First Division 

August 7, 2006 

No. 1-05-3718 

RAYNOLDO VARELA, a Minor, by his Mother 

and Next Friend, Rachel A. Nelson, and 

RACHEL A. NELSON, Individually, 

Plaintiffs-Appellants 

v. 

ST. ELIZABETH'S HOSPITAL OF CHICAGO, INC., 

Luis E. Gomez, M.D., and Mesa EmCare, 

S.C., 

Defendants-Appellees. 

)

)

)

)

)

)

)

) 

)

)

) 

)

) 

Appeal from 

the Circuit Court 

of Cook County 

 

02 L 003426 

Honorable 

Kathy M. Flanagan, 

 

Judge Presiding 

JUSTICE McBRIDE delivered the opinion of the court: 

In this medical negligence suit, the plaintiffs, Raynoldo 

Varela, a minor, and his mother Rachel A. Nelson, appeal from an 

order of the circuit court granting summary judgment to the 

defendants, emergency room physician Dr. Luis E. Gomez, M.D., his 

employer Mesa EmCare, S.C. (Mesa EmCare), and the hospital where 

Dr. Gomez treated Raynoldo on June 8, 1997, St. Elizabeth's 

Hospital of Chicago, Inc. (St. Elizabeth's).1

 The summary 

judgment ruling was based on the court's determination that the 

emergency room physician and St. Elizabeth's nurses did not owe a 

common law duty of care to their minor patient to discover a past 

injury and report it as suspected child abuse to his mother and 

the Illinois Department of Children and Family Services (DCFS), 

 1

 The hospital, located at 1431 North Claremont Avenue, is 

now part of Saints Mary and Elizabeth Medical Center. 
1-05-3718 

2 

and that the healthcare personnel's conduct was not the proximate 

cause of physical abuse subsequently inflicted by Raynoldo's 

father. The court also denied the plaintiffs leave to file a 

proposed third amended complaint, which alleged Raynoldo's 

injuries were attributable in part to the negligence of unnamed 

physicians and nurses on a subsequent workshift at the hospital 

who did not follow up when a radiologist's report about 

Raynoldo's chest X ray noted the presence of healed rib 

fractures. The court characterized the new allegations as a new 

theory that was untimely and would not cure the deficient 

allegations of duty and proximate cause. In their appeal, 

Raynoldo and Rachel contend the court's misapprehension of 

Illinois law regarding duty and proximate cause led the court to 

erroneously enter summary judgment for the defense and abuse its 

discretion by denying leave to file the proposed amended 

pleading. 

The record on appeal discloses the following. Raynoldo was 

born prematurely on March 31, 1997, to Rachel and her boyfriend 

Kikole Varela. At the time, Rachel was 17 years old and Kikole 

was 18 years old. Out of concern that Raynoldo was experiencing 

seizures, he was placed on a phenobarbital regimen. During a 

"well baby" checkup on April 18, 1997, Rachel reported that 

Raynoldo was sometimes gasping for air and breathing fast. The 
1-05-3718 

3 

doctor's notes reflect that Raynoldo was a healthy 18-day-old boy 

and that he was experiencing "periodic breathing," which was a 

normal condition that he would probably outgrow. On the morning 

of June 8, 1997, when Raynoldo was nine weeks old, his parents 

brought him to the emergency room at St. Elizabeth's, with 

complaints of difficulty breathing and increased crying since 

noon the previous day, when Rachel started him on a new infant 

formula, Similac with iron. According to Rachel, she also told 

"the emergency room nurse and doctor" about a "clicking feeling 

in [her] baby's back." The medical records indicate Rachel 

denied Raynoldo experienced a fever, vomiting, lethergy, or 

recent seizures. Dr. Gomez examined Raynoldo and noted he was an 

active infant with a strong grasp. Raynoldo moved all his 

extremities and his crying was consolable. His chest was clear, 

his lungs were working well, and his oxygen saturation was 100%. 

 His pupils were equal, round, and reactive to light. Raynoldo 

drank Pedialyte while in the emergency room and Dr. Gomez ruled 

out the need to hydrate the child with a saline solution. The 

doctor noted that Raynoldo's abdomen was soft and that there were 

active bowel sounds. However, he also noted that Raynoldo's 

abdomen was moderately distended and that there was some initial 

voluntary guarding of the abdomen when the doctor started his 

exam. Dr. Gomez found no evidence of blood in the stool, and 

blood testing he ordered showed a normal white blood count, 

normal hemoglobin, and normal blood sugar. Dr. Gomez also 
1-05-3718 

4 

ordered a chest X ray because of the initial complaint of 

difficulty breathing. He wanted to assure Rachel that Raynoldo 

was breathing normally and was not suffering from an acute or 

"significant process such as pneumonia or some other cause for an 

inability to breathe." According to Dr. Gomez's deposition 

testimony, he studied the X-ray film for pneumonia, a dropped 

lung, or anything that would have suggested abnormal lung tissue, 

and he saw no evidence of an explanation for difficulty 

breathing. He did not see any indication of the healed fractures 

on Raynoldo's lower left ribs, but if he had, Dr. Gomez stated he 

would have asked about prior injuries, because absent some other 

explanation, rib fractures in an infant are indicative of abuse. 

