SIXTH DI VISI ON April 27, 2007

Nos. 1-05-3034 and 1-06-0726 NADINE WI

LL IS, I ndividually and as I

ndependent ) Appeal from the Adm in is tra to r of

th e Es tat e of

CLAR ENC E W ILLIS, II, ) Circuit Court of Deceased, ) Co ok Co un ty. ) Plaintiff -Appella nt. ) No. 05 L 6198 ) formerly 00 L

13221 NANDINI

KHATKHATE, M.D., REBECCA WIL LI AMS, ) M.D., LEO GERARDO, M.D., BARRY WENI G, M.D., ) Honorab le SUSAN SQUIRES, F.N.P., COUNTY OF COOK d/b/a ) Jeffrey Lawrence, COOK COUNTY HOSPITAL , PETHAN ) Judge Presi ding. MUTHUSWAMY, M.D., and PRATIBA SANSI , M.D., ) ) Defend ants-App ellees. )

PRESID ING

JUSTICE

FIT ZGERAL D SMITH deliver

ed the opi nion of the

court: In this medical malpractice c ase, plaintiff, Nadine Willis, individually and as independe nt administrator of the estate of Clarence Willis II , deceased, appeals the gr anting of summary judgmen t and dismis sal in favor of def endants, Nandini K

hatkhate , M.D., Re

becca Wi lliams, M.D., Leo Gerar

do, M.D., Barry

Wenig, M.D. Susan Squires, F.N.P. (UIC def endants); Cook Count y H ospital, Pe

tham M uthuswamy

, M.D. , and

Prati ba Sa nsi (C ook Co

unty defe ndan ts). W e affirm i n part, r everse in part, v acate i

n part an d the cau se is rema

nded for further procee dings. Durin g the su mmer o f 1996 , deced ent we nt to the Un ivers ity of Illi nois at Chi cago Hospital (UIC) to be treated f or a lump on his neck. On or about June 17, 1996, decedent saw defendant nurse Susan Squires, who was supervised by the “physician of

the day,” de fendant Dr. Nandini Khatkhate. Nurse Squires worked in collaboration with the phy sician of the day

and could handle most routine matters. Nurse Squires reviewed the dec edent’s history, took her ow nNo. 1-05-3034 and 1-06-0726

2

history, and perf

ormed a clinical exam. She then consulted with Dr. Khatkhate, they took blood for a number of lab tests and instructed the decede nt to go for a chest X-ray

and then come back in one week to discuss the findings. I n one week they

were going to send him to an ear, nose and throat (ENT) phy sician for an evaluation of his neck. The dece dent arranged for the X-ray re port to go to his private physicia n and did not return to UIC in one week a s directed. On July 25, 1996, decedent saw de fendant nurse Squires at UI C, who set up an appointment with defendant Dr. Wenig, an ENT, for the following day. The de cedent saw defenda nt Dr. Weni g on July

26, 1996. Dr. Wenig

took dece dent’s hi story

and then a

rrived a t a differential diagnosis. Dr. Wenig order ed a fine needle aspiration and a CT scan of the head. Dr. Wenig ca lled def endant D r. Gera

rdo, a pa thologis t, to perf

orm the fi ne need le aspira tion. Drs. Wenig an d Gerar do revie wed the s lides of the materi al. Dr. We nig dict ated a le tter to nur se Squires. Dr. Wenig referred the dec edent back to the family practice clinic and never had conta ct with the decedent again. I n fact, July 26, 1996, was the last day either Dr. Wenig or Dr. Gerar do had direct contact with the decedent. Dr. Ge rardo dictated a written report with findings date d July 31, 1996. On that same date dece dent went for a CT scan at UI C. On August 1, 1996, Dr. Wenig reviewed the films. Decedent did not return to UI C until September 16, 1996, when he again saw nurse Squires. Dr. Khatkhate was the physician of

the day. Afte

r recording a history and perf orming a phy sical exam

ination, n urse Squir

es reac hed a dif ferent ial diag nosis of chronic lymphaditis on the right side of the ne ck, but she determined that he was to be manage d for sarcoidosis. Multiple tests were ordered and nurse Squires consulted with Dr. K hatkhate. The decedent was instructed to return to UI C at least every six months as long as he stayed well, butNo. 1-05-3034 and 1-06-0726

