that she could stand. He told her to stand and she "said no, I can't stand, 

no, I can't." He did not believe her when she said she could not stand. With plaintiff's 

boyfriend on one side and Dr. Bankoff on the other, they took plaintiff by the arms and 

stood her up. Dr. Bankoff then told her boyfriend "to let go," which he did, and plaintiff 

collapsed to the ground. Plaintiff testified that the doctor looked at her and told her "see 

how your legs are bent, because they are crossed like this, like sort of funny. He goes, 

no one does that, you know, when they just fall, really, you're doing yoga positions, so 

you're lying, you’re doing yoga positions." 

¶ 11 Plaintiff testified that a CAT scan was then taken and a "second male doctor" told 

her the results, telling her there was nothing wrong with her and "we're not going to do 

 

mental or physical illness or addiction." 745 ILCS 10/6-106(a) (West 

2012).
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an MRI [magnetic resonance imaging] because you don't need one."4 This second male 

doctor then discharged her with instructions "to see a doctor, *** take it easy, take 

aspirin or something, if conditions get worse come back, but I couldn't walk, and they 

wouldn't listen to me, and he kept writing on the paper that I felt fine." She said, "I was 

told there was nothing wrong with me. The first doctor [Dr. Bankoff] *** said there was 

absolutely nothing wrong with me and made me stand up and fall on the ground, 

insisting there was nothing wrong with me. The second doctor kept insisting there was 

nothing wrong with me, and they sent me home saying there was nothing wrong with 

me."5

¶ 12 Plaintiff testified: "I didn't know what to do. I just wanted them to admit me and 

keep looking, find out what was wrong, believe me, to believe me, and they wouldn't 

believe me, and their treatment of me then too, and, yes, they did not go further with 

their tests that they could have performed." She stated she kept telling the doctors that 

she wanted them "to go further, is there anything else, because I knew there was 

something wrong," but did not request any specific tests. Plaintiff could not walk by this 

point and her boyfriend, aided by an orderly, had to lift her into his car. She went home 

and slept for a few hours. When she woke, she still could not stand, was in severe pain 

and could not urinate. 

¶ 13 Plaintiff testified that her boyfriend then took her to Lincoln Park Hospital, where 

she was examined by Frederic Fishman, M.D.. Plaintiff stated Dr. Fishman told her 

there was nothing wrong with her, told her she had to leave and pushed her in her 

 4

 This "second male doctor" is not identified or named in plaintiff's complaint.

5

 In contradiction to her earlier testimony, she stated that the second male doctor 

was the doctor "that kept saying I don't know what you think you're up to."
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wheelchair into the waiting room while she was still crying and "told everybody that [she]

was a mental case and to get out of there or he would call the cops." Later the same 

day, plaintiff returned to Stroger Hospital. On this second visit to Stroger Hospital, 

plaintiff was evaluated by a neurosurgeon, an MRI was taken of her back, plaintiff was 

diagnosed with a spinal injury and she was admitted to the hospital. Plaintiff remained at 

Stroger Hospital for a week before being transferred to Oak Forest Hospital for inpatient 

rehabilitation. 

¶ 14 Asked to explain the emotional distress "problem" she claimed resulted from her 

fall and treatment, plaintiff testified:

"I have no self-confidence anymore. I feel very much that I have to 

defend myself or at least explain myself, say I'm sorry to anybody, that no 

one's going to believe me anyway, that I'm just kind of a phony, people 

don't put any trust or faith in me."

She stated she had regularly spoken to a psychologist at Oak Forest Hospital during her 

rehabilitation stay there after her transfer from Stroger Hospital and this doctor had told 

her she needed to continue seeing a psychologist after her discharge. Plaintiff was "still" 

taking Wellbutrin (an anti-anxiety medication) as prescribed to her by this doctor but 

was not seeing a psychologist as she could not afford one. She testified that, "a long 

time ago," before her fall, she had taken medication for depression. 

¶ 15 The medical record of plaintiff's emergency room visit lists Dr. Bishof as the 

primary "MD/NP." It shows plaintiff was first "seen" in the emergency room shortly after 

5 p.m. and discharged at 3 a.m. the next day. During her stay, she received multiple 

doses of pain killer Toradol, of Valium and of morphine. Dr. Bishof ordered two X-rays of 
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plaintiff's spine, taken five hours apart. The X-rays showed "vertebral body and disc 

height and alignment are preserved *** [and] no definite fracture" and "bony contours 

and joint spaces are seen to be within normal limits." The CAT scan ordered by Dr. 

Bishof showed "no acute fracture or dislocation," "vertebral body heights and 

intervertebral spaces are preserved" and "soft tissues are unremarkable." The 

discharge diagnosis written in the record is "back/buttock contusion s/p RH." The 

"instructions to patient" directed plaintiff to take the pain medication Motrin as 

prescribed, follow up with her primary care physician and "rest." The chart is signed by 

Dr. Bishof and Dr. Sergel, Dr. Bishof's attending physician. An emergency department 

"discharge" computer record lists the "primary discharge diagnosis" as "muscle spasm."

¶ 16 Dr. Bishof testified in her discovery deposition that she took a "complete history 

and physical" of plaintiff. She performed "a complete head-to-toe exam" of plaintiff, 

determining that plaintiff's neurological exam was "intact, plaintiff had no point 

tenderness over her back or bruising and had full range of motion at her hips, knees

and ankles on her own and with Dr. Bishof "passively ranging her through motion." Dr. 

Bishof found plaintiff "had some tense paraspinal muscles in her low back" and seemed 

to be spasming in pain but her cranial nerves were intact, her tendon reflexes were 

normal, there was normal sensation in all four of her extremities and complete and full 

strength in all her extremities, and there were no signs of upper motor neuron problems.

¶ 17 Dr. Bishof testified that, after her physical examination of plaintiff, she ordered

that plaintiff receive an anti-inflammatory and pain medication to help with her muscle 

spasms, Valium and, when plaintiff complained of pain, morphine. Dr. Bishof 

reassessed plaintiff several different times. When plaintiff complained that her right leg 
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was getting weak, Dr. Bishof reassessed her but found "a normal exam." As a matter of 

practice, she would have rechecked plaintiff's "deep tendon reflexes," the sensation and 

strength in her feet and her ability to move her legs. Dr. Bishof "did not find any physical 

objective findings" on her reexamination but, as plaintiff was complaining of new 

symptoms, Dr. Bishof ordered a CAT scan of plaintiff's spine. Dr. Bishof's shift then 

ended and she did not see plaintiff again. 

¶ 18 Dr. Bishof testified that her initial impression of plaintiff's symptoms was "muscle 

spasm with possible contusion to her back from the fall," which was consistent with the 

symptoms of which plaintiff complained. Dr. Bishof remembered, however, that plaintiff 

"had some objective findings which were not consistent with the subjective findings

[plaintiff's complaints]." Specifically, she remembered that plaintiff was complaining of 

numbness but "had a normal neurological exam, normal sensation and proprioception" 

and that she was moving around "so much" on the gurney, which Dr. Bishof considered 

inconsistent with being in pain. Dr. Bishof's impression was that plaintiff "had muscle 

spasm" causing her pain, numbness and cramping. Dr. Bishof noted that, at times, 

when she looked into plaintiff's cubicle while passing by, plaintiff appeared very 

comfortable and relaxed on the gurney but, "at other times when you would step into the 

room, she was writhing around on the cart." It was Dr. Bishof's impression that plaintiff 

seemed relaxed and comfortable when Dr. Bishof was not in the room. 

¶ 19 Dr. Bishof stated her opinion that, at the time she saw plaintiff, plaintiff had not 

suffered any permanent injury to her spinal cord and was neurologically intact. Overall, 

based on all of plaintiff's complaints, it was Dr. Bishof's "impression that [plaintiff] had 

muscle spasm." Dr. Bishof came to a differential diagnosis that plaintiff had "contused a 
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bone *** bruised a bone" and, when plaintiff's symptoms escalated, ordered a CAT scan 

"to rule out any bony injury that may have not been picked up on the plain films." She 

remembered that she did not call in a neurologic consult because she and her attending

physician, to whom she had conveyed plaintiff's history, the results of her physical exam 

of plaintiff and her impression regarding plaintiff's condition, did not think it was 

indicated. She would also have spoken to her attending physician about "the plan for 

evaluation and treatment." 

¶ 20 Dr. Bishof's shift ended at midnight and her chief resident, Dr. Bankoff, took over 

plaintiff's care. The last Dr. Bishof knew, plaintiff was being sent for a CAT scan. She 

did not discharge plaintiff and was not the one who wrote the "discharge diagnosis" into 

plaintiff's medical record. Dr. Bishof stated it was her custom and practice to give an oral 

report to the doctor taking over a patient's care but she did not specifically remember 

giving Dr. Bankoff an oral report on plaintiff. Dr. Bishof asserted she did not believe 

plaintiff was "faking her injuries" and she had never accused plaintiff of doing so. 

¶ 21 Dr. Bankoff testified in his discovery deposition that he did not remember plaintiff 

and had no recollection of any conversation with her but her medical records showed he 

examined her in the Stroger Hospital emergency department in the early morning on 

March 5, 2007. He assumed he received the customary briefing on this patient from the 

"off-going" team of residents at the change of their shift but he could not specifically 

recall the briefing he received on that shift. From the medical records, he knew he 

attended to her twice, gave her a prescription for Motrin and, although he documented 

that she "had subjective back pain with numbness and [was] unable to walk 

subjectively," his "normal neurologic exam" did not objectively find numbness. He did 
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not remember performing the exam or what it had entailed. He did not know whether he 

asked plaintiff to stand or walk and whether she complied. As was his custom and 

practice, he would have written plaintiff's discharge order and clarified any discharge 

instructions with her but another doctor would "actually" discharge her. He knew from 

the medical record that a CAT scan of plaintiff was "negative" but did not know who 

wrote this note in the record. Although the medical record stated plaintiff's "primary 

discharge diagnosis" as muscle spasm, Dr. Bankoff stated it was not his diagnosis. He 

did not remember plaintiff at all, had no recollection of anything other than what he had 

written in the medical record and had no memory of asking plaintiff to stand or of 

accusing her of faking her injury. 

¶ 22 Plaintiff's expert witness, emergency room physician Kenneth A. Corre, M.D., 

testified in his deposition that the county/Stroger Hospital violated EMTALA. He stated 

the basis for his opinions was "[t]hat the patient presented to Stroger Hospital did not 

have an appropriate or complete medical screening exam, [and[ that she, in fact, did 

have an emergency medical condition [a 'spinal cord contusion with neurologic findings'] 

which was not assessed nor treated or dispositioned appropriately." Dr. Corre opined 

that plaintiff did not receive a "complete medical screening" or "subsequent appropriate 

testing or diagnosis" and "should have been hospitalized and received immediate 

consultation [by a spine specialist, neurosurgeon or neurologist] and treatment that 

would have been part of that hospitalization." He stated plaintiff should have been 

immediately immobilized with her spine stabilized and should have received "high-dose 

steroids." 