 According to the doctor, his expertise was in emergency medical 

intervention, meaning he could diagnose obvious features in X 

rays and stabilize patients but was not proficient in discerning 

subtle features in X rays. Dr. Gomez took into account that 

Raynoldo's crying began shortly after being started on the 

Similac formula with iron a day earlier and that iron is 

"notorious for slowing the gut and distending the gut." Also, 

"It's very common for a child to cry if the child has 

[intestinal] colic and to be perceived by a parent [or other 

observer] as perhaps having difficulty breathing." In addition, 

a child and even an adult will "tend to hyperventilate" when his 

or her "abdomen is uncomfortable." After considering Raynoldo's 

history and the results of the physical exam and diagnostic 
1-05-3718 

5 

tests, Dr. Gomez concluded that Raynoldo was suffering from 

intestinal colic. Dr. Gomez discharged Raynoldo with 

instructions to discontinue the new Similac formula, to give 

Pedialyte, to return immediately if there was fever or vomiting, 

and to follow up with a pediatrician in the morning. 

The written discharge instructions informed Raynoldo's 

parents that a radiologist would perform an official 

interpretation of the chest X ray the following morning and that 

they should have the child's doctor call for a copy of the 

radiologist's report. The discharge instructions also said 

either Raynoldo's parents or his doctor would be notified if 

there was a discrepancy between the findings of the emergency 

department physician and the radiologist. 

Raynoldo was seen by a pediatrician the following day. The 

pediatrician's notes describe Raynoldo as a healthy two-month 

old. He was alert and active during the examination, his lungs 

were clear, and his abdomen was soft and not distended. The 

notes do not reflect whether the doctor was advised of the 

previous day's emergency room visit. 

On the morning of June 9, 1997, Dr. Ahmad Judar, a boardcertified radiologist at St. Elizabeth's, reviewed Raynoldo's X 

ray and made a written report. Dr. Judar documented: 

"The heart is normal in size. There 

appears to be hyperinflated lungs. No 

evidence of pneumonia or edema. There is 
1-05-3718 

6 

evidence of old healed fracture at the left 

lower ribs involving 7th, 8th and 9th ribs. 

Conclusion: Hyperinflated lungs, 

bronchiolitis should be considered. Old 

healed fracture at the left lower ribs 

appears to be involving the 7th, 8th and 9th 

ribs at the axillary area." 

When Dr. Judar was deposed on July 12, 2004, he no longer 

recalled this particular report. However, he described the usual 

procedure. He indicated a "flash card" or preliminary written 

report of the emergency room doctor accompanies X-ray film sent 

to the radiology department. If a discrepancy is seen, the 

radiologist authors a report, makes a handwritten note on the 

flash card, and returns the documents to the emergency room. Due 

to the close proximity of Dr. Judar's office and the emergency 

room, Dr. Judar's routine practice is to hand deliver 

discrepancies to "the nurse or to the doctor." Dr. Judar did not 

recall noting a discrepancy on Raynoldo's flash card, returning 

this particular flash card to the emergency room, or if he ahd 

spoken with Dr. Gomez or any other emergency room personnel about 

Raynoldo. In Dr. Judar's opinion, Raynoldo's healed fractures 

were at least five weeks old, could be as many as eight weeks 

old, and could have resulted from birth trauma, a fall from a 

couch, or abuse. Raynoldo's old injuries were revealed as little 

bulging irregularities in the ribs. By the time the X ray was 
1-05-3718 

7 

taken, the bone density had become homogeneous, there was no 

difference in coloration, and what remained were "minimal 

changes." The minimal changes would be "rather obvious" to a 

radiologist but not to the emergency room physicians that Dr. 

Judar had worked with. A view from the left ribs would have 

revealed more than the chest X ray that was taken. The 

radiologist's role was to report the discrepancy to the emergency 

room, and the physician's role was to decide what to do about it, 

including whether to order more films. 

St. Elizabeth's emergency department manual likewise states 

that it is the responsibility of the emergency department 

physician on duty to evaluate a reported X ray discrepancy and 

determine the action to be taken. The manual further provides 

that if a suspected child abuse victim comes to the emergency 

room, the individual is to be treated and immediate calls are to 

be placed to the police department and DCFS. 

The record indicates Dr. Gomez was not on duty on June 9, 

1997, when the radiologist prepared his report of Raynoldo's X 

ray. Dr. Gomez did not receive a copy of Dr. Judar's report and 

he did not know whether anyone in the radiology department, 

including Dr. Judar, followed up with anyone in the emergency 

department. 

On Saturday afternoon, July 26, 1997, while Kikole and 

Raynoldo were sleeping, Rachel left their apartment for 

approximately 30 minutes to cool off under an open fire hydrant. 
1-05-3718 

8 

 When she returned, the baby was crying and Kikole was holding 

him. The baby was crying strongly and acting strangely, but he 

eventually fell asleep and remained asleep until late that night. 

 When he awoke, Rachel fed Raynoldo some formula, but he began 

projectile vomiting, and threw up more than he had just eaten. 