3

if there were any

symptoms that developed, he wa s to contact the clinic earlier. The following day , Septembe

r 17, 1996 , nurse Sq

uires disc ussed the decede nt’s lab r esults with

Drs. Kha tkhate and Wenig . Nurse Sq

uires the n called the dece dent and t

old him to re

turn in six we eks and to pick up an

article on sarco idosis. At UIC, defendant Dr. Rebe cca Williams treated the decedent for sarc oidosis on July 25 and Octo ber 3, 19 96. Dece dent comp lained of pain on the

right sid e of his ne ck. Dr. Wil liams took a history, examined the dece dent, and ordered tests. Decedent’s sedimentation ra te was more consistent with mild inflammation of sarcoidosis than with cancer. Dr. Williams gave the decedent a 30-day, nonrenewable course of low-dose ster oids. The decedent returned on October 18, 1996, a

nd was se en by

nurse Squ

ires, who determined that he

was resp onding w ell to the steroids because the mass was smaller and less tender than before. Nurse Squires told the decedent to follow up on a regular ba sis. The decedent never saw nurse Squires again but called her on November 7, 1996, stating that he had a cold, a nd nurse Squires called the decedent on November 11, 1996, to tell him about a sarcoidosis support group. That was the last contac t she had with the deced

ent. Between July 31, 1996, and D ecember 1997 the decedent rec eived treatment at Cook County Hospital for sarcoidosis under the care of Cook County H ospital defendants Dr. Muthuswamy and Dr. Sansi. On January 16, 1997, the decedent went to the Pulmonary Medicine Clinic at Fantus Health Service at Cook County Hospital to obtain additional information about sarcoidosis. Defendant Dr. Muthuswamy reviewed the decedent’s 1996 diagnosis of sarcoidosis and node biopsy and chest X-ray

results and concluded that the decedentNo. 1-05-3034 and 1-06-0726

4

suffer ed from s arcoido sis. Dr. Mu thuswamy

ordere d a serum

angiote nsin conve

rting e nzyme test, a chest X-r

ay , and the d

eceden t’s medic al records. The

decede nt returned to Cook Co

unty Hospital on March 27, 1997, and had an X-ray . The decedent was seen at Cook County Hospital on April 3, 1997, July 3, 1997, October 30, 1997, and Dec ember 18, 1997. In Dec ember 1997, decede nt gaine d weigh

t, had a sp iked temp eratur e, compla ined of a sore thr oat, joint a

nd muscle pain and cramps. He was sent to the emerg ency room a t the University of Chicago. On J anu ary 8 , 19 98, 15 m ont hs a fte r hi s l ast vi si t t o UIC , t he d ece den t we nt to th e UIC emergency

room, where he was diagnosed with sar coidosis and hepatitis. The next day, the decede nt wen t to U IC compl ainin g of righ t upp er quad rant p ain, n ight s weats , decre ased en ergy levels and weight loss. He asked for Dr. Williams because nur se Squires had retired. Dr. Williams recognized a dramatic change in the de cedent’s condition from the last time she had seen him 1 5 months ea

rlier an d believe d he may

be suffe ring fr om anothe

r illness i n addition

to sarcoidosis. Dr. Williams immediately refer red the decedent to a pulmonologist and was concerned that the decedent might ha ve lymphoma or tuberc

ulosis, so she also referred the decedent to a surgeon for a biopsy. On January

21, 1998, Dr. Williams arranged for the decede nt to have the biopsy with Dr. Resnick on January 30, 1998. On January 22, 1998, the dec edent came into UIC with a coug h, high fever, and swelling in his leg s. Dr. Resnik admitted the de ce de nt in to UIC Ho sp it al . D r. Kh at kh at e w as as si gn ed to ca re fo r t he de ce de nt fo r t hr ee da ys leading up to the bi opsy , which oc curred on the scheduled da

te, Januar y 30 , 1998. The

biopsy led to a diagnosis of Hodgkins ly mphoma and was confirmed by a liver biopsy on Fe

bruary 12, 1998. In January 1998 Dr. Khatkhate and Dr. Williams were directly involved in theNo. 1-05-3034 and 1-06-0726

