Michigan Avenue National Bank v. County of Cook

Docket No. 88286-Agenda 16-March 2000.

MICHIGAN AVENUE NATIONAL BANK, As Special Adm’r of the Estate of Cynthia
Collins, Deceased, Appellant, v. THE COUNTY OF COOK et al.,
Appellees.

Opinion filed June 15, 2000.

JUSTICE McMORROW delivered the opinion of the court:

At issue in this appeal is whether defendants, a local public entity and its
employees, are immune from liability under sections 6-105 and 6-106 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)
(745 ILCS 10/1-101 et seq. (West 1992)). Plaintiff, Michigan Avenue
National Bank, as special administrator of the estate of decedent Cynthia
Collins, filed in the circuit court of Cook County a medical malpractice action
against Cook County, Cook County Hospital, Drs. Barbara Weiss and Mohammed Ali,
and nurses Mary LeBlanc, Lisa Ferrill, and Irma Garcia. Plaintiff alleged that
Collins died as a proximate result of defendants’ negligence. Defendants filed a
motion for summary judgment, contending that because they were immune from
liability pursuant to sections 6-105 and 6-106 of the Tort Immunity Act, they
were entitled to judgment as a matter of law. While the summary judgment motion
was pending, plaintiff voluntarily dismissed nurses Ferrill and Garcia as
defendants. The trial court thereafter granted summary judgment as to the
remaining defendants. On appeal, plaintiff argued that defendants were not
immune from liability under the Tort Immunity Act. A majority of the appellate
court affirmed the trial court’s judgment. 306 Ill. App. 3d 392. We allowed
plaintiff’s petition for leave to appeal. 177 Ill. 2d R. 315(a). In addition, we
granted the Illinois Trial Lawyers Association leave to submit a brief as
amicus curiae. 155 Ill. 2d R. 345. We now affirm the judgment of the
appellate court.

BACKGROUND

On September 22, 1986, Cynthia Collins visited the Fantus Family Planning
Clinic, operated by Cook County Hospital. Collins, who was 21 years old at that
time, underwent a physical examination, during which a nurse palpated a lump in
Collins’ left breast. The clinician form completed by the nurse described the
lump as a “soft, non-tender, 2 x 3 cm, cystic mass.” A “consultation request
form” was also completed by the nurse, referring Collins to the hospital’s
Breast Oncology Clinic for an appointment on October 22, 1986. This form
reflects that the nurse requested that the Breast Oncology Clinic “please
evaluate” the mass discovered in Collins’ left breast, and noted that Collins’
“mother died of breast cancer.”

On October 22, 1986, Collins kept her appointment at the Breast Oncology
Clinic, and was examined by defendant nurse practitioner Mary LeBlanc. A report
signed by LeBlanc and initialed by an unidentified doctor noted that Collins’
mother had suffered from breast cancer, and described Collins’ breast condition
as follows: “Bilateral nodularity. No definite masses, nodes. Positive left
axillary lymph node-freely moveable. Negative nipple discharge.” The report from
this visit indicates that Collins was diagnosed with fibrocystic breast disease,
and that Collins was advised to return to the Breast Oncology Clinic three
months later, in January 1987. This report further reveals that Collins was
“instructed about self-breast exam monthly” and advised to “keep clinic
appointment.”

In December 1986, Collins made two visits to the emergency room of Cook
County Hospital, and, on both occasions, was treated by Dr. Albion, who was not
named as a defendant in the instant action. On December 19, 1986, Collins sought
treatment because she had missed her menstrual period and was suffering from
abdominal pain. Collins also indicated on this occasion that she had experienced
soreness in her breasts for one months’ duration. At this time, no treatment was
administered for Collins’ breast pain. On December 29, 1986, Collins sought
treatment for abdominal cramps and vaginal discharge.

On January 22, 1987, Collins again returned to the emergency room of Cook
County Hospital. The emergency department record indicates that Collins had
complained of vaginal discharge, and, after examination, it was discovered that
she was suffering from a threatened spontaneous abortion. The emergency
department record also states that Collins had been previously diagnosed with
fibrocystic breast disease. During this hospital visit, Collins was also seen by
Dr. Barbara Weiss, an obstetrician/gynecologist who is a named defendant in this
action. In a record entitled “Initial Pregnancy Profile,” Dr. Weiss indicated
that during Collins’ physical examination, she discovered a “cyst” in Collins’
inner, mid-right breast. At the conclusion of Collins’ hospital visit, the
emergency room record reflects that Collins was advised to have bed rest and
drink fluids. No treatment was rendered with respect to Collins’ breasts.