¶ 23 Dr. Corre stated that, when plaintiff presented to Stroger Hospital on March 4, 
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2007, the emergency medical screening examination required a complete and detailed 

history, a complete and detailed physical exam, imaging which included an MRI of the 

spine, "stat" consultation with a spine specialist, immobilization and stabilization of the 

spine, intravenous high-dose steroids, hospitalization of plaintiff as opposed to her 

being discharged home and "the diagnosis of spinal injury, in particular spinal cord 

contusion, be made." It was his opinion that Dr. Bishof's initial medical screening, 

including her failure to schedule an MRI, and physical examination of plaintiff were 

inadequate and below the standard of care as plaintiff presented with an obvious spinal 

cord injury that should have been diagnosed by Dr. Bishof as an emergency medical 

condition requiring immobilization, an MRI, consultation with a spine specialist and 

hospital admission. Instead, as a result of Dr. Bishof's inadequate examination and 

testing, she diagnosed plaintiff with a muscle spasm, which diagnosis was accepted by 

Dr. Bankoff after he received the results of a CAT scan on plaintiff and led to plaintiff's 

discharge from the hospital with after-care instructions appropriate for a muscle spasm. 

Dr. Corre stated the after-care instructions were "absolutely not" the appropriate 

instructions for treatment of plaintiff's spinal cord injury. He asserted that her type of 

spinal cord injury presented an emergency medical condition and would not have 

necessitated after-care instructions given that, "by standard of care and EMTALA," she 

would have been "admitted, treated, immobilized, et cetera." Dr. Corre asserted that the 

instructions plaintiff received were related "to the diagnosis of back or buttock contusion 

only" and, if given for something more severe such as a spinal cord contusion or injury, 

were "woefully inadequate and substandard." Dr. Corre stated that, taking together 

plaintiff's complaints, the mechanism of her injury, the results of the physical 
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examination and the failure to carry out "a complete and standard exam," "they clearly 

did not take this patient seriously, and I believe that they also clearly violated patient 

safety."

¶ 24 Plaintiff's other expert witness, neurologist Adrian Richard Mainwaring Upton, 

M.D., stated that, based on his review of plaintiff's medical records and his examination 

of plaintiff, she had suffered a contusion of the spinal cord as a result of her fall. After 

discussing plaintiff's signs and symptoms, Dr. Upton stated he did not know how Dr. 

Bishof "could even begin to suggest" that plaintiff's numbness was due to muscle spasm

and found this to be "quite frankly nonsense." Dr. Upton opined that Dr. Bishof did not 

perform a thorough screening evaluation to determine whether or not a spinal cord 

injury existed and she should have made a probable diagnosis of spinal cord injury and 

treated plaintiff for such. He felt that the combination of Dr. Bishof's failure to order an 

MRI, failure to request a neurological opinion, failure to administer the steroid methyl 

prednisone and failure to immobilize plaintiff comprised a deviation from the standard of 

care which aggravated a preexisting condition suffered by plaintiff. Dr. Upton noted that 

Dr. Bishof did not write a diagnosis in the record. 

¶ 25 Dr. Upton stated his opinion that Dr. Bankoff also deviated from the standard of 

care as Dr. Bankoff "was prepared to help discharge the patient when no diagnosis was 

made and a probable spinal cord lesion had been missed." He stated Dr. Bankoff failed 

to perform a proper screening evaluation to determine whether spinal cord injury 

existed, did not order an MRI and did not consult a neurologist or neurosurgeon. Dr. 

Upton testified that Dr. Bankoff was the individual who diagnosed plaintiff with a "back 

and buttock contusion status post-fall." He stated that, although this was not an 
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incorrect diagnosis, "what [Dr. Bankoff] didn't do was find out why she had the 

neurological symptoms which was the spinal cord swelling as a result of the fall." Dr. 

Bankoff should have gone further and considered the possibility that plaintiff had 

suffered a spinal lesion, not merely a back and buttock bruising. Dr. Upton stated the 

after-care instructions given to plaintiff were not treatment for a spinal cord injury and 

would not have been of any benefit to plaintiff in preventing her from progressing from 

bruising to paraplegia. It was Dr. Upton's opinion that any of the doctors responsible for 

the care and treatment of plaintiff should have, based on plaintiff's signs and symptoms, 

"worked her up [(diagnosed her)] for a contused spinal cord, had an MRI done, 

delivered the steroids," as was the standard treatment for spinal cord injuries in general. 

He found the evidence "obvious" that plaintiff had a contused spine and an MRI, 

although not used to make a diagnosis, would have confirmed or denied the clinical 

diagnosis. The painkillers prescribed for plaintiff upon discharge would have eliminated 

plaintiff's pain and improved her back if she "only" had a contused back but her 

numbness indicated that it was very unlikely that she only had a contused back.

¶ 26 Retired Oak Forest Hospital clinical psychologist Malcolm J. Brachman, Jr., 

Ph.D., testified that he visited plaintiff once during her admission to the spinal cord injury 

rehabilitation unit at Oak Forest Hospital in 2007. Plaintiff's Oak Forest Hospital medical 

records showed that, as with any patient admitted to the rehabilitation unit, plaintiff had 

received a psychological screening. Plaintiff's medical records showed a staff 

psychologist diagnosed plaintiff as suffering from depression and anxiety, a staff 

psychiatrist found plaintiff had a history of "major depressive disorder with psychosis" 

and "psychosis with depression" and might possibly suffer from "bipolar disorder," and 
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plaintiff told a staff social worker that she had suffered from depression since the age of 

21, for more than 20 years. During plaintiff's stay at Oak Forest Hospital, a predoctoral 

psychology intern conducted six therapy sessions with plaintiff. Dr. Brachman stated 

that he went to talk to plaintiff once, after she had expressed suicidal ideation to her 

therapist. Dr. Brachman opined that, based on his general understanding of 

rehabilitation patients and given plaintiff's prior history of depression or "mental 

condition," her "traumatic injury" "probably exacerbated" her existing mental condition. 

¶ 27 Defendant's expert witness, neurologist Charles C. Wang, M.D., testified in some 

detail regarding plaintiff's signs and symptoms and opined Dr. Bishof did "a complete 

head-to-toe," "pretty thorough" examination involving "neuro" and "deep tendon 

reflexes." He considered it "pretty good for an emergency physician in terms of 

neurologic examination." He stated Dr. Bishof found a "normal exam," Dr. Bankoff's 

discharge diagnosis was back/buttock contusion and the emergency department's 

working diagnosis was muscle spasm with possible contusion to plaintiff's back from the 

fall. Dr. Wang thought the likely cause of plaintiff's complaints was spinal cord 

contusion. Regarding plaintiff's complaint to Dr. Bankoff that she could not walk, Dr. 

Wang stated he would expect a reasonably qualified physician under those 

circumstances to have the patient walk.

¶ 28 In October 2011, defendants moved for summary judgment on negligence counts 

I and III. Pointing out that plaintiff's experts testified that Drs. Bishof and Bankoff failed 

to perform diagnostic examinations and tests and to diagnose or treat a spinal cord 

injury/spinal cord contusion (SCI/SCC), defendants argued that they were entitled to 

judgment as matter of law under sections 6-105 and 6-106(a) of the Tort Immunity Act. 
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Plaintiff responded that defendants were not immune from liability on counts I and III as 

her allegations were "primarily rooted" in defendants' failure to perform an initial medical 

screening, screen her for her signs and symptoms, properly treat her for her signs and 

symptoms and properly consult with or refer her to a neurologist or neurosurgeon, i.e., 

were rooted in defendants' negligent and inadequate treatment of the injuries, signs and 

symptoms as diagnosed by defendants for which there was no immunity pursuant to 

sections 6-106(c) and (d) of the Tort Immunity Act.

¶ 29 The court granted defendants' motion for summary judgment on counts I and III 

on January 27, 2012. It found that defendants diagnosed plaintiff "with a back/buttocks 

contusion and treated her for the erroneous diagnosis," "failed to correctly diagnose her 

spinal cord injury, which required different treatment and was delayed due to the 

misdiagnosis" and "failed to perform the tests which would have led to the proper 

diagnosis." The court determined that "[t]he claim against the Defendants here is, in 

essence, based on their failure to perform an adequate examination and their failure to 

diagnose the Plaintiff's spinal cord injury, rather than their negligence in treating the 

spinal cord injury." It found defendants were, therefore, immunized from liability from the 

negligence alleged in counts I and III pursuant to sections 6-105 and 6-106 of the Tort 

Immunity Act and summary judgment on those counts was warranted.

¶ 30 The county moved for summary judgment on the EMTALA count V, asserting 

that it was immune from liability for any failure to perform an appropriate medical 

screening examination under the Tort Immunity Act and that EMTALA did not preempt 

the Tort Immunity Act. It also argued that plaintiff presented no evidence to show that 

any member of the Stroger Hospital emergency department staff had determined 
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plaintiff had an emergency medical condition or had intended to discharge an unstable 

patient in violation of EMTALA. In support of its motion, the county presented the 

deposition of its expert emergency medicine physician, Richard M. Feldman, M.D.

Although Dr. Feldman agreed that Drs. Bishof and Bankoff had "missed the diagnosis" 

of plaintiff's spinal cord injury and plaintiff was not stabilized when she was discharged 

"the first time from Stroger Hospital," he found plaintiff's "EMTALA issue" was "a 

nonstarter." He testified:

"There is a well [sic] beyond the medical screening exam for this 

patient, the fact that there was a diagnosis made that turned out to be not 

as severe as the diagnosis she eventually had, EMTALA has nothing to do 

with whether or not you make the correct diagnosis. It has to do with 

whether you treat the patient as you would treat every other patient that 

presents a similar type symptomography.

Pain medicine, X-rays, observation, more pain medicine, CAT scan 

is needed, disposition accordingly, but in terms of the patient being treated 

as any other patient would be[,] she was for the set of symptoms she had. 

The fact that they didn't go further with an MRI has to do with clinical 

judgment. Has nothing to do with the desire on the part of the doctors or 

institution not to care for the patient appropriately as they would with every 

other patient."

Plaintiff responded to the motion, arguing that EMTALA did preempt the Tort Immunity 

Act and that questions of material fact existed regarding whether the county violated 

EMTALA and whether, as required by EMTALA, she was given a medical screening and 
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ancillary services within the capability of Stroger Hospital's emergency department and 

stabilized before being discharged. 

¶ 31 The court granted the county's motion for summary judgment on July 27, 2012. It 

held that sections 6-105 and 6-106 of the Tort Immunity Act directly conflict with 

EMTALA and EMTALA therefore preempts the Tort Immunity Act such that the 

requirements of EMTALA apply to the county.6 It then held that there was no evidence 

to show that the county violated EMTALA at the time of plaintiff's emergency room visit 

to Stroger Hospital. The court explained there was no evidence that the screening 

plaintiff received at Stroger Hospital deviated in any way from the hospital's own 

standard screening procedures or that plaintiff was treated any differently from other 

patients based on her lack of insurance or inability to pay. It, therefore, found no 

evidence to support a violation of EMTALA with regard to whether the county performed 

an appropriate screening examination under the statute. The court also found that, as 

plaintiff was not diagnosed with an emergency medical condition, Stroger Hospital had 

no duty to provide necessary stabilizing treatment under EMTALA. 