5

care of the decedent. Dr. Williams rendere d her last treatment of the decedent for sar coidosis on January 25, 1998. On January 22, 1998, the dec edent was seen by Dr. Khatkhate complaining of persistent pain and painful lumps in his neck. Decedent was ref erred to Dr. Resnick for a lymph node biopsy

to rule out lymphoma, but on January 30, 1998, Dr. Resnick determined that Hodgkin’s lymphoma was the primary c ause of the decedent’s suffering

. The dec edent sou

ght tre atment for Hodgk

in’s ly mphoma fr

om January

30, 1998, u

ntil his death on November

15, 1999. On Novembe

r 14, 2000 , the dec edent’s mother, N adine Willi s, individually and as independent a dministrator of the estate of the decedent, filed her or iginal complain t alleg ing the a

cts of Dr . Khatkha

te, Dr. Wil liams, Dr . Gerar do, Dr. We

nig, and nurse Squires of UIC and Dr. Muthuswamy and Dr. Sansi of Cook County Hospital caused the injuries and wron gful de ath of the

decede nt. Plaintiff filed her original complaint against all defe ndants on November 14, 2000, and subsequently filed an a

mended complaint. The UIC defe ndants filed a motion for summary judgmen t alleg ing that

the statut e of rep ose barr

ed the pla intiff’s claims. 73 5 5/13-212 (a) (West 2000). On July 18, 2005, the circuit court g ranted summary judg

ment in UIC’s favor. Plaintiff filed a mo tion for r

econside ration c oncerni

ng Drs. Khatkatk

e and Willia

ms only . The cir

cuit court de nied the p laintiff

’s motion to

reconsi der. This

timely appeal f ollowed r egard ing thes e orders. The Cook County def endants, Drs. Muthuswamy a nd Sansi, filed a motion for summary judgment based on the applicable statute of limitations and the L ocal Governmental and Governmental Employe es Tort Immunity Act (Tort Immunity

Act) (745 ILCS 10/1-101 et seq

. (West 2000)). On August 19, 2005, the circuit court gra nted summary judg

ment in the CookNo. 1-05-3034 and 1-06-0726

6

County defendants’ f

avor as to the statute of limitations but denied summary judg ment as to tort immunity. Plaintiff appealed this order. On Septembe r 15, 2005, plaintiff filed a second amended complaint alleging cause s of action against all UI C defendants. On March 9, 2006, the circuit court granted the UIC defendants’ motion to dismiss. Plaintiff filed a second notice of appeal. The appeals were consolidate d. On appea l, plaintif f conten ds that the

circuit c ourt err

ed by granti ng summa

ry judgmen t in favor of Drs. Khatkhate and Williams because their neg ligent misdiagnoses of decedent occ urred within four years of the original complaint being filed, that is, within the statute of repose. 735 IL CS 5/13-212 (West 2000). Summary judgmen t is prope rly grante d where

the plea dings, d eposition s, affid

avits, admissions , and exhibi

ts on file, when vie

wed in the

light most

favora ble to the nonmovan

t, show there is no genuine issue of material fac t and the movant is entitled to judgment as a matter of law. Mabie v. Village of Schaumburg , 364 Ill. App. 3d 756, 758 (2006). We review the trial court' s grant

ing of su mmary judgmen t de novo

. Arangold Corp. v. Zehnder , 204 Ill. 2d 142, 146 (2003). Under section 13-212 of the I llinois Code of Civil Procedure, “no action for medical malpractice shall be brought more than 4 y ears after the date on which the ac t or omission or occurrence allege d in such action to have been the cause of such injury .” 735 IL CS 5/13-212 (West 2000 ). However, the s tatute of repose c an beg in to toll at a later d ate than on the dat

e stated above if there was an ongoing course of negligent medica l treatment. Cunningham v. Huffman , 154 Ill. 2d 398, 405 (1993). To prevail on such a ba sis, the plaintiff must demonstrate:No. 1-05-3034 and 1-06-0726