On February 10, 1987, Collins returned to Cook County Hospital’s Fantus
Clinic, where she was examined by defendant Dr. Mohammed Ali. In a form entitled
“Progress Notes,” Dr. Ali indicates that Collins had a “D & C” for an
incomplete spontaneous abortion on January 26, 1987, and that, since that time,
Collins had experienced vaginal discharge. Dr. Ali’s progress notes also
indicate that Collins was suffering from abdominal cramps for three weeks, and
that Collins complained of “sharp” breast pain “off and on” for a three-week
period. The record reveals that Dr. Ali performed a pelvic examination of
Collins, wrote that Collins’ breasts were “within normal limits,” and
recommended that Collins return to the hospital’s Family Planning Clinic in
three months and to the Gynecological Clinic in one year.

In August 1987, Collins became pregnant and obtained prenatal care at MacNeal
Hospital/Rush Presbyterian through her employer’s health care coverage. During a
prenatal exam, Collins informed her physician of her family history of breast
cancer, of the masses discovered in her breasts during her visits to Cook County
Hospital, and of her previous complaints of breast pain. The physician
instructed Collins to undergo a mammogram after the birth of her child. Collins
delivered her baby in May 1988, and in July 1988, a biopsy revealed that
Collins’ left breast was cancerous and that the cancer had spread to her neck
and arm area. A mastectomy was performed, and Collins thereafter underwent
radiation and chemotherapy treatments. Collins died of breast cancer in November
1989.

Plaintiff filed a two-count complaint seeking recovery for damages resulting
from the alleged medical malpractice of defendants. Count I, which was brought
pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et
seq.), and count II, which was brought pursuant to the Survival Act (Ill.
Rev. Stat. 1985, ch. 110?, par. 27-6), revolve around Collins’ visits to Cook
County health facilities from September 22, 1986, to February 10, 1987, and
allege that defendants were negligent in five respects: (1) defendants “[f]ailed
to order a mammogram when a lump was palpated in decedent’s left breast”; (2)
defendants “[f]ailed to properly and adequately perform examinations and tests
on decedent”; (3) defendants “[f]ailed to perform a biopsy when a lump was
palpated in decedent’s left breast”; (4) defendants “[f]ailed to diagnose
decedent’s condition of breast cancer”; and (5) defendants “[f]ailed to
administer proper, appropriate and necessary medical and nursing care and
attention to the decedent.” Plaintiff’s complaint further alleged that “as a
proximate cause of one or more of the foregoing negligent acts or omissions,
[Collins] died on November 22, 1989.”

Attached to plaintiff’s complaint was an affidavit prepared in accordance
with section 2-622(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-622(a)(1)
(West 1992)), wherein a physician opined that, after a review of Collins’
medical records, there existed a reasonable and meritorious cause for plaintiff
to file this action. Specifically, the physician stated that it was his opinion
that defendants “negligently failed to perform a mammogram and/or immediate
biopsy of the lump in [Collins’] left breast, given her family history of breast
cancer and her presentation to these Cook County Hospital physicians and health
care providers with a lump in her left breast.”

In their answer to plaintiff’s complaint, defendants admitted that Collins
had been under their care. However, defendants denied any wrongdoing with
respect to Collins’ care and treatment, and affirmatively alleged that they were
immune from liability pursuant to sections 6-105 and 6-106 of the Tort Immunity
Act. Specifically, defendants asserted that, under section 6-105, they were
immunized from the “failure to make a physical *** examination, or to make an
adequate physical *** examination” (745 ILCS 10/6-105 (West 1992)), and that
section 6-106 provided immunity from liability “resulting from diagnosing or
failing to diagnose that a person is afflicted with *** physical illness” (745
ILCS 10/6-106(a) (West 1992)).

After the parties engaged in discovery, defendants moved for summary
judgment. In their motion, defendants disputed neither the facts as alleged by
plaintiff in its complaint nor the opinions of plaintiff’s two medical experts.
Instead, defendants asserted that, even assuming the truth of those facts and
opinions, they were entitled to judgment as a matter of law because they were
statutorily immunized from liability pursuant to sections 6-105 and 6-106 of the
Tort Immunity Act.