Rachel and Kikole took Raynoldo to the hospital emergency room, 

where doctors discovered a subdural hematoma and 11 rib fractures 

in various stages of healing. The medical personnel diagnosed 

"shaken baby syndrome" and immediately reported the situation to 

DCFS and the police department as a case of suspected child 

abuse. Approximately a week later, Kikole confessed to shaking 

the baby on three occasions -- June 15, 1997, which was after Dr. 

Gomez examined Raynoldo; July 7, 1997; and July 26, 1997. Kikole 

was convicted of aggravated battery to a child and incarcerated. 

 Raynoldo suffered permanent neurological damage and partial 

blindness in his right eye. He receives ongoing treatment, 

including occupational therapy and speech therapy sessions while 

at school. 

On March 20, 2002, Rachel and Raynoldo filed their original 

complaint against Dr. Gomez and the hospital, alleging a 

violation of the Abused and Neglected Child Reporting Act 

(Reporting Act) (325 ILCS 5/4 (West 2002)). Attached to the 

complaint was a letter written by emergency physician Eugene E. 

Saltzberg, stating in relevant part: 

"No attempt to evaluate a potential child 
1-05-3718 

9 

abuse situation was made on [June 8, 1997,] 

nor any other date by the staff of St. 

Elizabeth's Hospital. Multiple rib fractures 

indicate child abuse until proven otherwise. 

 Subsequently, this child was the victim of 

further abuse resulting in permanent, 

significant neurological injury. Had the 

original injuries been looked into, it is my 

opinion that, more likely than not, further 

injury would not have occurred. Therefore, 

it is my opinion that [Dr. Gomez, St. 

Elizabeth's], and any other medical staff 

members involved in [Raynoldo's] care at St. 

Elizabeth's hospital provided care below the 

standard acceptable for any medical 

practitioner, and that the deviation from the 

standard of care resulted in further 

irreparable injury." 

The Reporting Act does not expressly provide for a private 

right of action in the event of a violation and an implied 

private right of action was rejected by the Third District in Doe 

1 v. North Central Behavioral Health Systems, Inc., 352 Ill. App. 

3d 284, 286, 816 N.E.2d 4, 6 (2004). Although the Third District 

case involved a psychology clinic which did not report that one 
1-05-3718 

10 

of its patients was sexually abusing children and the patient 

went on to abuse other children, the court's reasoning appears 

equally applicable to other types of relationships. The Third 

District questioned whether a private remedy would be consistent 

with the underlying purpose of Reporting Act, since the statute 

is designed to enhance the ability of DCFS to "'protect the 

health, safety, and best interests of the child in all situations 

in which the child is vulnerable to child abuse or neglect.'" 

North Central Behavioral Health, 352 Ill. App. 3d at 287, 816 

N.E.2d at 7, quoting 325 ILCS 5/2 (West 2002). The court pointed 

out, "[n]owhere is it either explicitly stated or implied that a 

purpose of the Reporting Act is to provide children or families 

with compensation for *** abuse or a failure to report abuse." 

North Central Behavioral Health, 352 Ill. App. 3d at 287, 816 

N.E.2d at 7. In addition, although the plaintiff family argued 

that finding an implied private cause of action for a failure to 

report would lead to enhanced enforcement of the Reporting Act, 

the court emphasized that the "same argument could be made of 

almost any statute." North Central Behavioral Health, 352 Ill. 

App. 3d at 287, 816 N.E.2d at 7. Furthermore, there was no 

evidence "that the statute does not already adequately serve its 

purpose, absent a private cause of action." North Central 

Behavioral Health, 352 Ill. App. 3d at 287, 816 N.E.2d at 7. 

This fact was significant because a cause of action "should only 

be implied in a statute 'in cases where the statute would be 
1-05-3718 

11 

ineffective, as a practical matter, unless such an action were 

implied.'" North Central Behavioral Health, 352 Ill. App. 3d at 

287-88, 816 N.E.2d at 7, quoting Fisher v. Lexington Health Care, 

Inc., 188 Ill. 2d 455, 464, 722 N.E.2d 1115, 1119-20 (1999). The 

Reporting Act provides criminal sanctions for wilful failure to 

report, and the Third District plaintiffs gave no indication this 

penalty was insufficient to ensure statutory compliance. North 

Central Behavioral Health, 352 Ill. App. 3d at 288, 816 N.E.2d at 

8, citing 325 ILCS 5/4.02 (West 2002).2

 Accordingly, even though 

the Third District plaintiffs were "members of the class of 

individuals who are to be protected by the Reporting Act, and 

even though the harm suffered by the children was of the type the 

statute was designed to prevent," the Third District found there 

 2

 In addition to the criminal sanctions noted by the Third 

District, we also point out that the Reporting Act provides the 

potential to fine or revoke the license of a physician that 

wilfully violates the statute. See 325 ILCS 5/4.02 (West 2002) 

(section of the Reporting Act stating that any physician who 

wilfully fails to report suspected abuse or neglect shall be 

referred to the Illinois State Medical Disciplinary Board for 

disciplinary action); 225 ILCS 60/22(A)(22) (West 2002) 

(providing a range of penalties, including $10,000 fine and 

license revocation, for physician's wilful failure to report an 

instance of suspected abuse or neglect as required by law). 
1-05-3718 

12 

was no implied private cause of action for violation of the 

Reporting Act. North Central Behavioral Health, 352 Ill. App. 3d 

at 288, 816 N.E.2d at 8. 