7

(1) that there was a continuous and unbroken course of negligent treatment; and (2) tha t treatment was so related and continuous as to constitute one continuous wrong

. Cunningham , 154 Ill. 2d at 406. Plaintiff alleges that Dr. Williams continued to treat the decedent on January 9, 1998, at the UIC hospital for sarcoidosis and not Hodg kin’s lymphoma. Plaintiff supports this allegation with Dr. Williams’ deposition testimony in which the following colloquy occurred. “QUESTION: Because y ou were considering that he might have lymphoma, why

is it you do not refer him to surgery on January 9, 1998? ANSWER: There w as still tha t linger ing que stion abou

t whether or not the

sarcoid could explain all of this. I did speak to other physicians in the practice and there wa s some que stion abou t whether or not it mig

ht all be d ue to sarcoid.” Plaintiff also alleges that Dr. Khatkhate treate d the decedent January 22 through 25, 1998, at the UIC Hospital for sarcoidosis. She supports this alleg ation with Dr. Khatkhate’s deposition tes ti mo ny th at s he w as t he a tt end in g ph ysic ian whe n t he d ece den t wa s an in pat ien t at UIC Hospital on January 22 through 25, 1998, a nd on those dates her “working diag nosis was sarcoidosis.” Dr. Khatkhate also read her treatment notes of the decedent from those dates during the deposition into the record. UIC defendants note that Dr. Williams refe rred the decedent for a biopsy and Dr. Khatkhate did not delay

the biopsy. Further , decedent went to Cook County Hospital for treatment in 1997, perhaps breaking the course of continuing treatment. However, the de cedentNo. 1-05-3034 and 1-06-0726

8

did retur n to Drs. Wil liams and K hatkhate in 1998 an

d remained in the U

IC he alth system as a student. Considering all of the pleadings and attache d documents in a light most favorable to the plaintiff , we belie ve there are ge nuine issu

es of mate

rial fac t preclu ding summary

judgmen t as to these two defendants regarding whether their treatment was continuous and whether it wa s neglig ent. The UIC defenda

nts cite Flynn v. Szwed , 224 Ill. App. 3d 107 (1991), to support their argume nt that the

re was not a conti

nuing c ourse of

neglig ent trea

tment bec ause the

re was a lengthy gap in treatment and the decedent sought trea tment from other doctors. However, in Flynn , not only was there a lengthy gap in treatment but the plaintiff sought treatment for different complaints. Flynn , 224 Ill. App. 3d at 115. Here the c omplaint was the same. Therefore, Flynn

is distinguishable from the case at bar. Next, plaintiff contends that the circuit court erred by dismissing her complaint and by granting summary

judgment in favor of defendants Dr. Ge rardo, Dr. Wenig, and nurse Squires. Plaintiff asserts t hat the sta

tute of re pose did not start ru

nning on the last da

y that these defendants treated the decedent but off ers alternative dates and theories. Concerning Drs. Gerardo and Wenig , plaintiff asserts that, although they last saw the decedent in 1996, there was ongoing treatment of the decedent because the ir misdiagnoses of sarcoidosis in 1996 were relied on by other doctors until the correct diagnosis of Hodg kins lymp homa was

made in Jan

uary 1998. The

refore , plaintif

f argu es, the st atute of repose b egan to run in January 1998.No. 1-05-3034 and 1-06-0726

9

Similarly, concerning

nurse Squires, plaintiff asserts that, although she last saw dece dent in 1996, there was ongoing treatment bec ause Squires’ notes may have been relied on by

others in their treatment of the decedent, thus delay ing the correct diagnosis. Plaintiff cites no case on point to make these novel arguments but relies only on Cunningham v. Huffman , 154 I ll. 2d 398, 4 05 (1993) , for supp ort. We ar e baffl ed by

this reliance. In Cunningham , the Illinois Supreme Court clearly states that “once treatment by the negligent physician is discontinued, the statute of repose begins to run, reg ardless of whether or not the patient is aware of the neglige nce at termination of treatment.” Cunningham , 154 Ill. 2d at 406. We read nothing in Cunningham to suggest that the statute of repose ca n begin to run past the time of the last treatment as the plaintiff posits here. Therefor e, there are no genuine issues of material fact regar ding these issues and the circuit court properly granted summary judgment in favor of Drs. Gerardo a nd Wenig and nurse Squires and properly dismissed the cause of action a s to these