¶ 32 Defendants then moved for summary judgment on the negligent infliction of 

emotional distress counts II and IV pursuant to section 6-109 of the Tort Immunity Act 

(745 ILCS 10/6-109 (West 2012)).7 They argued that the gist of these claims was that 

defendants were liable for failing to admit plaintiff to the hospital and they were immune 

 6

 EMTALA provides that its provisions "do not preempt any State or local law 

requirement, except to the extent that the requirement directly conflicts with a 

requirement of this section." 42 U.S.C. § 1395dd(f) (2012).

7 Section 6-109 provides that local public entities and their employees acting in 

the scope of their employment are immune from liability "for an injury resulting from the 

failure to admit a person to a medical facility operated or maintained by a local public 

entity." 745 ILCS 10/6-109 (West 2012).
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20

from failure to admit under section 6-109. The court granted the motion for summary 

judgment on February 1, 2013. It found section 6-109 of the Tort Immunity Act was 

inapplicable but that defendants were immunized from liability on counts II and IV 

pursuant to sections 6-105 and 6-106 as these counts were "not pled" as claims for 

negligent infliction of emotional distress but rather were identical to counts I and III 

sounding in medical malpractice, adding only an allegation of emotional distress as an 

element of damages. The court held that, as the negligent infliction of emotional distress 

counts II and IV stemmed from the same failure to adequately examine, test and 

diagnose plaintiff asserted in counts I and III and the allegations in counts II and IV were 

identical to those stated in counts I and III, defendants were immunized from liability 

pursuant to sections 6-105 and 6-106.

¶ 33 On March 5, 2013, the court entered an order finding there was no just reason to 

delay enforcement or appeal of the February 27, 2012, July 27, 2012, and February 1, 

2013, orders granting summary judgment to defendants on counts I through V. It 

declared the orders final and appealable pursuant to Illinois Supreme Court Rule 304(a)

(eff. Feb. 26, 2010). On March 27, 2013, plaintiff filed her timely notice of appeal from 

the March 5, 2013, finality order and the three underlying summary judgment orders.

¶ 34 ANALYSIS

¶ 35 Plaintiff raises three issues on appeal challenging the court's grant of summary 

judgment to defendants on all counts against them. She argues: (1) defendants are not 

immune from liability under sections 6-105 and 6-106 of the Tort Immunity Act for their 

negligent failure to appropriately treat plaintiff as alleged in counts I and III; (2) 

defendants are not immune from liability under sections 6-105 and 6-106 of the Tort 
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21

Immunity Act for their negligent infliction of emotional distress caused to plaintiff by their 

treatment of her as alleged in counts II and IV; and (3) questions of material fact exist 

regarding whether, as asserted in count V, the county/Stroger Hospital failed to provide 

plaintiff with a medical screening examination within the capability of the hospital's

emergency department and to stabilize her prior to discharge as required by EMTALA. 

We do not consider whether the delay in treatment between plaintiff's first and second 

visit to Stroger Hospital was the cause of her injuries or the extent of her damages as 

the issues of causation and damages are not before us.

¶ 36 Summary judgment is a drastic means of disposing of litigation and should be 

granted only when " ' "the pleadings, depositions, and admissions on file, together with 

the affidavits, if any, show that there is no genuine issue as to any material fact and that 

the moving party is entitled to a judgment as a matter of law." ' " Axen v. Ockerlund 

Construction Co., 281 Ill. App. 3d 224, 229 (1996) (quoting Purtill v. Hess, 111 Ill. 2d 

229, 240 (1986), quoting Ill. Rev. Stat. 1983, ch. 110, ¶ 2-1005(c)). The purpose of 

summary judgment is not to try a question of fact but to determine whether one exists or 

whether reasonable people could draw different inferences from the undisputed facts. 

Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 462 (2003); Wood v. National 

Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585 (2001). We review the trial 

court's decision on a motion for summary judgment de novo, construing the pleadings, 

depositions, admissions and affidavits strictly against the moving party and liberally in 

favor of the respondent. Golden Rule Insurance Co., 203 Ill. 2d at 462; Gauthier v. 

Westfall, 266 Ill. App. 3d 213, 219 (1994). 

¶ 37 1. Counts I and III – Negligence
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¶ 38 At issue first is the trial court's grant of summary judgment to defendants on 

counts I and III of the fifth amended complaint. The court found defendants, a local 

public entity and two of its employees, immune from liability under sections 6-105 and 6-

106 of the Tort Immunity Act for the negligence asserted in those counts.8

¶ 39 As noted supra, section 6-105 provides: 

"Neither a local public entity nor a public employee acting within the scope 

of his employment is liable for injury caused by the failure to make a 

physical or mental examination, or to make an adequate physical or 

mental examination of any person for the purpose of determining whether 

such person has a disease or physical or mental condition that would 

constitute a hazard to the health or safety of himself or others." 745 ILCS 

10/6-105 (West 2012).

"By its plain terms, section 6-105 provides immunity from liability to a local public entity 

and its employees who have failed to make a physical or mental examination, or who 

have failed to make an adequate physical or mental examination." Michigan Avenue 

National Bank v. County of Cook, 191 Ill. 2d 493, 505 (2000). 

 8

 "In a negligence medical malpractice case, the burden is on the plaintiff to 

prove the following elements of a cause of action: the proper standard of care against 

which the defendant physician's conduct is measured; an unskilled or negligent failure 

to comply with the applicable standard; and a resulting injury proximately caused by the 

physician's want of skill or care." Purtill v. Hess, 111 Ill. 2d 229, 241-42 (1986). "Unless 

the physician's negligence is so grossly apparent or the treatment so common as to be 

within the everyday knowledge of a layperson, expert medical testimony is required to 

establish the standard of care and the defendant physician's deviation from that 

standard." Id. at 242. Illinois courts follow the "similar locality" rule in determining the 

standard of care against which the defendant physician's alleged negligence is judged. 

Id. Under this rule, a physician must possess and "apply that degree of knowledge, skill, 

and care which a reasonably well-qualified physician in the same or similar community 

would bring to a similar case under similar circumstances." Id.
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23

¶ 40 Section 6-106(a) provides: 

"Neither a local public entity nor a public employee acting within the scope 

of his employment is liable for injury resulting from diagnosing or failing to 

diagnose that a person is afflicted with mental or physical illness or 

addiction or from failing to prescribe for mental or physical illness or 

addiction." 745 ILCS 10/6-106(a) (West 2012)

By its plain language, section 6-106(a) provides immunity from liability to a local public 

entity and its employees "for injury resulting from: (1) a diagnosis that a person is 

afflicted with a mental or physical illness or addiction; (2) failing to diagnose that a 

person is afflicted with a mental or physical illness or addiction; and/or (3) failing to 

prescribe for a mental or physical illness or addiction." Michigan Avenue National Bank, 

191 Ill. 2d at 510. 

¶ 41 The trial court stated its basis for granting summary judgment to defendants on 

their sections 6-105 and 6-106(a) immunity defense as follows: "The claim against the 

Defendants here is, in essence, based on their failure to perform an adequate 

examination and their failure to diagnose the Plaintiff's spinal cord injury, rather than 

their negligence in treating the spinal cord injury." Plaintiff acknowledges that 

defendants would be immune from liability for failing to make a diagnosis but asserts 

defendants are not immune from liability for negligent treatment and that she has 

alleged such here.

¶ 42 Plaintiff correctly points out that section 6-106 is not meant to grant blanket 

immunity for negligent treatment of a specific medical condition. Michigan Avenue 

National Bank, 191 Ill. 2d at 511. As our supreme court explained in Michigan Avenue 
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National Bank, 191 Ill. 2d at 511:

"Although subsection (a) of section 6-106 grants immunity for diagnosing, 

or failing to diagnose, that a person is afflicted with a physical illness, the 

remaining subsections of section 6-106 contain limitations on immunity 

where it is alleged that a local public entity and its public employees have 

caused a person to suffer injury due to the negligent prescription of 

treatment and/or the negligent administration of treatment. Specifically, 

subsection (b) of section 6-106 provides that a local public entity and its 

public employees are vested with immunity where they administer 

treatment prescribed for mental or physical illness or addiction, so long as 

such treatment is administered with 'due care.' 745 ILCS 10/6-106(b)

(West 1992). Subsection (c) of section 6-106 states that defendants are 

not immunized where, having undertaken to prescribe for mental or 

physical illness or addiction, they have proximately caused an injury to a 

patient due to negligence or wrongful acts in so prescribing. 745 ILCS 

10/6-106(c) (West 1992). Finally, subsection (d) of section 6-106 provides 

that defendants are liable for injury proximately caused by their negligent 

acts or omissions in the administration of any treatment prescribed for 

mental or physical illness or addiction. 745 ILCS 10/6-106(d) (West 

1992)."

¶ 43 It is on the basis of these limitations on immunity that plaintiff asserts defendants

are not immune from liability for their negligence here. Asserting that defendants 

erroneously diagnosed her with only a back injury and began to treat her for this with 
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25

pain medication alone, plaintiff claims that, as alleged in her fifth amended complaint 

and shown by the expert testimony, "this is not a failure to diagnose case but instead a 

negligent and inadequate treatment situation," for which, pursuant to sections 6-106(b), 

(c) and (d), defendants are not immunized. She argues that, contrary to the trial court's 

finding, the essence of her claim does not stem from defendants' failures to adequately 

examine, test and diagnose her, for which she acknowledges defendants would be 

immune under section 6-106(a). Instead, she asserts her claim arises from defendants' 

"failure to properly perform an initial medical screening examination, screen the Plaintiff

for her deteriorating signs and symptoms, properly treat the Plaintiff for those signs and 

symptoms, and properly consult with or refer the Plaintiff to a neurologist or 

neurosurgeon," for which defendants would not be immunized. Plaintiff claims the court 

erred in finding immunity where defendants diagnosed plaintiff while still in their 

emergency room and began administering treatment to her but did so in a negligent

manner. Citing to American National Bank & Trust Co. of Chicago v. County of Cook, 

327 Ill. App. 3d 212 (2001), she argues that it was this treatment and the subsequent 

inadequate examinations and prescription of treatment that were negligent and 

defendants, therefore, were not immune under the Tort Immunity Act. In plaintiff's 

petition for rehearing, she further argues that the initial diagnosis in the emergency 

room was correct but the treatment plaintiff received for that diagnosis was negligent. 