Dr. Gomez moved to dismiss Rachel and Raynoldo's original 

complaint on the ground that the Reporting Act does not give rise 

to a private cause of action, and his motion was granted. 

With leave of court, Rachel and Raynoldo filed a first 

amended complaint on August 22, 2002. The first amended 

complaint omitted the prior references to the Reporting Act and 

indicated the defendants negligently breached a common law duty 

that medical professionals owe to their patients. Count I of the 

first amended complaint was directed at Dr. Gomez based on his 

"professional[] negligen[ce]" in caring for Raynoldo, and count 

II was directed at St. Elizabeth's based on the "professional[] 

negligen[ce]" of its emergency room nursing staff in caring for 

Raynoldo. More specifically, the plaintiffs alleged Dr. Gomez 

was subject to a "duty to possess the knowledge and apply the 

skill and care that reasonably qualified physicians practicing in 

their respective specialities in the Chicago metropolitan 

community, or similar communities, would possess and apply in 

similar cases under similar circumstances." It was further 

alleged that St. Elizabeth's nursing staff was subject to a "duty 

*** to possess the knowledge and apply the skill and care that 

reasonably well qualified nurses practicing in the Chicago 

metropolitan area or similar communities would ordinarily possess 
1-05-3718 

13 

and apply in similar cases under similar circumstances." 

According to the plaintiffs, Dr. Gomez and the nursing staff 

violated their alleged duties to Raynoldo when they: 

"a. Negligently failed to advise the 

minor's parent, Rachel A. Nelson, of the 

suspected abuse of the minor, Raynoldo 

Varela, when X-rays revealed that Raynoldo 

had several fractured ribs; 

b. Negligently failed to investigate 

and evaluate a potential child abuse 

situation when X-rays revealed that Raynoldo 

had several fractured ribs; and, 

c. Negligently failed to report 

suspected abuse of Raynoldo Varela to [DCFS] 

when X-rays revealed that Raynoldo had 

several fractured ribs." 

In both counts I and II of the first amended complaint, the 

plaintiffs sought damages for Raynoldo's medical expenses, pain 

and suffering, loss of a normal life, and lost earning capacity. 

 In count III, Rachel sought compensation for Raynoldo's medical 

expenses, pursuant to the family expense statute (750 ILCS 65/15 

(West 2002)). 

On November 21, 2003, the plaintiffs deposed Dr. Gomez. Dr. 

Gomez informed the plaintiffs that he did not receive the 

radiologist's report that was written after Dr. Gomez's treated 
1-05-3718 

14 

Raynoldo. 

 According to the plaintiffs, they voluntarily filed a second 

amended complaint on July 24, 2003, which added Mesa EmCare as a 

defendant, because the plaintiffs learned through discovery that 

Mesa EmCare contracted to operate the emergency room at St. 

Elizabeth's and that Dr. Gomez was employed by Mesa EmCare rather 

than the hospital. Although the plaintiffs had also learned 

through discovery that Dr. Gomez was not on duty when Dr. Judar 

reviewed Raynoldo's chest X ray, the plaintiffs did not add any 

allegations regarding the physicians or nurses that were on duty 

at that point in time. 

Dr. Gomez and Mesa EmCare filed a motion for summary 

judgment, and St. Elizabeth's joined in the motion. Rachel and 

Raynoldo responded and moved for leave to file a third amended 

complaint. As indicated above, after considering the parties' 

arguments, the court ruled against the plaintiffs as to both 

motions and this appeal followed. The court's written order 

states: 

"It is alleged that the [defendants' 

negligent failure to discover a prior injury 

and report it as suspected child abuse to the 

child's mother and DCFS] resulted in the 

child's father abusing the child at a later 

date. There is no duty here. While doctors 
1-05-3718 

15 

and hospitals have certain reporting 

requirements with regard to child abuse 

pursuant to the [Reporting Act], these 

[statutory] requirements do not translate 

into a standard of care with respect to 

treating a patient nor do the failure to meet 

those requirements become the basis of a 

private right of action. There is no 

evidence here of a failure to diagnose which 

resulted in a medical injury. Instead, 

liability is based on the failure to discover 

a past injury and report that injury as 

suspected child abuse which resulted in a 

third-party inflicting abuse at a later point 

in time. There is no duty here on that 

basis. In addition, the evidence in the 

record does not support proximate cause. 

There is no causal nexus between the 

Defendants' failure to discover and report 

past suspected abuse and the injury sustained 

at a later date as a result of future abuse. 

 There is nothing in the 213 answers or other 

evidence which [is] capable of supporting 

this. Further, the Plaintiffs seek to amend 

the pleading [so as] to change the theory of 
1-05-3718 

16 

liability against EmCare from merely being 

based on vicarious liability for Dr. Gomez's 

acts and omissions to liability for the 

failures of any EmCare physician with respect 

to a June 9, 1997 radiologist's report. Not 

only is this a new theory which has been 

sought to be pled much too late, but even if 

it were pled, the lack of proximate cause and 

duty still applies. Accordingly, any 

proposed amendment would not preclude summary 

judgment." 