defenda nts. Next, plain

tiff arg ues that the trial c ourt err ed by granti ng Cook Co

unty defenda nts Drs. Muthswamy and Sansi summary judgment based on the statute of limitations. 745 ILCS 10/8- 101 (West 1998). However, the Cook County de fendants urge us to affirm on the basis that they are immune from liability under sections 6-105 and 6-106(a) of the Tort I mmunity Act. 745 IL CS 10/6-105, 106(a) (West 1998). Because we believe the Cook County defendants are immune fr

om liability

and this iss

ue rende rs the sta tute of lim

itations is sue moot, we shall on ly di sc us s i mm un it y.No. 1-05-3034 and 1-06-0726

10

In construing a statute we must ascertain and give effe ct to the legislature’s intent. In re Donald A.G. , 221 Ill. 2d 234, 246 (2006). The best indication of the leg islature’s intent is the plain and ordinary

language of the statute. Donald A.G. , 221 Ill. 2d at 246. We interpret the language of a statute de novo

. Donald A.G. , 221 Ill. 2d at 246. Section 6-105 grants immunity upon public off icials who have failed to make a phy sical or mental examination or have failed to make an adequate phy sical or mental examination. 745 IL CS 10/6-105 (West 1996 ); Michigan Avenue National Bank v. County of Cook , 191 Ill. 2d 493, 504 (2000). Section 6-106(a) grants immunity upon public officials who have (1) diagnosed a person with a mental or phy sical illness; (2) failed to make a diagnosis that a person is aff licted with a mental or physica

l illness or addiction; and (3) failed to prescribe for a mental illness or addiction. 745 I

LCS 10/6-106(a

) (West 199 6); Michigan Avenue National Bank , 191 Ill. 2d at 510. Bec ause the

Tort I mmunity Act is in de

rogati on of comm

on law, it m

ust be stri ctly construed against the County . See Anton acci v. City of C hicago , 335 Ill. App. 3d 22, 27 (2002). The Illinois Supreme Court addressed this issue in Michigan Avenue , where it held that where a plaintiff allege s that a pu

blic entit y f ails to dia gnose a n illness ( breast c ancer) , it is immune under section 106(a) of the Tort I mmunity Act. Michigan Avenue , 19 1 Ill . 2d at 5 14. In Michigan Avenuethe decedent visited the defendant hospital numerous times complaining of a lump and sometimes pain in her left breast. Michigan Avenue , 191 Ill. 2d at 496-99. The defenda nt doctors told her

she had f ibrocy stic, or d ense, br east dise ase and p erforme d no tests to determine whether it was cancer a nd did not treat her condition. Michigan Avenue , 191 Ill. 2d at 496-99. T

he supre me court held that the defe ndant hosp ital was im

mune from liability

becauseNo. 1-05-3034 and 1-06-0726

11

the gravamen of the plaintiff’s complaint was a failure to diagnose. Michigan Avenue , 191 I ll. 2d at 514. The supreme court stated that the word “diag nosis” is not ambiguous and, thus, must be given its plain and ordinary meaning. Michigan Avenue , 191 Ill. 2d at 510. “Webster’s dictionary def

ines ‘diagnosis’ as the ‘art or act of ide ntifying a dise ase from its signs and symptoms,’ and as an ‘investig ation or analysis of the c ause or nature of a condition, situation, or problem.’ Webster’s Third New I nternational Dictionary

622 (1993). The Sloan-Dorland Annotated Medical-Legal Dictionary de fines ‘diagnosis’ as ‘the art of distinguishing *** the nature of a cause of disease.’ Sloan- Dorland Annotated Medical-L egal Dictionary 199 (1987). See also Attorney’ s Dictionary of Me dicine D-102 (1999) (‘diagnosis’ is defined a s ‘[t]he determination of what kind of disease a patient is suffering from, especially

the art of distinguishing between several possibilities’); Black’s L aw Dictionary