¶ 44 In American National Bank & Trust Co., during a prenatal examination, doctors at 

a Cook County hospital clinic diagnosed the plaintiff with a "transverse lie" of her baby, 

meaning the baby could not delivered vaginally. They prescribed regular monitoring of 

plaintiff and the regular performance of assorted medical tests to determine the baby's 
1-13-1122

26

position and whether a caesarean section would be required to deliver the baby. 

Doctors consistently performed the prescribed tests and verified that the baby was in 

the transverse lie position. However, shortly before the plaintiff went into labor, one of 

the defendant doctors determined, incorrectly and without performing the prescribed 

tests, that the baby was no longer in the transverse lie position. When the plaintiff went 

into labor, the baby was undeliverable due to its birth position. An emergency 

caesarean section was performed but the baby suffered brain damage. The defendants 

argued they were immune from liability under sections 6-105 and 6-106. The court 

disagreed.

¶ 45 The court found the doctor's actions in failing to determine that the baby was still 

in a transverse lie position was not a "diagnosis" for which the defendants would be 

immune under section 6-106(a) as the doctor had not examined the plaintiff in order to 

investigate, analyze or determine her medical condition. American National Bank & 

Trust Co., 327 Ill. App. 3d at 217. Instead, it found the doctor was already aware of the 

plaintiff's medical condition, specifically the existing "transverse lie" diagnosis, and the 

doctor's actions consisted of "treating" by caring for and managing the previously 

diagnosed known condition. Id. The court stated that, once the initial diagnosis of 

transverse lie was made, each subsequent prenatal examination did not involve a 

separate and independent diagnosis to determine whether the baby was still in a 

transverse lie position. Id. 

¶ 46 The court explained, " 'once diagnosis of a medical condition is made and 

treatment of that condition is prescribed and undertaken, any subsequent diagnosis 

required to be made as a result of that treatment, such as with respect to complications 
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27

arising from medications prescribed or medical procedures performed, may not be 

entitled to the immunity protection of section 6-106(a).' "9 American National Bank & 

Trust Co., 327 Ill. App. 3d at 219 (quoting Michigan Avenue National Bank, 306 Ill. App. 

3d at 402). For example, treatment of the diagnosed illness might require further 

medical testing in order to diagnose and treat any additional medical conditions that 

result from the treatment prescribed for the diagnosed medical condition. Id. at 220.

" 'The making of the subsequent diagnosis would become part of the treatment 

prescribed for the medical condition initially diagnosed; and there would be no immunity 

if the subsequent diagnosis was incorrectly made (a negligent or wrongful act) or if the 

diagnosis was not made at all (an act of omission).' " Id. at 219 (quoting Michigan 

Avenue National Bank, 306 Ill. App. 3d at 403). "Following the same logic ***, once 

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." Id. at 220.

 9

 The court used the definitions of "diagnosis" and "treatment" set forth by our 

supreme court in Michigan Avenue National Bank v. County of Cook, 306 Ill. App. 3d 

392 (1999). Giving the term "diagnosis" as used in section 6-106(a) it's plain and 

ordinary meaning as gleaned from assorted dictionaries, the supreme court found it to 

mean, among other things, the "art or act of identifying a disease from its signs and 

symptoms, and as an investigation or analysis of the cause or nature of a condition, 

situation, or problem," as well as "the art of distinguishing one disease from another," 

"the determination of the nature of a case of disease" and "[t]he determination of a 

medical condition (such as disease) by physical examination or by study of its 

symptoms." (Internal quotation marks omitted.) Michigan Avenue National Bank, 191 Ill. 

2d at 510. 

It found "treatment" as used in section 6-106(a) to mean, "the action or manner of 

treating a patient medically or surgically" and "[t]he care of a sick person, and the 

remedies or means employed to combat the disease affecting him" as well as 

"[t]he management and care of a patient for the purpose of combating disease or 

disorder" and "[t]he medical or surgical management of a patient." (Internal quotation 

marks omitted.) Michigan Avenue National Bank, 191 Ill. 2d at 511-12. 
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¶ 47 The court stated that the plaintiff had been diagnosed with transverse lie prior to 

her examination by the doctor and the prescribed treatment for her condition consisted 

of regular monitoring of her condition, testing and manual maneuvers to determine the 

baby's position and whether a Caesarean section would be required. The doctor's 

alleged failure to schedule or perform such testing or manipulation constituted an act of 

omission in administering the plaintiff's prescribed treatment for her previously 

diagnosed condition. American National Bank & Trust Co., 327 Ill. App. 3d at 220.

"Under section 6-106(d), in the course of administering the treatment prescribed there is 

no immunity if the subsequent prescription or examination was incorrectly made (a 

negligent or wrongful act) or if the prescription or examination was not made at all (an 

act of omission)." Id. The court found the doctor's conduct was, therefore, afforded no 

immunity under section 6-106(d). Id.

¶ 48 Plaintiff asserts Dr. Bishof diagnosed plaintiff with a muscle spasm with possible 

back contusion and then began administering treatment to her for her injuries based on 

that diagnosis by administering pain medication and "nothing" for her muscle spasm. 

Plaintiff claims that Dr. Bishof had, at this point, begun treatment for plaintiff's condition, 

prescribed treatment in the form of pain medicine and the orders for X-rays and had 

undertaken the treatment as the pain medication was in fact administered. She argues 

that, as a result, following American National Bank & Trust Co., any subsequent 

prescription or examination required to be made pursuant to that condition is part of 

plaintiff's treatment for purposes of analysis under the Tort Immunity Act. Plaintiff claims 

that Dr. Bankoff then continued to treat her for the injuries previously diagnosed by Dr. 

Bishof by examining her, administering additional pain medication and, upon discharge, 
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29

providing her with a prescription for another pain medication. Plaintiff argues that this 

evidence shows defendants undeniably began treating plaintiff for the injuries they 

diagnosed as well as for her signs and symptoms and, therefore, once defendants 

undertook and prescribed her treatment, they were not immune from negligent 

treatment, negligent prescription of treatment, inadequate treatment, omission in 

administering treatment or failure to make subsequent examinations of plaintiff.

¶ 49 Contrary to plaintiff's argument, this is not a case where the defendants 

negligently prescribed and administered treatment to the plaintiff after a correct 

diagnosis as in American National Bank & Trust Co. It is, instead, a failure to diagnose 

case, as the trial court correctly found. All of plaintiff's claims of negligent treatment are 

directed to defendants' improper treatment of her spinal cord injury. Defendants treated

plaintiff for her signs and symptoms but consistently diagnosed those signs and 

symptoms as muscle spasm and back/buttock contusion, not spinal cord injury. 

¶ 50 Taking Drs. Bishof's and Bankoff's administration of Valium and pain medication 

as "treatment" for plaintiff's diagnosed condition, that diagnosed condition was always 

"muscle spasm" with possible back/buttock contusion. Dr. Bishof testified that this was 

her initial impression, was her "final" impression after her multiple examinations, 

observations and testing of plaintiff and was verified by her attending physician. When 

the results of the CAT scan ordered by Dr. Bishof came back "normal," Dr. Bankoff 

confirmed Dr. Bishof's initial impression that plaintiff suffered from back/buttock 

contusion. After numerous examinations, observations and tests, defendants ruled out 

spinal cord injury as a diagnosis and settled on muscle spasm and a discharge 

diagnosis of back/buttock contusion. Spinal cord or neurological injury was never a 
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30

differential diagnosis. In retrospect, defendants were wrong and plaintiff did have a 

spinal cord injury. They misdiagnosed her. However, as our supreme court explained in 

Michigan Avenue National Bank, a misdiagnosis is a "wrong or mistaken diagnosis" for 

which defendants are immune from liability under section 6-106(a). (Internal quotation 

marks omitted.) Michigan Avenue National Bank, 191 Ill. 2d at 514. 

¶ 51 Having ruled out a neurological injury, defendants consistently treated plaintiff for 

the muscle spasm and back/buttock contusion injury with which they had misdiagnosed 

her. There is no evidence that the treatment defendants provided for the signs and 

symptoms they attributed to muscle spasm and back/buttock contusion was negligent 

for that diagnosis. In other words, there being no evidence to the contrary, defendants 

treated the wrong diagnosis correctly. Defendants' arguably proven negligence was in 

their failure to perform adequate medical examinations or testing leading to their failure 

to diagnose plaintiff's spinal cord injury, for which they are immune from liability under 

sections 6-105 and 6-106(a). Although, according to plaintiff's expert witnesses, 

defendants should have immobilized plaintiff, hospitalized her, administered steroids, 

consulted a neurosurgeon or neurologist and ordered an MRI for her spinal cord injury, 

the reality is that defendants did not diagnose a spinal cord injury and those additional 

treatments and testing were not indicated for the muscle spasm and back/buttock 

contusion with which they diagnosed her. The treatment defendants provided to plaintiff 

was appropriate for the injury with which they diagnosed her and they are immune from 

liability for that misdiagnosis. Michigan Avenue National Bank, 191 Ill. 2d at 514. Unlike

in American National Bank & Trust Co., there is no evidence that the treatment provided 

to plaintiff was inadequate or negligent for the diagnosis. The fact that the muscle 
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31

spasm diagnosis was incorrect or inadequate does not, without more, make defendants' 

treatment for that diagnosis negligent. The fact that the treatment was the wrong 

treatment for spinal cord injury would be relevant only if defendants had diagnosed 

plaintiff with a spinal cord injury. They had not. They diagnosed her with a muscle 

spasm and possible back/buttock contusion and treated her solely for that. In fact, 

plaintiff's expert Dr. Upton supports the conclusion that the diagnosis in the emergency 

room was incorrect. Dr. Upton testified that he did not know how Dr. Bishof "could even 

begin to suggest" that plaintiff's numbness was due to muscle spasm and found this to 

be "quite frankly nonsense."

¶ 52 Plaintiff's argument is similar to that raised by the plaintiff in Michigan Avenue 

National Bank. There, the plaintiff, the special administrator of the estate of Cynthia 

Collins, characterized its lawsuit as grounded in the defendants' failure to administer 

proper treatment to Collins after determining that Collins suffered from a specific 

medical condition and argued the defendants were, therefore, liable under sections 6-

106(b), (c) and (d). Doctors at a Cook County hospital had diagnosed Collins with 

fibrocystic breast disease and advised her to return in three months. During subsequent 

visits to the hospital's emergency room for other ailments, including a pain in her breast,

the doctors consistently failed to diagnose that Collins suffered from breast cancer. At 

another hospital, Collins was diagnosed with the cancer and died from it. The plaintiff

filed a two-count complaint against the defendants, alleging their negligence in failing to 

order a mammogram, failing to adequately perform tests and examinations, failing to 

perform a biopsy, failing to diagnose Collins' breast cancer and failing to administer 

proper and necessary medical and nursing care to Collins. Michigan Avenue National 
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Bank, 191 Ill. 2d at 499. The trial court granted summary judgment to the defendants 

pursuant to sections 6-105 and 6-106(a) of the Tort Immunity Act and the appellate and

supreme courts affirmed.