In support of their summary judgment motion, defendants attached the
transcripts of the deposition testimony of plaintiff’s two medical expert
witnesses. In his deposition, Dr. Joseph E. Russ opined that the unidentified
physician involved in Collins’ October 1986 visit to the Breast Oncology Clinic
deviated from the standard of care in two respects: by failing to perform any
testing to diagnose breast cancer, such as ordering a biopsy or a mammogram, and
by failing to instruct Collins to return to the clinic earlier than in three
months’ time. Dr. Russ also opined that nurse LeBlanc deviated from the standard
of care if she failed to discuss the findings of her examination with a breast
surgeon. Plaintiff’s second expert, Dr. Larry S. Milner, opined that the
standard of care was breached by nurse LeBlanc if LeBlanc had failed to consult
with a physician during Collins’ October 1986 visit to the Breast Oncology
Clinic. According to Dr. Milner, LeBlanc also deviated from the standard of care
by failing to request that a mammogram, biopsy or ultrasound be performed on
Collins, and by failing to instruct Collins to return to the Breast Oncology
Clinic in four to six weeks for further evaluation. Dr. Milner further opined
that the standard of care was breached by Dr. Weiss when she discovered a cyst
in Collins’ breast and failed to arrange for a visit to the surgical clinic or
to explain to Collins that her condition required the scheduling of such a
visit. Dr. Milner also testified that Dr. Ali deviated from the standard of
care, based upon Milner’s belief that Ali failed to perform a breast examination
on Collins during her February 10, 1987, visit to the Fantus Clinic. Finally, in
their depositions, both Drs. Russ and Milner opined that the failure to diagnose
Collins’ breast cancer was the proximate cause of her death. After considering
the evidence, the trial court granted summary judgment to defendants, and
plaintiff appealed.

In affirming the judgment of the circuit court, a majority of the appellate
court rejected plaintiff’s argument that the immunity conferred in section 6-105
of the Tort Immunity Act is limited to preventive public health screenings.
Rather, the majority determined that section 6-105 of the Act “is broad in scope
and immunizes local public entities and public employees who fail to make or who
make inadequate physical or mental examinations for purposes of determining
whether a person suffers from a disease or physical or mental condition.” 306
Ill. App. 3d at 401.

The appellate court majority also found that, because plaintiff’s cause was
premised upon the theory that Collins died due to defendants’ failure to conduct
further diagnostic testing and evaluation to determine whether she suffered from
breast cancer in addition to fibrocystic breast disease, defendants’ conduct was
immunized under subsection (a) of section 6-106, which provides that defendants
are not liable for injuries resulting from failing to diagnose a physical
illness. The majority rejected plaintiff’s argument that the negligent treatment
exception contained in subsection (d) of section 6-106 negated the immunity
conferred upon defendants pursuant to section 6-106(a). The majority found that,
based upon the evidence presented, no medical treatment had been prescribed or
undertaken by defendants in connection with Collins’ fibrocystic breast
condition. 306 Ill. App. 3d at 403.

In dissent, Justice Cousins wrote that the majority’s interpretation of
sections 6-105 and 6-106 of the Tort Immunity Act incorrectly disregarded the
Illinois Constitutional provision that states that “[e]very person shall find a
certain remedy in the laws for all injuries and wrongs which he receives to his
person.” Ill. Const. 1970, art. I, ?12. Specifically, the dissenting justice
found the majority’s interpretation of section 6-105 to be unduly broad, and
instead agreed with plaintiff’s contention that section 6-105 confers immunity
to public entities and their employees only in the limited instance where
preventive examinations are provided to the public at large in order to
determine whether persons have diseases that will constitute a hazard to either
themselves or others. 306 Ill. App. 3d at 408-09 (Cousins, J., dissenting).

The dissenting justice also disagreed with the majority’s holding that
defendants were immunized pursuant to section 6-106(a). Instead, the justice
concluded that a genuine issue of material fact existed with respect to whether
defendants were liable, pursuant to subsections (b), (c), and/or (d) of section
6-106, for negligently treating Collins’ breast condition. 306 Ill. App. 3d at
410 (Cousins, J., dissenting). Therefore, in the view of the dissenting justice,
summary judgment was inappropriately granted to defendants.

ANALYSIS

The issue presented in this case is whether sections 6-105 and 6-106 of the
Tort Immunity Act immunize defendants, a public hospital and its employee
physicians and nurses, from liability for the medical malpractice alleged in
this action. Local governmental entities are liable in tort on the same basis as
private tortfeasors unless a valid statute dealing with tort immunity imposes
limitations upon that liability. Harinek v. 161 North Clark Street Ltd.
Partnership, 181 Ill. 2d 335, 345 (1998). The immunities afforded to units
of local government under the Tort Immunity Act operate as an affirmative
defense which, if properly raised and proven by the public entity, precludes a
plaintiff’s right to recover damages. Zimmerman v. Village of Skokie,
183 Ill. 2d 30, 43-44 (1998). The resolution of the dispute in the instant cause
depends on statutory construction. Because the construction of a statute is a
question of law, we review the merits of this cause de novo. Paris
v. Feder, 179 Ill. 2d 173, 177-78 (1997).