464 (7th ed. 1999) (defining ‘diagnosis’ as ‘[t]he determination of a medica l condition (such as disease) by physical examination or by study

of its symptoms’); Stedman’s Medical Dictionary 428 (25th ed. 1990) (denoting ‘diagnosis’ as ‘[t]he determination of the nature of a disease’).” Michigan Avenue , 191 Ill. 2d at 510-11. Plaintiff correctly

notes that, although subsection 6-106(a) gra nts immunity for diagnosing, failing to diagnose , and failing to prescribe, (745 I LCS 10/6-106(a) (West 1998)), the remainin g secti ons of sec

tion 6-106

contain l imitations o

n immunity

where it is alleg ed that a local public entity and its public employ ees have caused a person to suffe r injury due to the negligent prescription of treatment a nd/or the negligent administration of treatment. See 745No. 1-05-3034 and 1-06-0726

12

IL CS 10/6-106(b),(c),(d) (West 1998). “‘[T]reatment’ is defined in Webster’s Dictionary as ‘the action or manner of treating a pa tient medically or surgically.’ Webster’s Third N ew International Dictionary

2435 (1993). The Medical Dictionary for Lawy ers defines ‘treatment’ as ‘[t]he care of a sick person, and the remedies or mea ns employed to combat the disea se affecting him.’ B. M aloy , Medica

l Dictiona ry for L awy ers 681 ( 3d ed. 196 0). ‘Tre atment’ i s denoted in Sloan-Dorland’s Annotated Medical-L egal Dictionary 746 (1987) as ‘[t]he management and care of a patient for the purpose of combating disea se or disorder.’ See also Stedman’s Medical Dictionary 1626 (25th e d. 1990) (defining ‘treatment’ as ‘[t]he medical or surgical management of a patient’).” Michigan Avenue , 191 Ill. 2d at 511-12. Plaintiff contends that the allegations in her complaint and the evidence contained in the supporting documents establish that Dr. Muthswamy made a differential diagnosis of dec edent’s Hodgkin’s lymphoma a

nd then he failed to properly treat the differential diagnosis of Hodg kin’s lymphoma. Plaintiff contends that this establishes a negligent treatment scenario, which is not immunized as stated under subsections 6-106(b), (c), and (d) of the Tor t Immunity

Act. 745 IL CS 10/6-106(b), (c), (d) (West 1998). After reviewing plaintiff’s complaint and supporting evidence and documents, we believe plaintiff essentia lly a lleges a failur e to diag nose Hodg

kins ly mphoma an

d, thus, Cook County defendant Dr. Muthswamy is immune under section 6-106(a) of the Tort I mmunity Act. 745 IL CS 10/6-106 (a) (West 1998). Pla intiff’s contenti on that this

is a “fa ilure to pr operly treat” c ase is belied b

y two of the f

ive allegations in the compla int which s

pecific ally

relate t o diagnostic actions. Plaintiff alleges that Dr. Muthswamy “[failed] to properly or ade quately perf orm followNo. 1-05-3034 and 1-06-0726

13

up tests or treat the abnormal pathology report conditions made during Plaintiff’s Decedent’s treatme nt,” and “ [failed] to o

btain ade quate or

proper c onsults wit

h specia lists.” I t is also of

note that plaintiff later alleges “that prior to his death, Plaintiff’s dec edent did not know and

reasona bly could not k

now that d

efenda nts were neglig ent in

failing to diagnose his Hodgkin’s Lymphoma sooner than they did.” Although the

other thr ee alle gations

state tha t Dr. Muthswamy “[failed] to properly trea

t Plaintiff’s decedent’s condition[, failed] to properly tr eat Plaintiff’s decedent’s Hodgkin’s L