Summary judgment is properly granted when the pleadings, 

depositions, admissions, and affidavits on file establish that 

there is no genuine issue of material fact and that the moving 

party is entitled to judgment as a matter of law. 735 ILCS 5/2-

1005(c) (West 2002); Siklas v. Ecker Center for Mental Health, 

Inc., 248 Ill. App. 3d 124, 129, 617 N.E.2d 507, 510 (1993). An 

order granting summary judgment is addressed de novo on appeal. 

Rivera v. Arana, 322 Ill. App. 3d 641, 646, 749 N.E.2d 434, 439 

(2001). 

In order to succeed on a common law negligence claim, the 

plaintiff must show a duty owed by the defendant to the 

plaintiff, a breach of that duty, and an injury proximately 

resulting from that breach. Swett v. Village of Algonquin, 169 
1-05-3718 

17 

Ill. App. 3d 78, 82, 523 N.E.2d 594, 597 (1988). Rachel and 

Raynoldo contend the Reporting Act is not at issue and that the 

premise of their case is the defendants' negligent "violation of 

a common law duty." Rachel and Raynoldo make numerous statements 

in their appellate briefs such as "there is clearly a common law 

duty owed by Dr. Gomez (Mesa EmCare and St. Elizabeth's Hospital) 

to their patient," they "owed him a common law duty born from the 

physician/patient relationship." Also, "the common law already 

requires a duty of care and [the Reporting Act] simply helps 

define what the duty is." As the plaintiffs, however, Rachel and 

Raynoldo bear the burden of showing that Dr. Gomez owed a common 

law duty of care to his patient that would subject the doctor to 

liability for the abuse the patient subsequently suffered at the 

hands of his own father. It is not enough for the plaintiffs to 

state their subjective belief about the type and scope of duty 

that was owed. Whether a legal duty exists is a question of law 

to be determined by the court. Swett, 169 Ill. App. 3d at 82, 

523 N.E.2d at 597. The plaintiffs must provide legal authority 

substantiating that the courts of this jurisdiction have 

determined that physicians owe this particular duty to their 

patients, or the plaintiffs must provide legal reasoning 

substantiating that this court should now determine that 

physicians owe this particular duty to their patients. If the 

plaintiffs cannot substantiate the duty element of their 

negligence claim, we do not need to address the additional 
1-05-3718 

18 

elements of their claim, including breach of that duty and an 

injury proximately resulting from that breach. 

The Third District case discussed above, North Central 

Behavioral Health Systems, would appear to dispense with the 

plaintiffs' theory, since it would be illogical to argue that 

although the Illinois legislature has not expressly or impliedly 

created a private right of action for violation of the Reporting 

Act (North Central Behavioral Health Systems, 352 Ill. App. 3d at 

286, 816 N.E.2d at 6), individuals may nevertheless assert a 

private right of action for violation of the Reporting Act, so 

long as those individuals allege they are proceeding at common 

law rather than on a statutory basis. Nevertheless, the 

plaintiffs cite Dimovski and Culyer for the proposition that Dr. 

Gomez owed Raynoldo a common law duty of care to "diagnose 

[healed] rib fractures and thus determine that [the child] was 

being physically abused" and then "report such child abuse to the 

police, DCFS and the parents." Doe v. Dimovski, 336 Ill. App. 3d 

292, 783 N.E.2d 193 (2003); Cuyler v. United States, 362 F.3d 949 

(7th Cir. 2004). While these cases concern a failure to report 

abuse, they do not support the present appeal, because they do 

not indicate the hospital personnel owed this particular duty of 

care to their minor patient. 

In Dimovksi, a Westmont (Du Page County) high school student 

was sexually abused by a teacher and brought a "negligent 

retention" action against the school board that employed him. 
1-05-3718 

19 

Dimovski, 336 Ill. App. 3d at 294, 783 N.E.2d at 195. The 

student alleged the school board "owed a duty to its students to 

provide and employ appropriate educational services and competent 

teachers and counselors and to safeguard its students from 

harmful conduct that might be undertaken by its teachers." 

Dimovski, 336 Ill. App. 3d at 294-95, 783 N.E.2d at 196. The 

student alleged the school board breached these duties in part by 

failing to hire competent personnel and failing to investigate 

and report to DCFS previous complaints against the teacher 

regarding sexual misconduct with another student. Dimovski, 336 

Ill. App. 3d at 295, 783 N.E.2d at 196. The trial court found, 

however, that the school board was immunized from liability for 

its employee's misconduct in part by section 2-201 of the Local 

Governmental and Governmental Employees Tort Immunity Act (745 

ILCS 10/2-201 (West 2000) (Tort Immunity Act)), and dismissed the 

complaint. Dimovski, 336 Ill. App. 3d at 295, 783 N.E.2d at 196-

97. 

Focusing on the alleged failure to report suspected child 

abuse and the Reporting Act's inflexible wording, the appellate 

court found that because the Reporting Act did not allow the 

school district any discretion or policymaking as to whether to 

report suspected child abuse, section 2-201 of the Tort Immunity 

Act was not a basis for dismissing the student's complaint. 