It is well established that the primary objective of this court when
construing the meaning of a statute is to ascertain and give effect to the
legislature’s intent. Boaden v. Department of Law Enforcement, 171 Ill.
2d 230, 237 (1996). In determining the intent of the legislature, we begin with
the language of the statute, the most reliable indicator of the legislature’s
objectives in enacting a particular law. Nottage v. Jeka, 172 Ill. 2d
386, 392 (1996). The statutory language must be given its plain and ordinary
meaning, and, where the language is clear and unambiguous, we must apply the
statute without resort to further aids of statutory construction. Davis v.
Toshiba Machine Co., America, 186 Ill. 2d 181, 184-85 (1999). One of the
fundamental principles of statutory construction is to view all provisions of an
enactment as a whole. Words and phrases should not be construed in isolation,
but must be interpreted in light of other relevant provisions of the statute.
Antunes v. Sookhakitch, 146 Ill. 2d 477, 484 (1992). In construing a
statute, courts presume that the General Assembly, in the enactment of
legislation, did not intend absurdity, inconvenience, or injustice. Harris
v. Manor Healthcare Corp., 111 Ill. 2d 350, 362-63 (1986). We consider
plaintiff’s arguments seriatim.

Section 6-105 of the Tort Immunity Act 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 1992).

The language of section 6-105 is interpreted by plaintiff as limiting the
scope of immunity to only those instances where a local public entity and its
public employees conduct “preventive-type” health screenings for the public at
large. Based upon this interpretation, plaintiff asserts that, under the facts
of this case, the only occasion upon which section 6-105 immunity could possibly
be invoked by defendants was for the examination conducted of Collins on
September 22, 1986, which plaintiff has conceded could be characterized as a
“preventive-type” screening. However, because plaintiff does not challenge the
conduct of defendants on September 22, plaintiff contends that section 6-105 has
no application to the medical malpractice claims raised in this lawsuit, which
deal with defendants’ conduct subsequent to Collins’ September 1986 clinic
visit.

We reject plaintiff’s strained interpretation of section 6-105. 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. We discern
no language within this statutory provision which indicates that the General
Assembly intended to confine the scope of immunity to preventive health
examinations of the public at large.

In support of its position that the immunity afforded to public entities and
their public employees pursuant to section 6-105 is limited to “preventive”
health examinations performed for the public at large, plaintiff presents two
arguments which were correctly rejected by the appellate court. First, plaintiff
inappropriately relies upon the caption of section 6-105 as it appears in West
Group’s edition of the Illinois Compiled Statutes, which reads: “Preventive
physical or mental examination of the person.” Although plaintiff acknowledges
that the appellate court rejected its argument that this caption suggests that
the scope of the immunity conferred by section 6-105 is limited, plaintiff again
references this caption as supporting its narrow interpretation of this
statutory provision.

When the legislature enacts an official title or heading to accompany a
statutory provision, that title or heading is considered only as a “short-hand
reference to the general subject matter involved” in that statutory section, and
“cannot limit the plain meaning of the text.” Brotherhood of R.R. Trainmen
v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29, 91 L. Ed. 1646,
1652, 67 S. Ct. 1387, 1392 (1947). A review of the official version of the Tort
Immunity Act, as enacted in 1965, reveals that none of the statutory sections,
including section 6-105, contained official headings or titles. See 1965 Ill.
Laws 2982-96. In addition, no amendment has been made to section 6-105 by the
General Assembly to include an official heading or title. An unofficial,
publisher-generated caption is irrelevant in interpreting the scope of a
statutory provision. Greater Peoria Sanitary & Sewage Disposal
District v. Baise, 234 Ill. App. 3d 622, 626 (1992).

Further, we note that, even if the caption relied upon by plaintiff
were an official heading or title enacted by the General Assembly to
accompany section 6-105, plaintiff’s argument would nevertheless lack merit.
Official headings or titles “are of use only when they shed light on some
ambiguous word or phrase” within the text of the statute, and “they cannot undo
or limit that which the text makes plain.” Brotherhood of R.R.
Trainmen, 331 U.S. at 528-29, 91 L. Ed. at 1652, 67 S. Ct. at 1392; see
also DeWitt v. McHenry County, 294 Ill. App. 3d 712, 716 (1998);
Baise, 234 Ill. App. 3d 622; People v. Lamb, 224 Ill. App. 3d
950, 953 (1992). We find no ambiguity in the language of section 6-105 in regard
to the scope of immunity. Therefore, it would be inappropriate to consider any
official titles or headings in construing this statutory provision.