ymphomia [ sic ] [or was] otherwise negligent in [his] care of Plaintiff’s decedent,” we conclude that the supporting documents do not support plaintiff’s assertions that this cause of action is premised on a failure to properly treat the decedent’s Hodgkin’s lymphoma. Rather, we be lieve it is premised on a failure to diagnose the dece dent’s Hodgkin’s lymphoma. For example, in her response to Cook County’ s motion for summary judgment, plaintiff contends that Dr. Muthswamy ma de a differential diagnosis of Hodg kin’s lymphoma and Dr. Muthswamy’s deposition indeed supports this contention. A differ ential diagnosis that is not chosen and/or treated as the ultimate diagnosis is a misdiag nosis by definition. “Differ ential diagnosis” is defined as the “determination of which one of two or more diseases with similar symptoms is the one the patient is suffering .” The American Heritage Stedman's Medical Dictionary 229 (1995) . It is also defined as “the distinguishing of a disease or condition from others presenting similar sy mptoms” (Webster’s Third New Inter national Dictionary 630 ( 1993)), and “[t]he methods of distinguishing between two or more diseases having similar symptoms by carefully comparing and evaluating the f ew dissimilar characteristics and signs, and thus makingNo. 1-05-3034 and 1-06-0726

14

a final d iagnosi s.” (Schm

idt, Attor ney ’s Dictionary

of Medic ine D-12 6, (2007) ). The e vidence in this case establishes that Dr. Muthswamy considered Hodgkin’s ly mphoma (differential diagnosis) but actually

diagnosed the decedent with sarcoidosis and tre ated him for sarcoidosis. Further, nothing in the record indicates that Dr . Muthswamy treated the decedent for Hodgkin’s lymphoma. A failure to pre scribe treatment is immunized under section 6-106(a) of the Tort Immunity Act. 745 IL CS 6-106(a) (West 1998). The fail ure of D r. Muthswa

my to actually treat the decede nt for Hod

gkin’s l ymphoma distingu ishes this c ase from Mills v. County of Cook , 338 Ill. App. 3d 219 (2003), cited by plaintiff, in which the appellate court held that where a pla intiff alleges that an employ ee working for a pub lic entity

correc tly e xamines and corre ctly

diagno ses a pat

ient but ne glige

ntly treats hi m, causing injury , the public entity is not immune under sections 6-105 and 6- 106(a) of the Tort Immunity Act. Mills , 338 Ill. App. 3d at 223-24. I n Mills , the defendant phy sician diagnosed the deceased infant with an upper respira tory infection and a

lso made a differential diagnosis of pneumonia. Mills , 338 Ill. App. 3d at 220. The defenda nt physician ordere d tests, treated the infant and sent him home with medicine. Mills , 338 Ill. App. 3d at 220-21. The infant died a few hours after discharge

. Mills , 338 Ill . App. 3d at 2 21. An expe rt physi cian t estif ied du ring a deposition that the failure on the part of the defendant phy sician to fully treat the infa nt’s pneumonia proximately caused the infa nt’s death. Mills , 338 Ill. App. 3d at 221. I n holding that sections 6-105 and 6-106(a

) were i napplica ble, the c ourt the d

efenda nt phy sician “ correctly examined and diagnosed her [patient’s] condition.” Mills , 338 Ill. App. 3d at 223. The courtNo. 1-05-3034 and 1-06-0726

15

also noted that “[t]reatment was rendered pursuant to the differe ntial diagnosis.” Mills , 338 I ll. App. 3d at 223. In this case, nothing in the re cord indicates that treatment was rendere d pursuant to the differential diagnosis. L ike Collins in the Michigan Avenuecase, the negli gence in this cas e is not based on the treatment the decedent rece ived, but on the treatment the decedent should have receiv ed and the

diagno sis Dr. Mut

hswamy should have made. T

he gra vamen of plaintiff 's suit is a failure to properly

diagnosis the decedent with Hodgkin' s lymphoma. See Michigan Avenue , 191 I ll. 2d at 51 2; Mabry v. County of Cook , 315 Ill. App. 3d 42, 53 (2000). Thus, contrary

to plaintiff’s assertion, Mills is not controlling here. Accordingly , Cook County defendant Dr . Muthswamy is immune from liability under section 6-106(a) of the Tort Immunity Act (745 IL CS 10/6-106(a) (West 2000)), and we affirm the trial court dismissal on this basis. See 735 IL CS 5/2-619(d), (e) (West 2000). Similarly, rega

rding Dr. Sansi, the complaint contains the same allega tions. Further, plaintiff attache d a physician’s