Dimovski, 336 Ill. App. 3d at 297, 783 N.E.2d at 198; 325 ILCS 

5/1 et seq. (West 2002); 745 ILCS 10/2-201 (West 2002). 
1-05-3718 

20 

Notably, the duty element of the negligent retention action 

was not in dispute and the court did not discuss whether the 

school board in fact "owed a duty to its students to provide and 

employ appropriate educational services and competent teachers 

and counselors and to safeguard its students from harmful conduct 

that might be undertaken by its teachers." Dimovksi, 336 Ill. 

App. 3d at 294-95, 783 N.E.2d at 196. In addition, the Westmont 

school board's relationship with the abusive teacher is not 

analogous to Dr. Gomez's relationship with Raynoldo's abuser; Dr. 

Gomez did not employ, supervise, or otherwise control Raynoldo's 

abuser. Therefore, there is no discussion or analogous 

relationship in Dimovski that would lead us to conclude that Dr. 

Gomez owed the type of duty to his minor patient that the 

plaintiffs are now arguing was owed. Dimovski has no apparent 

relevance to the contention that Dr. Gomez owed a common law duty 

to his patient to detect a healed injury, to diagnose it as an 

indication of child abuse, and to report it as such to the 

child's mother and child welfare authorities. 

The other case the plaintiffs cite is even less helpful to 

their appeal. In Cuyler, a babysitter, Higgs, abused the son of 

a military family so severely that the child had to be 

hospitalized at the Great Lakes Naval Base. Cuyler, 362 F.3d at 

951. Although Higgs attributed the boy's injuries to an 

accidental fall from some steps, the staff at the military 

hospital suspected he was the victim of abuse rather than an 
1-05-3718 

21 

accident. Cuyler, 362 F.3d at 951. The hospital staff asked the 

father whether he also suspected abuse, and the father responded 

that he did not know. Cuyler, 362 F.3d at 951. The hospital 

staff asked the father whether he wanted them to report the 

incident as abuse, and he replied, "'if that's what you're 

supposed to do, do your job.'" Cuyler, 362 F.3d at 951. 

Nevertheless, the hospital staff did not report their suspicions, 

in violation of the Reporting Act. Cuyler, 362 F.3d at 951; 325 

ILCS 5/1 et seq. (West 2002). Within a month, Higgs babysat for 

a second military family and inflicted fatal injuries on their 

child. Cuyler, 362 F.3d at 951. Higgs was convicted of 

involuntary manslaughter for the death of the child, and the 

parents of this second child brought a wrongful death action. 

Cuyler, 362 F.3d at 951. The parents brought suit in the federal 

court system, under the Federal Tort Claims Act which, "with 

limitations that we can ignore, makes the federal government 

liable for the torts of its employees to the same extent that 

they would be liable under the law of the place where the tort 

was committed, in this case Illinois." Cuyler, 362 F.3d at 951. 

 Thus, although the suit proceeded in the federal court system, 

Illinois state law was controlling. Cuyler, 362 F.3d at 951. 

Litigation led to a $4 million judgment in the parents' favor, 

and an appeal was taken. Cuyler, 362 F.3d at 951. 

The parents tried to persuade the federal appeals court that 

because the Reporting Act is intended for the protection of 
1-05-3718 

22 

children such as theirs, the hospital staff's violation of their 

reporting obligation was prima facie evidence of negligence under 

the common law of Illinois. Cuyler, 362 F.3d at 951; 325 ILCS 

5/1 et seq. (West 2002). The federal court rejected this 

argument. The court reasoned that generally there is no common 

law duty to warn or rescue others from injuries inflicted by 

third parties, and unless the plaintiff family came within an 

exception to the general rule of no duty, which it did not, the 

court could not look to the statute for the definition of the 

standard of care. Cuyler, 362 F.3d 949. 

More specifically, the court reasoned as follows. "A 

conventional principle of tort law, in Illinois as elsewhere, is 

that if a statute defines what is due care in some activity, the 

violation of the statute either conclusively or (in Illinois) 

presumptively establishes that the violator failed to exercise 

due care." Cuyler, 362 F.2d at 952. The federal court 

stressed, however, "But the statutory definition does not come 

into play unless the tort plaintiff establishes that the 

defendant owes a [common law] duty of care to the person he 

injured *** because tort liability depends on the violation of a 

duty of care to the person injured by the defendant's wrongful 

conduct." Cuyler, 362 F.2d at 952. Ordinarily the scope of a 

tort duty of care is stated in a jurisdiction's case law, and 

"although the legislature can and sometimes does create a duty of 

care to a new class of injured persons, the mere fact that a 
1-05-3718 

23 

statute defines due care does not in and of itself create a duty 

enforceable by tort law." (Emphasis in original.) Cuyler, 362 

F.3d at 952. 