In support of its position that the immunity conferred upon defendants by
section 6-105 is limited in scope, plaintiff relies upon a law review article in
which it is suggested that section 6-105 of the Tort Immunity Act is derived
from section 855.6 of the California Government Code. See J. Latturner,
Local Governmental Tort Immunity and Liability in Illinois, 55 Ill.
B.J. 28 (1966).⁽¹⁾ As
argued before the appellate court, plaintiff contends that because the immunity
conferred by California’s section 855.6 is limited to preventive public health
screenings, the immunity provided in section 6-105 of our Tort Reform Act should
be similarly limited.

To this end, plaintiff quotes the California Law Revision Commission’s
commentary concerning the enactment of section 855.6:

“[Section 855.6 of the California Government Code] grants an
immunity for failure to perform adequately public health examinations such as
public tuberculosis examinations, physical examinations to determine the
qualifications of boxers and other athletes, and eye examinations for vehicle
operator applicants. It does not apply to examinations for the purposes of
treatment such as are made in doctors’ offices and public hospitals. In those
situations, the ordinary rules of liability would apply.” Cal. Gov’t Code
?855.6, Law Revision Commission Comments, at 352 (Deering 1982).

Because of the clear differences between the California statute and section
6-105, we reject plaintiff’s attempted analogy.

Section 855.6 of the California Government Code provides:

“Except for an examination or diagnosis for the purpose of
treatment, neither a 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.” (Emphasis added.) Cal. Gov’t
Code ?855.6 (Deering 1982).

Although section 6-105 mirrors most of section 855.6 of the California
Government Code, we find it significant that section 6-105 lacks the limiting
phrase “[e]xcept for an examination or diagnosis for the purpose of treatment,”
which, at the outset of the California provision, sets forth a definite
exception from the immunity conferred by the remainder of that statutory
section. Indeed, the commentary prepared by the California Law Revision
Commission underscores the clear differences between these two statutes by
emphasizing the pivotal nature of the exclusionary language which appears in the
opening sentence of the California provision and which is absent from section
6-105. Plaintiff’s argument is further belied by the law review article upon
which plaintiff relies, wherein the author suggests that, based upon the
dissimilarities between the California and Illinois statutes, the immunity
conferred by section 6-105 applies “to all examinations, wherever made and for
any purpose.” 55 Ill. B.J. at 41. In sum, unlike section 6-105, section 855.6 of
the California Government Code explicitly provides that local public entities
and their public employees are liable for failing to make, or inadequately
making, an examination in the course of treatment. We therefore conclude that
any attempted analogy between these two statutory provisions is inapposite.

We adhere to the well-settled rule that “[w]here the language of a statute is
clear and unambiguous, a court must give it effect as written, without ‘reading
into it exceptions, limitations or conditions that the legislature did not
express.’ ” Garza v. Navistar International Transportation Corp.,
172 Ill. 2d 373, 378 (1996), quoting Solich v. George & Anna Portes
Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 83 (1994). We
therefore reject plaintiff’s plea to engraft limitations and exceptions onto
section 6-105 which conflict with the express intent of the legislature as
revealed by the statute’s plain language.

In addition to its arguments concerning section 6-105, plaintiff contends
that the lower courts erred in holding that defendants were vested with immunity
from liability pursuant to section 6-106(a) of the Tort Immunity Act. Section
6-106 of the Act 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 mental or
physical illness or addiction.

(b) Neither a local public entity nor a public employee acting
within the scope of his employment is liable for administering with due care
the treatment prescribed for mental or physical illness or addiction.

(c) Nothing in this section exonerates a public employee who has
undertaken to prescribe for mental or physical illness or addiction from
liability for injury proximately caused by his negligence or by his wrongful
act in so prescribing or exonerates a local public entity whose employee,
while acting in the scope of his employment, so causes such an injury.

(d) Nothing in this section exonerates a public employee from
liability for injury proximately caused by his negligent or wrongful act or
omission in administering any treatment prescribed for mental or physical
illness or addiction or exonerates a local public entity whose employee, while
acting in the scope of his employment, so causes such an injury.” 745 ILCS
10/6-106 (West 1992).