¶ 53 The supreme court found the allegations made in the plaintiff's complaint 

contradicted its assertion that its action was premised upon the defendants' negligent 

treatment of Collins. Michigan Avenue National Bank, 191 Ill. 2d at 513. It found, 

instead, that "the gravamen of plaintiff's action against defendants is that defendants' 

failure either to perform examinations or to adequately perform examinations led to 

defendant's failure to diagnose Collins' breast cancer, which, in turn, proximately 

caused her death" and, therefore, "the immunity provided to local public entities and 

their public employees in section 6-105 and subsection (a) of section 6-106 applies." 

Michigan Avenue National Bank, 191 Ill. 2d at 512. The plaintiff had alleged that the 

defendants' negligent misdiagnosis of fibrocystic breast disease had prevented the 

discovery of Collins' breast cancer and was the proximate cause of her death. Noting 

that " '[m]isdiagnosis' is defined as a 'wrong or mistaken diagnosis' " (id. at 514 (quoting 

Stedman's Medical Dictionary 973 (25th ed. 1990))), the court held that, "[b]ecause 

[section 6-106(a)] immunizes defendants 'from diagnosing or failing to diagnose' that a 

person has a physical illness, plaintiff's attempts to characterize its lawsuit as a case of 

'misdiagnosis' does not remove its action from the ambit of [section 6-106(a)]" (id.).

¶ 54 The court also found the plaintiff's argument that its cause was an action for 

negligent treatment rather than failure to diagnose was not supported by the deposition 

testimony of the plaintiff's own experts, noting there was no testimony by the experts 

that fibrocystic breast disease is treatable, that any treatment of Collins' fibrocystic 
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33

breast disease occurred or that there was negligence in the course of treatment. The 

court concluded: 

"The criticisms lodged against defendants by plaintiff's experts *** focused 

upon the failure to perform certain examinations, such as a mammogram, 

ultrasound or biopsy. This failure, in turn, led to defendants' failure to 

diagnose Collins' breast cancer, which, the experts surmised, had 

coexisted with Collins' fibrocystic condition. Section 6-105 immunity 

applies to defendants' alleged failure to conduct physical examinations in 

order to evaluate whether Collins suffered from breast cancer in addition 

to fibrocystic condition. In addition, because defendants rendered no 

medical treatment to Collins in relation to her breast condition on October 

22, 1986, defendants' failure to diagnose breast cancer is conduct to 

which section 6-106(a) immunity applies." Michigan Avenue National 

Bank, 191 Ill. 2d at 516.

¶ 55 Similarly here, although plaintiff argues that "this is not a failure to diagnose case, 

but instead a negligent and inadequate treatment situation," the gravamen of her fifth 

amended complaint is that defendants' failure either to perform examinations or to 

adequately perform examinations led to their failure to diagnose and treat plaintiff's 

spinal cord injury, which, in turn, proximately caused her claimed injuries.10 The import 

 10 In the fifth amended complaint, plaintiff claimed she suffered injuries as a 

proximate result of one or more of the following negligent acts or omissions by Drs. 

Bishof and Bankoff and/or the county:

"a. Failing to properly perform an initial medical screening examination; or

b. Failing to properly screen [her] for her signs and symptoms; or

c. Failing to properly treat [her] for her signs and symptoms; or 

d. Failing to properly treat [her] for a spinal cord injury; or
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of all these allegations is that defendants' failure to properly perform an initial 

examination of plaintiff, screen her and consult with a spine expert prevented them from 

reaching a correct diagnosis of spinal cord injury. Only because defendants failed to 

diagnose the spinal cord injury did they fail to properly treat plaintiff's signs and 

symptoms, properly treat her spinal cord injury and properly refer her to a neurologist or 

neurosurgeon. Only because defendants failed to properly diagnose and treat plaintiff 

for a spinal cord injury did she suffer her ultimate injuries. In plaintiff's reply brief, she 

states that "the crux" of her case is her allegation that defendants' treatment for their 

diagnoses of muscle spasm and back/buttock contusion was negligent. Yet nowhere in 

her complaint has she alleged that that the treatment provided to her was improper 

treatment for the muscle spasm and back/buttock contusion diagnoses. Moreover, as 

discussed in detail below, her experts have stated no opinion that the treatment she 

received was inadequate and negligent for a muscle spasm and back/buttock contusion 

injury.

¶ 56 If defendants began treating plaintiff for their diagnosis of muscle spasm and 

back/buttock contusion, then they are not immune from liability for negligently 

prescribing or administering that treatment, including negligently examining her in the 

course of that treatment. Plaintiff argues, therefore, that defendants should have 

ordered more diagnostic testing of and made subsequent examinations of her when her 

condition did not improve after the initial diagnosis and treatment and they are not 

 

e. Failing to properly consult with a neurologist or neurosurgeon for [her] 

signs and symptoms; or

f. Failing to refer [her] to a neurologist or neurosurgeon for treatment of 

her signs and symptoms ***." 
1-13-1122

35

immune for their failure to do so. She points to her expert witness Dr. Corre's testimony 

that defendants should have conducted more tests and examinations on plaintiff based 

on the symptoms that they were treating to rule out a spinal cord injury and that they 

were negligent for failing to order an MRI of her spine and to consult a spine specialist.

This testimony by Dr. Corre is evidence that defendants failed to adequately examine 

plaintiff, for which they are immune under section 6-105.11 It is not evidence that 

defendants negligently treated plaintiff for their diagnosis. 

¶ 57 Dr. Corre never testified that defendants' failure to immobilize plaintiff or 

administer steroids to her was negligent treatment in violation of the standard of care for 

a diagnosed back/buttock contusion. Although he testified many times that defendants 

should have immobilized plaintiff, stabilized her spine and given her high-dose steroids, 

he stated these opinions in the context of defendants' failure to properly examine, 

diagnose and treat her spinal cord contusion/injury. He did not testify that such 

treatment is required for a muscle spasm or a back/buttock contusion and his testimony 

 11 Based on the deposition testimony of Drs. Corre and Upton, we consider an MRI 

to be a diagnostic tool and defendants' failure to order an MRI to be a failure to perform

a diagnostic step. Dr. Corre testified "[t]he medical screening examination required a 

complete and detailed history, a complete and detailed physical exam. It required 

imaging which included an MRI of the spine. It required stat consultation with a spine

specialist." He also testified that "the imaging that was performed on the initial 

evaluation was inadequate and should have included an MRI." He stated that, if plaintiff 

had been diagnosed with a spinal cord contusion without an MRI, then the MRI did not 

have to be done immediately. However, since Dr. Bishof did not make that diagnosis, it 

was Dr. Corre's opinion that "it would have been appropriate and standard to have 

gotten the test." 

Dr. Upton testified similarly, stating that, as he would have known from the 

"evidence" that plaintiff had a spinal cord lesion, for him, "the MRI isn't the way of 

making the diagnosis" but rather " a way of confirming or denying the clinical diagnosis 

which is that there's a spinal cord injury." However, as Dr. Bishof did not know what was 

wrong with plaintiff and did not "have enough evidence" and "didn't come up with a clear 

diagnosis about spinal cord at all," it was Dr. Upton's opinion that "the MRI should be a 

way of helping [her] see what is going on." 
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is not evidence that defendants were negligent in treating for plaintiff's, in retrospect 

incorrect, back/buttock contusion diagnosis. 

¶ 58 As in Michigan Avenue National Bank, and unlike in American Bank & Trust Co., 

there was never a correct diagnosis here for which treatment was prescribed and 

negligently rendered. Following Michigan Avenue National Bank, defendants are 

immune from liability under section 6-106(a) for their failure to diagnose plaintiff's spinal 

cord injury and their misdiagnosis of her injury as a muscle spasm and/or back/buttock 

contusion. See also Mabry v. County of Cook, 315 Ill. App. 3d 42 (2000) (doctors at a 

public hospital diagnosed a patient with asthma but the patient died of undiagnosed 

pulmonary embolism; the court found the defendants immune from liability for failure to 

treat a condition they had not diagnosed, finding that the alleged negligence was based 

not on treatment actually received for asthma but on treatment that should have been 

received and diagnosis that should have been made).

¶ 59 Although plaintiff need not prove her entire case at the summary judgment stage, 

she must still present a factual basis that could arguably entitle her to judgment in her 

favor. Wallace v. Alexian Brothers Medical Center, 389 Ill. App. 3d 1081, 1086 (2009). 

Construing the pleadings, depositions, admissions and affidavits strictly against 

defendants and liberally in favor of plaintiff, we find plaintiff has failed to present 

evidence to show that defendants were negligent in treating her diagnosed condition.

The court did not err in finding defendants immune from liability under section 6-105

(failure to conduct an adequate examination) and section 6-106(a) (failure to diagnose) 

for the negligence asserted in counts I and III. We affirm the trial court's grant of 

summary judgment to defendants on counts I and III.
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37

¶ 60 2. Counts II and IV – Negligent Infliction of Emotional Distress

¶ 61 Next, we consider the trial court's grant of summary judgment to defendants on 

counts II and IV of the fifth amended complaint pleading negligent infliction of emotional 

distress. The court held that counts II and IV were "not pled" as claims for negligent 

infliction of emotional distress but, rather, except for an additional allegation of 

emotional distress as an element of damages, were identical to counts I and III 

sounding in negligent medical malpractice. As the negligent infliction of emotional 

distress counts stemmed from the same failure to adequately examine, test and 

diagnose asserted by plaintiff in her negligence counts and the allegations in the four 

counts were identical, the court held that defendants immunized from liability pursuant 

to sections 6-105 and 6-106. 

¶ 62 Illinois applies a "general-negligence approach to a claim of negligent infliction of 

emotional distress raised by a direct victim of the defendant's negligence." Thornton v. 

Garcini, 382 Ill. App. 3d 813, 817 (2008), aff'd, 237 Ill. 2d 100 (2010) (citing Corgan v. 

Muehling, 143 Ill. 2d 296, 306 (1991)). For a direct victim, such as plaintiff here, to state 

a claim for negligent infliction of emotional distress, she must allege that: (1) the 

defendant owed her a duty; (2) the defendant breached that duty; and (3) her injury was 

proximately caused by that breach. Parks v. Kownacki, 193 Ill. 2d 164, 181 (2000)

(citing Corgan, 143 Ill. 2d at 306). "Whether a duty exists is a question of law for the 

court to decide." Washington v. City of Chicago, 188 Ill. 2d 235, 239 (1999). In resolving 

whether a duty should be imposed, "a court must determine whether there is a 

relationship between the parties requiring that a legal obligation be imposed upon one 

for the benefit of the other," taking into consideration factors including "the reasonable 
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38

foreseeability of injury, the likelihood of such injury, the magnitude of guarding against 

the injury, and the consequences of placing that burden on the defendant." Id. If the 

victim has not alleged facts sufficient to impose a duty on the defendants, she has failed 

to state a claim and her action should be dismissed. Parks, 193 Ill. 2d at 181. "[U]nless 

a duty is owed, there is no negligence [citation], and plaintiffs cannot recover as a 

matter of law [citation]." (Internal quotation marks omitted.) Washington, 188 Ill. 2d at 

239.