"The distinction is well explained in Marquay 

v. Eno, [139 N.H. 708, 713, 662 A.2d 272, 277 

(1995)]: 'whether or not the common law 

recognizes a cause of action, the plaintiff 

may maintain an action under an applicable 

statute where the legislature intended 

violation of that statute to give rise to 

civil liability. The doctrine of negligence 

per se, on the other hand, provides that 

where a cause of action does exist at common 

law, the standard of conduct to which a 

defendant will be held may be defined as that 

required by statute, rather than as the usual 

reasonable person standard.' *** Otherwise 

every statute that specified a standard of 

care would be automatically enforceable by 

tort suits for damages -- every statute in 

effect would create an implied private right 

of action -- which clearly is not the law. 

The only modification required to make the 

passage that we quoted from the Marquay case 

an accurate statement of Illinois law is that 
1-05-3718 

24 

in Illinois the violation of a statutory 

standard of care is prima facie evidence of 

negligence rather than negligence per se." 

Cuyler, 362 F.3d at 952. 

"From this analysis it follows that only if the Illinois 

common law of torts imposed on the medical personnel of the Great 

Lakes Naval Hospital a duty of care to the [second family's] 

child would the Illinois [Reporting Act] specify the level of 

care that they owed to the child -- specify, that is, that due 

care required taking steps to prevent Higgs from further 

babysitting until the circumstances in which the [first family's] 

child had been injured were clarified." Cuyler, 362 F.2d at 952-

53. "In general, however, tort law imposes on people only a duty 

to take reasonable care to avoid injuring other people and not a 

duty to [warn or] rescue others from injuries by third parties." 

Cuyler, 362 F.3d at 953. "In other words, there is no general 

duty in the common law *** to be a 'good Samaritan.'" Cuyler, 

362 F.3d at 953. 

The federal court briefly discussed the Tarasoff exception 

to the general rule that there is no common law duty of care to 

warn or rescue others from injuries inflicted by third parties. 

Cuyler, 362 F.3d at 954, citing Tarasoff v. Regents of University 

of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Ca. Rptr. 13 

(1976). According to Tarasoff, when a psychotherapist determines 

that his patient presents a serious danger of violence to 
1-05-3718 

25 

another, the therapist incurs a duty to contact the intended 

victim, notify the police, or take other steps reasonably 

necessary under the circumstances. Tarasoff, 17 Cal. 3d 425, 551 

P.2d 334, 131 Cal. Rptr. 14. The federal court then found, 

"Higgs [the violent babysitter] was not the patient of anyone at 

Great Lakes Naval Hospital, and so the [Tarasoff] exception is 

inapplicable." Cuyler, 362 F.3d at 954. 

Thus, Cuyler stands for the propositions that (1) there is 

no duty under the Illinois common law of torts or the Reporting 

Act (325 ILCS 5/1 et seq. (West 2002)) to rescue others from 

being injured by third parties, and (2) a plaintiff proceeding 

under the common law must first establish that the defendant owed 

a common law duty of care to the person he injured before a court 

will look to a statute to define the specific level of care that 

was owed. Therefore, the case that is at the center of the 

plaintiffs' duty of care argument actually supports summary 

judgment for Dr. Gomez and the other defendants. 

It appears that Rachel and Raynoldo misread Cuyler, since 

they contend the court determined the hospital staff "did not owe 

a common law duty to Cuyler [the second family's child] since he 

was not their patient." See Cuyler, 362 F.3d 949. As summarized 

above, however, the court began with the general rule that there 

is no duty under the Illinois common law of torts to warn or 

rescue others from being injured by third parties, then 

considered whether an exception should be made, but concluded 
1-05-3718 

26 

since "[the abusive babysitter] Higgs was not the patient of 

anyone at Great Lakes Naval Hospital, *** the exception is 

inapplicable." Cuyler, 362 F.3d at 954. 

Cuyler works against Rachel and Raynoldo for the additional 

reason that the federal appeals court, like the Third District in 

North Central Behavioral Health Systems, 352 Ill. App. 3d at 288, 

816 N.E.2d at 8, determined that the Reporting Act does not 

create a private right of action for damages. Cuyler, 362 F.3d 

at 955. As an alternative to their common law duty argument, the 

military family argued their child's death was caused by the 

hospital's violation of the abuse-notification statute with 

respect to the other military family's abused child. Cuyler, 362 

F.3d at 951. Like the Third District, the federal appeals court 

determined the Reporting Act did not create an express or implied 

private cause of action for a failure to report. It pointed 

out: 

 "Maybe such encompassing liability would be a 

good thing; it would doubtless lead to more 

reporting. It is usually the case that 

piling on punishments will increase 

compliance with a statute. But if that were 

the only consideration, all statutes would be 

interpreted to crate private rights of 

action." Cuyler, 362 F.3d at 955. 

The court also remarked, "It may be significant that since being 
1-05-3718 

27 

enacted [almost 30 years ago], the abuse-notification statute has 

been amended several times, any one of which would have provided 

an occasion for plugging in a damages remedy had there been 

legislative sentiment for such a remedy; evidently there was 

not." Cuyler, 362 F.3d at 955. 

In short, the federal appeals court rejected the plaintiffs' 

common law duty and statutory duty arguments, and there is 

nothing in its reasoning that supports the current plaintiffs' 

appeal. Cuyler is not a basis for concluding that Dr. Gomez owed 

a common law duty to his minor patient to detect a healed injury, 

to diagnose it as an indication of child abuse, and to report it 

as such to the minor's mother and child welfare authorities. 