Characterizing its lawsuit against defendants as grounded in their “repeated
failure to administer proper treatment to Cynthia Collins after they determined
that she suffered from a specific medical condition,” plaintiff argues that,
pursuant to subsections (b), (c) and (d) of section 6-106, defendants are liable
under the facts presented in this cause. Defendants counter that because
plaintiff’s suit is based upon defendants’ failure to diagnose Collins’ breast
cancer, and because defendants rendered no treatment for Collins’ breast
condition, the lower courts properly found that they were immunized from
liability pursuant to section 6-106(a). Our resolution of this matter requires
us to construe the language of section 6-106.

The plain language of subsection (a) of section 6-106 delineates three areas
of specific conduct for which a local public entity and its public employees are
immunized. Section 6-106(a) grants defendants immunity from liability 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. 745 ILCS 10/6-106(a)
(West 1992).

We find no ambiguity in the word “diagnosis” as employed in section 6-106(a).
Therefore, this word must be accorded its plain and ordinary meaning. Hernon
v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 194-95 (1992).
Webster’s dictionary defines “diagnosis” as 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.” Webster’s Third New
International Dictionary 622 (1993). The Sloan-Dorland Annotated Medical-Legal
Dictionary defines “diagnosis” as “the art of distinguishing one disease from
another” and as “the determination of the nature of a case of disease.”
Sloan-Dorland Annotated Medical-Legal Dictionary 199 (1987). See also Attorney’s
Dictionary of Medicine D-102 (1999) (“diagnosis” is defined as “[t]he
determination of what kind of disease a patient is suffering from, especially
the art of distinguishing between several possibilities”); Black’s Law
Dictionary 464 (7th ed. 1999) (defining “diagnosis” as “[t]he determination of a
medical 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”).

In its brief to this court, plaintiff argues, and defendants do not contest,
that section 6-106 “was not meant to grant blanket immunity for negligent
treatment of a specific medical condition.” We agree. 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).

We conclude that the word “treatment,” as used within section 6-106, is not
ambiguous. Therefore, this word must be accorded its plain and ordinary meaning.
Hernon, 149 Ill. 2d at 194-95. “[T]reatment” is defined in Webster’s
Dictionary as “the action or manner of treating a patient medically or
surgically.” Webster’s Third New International Dictionary 2435 (1993). The
Medical Dictionary for Lawyers defines “treatment” as “[t]he care of a sick
person, and the remedies or means employed to combat the disease affecting him.”
B. Maloy, Medical Dictionary for Lawyers 681 (3d ed. 1960). “Treatment” is
denoted in Sloan-Dorland’s as “[t]he management and care of a patient for the
purpose of combating disease or disorder.” Sloan-Dorland Annotated Medical-Legal
Dictionary 746 (1987). See also Stedman’s Medical Dictionary 1626 (25th ed.
1990) (defining “treatment” as “[t]he medical or surgical management of a
patient”).

Plaintiff maintains that the allegations in its complaint, as well as the
evidence presented in support of these allegations, establish that its suit
revolves around defendants’ repeated failure to properly treat Collins’ breast
condition. Plaintiff concludes that, because this action establishes a
“treatment fact scenario” within the meaning of subsections (b), (c), and (d) of
section 6-106, defendants are subject to liability, and summary judgment was
improperly granted. We disagree. Because 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, the
immunity provided to local public entities and their public employees in section
6-105 and subsection (a) of section 6-106 applies.

A review of the particular allegations made in plaintiff’s complaint belies
plaintiff’s contention that its action against defendants is based upon
negligent provision of medical treatment to Collins for her breast condition. To
the contrary, four of the five allegations in the complaint specifically relate
to examinations and diagnostic actions. Plaintiff alleges that defendants
“failed to order a mammogram when a lump was palpated in [Collins’] left
breast”; “failed to properly and adequately perform examinations and tests on
[Collins]”; “failed to perform a biopsy when a lump was palpated in [Collins’]
left breast”; and “failed to diagnose [Collins’] condition of breast cancer.”
Plaintiff also concludes in the complaint that “as a proximate cause of one or
more of the foregoing negligent acts or omissions, [Collins] died.” Clearly, the
import of the above allegations is that Collins’ death was caused by defendants’
failure to perform examinations, defendants’ failure to adequately perform
examinations, and defendants’ failure to diagnose Collins’ breast cancer.
Although the fifth and final allegation in plaintiff’s complaint vaguely states
that defendants were negligent in that they “[f]ailed to administer proper,
appropriate and necessary medical care and attention to [Collins],” we conclude
that the pleadings and the evidence presented during the summary judgment
proceedings contradict plaintiff’s assertion that its action is premised upon
defendants’ negligent treatment of Collins.