¶ 63 Plaintiff's claims for negligent infliction of emotional distress are nothing more 

than a recasting of her medical negligence claims for which defendants have immunity. 

Except for the addition of an allegation that plaintiff suffered and would continue to 

suffer severe mental and emotional anguish due to her injuries proximately resulting 

from defendants' negligent acts or omissions, plaintiff's allegations in her negligent 

infliction of emotional distress counts were, as the trial court found, identical to the 

allegations in her medical negligence counts. In both plaintiff's medical negligence and 

negligent infliction of emotional distress counts, she alleged that Drs. Bishof and 

Bankoff "had the duty to possess and apply the knowledge and use the skill of a 

reasonable well qualified emergency room physician under the same or similar 

circumstances" and were negligent in failing to: (1) properly perform an initial medical 

screening examination; (2) properly screen her for her signs and symptoms; (3) properly 

treat her for her signs and symptoms; (4) properly treat her for a spinal cord injury; (5) 

properly consult with a neurologist or neurosurgeon for her signs and symptoms; or (6) 

refer her to a neurologist or neurosurgeon for treatment of her signs and symptoms. 

¶ 64 Plaintiff makes many of the same assertions in her argument here as she did in 
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39

supporting her medical negligence claims (resolved in section 1 supra). Specifically, she 

asserts that her experts' testimony that she had a spinal cord injury rather than a muscle 

spasm or back/buttock contusion and that Drs. Bishof and Bankoff should have 

immobilized her spine, ordered an MRI or further testing, administered steroids and 

consulted with a spine specialist shows defendants clearly undertook treatment of her, 

this treatment was negligent and defendants are not immune from liability for the 

negligent treatment and the emotional distress resulting from it. As we have already 

determined, defendants are immune from liability for these alleged negligent 

"treatments." The testimony of plaintiff's expert witnesses showed that defendants were 

negligent in failing to diagnose her with a spinal cord injury and in treating a spinal cord 

injury but did not show that defendants were negligent in treating her for her diagnosed 

condition, muscle spasm and/or back/buttock contusion. We, therefore, found 

defendants immune from liability pursuant to section 6-105 for their failures to 

adequately examine plaintiff and immune from liability pursuant to section 6-106(a) for 

their failure to correctly diagnose her. There being no evidence that the treatment 

defendants undertook for the muscle spasm and/or back/buttock contusion diagnosis 

was negligent for that diagnosis, we found no basis on which to impose the limitation on 

immunity provided in section 6-106(d). 

¶ 65 As additional evidence that defendants treated her negligently and she suffered 

severe emotional distress as a result, plaintiff points to her testimony that the doctors 

did not believe her, ordered her to stand when she could not, dropped her when she 

could not stand, accused her of lying, would not listen to her and insisted there was 

nothing wrong with her. She points to her testimony that, as a result of how she was 
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40

treated, she has no self-confidence anymore, feels no one will believe her or put faith 

and trust in her, that people think she is a "phony" and that she has to defend or explain 

herself. She points to her testimony that, while she was at Oak Park Hospital, she spoke 

to a psychologist for "these" emotional problems on a regular basis. She also points to 

Oak Park Hospital psychologist Dr. Brachman's testimony that plaintiff's injury probably 

exacerbated her existing mental conditions and Dr. Corre's testimony that defendants 

failed to take her seriously. In American National Bank & Trust Co., 327 Ill. App. 3d at 

220, the court held, "[u]nder section 6-106(d), in the course of administering the 

treatment prescribed there is no immunity if the subsequent prescription or examination 

was incorrectly made (a negligent or wrongful act) or if the prescription or examination 

was not made at all (an act of omission)." On this basis, plaintiff argues that defendants 

"were very insulting" to her and this negligent treatment, in addition to the negligent 

treatment defendants prescribed for her signs and symptoms, caused her severe 

emotional distress for which defendants are not immunized under the Tort Immunity Act. 

¶ 66 In order to show negligent infliction of emotional distress, plaintiff must show 

defendants had a duty toward her, they breached that duty and she suffered injury as a 

proximate result of that breach. Parks, 193 Ill. 2d at 181. Although plaintiff does not 

articulate her argument as such, she appears to be suggesting, without citation to legal 

authority or evidentiary support, that defendants had a duty to believe her and not to 

question the sincerity of her complaints. She appears to argue that the manner in which 

defendants spoke to her and addressed her concerns was part of the "treatment" they 

provided to her, they were negligent in this "insulting" treatment and she suffered 

emotional distress as a result.
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41

¶ 67 Plaintiff, however, makes no argument regarding the existence of a physician's 

duty to treat her politely or, at a minimum, not to treat her rudely, or a duty to believe 

her. At most, her assertion is that the doctors offended her in assorted ways and that 

she suffered severe emotional distress as a result. Although plaintiff's expert witnesses 

testified in depth regarding defendants' violations of the standard of care applicable to 

an emergency room physician's examination, treatment and diagnosis of a patient 

presenting with plaintiff's signs and symptoms, they did not testify that a standard of 

care exists for an emergency room physician's deportment toward a patient. They did 

not testify that an emergency room physician in defendants' circumstances has a duty to 

believe and not question the sincerity of a patient's complaints or that the standard of 

care so requires, let alone that defendants breached this standard of care. 

¶ 68 Plaintiff asserted at oral argument, without citation to the record, that Drs. Upton 

and Corre testified that defendants' failure to take plaintiff seriously was a violation of 

the standard of care. The closest Dr. Upton came to stating such is his testimony that 

"the management here required, optimal management required recognition of the 

problem, not thinking it's fictitious." (Emphasis added.) However, Dr. Upton stated this 

opinion specifically in the context of plaintiff's visit to Dr. Fishman, who had noted in 

plaintiff's medical record his diagnosis of "numbness, possibly fictitious." Further, even if 

this opinion could arguably apply to defendants' "management" of plaintiff, it is an 

opinion based on the particular "management here," i.e., the circumstances of plaintiff's 

case, and is not a general statement that physicians have a duty to believe a patient or 

take her seriously, let alone a duty to do so against their own professional judgment. 

¶ 69 With regard to Dr. Corre's testimony, he testified that there was a "blatant failure"
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42

by defendants to take plaintiff seriously and this was a deviation from the standard of 

care. He defined this deviation in some detail, closing with "not one person *** takes this 

[plaintiff's] compendium of signs and symptoms and mechanisms and findings and 

considered seriously that the patient could have a spinal cord contusion, spinal cord 

injury." Although Dr. Corre testified that defendants violated the standard of care by not 

taking plaintiff seriously, his opinion was based on the specific circumstances of her 

case, on the "compendium of signs and symptoms and mechanisms and findings" she 

presented with. His opinion was not a general statement that physicians have a duty to 

believe a patient even though their findings or professional experience show otherwise. 

Moreover, a duty to take a patient seriously is not the same as a duty to believe a 

patient. Given the number of tests and examinations defendants conducted of plaintiff, it 

appears they did initially take her seriously but then, when the tests results did not 

support her complaints, determined she was not believable. This, therefore, in a circular 

way, brings the analysis back to failure to diagnose or misdiagnosis, which is 

immunized. Plaintiff's allegations are insufficient to show any duty breached by 

defendants when they "insulted" or did not believe her and, therefore, are insufficient to 

state a claim for negligent infliction of emotional distress. 

¶ 70 In determining whether a duty should be imposed, we must determine whether 

there is a relationship between the parties requiring that a legal obligation be imposed

on one party for the benefit of the other, taking into consideration factors including "the 

reasonable foreseeability of injury, the likelihood of such injury, the magnitude of 

guarding against the injury, and the consequences of placing that burden on the 

defendant." Washington, 188 Ill. 2d at 239. As a result of the particular relationship 
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43

between a physician and patient at issue here, the law imposes on a physician the duty 

to exercise due care in attending to the needs of his or her patient. Nichelson v. Curtis, 

117 Ill. App. 3d 100, 104 (1983). However, there is no legal authority imposing a duty on 

physicians to believe a patient contrary to their own medical judgment and experience 

or to accept without question the sincerity of a patient's complaints. Other than the 

recognized standard of care, we decline to impose on physicians an additional duty to 

believe a patient or not to question a patient's sincerity for fear of the remote chance 

that this may cause the patient emotional distress. In considering the consequences of 

imposing such a burden on the medical profession, we find the imposition of such a duty 

would have a chaotic effect upon the practice of medicine in that medical professionals

would be unable to question the sincerity of any patient's complaints. The magnitude of 

the negative effect imposing such a duty would have on the medical profession vastly 

outweighs the remote possibility that a patient may suffer emotional distress if the duty 

is not imposed.

¶ 71 Construing the pleadings, depositions, admissions and affidavits strictly against 

defendants and liberally in favor of plaintiff, we find plaintiff has not sufficiently alleged 

the existence of a duty requiring defendants to comport themselves in a courteous 

manner towards her or to believe her. Accordingly, given that defendants are immune 

from liability for their "physical" treatment and that plaintiff has not sufficiently alleged 

that defendants had a duty to comport themselves towards her in any particular manner

or to believe her complaints, the court did not err in granting summary judgment to 

defendants on the negligent infliction of emotional distress counts II and IV.

12

 12 We will not address the question of whether section 6-109 of the Tort 
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¶ 72 3. Count V – EMTALA

¶ 73 Lastly, we consider whether the trial court erred in granting summary judgment to 

the county on count V of the fifth amended complaint, in which plaintiff alleged the 

county violated EMTALA. The court found EMTALA applied to the county but that 

plaintiff failed to show that the medical screening examination she received at Stroger 

Hospital violated EMTALA or that she required stabilization for an emergency medical 

condition prior to her discharge from the emergency room as required by EMTALA.

¶ 74 At Stroger Hospital, the county offers emergency room services. "Where 

emergency room services are offered, a certain level of health care is required to be 

provided to every person who seeks treatment there. That is so as a matter of both 

state (210 ILCS 80/1 (West 2002); see also 210 ILCS 70/1 (West 2002)) and federal (42 

U.S.C. § 1395dd) law." Provena Covenant Medical Center v. Department of Revenue, 

236 Ill. 2d 368, 375 (2010). Codified at 42 U.S.C. § 1395dd, EMTALA is that federal law.

Jinkins v. Evangelical Hospitals Corp., 336 Ill. App. 3d 377, 385 (2002). In order to 

prevent patient dumping, "EMTALA prohibits hospitals from rejecting patients suffering 

from emergency medical conditions without first stabilizing or transferring the patients."

Arellano v. Department of Human Services, 402 Ill. App. 3d 665, 675 (2010).

" 'Patient dumping' refers to the practice of a hospital that, despite its

capability to provide needed medical care, either refuses to see or 

 

Immunity Act applies here. Section 6-109 provides for immunity for a local public entity

and its employees "for an injury resulting from the failure to admit a person to a medical 

facility operated or maintained by a local public entity." 745 ILCS 10/6-109 (West 2012). 