Rachel and Raynoldo quote extensively from the deposition 

testimony of Dr. Gomez, one of the hospital's nurses, and the 

parties' expert witnesses, and contend, "There really was no 

dispute as to the standard. Everyone agreed that if child abuse 

was suspected the standard of care required the abuse to be 

reported to DCFS, the police, and the parents." (Emphasis 

added.) In this case, however, Dr. Gomez did not discern the 

prior, healed injury to Raynoldo's ribs and Dr. Gomez had no 

suspicion of child abuse. Therefore, testimony regarding what 

should have been done "if child abuse was suspected" is 

irrelevant. We emphasize that Rachel and Raynoldo are not 

contending that Dr. Gomez misdiagnosed Raynoldo's intestinal 

colic in the emergency room on June 8, 1997, and that they have 
1-05-3718 

28 

no criticism of the physician's diagnosis and treatment of the 

intestinal colic. Therefore, this case differs from instances 

such as Cuyler, where medical personnel discerned the symptoms of 

child abuse and suspected child abuse, but failed to report their 

suspicions to child welfare authorities, in violation of the 

Reporting Act. Cuyler, 362 F.3d 949, 325 ILCS 5/1 et seq. (West 

2002). Rather, Rachel and Raynoldo are contending Dr. Gomez 

should have also discerned the five-to-eight-week-old rib 

fractures, recognized them as indications of child abuse, and 

reported them as such, in addition to diagnosing and treating the 

symptoms of intestinal colic. 

The exception to the cited deposition testimony is Dr. Frank 

J. Baker's statement that Dr. Gomez's failure to discern the 

infant's healed rib fractures was in breach of the standard of 

care of emergency room physicians. Dr. Baker is an emergency 

room physician and is the plaintiffs' retained expert witness. 

Dr. Baker first offered this opinion on August 31, 2005, 

According to Dr. Baker, Dr. Gomez should have first considered 

the "bony structures" in Raynoldo's chest X ray, and if he had, 

"he would have seen the obvious abnormality." Thus, Rachel and 

Raynoldo are effectively asking this court, on the basis of Dr. 

Baker's testimony, to create a new common law cause of action for 

violating the statute at issue. They argue this is proper even 

though Illinois state and federal courts have soundly rejected 

previous attempts to imply a private cause of action from the 
1-05-3718 

29 

statutory language (North Central Behavioral Health Systems, 352 

Ill. App. 3d 284, 816 N.E.2d 4; Cuyler, 362 F.3d 949), and even 

though the Illinois legislature has subsequently met without 

amending the statute to create a private cause of action. We 

have no legal basis or authority to create common law liability 

for a statutory violation. Rachel and Raynoldo's common law 

action was based on the breach of a duty that does exist. 

Since the plaintiffs would be unable to meet all the 

elements of their negligence action, summary judgment was 

properly granted for the defense. Accordingly, we do not need to 

reach the plaintiffs' additional contentions that the defendants' 

conduct was the proximate cause of the physical abuse 

subsequently inflicted by Raynoldo's father. 

The plaintiffs' last contention on appeal is that they 

should have been allowed to file their proposed third amended 

complaint, because it merely conformed the allegations with the 

opinion of their expert, Dr. Baker, which had been "fleshed out 

and crystalized at deposition." The plaintiffs cite portions of 

Dr. Baker's deposition testimony indicating the emergency room 

personnel that worked on June 9, 1997, which was after Dr. 

Gomez's contact with Raynoldo on June 8, 1997, were liable for 

the injuries Raynoldo's father subsequently inflicted, because 

the personnel had not acted on the radiologist's June 9, 1997, 

report noting, "Old healed fracture at the lower left ribs 

appears to be involving the 7th, 8th and 9th ribs at the axillary 
1-05-3718 

30 

area." 

The circuit court has broad discretion as to whether to 

allow an amendment to a complaint, and its ruling on the 

plaintiff's request will not be disturbed on appeal absent an 

abuse of that discretion. Charleston v. Larson, 297 Ill. App. 3d 

540, 555, 696 N.E.2d 793, 803 (1998). The following factors are 

relevant to our review of the circuit court's ruling: (1) 

whether the proposed amendment would cure the defective pleading, 

(2) whether the defendant would be prejudiced or surprised by the 

proposed amendment, (3) whether the proposed amendment is timely, 

and (4) whether the plaintiff had other opportunities to amend. 

Charleston, 297 Ill. App. 3d at 555, 696 N.E.2d at 803 (affirming 

denial of leave to amend where proposed amendment would not cure 

defective allegations as to duty of care and plaintiff had 

exercised previous opportunity to amend). 

Since the proposed amendment does not indicate Dr. Gomez 

owed a common law duty to Raynoldo to warn or rescue Raynoldo 

from injuries that would be subsequently inflicted, the proposed 

amendment would not meet the first of these four factors. 

Accordingly, we conclude Rachel and Raynoldo have not 

demonstrated that it was an abuse of discretion for the circuit 

court to deny leave to file the proposed amendment. 

Affirmed. 

CAHILL, P.J. and JOSEPH GORDON, J., concur.