report, pursuant

to section

2-622(a )(1) of the Code o f Civil Procedu re (735 I LCCS 5/2 -622(a) (1) (West 1998)) r egard ing Dr. Sansi stati

ng the f ollowing in part: “Dr. Sansi failed to properly communicate the significance of the finding s [of the gallium scan] to Mr . Willis’ tre ating ph ysi cian. Th e finding s as reported wer e compat ible with lymphoma. The failure

on the part of Dr. Sansi to communicate the significance of all the findings to a treating phy sician was negligent and likely contributed to a delay

in instituting proper treatment to Clarence Willis. Further, this delay caused or contributed to damages and ultimately the death of Clare nce Willis.”No. 1-05-3034 and 1-06-0726

16

Dr. Sansi performed a gallium test scan on the dec edent to determine whether there was lung involvement. Her deposition testimony r evealed that she did not make a differential diagnosis because she believed that the dec edent had already been diagnosed with sarcoidosis. In viewing the plea

ding and attached documents in a light most favora ble to the plaintiff,

we do no t b el ie ve th at th ey a ll eg e t ha t D r. Sa ns i d ia gn os ed an d t re at ed th e d ec ed en t n eg li ge nt ly; rather , they

essentia lly c laim that Dr. Sansi f

ailed to c ommunica

te to Dr. M

uthswamy

the resu lts of the gallium test scan which led to a delay in the correct diagnosis of ly mphoma. In other words, th e plaintif

f alleg es that Dr . Sansi con tributed t o the misdia

gnosis of the dece dent. This

is allege d conduct which is i mmunized under sections 6-10 5 and 6-1 06(a) of the Tort i mmunity Act. See Michigan Avenue , 191 Ill. 2d at 514. According ly, we aff irm that part of the trial court’s decision dismissing

Dr. Sansi as a def endant. Lastly , plaintiff contends that the trial court erred by granting the UI C defendant’s motion to dismiss plaintiff’s second amended complaint with prejudice. A section 2-619 (735 I LCS 5/2- 619 (West 2 000)) mot

ion for in voluntar y di smissal ba sed on ce

rtain de fects or

defense s admits the legal sufficiency

of the complaint, along with all well-pleaded facts a nd the inferences therefrom, but asserts an affirmative matter that a voids or defeats the claim. Larochelle v. Allamian , 361 I ll. App. 3d 217, 219 ( 2005). We r

eview a circuit c ourt’s de cision to d ismiss a

case de novo

. Oliveira v. Amoco Oil Co. , 201 Ill. 2d 134, 147-48 (2002). Bec aus e we hav e al rea dy de cid ed t hat th e tr ial cou rt e rre d by gr ant in g th e UIC defendants’ motion for summary judgment regarding Drs. Khatkhate and Williams, we vacate the trial cou rt’s gr anting o f the motion to dismiss p laintiff ’s secon d amende d complai

nt as to the seNo. 1-05-3034 and 1-06-0726

17

defendants. However, the new allegations contained in the second amended complaint are conclusory a

nd, without support, cannot toll of the statute of repose. Therefore, the tria l court prope rly granted UIC defen dants ’ moti on to dism iss as to def endan ts, Dr . Gerar do, Dr . Wen ig, and nurse Squires. In c onclusion , we aff

irm summar

y ju dgment a nd dismissa

l of UI C defend

ants Drs. Gerard o and Wenig

and nurse

Squires r egard ing the s tatute of

repose ( 735 I LCS 5/1 3-212 (We st 2000)); and affirm dismissal of Dr. Muthswamy and Dr. Sansi based on the Tort Immunity Act (74 5 ILCS 10/ 6-1 05, 6-1 06( a) ( We st 200 0)) . W e re ver se s um mar y jud gme nt in fav or o f UIC defendants Drs. Khatkhate and Williams regarding the statute of repose (735 ILCS 5/13-212 (West 2000)). We vacate dismissal of plaintiff’s second amended complaint. The re maining defenda nts are U IC’s Drs. Kha tkhate a nd Williams. Affirmed in part, reversed in part and, va cated in part, cause remanded for further procee dings. JOSEPH GORDON and O’MALL EY, JJ., concur.