For example, in its written response to defendant’s motion for summary
judgment, plaintiff stated that “the facts of this case represent a faulty
diagnosis of fibrocystic breast disease which resulted from defendants
[sic] failure to preform [sic] the appropriate medical
diagnostic tests necessary to determine the actual nature of plaintiff’s breast
disease, i.e. early stage breast cancer.” This statement clearly indicates that,
in the circuit court, plaintiff had presented this case as an action for a
failure perform testing, as a failure to adequately perform testing, and as a
failure to diagnose Collins’ cancer.

Plaintiff further contended in its response to defendants’ summary judgment
motion that “the misdiagnosis of fibrocystic breast disease arrived at through
the negligence of the defendants” constituted the proximate cause of Collins’
death. Before this court, plaintiff similarly contends that defendants
negligently “misdiagnosed” Collins as suffering from fibrocystic breast disease,
and asserts that this misdiagnosis prevented the discovery of Collins’ breast
cancer, thereby leading to her death. “Misdiagnosis” is defined as a “wrong or
mistaken diagnosis.” Stedman’s Medical Dictionary 973 (25th ed. 1990). Because
subsection (a) of section 6-106 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 subsection (a) of section 6-106.

In addition, plaintiff’s argument that this cause constitutes an action for
negligent treatment is not supported by the deposition testimony of its own
experts. Contrary to plaintiff’s assertions, both Dr. Russ and Dr. Milner
testified that plaintiff indeed suffered from fibrocystic breast disease when
she visited Cook County Hospital clinics on September 22, 1986, and October 22,
1986. Dr. Russ defined fibrocystic breast disease as “a condition” in which the
patient has “dense nodular breast tissue,” and stated that, in laymen’s term,
this “usually means that a woman has lumpy breasts.” Dr. Milner testified that
although fibrocystic breast disease is “a quite common occurrence in all women,”
and that Collins’ presentation in 1986 was consistent with this affliction, he
opined that it could also have been consistent with cancer. Based upon his
review of Collins’ medical records, Dr. Milner believed that there was cancer
“mixed up” with the bilateral nodularity discovered in Collins’ breasts in
1986.

Both Dr. Russ and Dr. Milner concluded that during Collins’ October 22, 1986,
clinic visit, violations of the standard of care occurred. These violations,
however, relate to defendants’ failure to examine Collins and diagnose her
breast cancer. Specifically, both experts concluded that nurse LeBlanc deviated
from the standard of care if she had failed to consult with a breast surgeon or
physician concerning the findings of her examination. If LeBlanc had made such a
consultation, both Drs. Russ and Milner concluded, it was a violation of the
standard of care by the unidentified physician to instruct Collins to return to
the clinic after the passage of three months because, in the words of Dr. Russ,
“additional evaluation should have been performed” in light of Collins’ symptoms
and family history of breast cancer. Dr. Russ and Dr. Milner further opined that
the unidentified physician also deviated from the standard of care by not
performing appropriate testing. Dr. Russ testified that it was the physician’s
“duty” to “support his diagnosis” with a mammogram, breast ultrasound, or breast
biopsy, and, had the physician done so, Dr. Russ opined that “he would have
diagnosed breast cancer.” Dr. Milner echoed this opinion, stating that failure
to perform testing to “reassess the problem” is “below the standard of care in
evaluating a woman with a new breast lump,” and that mammograms are a common
diagnostic tool used on a patient with fibrocystic breast disease to discover
any potential malignancies.

Dr. Russ stated that although the physician was “faced with indications to do
additional testing,” he did “nothing that he should have done to diagnose”
cancer, and that it was incumbent upon defendants to “pursue their findings to
support the fact that [Collins], yes, indeed, had fibrocystic disease or did she
have breast cancer.” Dr. Russ concluded that the failure to conduct appropriate
testing in order to diagnose the breast cancer in October 1986 was the proximate
cause of Collins’ death.

Our review of the testimony of plaintiff’s own experts leads to the
conclusion that, contrary to plaintiff’s assertions that the record establishes
that its action against defendants is grounded in negligent prescription and
administration of treatment within the meaning of subsections (c) and (d) of
section 6-106, the essence of plaintiff’s suit is that defendants failed to
properly examine Collins and diagnose her breast cancer. The record is devoid of
any testimony from plaintiff’s experts that fibrocystic breast disease is
treatable, that any treatment of Collins’ fibrocystic breast disease had been
performed during the October 1986 visit, or that there was negligence in the
course of any treatment. The criticisms lodged against defendants by plaintiff’s
experts in respect to Collins’ October 22, 1986, clinic visit 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.