Defendants raised this immunity in their motion for summary judgment, asserting that 

plaintiff's claim for negligent infliction of emotional distress was based on defendants' 

failure to admit her to the hospital. As the trial court found and plaintiff points out in her 

reply brief on appeal, her arguments were not based on defendants' failure to admit her 

to the hospital. 
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45

transfers a patient to another institution because of the patient's inability to 

pay. Congress sought to end patient dumping by requiring any hospital 

receiving federal funds to examine patients who seek treatment in an 

emergency department and treat any serious medical condition detected." 

Baber v. Hospital Corp. of America, 977 F.2d 872, 873, n.1 (4th Cir. 1992)

(citing Melissa K. Stull, Annotation, Construction and Application of 

Emergency Treatment and Active Labor Act (42 USCS § 1395dd), 104 

A.L.R. Fed. 166, 175 (1991)).

EMTALA allows a plaintiff to recover any damages she is entitled to under state law as 

a result of a hospital's failure to comply with EMTALA. Tolton v. American Biodyne, Inc., 

48 F.3d 937, 944 (6th Cir. 1995) (citing 42 U.S.C. § 1395dd(d)(2)(A) (1994)).

¶ 75 EMTALA requires:

"In the case of a hospital that has a hospital emergency 

department, if any individual (whether or not eligible for benefits under this 

subchapter) comes to the emergency department and a request is made 

on the individual's behalf for examination or treatment for a medical 

condition, the hospital must provide for an appropriate medical screening 

examination within the capability of the hospital's emergency department, 

including ancillary services routinely available to the emergency 

department, to determine whether or not an emergency medical condition 

(within the meaning of subsection (e)(1) of this section) exists." 42 U.S.C. 

§ 1395dd(a) (2012).

"If any individual *** comes to a hospital and the hospital determines that the 
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46

individual has an emergency medical condition," then the hospital must provide 

"further medical examination and such treatment as may be required to stabilize 

the medical condition" or an appropriate transfer of that patient after the patient 

has been "stabilized." 42 U.S.C. § 1395dd(b)(1), (c) (2012).

¶ 76 As the trial court found, EMTALA applies to the county. EMTALA provides in 

section 1395dd(f) that its provisions "do not preempt any State or local law requirement, 

except to the extent that the requirement directly conflicts with a requirement of this 

section." 42 U.S.C. § 1395dd(f) (2012). The only court to have addressed the question 

of whether EMTALA preempts sections 6-105 and 6-106 of the Tort Immunity Act is the 

United States District Court for the Northern District of Illinois in Williams v. County of 

Cook, No. 97-C-1069, 1997 WL 428534 (N.D. Ill. July 24, 1997). Although decisions of 

the United States District Court and Court of Appeals are not binding on state courts, 

they can provide guidance and serve as persuasive authority. People v. Criss, 307 Ill. 

App. 3d 888, 900 (1999).

¶ 77 In Williams, as here, the county argued it was immune from EMTALA liability 

pursuant to sections 6-105 and 6-106 of the Tort Immunity Act because it was being

sued as a local public entity that operates a public medical facility. Williams, 1997 WL 

428534, at *5. The court held EMTALA preempts sections 6-105 and 6-106, explaining:

"Under the Illinois Tort Immunity Act, local public entities are not liable for 

injury resulting from the failure to make a physical or mental examination, 

745 ILCS § 10/6-105, the failure to diagnose or treat, 745 ILCS § 10/6-

106, or the failure to admit a person to a medical facility, 745 ILCS § 10/6-

109. EMTALA preempts state or local law requirements that directly 
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47

conflict with its requirements. 42 U.S.C. § 1395dd(f). EMTALA requires 

hospitals to provide all emergency room patients with appropriate medical 

screening examinations and to stabilize any emergency medical 

conditions discovered before transfer or discharge. In direct conflict with 

EMTALA, the Illinois Tort Immunity Act purports to relieve public hospitals 

from liability for the failure to screen, examine, treat or admit. The Illinois 

Tort Immunity Act is preempted and does not shield Cook County from 

EMTALA violations." Williams, 1997 WL 428534, at *5.

¶ 78 We agree that, by immunizing public hospitals from liability for failure to screen, 

examine, treat or admit, sections 6-105 and 6-106 directly conflict with EMTALA's 

requirement that all hospital emergency departments must provide "an appropriate 

medical screening examination within the capability of the hospital's emergency 

department" (42 U.S.C. § 1395dd(a) (2012)) to determine whether an emergency 

medical condition exists. Therefore, pursuant to section 1395dd(f) of EMTALA, EMTALA

preempts sections 6-105 and 6-106 of the Tort Immunity Act and EMTALA's

requirements apply to the county.

¶ 79 Plaintiff argues that the court erred in granting the county's motion for summary 

judgment on the basis that there is no evidence to support a violation of EMTALA. 

Plaintiff argues a question of fact exists regarding whether defendants' medical 

screening examination was in accordance with EMTALA, i.e., whether their medical 

screening examination was "an appropriate medical screening examination within the 

capability of the hospital's emergency department, including ancillary services routinely 

available to the emergency department" (42 U.S.C. § 1395dd(a) (2012)), which plaintiff 
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48

asserts included a neurology or neurosurgical consultation and an MRI test. She argues 

the court erred in finding her expert witness Dr. Corre's criticisms only went to the 

issues of negligent screening and misdiagnosis "when his testimony was clear as to the 

Defendants' violations of EMTALA." She also argues a question of fact exists regarding 

whether defendants stabilized her prior to discharging her as required by EMTALA.

¶ 80 We find plaintiff raises no genuine issue of material fact regarding whether the 

Stroger Hospital emergency department gave plaintiff an "appropriate medical 

screening examination" under EMTALA. EMTALA does not define the term other than to 

state the purpose of this examination is to determine whether or not an emergency 

medical condition exists. Baber v. Hospital Corp. of America, 977 F.2d 872, 879 (1992) 

(4th Cir. 1992). EMTALA defines "emergency medical condition" as, in relevant part:

"a medical condition manifesting itself by acute symptoms of sufficient 

severity (including severe pain) such that the absence of immediate 

medical attention could reasonably be expected to result in--

(i) placing the health of the individual *** in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part[.[" 42 U.S.C. 

§ 1395dd(e)(1)(A) (2012).

The goal of "an appropriate medical screening examination" under EMTALA, therefore, 

"is to determine whether a patient with acute or severe symptoms has a life threatening 

or serious medical condition." Baber, 977 F.2d at 879. To that end, EMTALA essentially 

requires that a hospital develop a screening procedure "designed to identify such critical 

conditions that exist in symptomatic patients and to apply that screening procedure 
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uniformly to all patients with similar complaints." Id. 

¶ 81 EMTALA does not impose a national standard of care in screening patients and,

instead, requires that a hospital will provide a screening procedure "appropriate" and 

"within the capability" of the particular hospital's emergency department and its available 

ancillary services. Baber, 977 F.2d at 879-80. Although a hospital may have one 

general screening procedure for all patients, it may tailor that procedure to each 

patient's complaints or symptoms. Id. at 879 n.6. "[S]uch varying screening procedures 

would not impose liability under EMTALA as long as all patients complaining of the 

same problem or exhibiting the same symptoms receive identical screening 

procedures." Id. 

¶ 82 Application of a hospital's screening procedures involves the hospital personnel's

use of medical judgment and training to assess a patient's signs and symptoms to 

determine whether an emergency medical condition exists. Baber, 977 F.2d at 879. 

EMTALA does not, however, "guarantee that the emergency personnel will correctly 

diagnose a patient's condition as a result of this screening." Id. EMTALA is not a federal 

malpractice statute. Repp v. Anadarko Municipal Hospital, 43 F.3d 519, 522 (10th Cir. 

1994). It was intended to address patient dumping and guarantee that all patients 

receive an adequate first response to a medical crisis and ensure that each is accorded 

the same level of treatment regularly provided to patients in similar medical 

circumstances, not to guarantee that they will be correctly diagnosed "or even to ensure 

that they receive adequate care." Baber, 977 F.2d at 880; Gatewood v. Washington 

Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991). "Thus, what constitutes an 

'appropriate' screening is properly determined not by reference to particular outcomes, 
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but instead by reference to a hospital's standard screening procedures." Gatewood, 933 

F.2d at 1041; see also Repp, 43 F.3d at 522. A hospital provides "appropriate medical 

screening" under EMTALA when it follows its standard emergency room screening 

procedures, applying its standard procedure uniformly to all patients in similar medical 

circumstances. Repp, 43 F.3d at 522; Baber, 977 F.2d at 881; Gatewood, 933 F.2d at 

1041. Although a hospital violates EMTALA when it does not follow its own standard 

policies, "[m]ere de minimus variations" or "slight deviation" from the hospital's standard 

procedures do not amount to a violation of hospital policy. Repp, 43 F.3d at 523.

¶ 83 It is uncontested that defendants performed a medical screening examination on 

plaintiff when she presented to the Stroger Hospital emergency department. Plaintiffs'

experts Drs. Upton and Corre consistently testified, and her emergency department 

medical record shows, that the emergency department, through Drs. Bishof and 

Bankoff, made multiple physical examinations and observations of plaintiff and 

employed X-rays, a CAT scan, pain medication and a muscle relaxant in an effort to 

determine what was wrong with her. The fact that, in retrospect, the examinations might 

have been incomplete or resulted in a misdiagnosis does not determine whether a 

medical screening examination satisfies EMTALA. EMTALA's requirement for an 

appropriate medical screening examination is " 'not designed to redress an incorrect 

diagnosis by a hospital; instead, it is merely an entitlement to receive the same 

treatment that is accorded to others similarly situated.' " Baber, 977 F.2d at 880 (quoting 

Jones v. Wake County Hospital Systems, Inc., 786 F. Supp. 538, 544 (E.D.N.C. 1991)). 

A hospital satisfies EMTALA's screening requirement "if its standard medical screening 

procedure is applied uniformly to all patients in similar medical circumstances." Baber,
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977 F.2d at 881. Therefore, in order to show that the screening examination or 

treatment she received at Stroger Hospital violated EMTALA, plaintiff must show that 

the hospital did not comply with its own standard screening procedure or that it treated 

her differently from similarly situated patients. She makes no such showing here.

¶ 84 First, in her brief on appeal, plaintiff does not argue, let alone show, that she was 

examined or treated any differently than similarly situated patients. Second, the record 

does not support plaintiff's assertion at oral argument that Dr. Bankoff admitted in his 

discovery deposition that, although he usually performed a neurological examination on 

patients such as plaintiff, he did not perform such an examination on plaintiff. Plaintiff 

cited to pages 2660-61 of the record, but in those pages, Dr. Bankoff testified that he 

did do his usual neurologic examination on plaintiff. He first explained that he did not 

remember plaintiff, did not remember examining her and could only testify regarding 

what he had written in plaintiff's medical record. Then, on page 2660 of the record, 

when asked how he had determined that plaintiff had a "lack of numbness" as he had 

noted in her medical record, he stated "I did a neurologic exam." He explained that 

"[c]ustom and practice for me on any patient in a neurologic exam would include a 

sensory evaluation" and "I documented a 'normal exam' [in the record], that would 

indicate a normal neurologic exam." He acknowledged that he had not documented 

"neuro normal" or the particulars of his exam in plaintiff's medical record, only "normal 

exam" but testified that, had he determined "sensory abnormalities," he "wouldn't have 

written a normal exam." Taken together, Dr. Bankoff's testimony was that he usually 

performed a neurological examination including a sensory evaluation on patients such 

as plaintiff and that he did perform such an examination on plaintiff here.
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¶ 85 Third, although plaintiff argues that the court improperly disregarded Dr. Corre's 

testimony regarding whether there was an appropriate screening examination under 

EMTALA, DR. Corre's testimony does not raise any questions of fact regarding whether 

the screening was appropriate under EMTALA. Dr. Corre testified at length regarding 

how the inadequacies of the screening examination given to plaintiff and defendants' 

failure to immobilize and stabilize her spine, order an MRI and consult with spine 

experts violated both the standard of care and EMTALA. However, he did not testify that 

the medical screening examination accorded to plaintiff was different than the medical 

screening examination the emergency department at Stroger Hospital would provide for 

any other patient presenting with the same complaints, signs and symptoms. Nor did he 

testify that defendants violated Stroger Hospital's own standard medical screening 

policy or that they deviated from the hospital's custom and practice in treating 

emergency room patients with similar complaints and symptoms. All of Dr. Corre's

EMTALA opinions were based on his professional opinion of what the hospital should 

have done and not on what it usually did in similar circumstances or was required by do 

by its own policies.

¶ 86 EMTALA " 'is neither a malpractice nor a negligence statute.' " Repp, 43 F.3d at 

522 (quoting Urban v. King, No. 93-3331, 1994 WL 617521, at *2 (10th Cir. Nov. 8, 

1994)). Thus, while Dr. Corre's opinion and testimony may create an issue with regard 

to whether Stroger Hospital's examination, treatment and misdiagnosis of plaintiff 

deviated from medical standards of care, it does not create a material question of fact 

as to whether the hospital emergency department personnel violated EMTALA by failing 
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to provide an "appropriate" medical examination.

13 Questions regarding whether 

hospital personnel properly diagnosed or treated a patients are to be resolved under 

state negligence and medical malpractice theories of recovery, not EMTALA. Baber, 

977 F.2d at 880. 

¶ 87 Pointing to Stroger Hospital's eight-page policy on EMTALA, plaintiff argues that 

she provided evidence that the screening examination performed on her violated the 

policy. The hospital's policy quotes much of EMTALA verbatim and defines and explains 

the EMTALA terms and requirements in detail. In a section labeled "procedure," the 

policy sets forth the steps to be followed when a patient presents to the emergency 

room. In the first step, "Medical Screening," the policy requires that "[a]ny person who 

comes to the emergency department requesting examination or treatment of a medical 

condition (or where such a request is made on their behalf) shall receive a Medical 

Screening." It provides that, "[o]nce the Medical Screening is completed and there is a 

determination the patient does not have an Emergency Medical Condition the patient

may be treated, discharged or transferred as appropriate for the their medical condition" 

and, "[i]f the patient has an emergency medical condition, the patient is to *** receive 

further examination and treatment as required to Stabilize their medical condition; or *** 

be transferred." (Emphases in original.)

¶ 88 EMTALA does not define "medical screening" but the hospital's EMTALA policy 

does, as follows:

" 'Medical Screening' means the appropriate process (examination and 

 13 The testimony of plaintiff's other expert witness, Dr. Upton, is similarly 

deficient. Although Dr. Upton found the hospital's medical screening examination of 

plaintiff to be inadequate, he did not state this opinion in the context of EMTALA and, in 

fact, made no reference to EMTALA or Stroger Hospital's policies at all.
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evaluation of the patient) used by a Qualified Medical Person within the capability 

of the hospital's emergency department (services and staff) including ancillary 

services routinely available to the emergency department to determine whether 

or not the patient has an Emergency Medical Condition.

Medical Screening is a process that is reasonably calculated to determine 

whether an Emergency Medical Condition exists and represents the use of a 

spectrum of activities and personnel indicated by the needs of the particular 

patient. The Medical Screening for a patient is to be consistent with that provided 

to other patients with similar medical conditions. A Medical Screening also 

includes documentation on Emergency Department ('ED') log, triage and ED 

records of the above as well as final patient disposition."

In a section of the policy titled "Requests for Medical Treatment at Bureau Hospitals," it 

is provided that "the Medical Screening is a process engaged in until an Emergency 

Medical Condition has been diagnosed or ruled out." 

¶ 89 As noted above, plaintiff presents no testimony from her expert witnesses stating 

that defendants' medical screening examination and treatment of plaintiff did not comply 

with the hospital's EMTALA policy. Instead, she cites to the policy's provisions providing 

that (a) to "stabilize" a person with an emergency condition means, in part, to provide 

such medical treatment of the condition as may be necessary to assure, within 

reasonable medical probability, that no material deterioration of the condition is likely to 

result from or occur during the transfer of the patient and that transfer includes 

discharge of a patient and (b) medical screening is a process engaged in until an 

emergency medical condition has been diagnosed or ruled out. She argues that 
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defendants failed to either diagnose or rule out an emergency medical condition and, 

therefore, they violated their own policy on EMTALA, thus presenting a question of fact 

precluding entry of summary judgment to defendants. 

¶ 90 Plaintiff appears to argue that, unless and until Stroger Hospitals' emergency 

department personnel memorialize in some fashion that they have (a) provided such 

medical treatment to assure, within reasonable medical probability, that no material 

deterioration of the condition is likely to result from or occur during the transfer or 

discharge and (b) diagnosed or ruled out that a patient suffers from an emergency 

condition, a question of fact exists regarding whether the department did indeed 

diagnose or rule out an emergency condition as required by the policy. There is no 

support for this argument.

¶ 91 The hospital policy's definition of "stabilize" is the same as that set forth in 

EMTALA.14 Neither the policy nor EMTALA states a requirement that emergency 

department personnel must memorialize, whether in the patient's record or verbally or 

by any other means, that they have provided the medical treatment necessary to 

assure, with reasonable medical probability, that the patient will not likely suffer material 

deterioration of her condition from or during transfer or discharge. Neither the policy nor 

EMTALA require that a determination regarding whether an emergency medical 

 14 EMTALA defines "to stabilize" as "to provide such medical treatment of the 

condition as may be necessary to assure, within reasonable medical probability, that no 

material deterioration of the condition is likely to result from or occur during the transfer 

of the individual from a facility." 42 U.S.C. § 1395dd(e)(3)(A) (2012). It defines 

"stabilized" as "no material deterioration of the condition is likely, within reasonable 

medical probability, to result from or occur during the transfer of the individual from a 

facility." 42 U.S.C. § 1395dd(e)(3)(B) (2012). "Transfer" includes the discharge of a 

patient. 42 U.S.C. § 1395dd(e)(4) (2012).
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condition has been diagnosed or ruled out must be memorialized. 

¶ 92 All that is required under EMTALA is that a decision regarding the existence of 

an emergency medical condition be made after an appropriate medical screening 

examination, "[n]othing more, nothing less." Collins v. DePaul Hospital, 963 F.2d 303, 

306-07 (10th Cir. 1992). Stroger Hospital's policy provides the same. It is obvious here 

that, after its screening examination, the hospital determined that an emergency 

medical condition did not exist. In asserting that the hospital misdiagnosed her by failing 

to find she had an emergency medical condition, plaintiff admits that it decided an 

emergency medical condition did not exist. Further, her testimony that both Dr. Bankoff 

and the "second male doctor" did not believe her, told her there was nothing wrong with 

her, told her she was lying and discharged her with instructions to take Motrin and see 

her internist shows that, in compliance with the hospital's EMTALA policy, the doctors in 

the emergency department reached a determination regarding whether plaintiff had an 

emergency medical condition by ruling out the condition. 

¶ 93 With regard to plaintiff's assertion that Stroger Hospital violated EMTALA when it 

failed to stabilize her prior to discharge, her assertion that the hospital did not diagnose 

her with an emergency medical condition precludes finding the hospital liable for failure 

to stabilize plaintiff prior to her discharge. EMTALA requires that, if a hospital 

determines that an emergency department patient has an emergency medical condition, 

it must provide "further medical examination and such treatment as may be required to 

stabilize the medical condition" or an appropriate transfer (or discharge) of that patient 

after the patient has been "stabilized." 42 U.S.C. § 1395dd(b)(1), (c) (2012). The 

requirement that a hospital stabilize a patient prior to transfer or discharge is " 'triggered 
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only after a hospital determines that an individual has an emergency medical condition.' 

" Baber, 977 F.2d. at 883 (quoting Gatewood, 933 F.2d at 1041). "[U]nless the hospital 

actually determines that the patient suffers from an emergency medical condition," the 

requirement does not apply. Baber, 977 F.2d at 883; also Barrios v. Sherman Hospital, 

No. 06 C 2853, 2009 WL 935750, at *4 (N.D. Ill. Apr. 3, 2009).

¶ 94 Plaintiff has not shown that Stroger Hospital had actual knowledge that she had 

an emergency medical condition at the time it discharged her. It may be that, had Drs. 

Bishof and Bankoff performed the medical screening examination and testing to Drs. 

Corre and Upton's satisfaction, they would have determined that plaintiff did, in fact, 

have an emergency medical condition requiring stabilization. Nevertheless, "[a]nalysis 

by hindsight is not sufficient to impose liability under EMTALA." Baber, 977 F.2d at 883.

Plaintiff's own argument and testimony show that the doctors in the emergency

department determined that she did not have an emergency medical condition. 

Therefore, as plaintiff has not shown that the hospital knew she had an emergency 

condition, the hospital cannot be liable for any failure to provide stabilizing treatment

under EMTALA. Id. at 884; Barrios, 2009 WL 935750, at *4; Anadumaka v. Edgewater 

Operating Co., 823 F. Supp. 507, 510 (N.D. Ill. 1993).

¶ 95 The court did not err in finding plaintiff failed to show that the county violated 

EMTALA in its medical examination of plaintiff or its failure to stabilize her prior to 

discharge. We affirm the trial court's grant of summary judgment to the county on count 

V of the fifth amended complaint.

¶ 96 CONCLUSION

¶ 97 For the reasons stated above, we affirm the orders of the trial court granting 
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summary judgment to Dr. Bishof on counts I and II of the fifth amended complaint, to Dr. 

Bankoff on counts III and IV of the fifth emended complaint and to the county on the 

counts I through V of the fifth amended complaint.

¶ 98 Affirmed.