In respect to the conduct of Dr. Weiss, Dr. Russ testified that he had
formulated no opinion concerning her actions on January 22, 1987. In Dr.
Milner’s opinion, when Dr. Weiss discovered a cyst in Collins’ breast during her
examination, Dr. Weiss should have scheduled Collins to visit the hospital’s
breast clinic for a follow-up assessment, or, at the least, she should have
explained to Collins that there was a problem with her breast that required
further evaluation. The record reveals that Dr. Weiss, an
obstetrician/gynecologist, rendered emergency treatment to Collins for a
threatened spontaneous abortion, and that Weiss prescribed for Collins bed rest
and the drinking of fluids. Dr. Weiss did not prescribe or administer any
treatment in connection with plaintiff’s breast condition. These facts, coupled
with Dr. Milner’s testimony that Dr. Weiss violated the standard of care by
failing to refer Collins for diagnostic testing, leads us to the conclusion that
section 6-105 and 6-106(a) immunity applies to the doctor’s alleged
misconduct.

Finally, in respect to the actions of Dr. Ali on February 10, 1987, Dr. Russ
had no opinion concerning Dr. Ali’s conduct. Dr. Milner testified that if Dr.
Ali had not performed a breast examination of Collins in reaction to Collins’
complaint of sharp breast pain, then Dr. Ali’s failure would have violated the
standard of care. However, Dr. Milner acknowledged during his testimony that Dr.
Ali’s progress notes indicated that Collins’ breasts were “within normal
limits,” and that during his deposition Dr. Ali testified that he was fairly
certain that a breast examination had been performed. There is no indication in
the record that Dr. Ali rendered treatment to Collins in February 1987. This
fact, coupled with Dr. Milner’s testimony that Dr. Ali violated the standard of
care by failing to examine, or performing an inadequate examination of, Collins’
breasts, leads us to conclude that section 6-105 immunity applies to Dr. Ali’s
alleged misconduct.

Summary judgment is appropriate where “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.” 735 ILCS 5/2-1005(c) (West 1992); Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511, 517-18 (1993). Summary
judgment should not be granted unless the right of the moving party is clear and
free from doubt. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). However,
although the nonmoving party in a summary judgment motion is not required to
prove his or her case, the nonmovant must nonetheless present a factual basis
which would arguably entitle that party to a judgment. John Alden Life
Insurance Co. v. Propp, 255 Ill. App. 3d 1005, 1008 (1994). In sum, our
review of plaintiff’s complaint and supporting evidence, made in light of the
plain language of sections 6-105 and 6-106, establishes that defendants are
immunized and, therefore, summary judgment was appropriately granted.

Plaintiff additionally argues that application of section 6-105 and 6-106 of
the Tort Immunity Act as a defense to the allegations in its lawsuit “is
unconstitutional in that it deprives Cynthia Collins a remedy for an injury and
wrong inflicted upon her person.” In support of this contention, plaintiff cites
to article I, section 12, of the 1870 Illinois Constitution. We note that no
such section exists within the Illinois Constitution of 1870. From the context
of plaintiff’s brief, we conclude that plaintiff intended to cite to article I,
section 12, of the 1970 Illinois Constitution, which provides, in pertinent
part, that “[e]very person shall find a certain remedy in the laws for all
injuries and wrongs which he receives to his person, privacy, property or
reputation.” Ill. Const. 1970, art. I, ?12. Defendant responds that plaintiff
has waived this argument, as this contention was first raised not by plaintiff
in the courts below, but by Justice Cousins in his dissent. See 306 Ill. App. 3d
at 406-07 (Cousins, J., dissenting). It is well settled that the waiver rule is
a limitation on the parties and not the jurisdiction of this court, which has
the responsibility of achieving a just result and maintaining a sound and
uniform body of precedent. See Chicago Patrolmen’s Ass’n v. Department of
Revenue, 171 Ill. 2d 263, 278 (1996); Wagner v. City of Chicago,
166 Ill. 2d 144, 148 (1995); Jackson Jordan, Inc. v. Leydig, Voit &
Mayer, 158 Ill. 2d 240, 251 (1994); Hux v. Raben, 38 Ill. 2d 223,
225 (1967). Because this issue is one of law, and because it has been fully
briefed and argued by the parties, we choose to address plaintiff’s contention.
See Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11
(1996); People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1,
27 (1991); Hux, 38 Ill. 2d at 225.

We conclude that plaintiff’s argument lacks merit. This court has previously
rejected a similar argument in Sullivan v. Midlothian Park District, 51
Ill. 2d 274 (1972). There, the plaintiff appealed the trial court’s dismissal of
its complaint on the basis of the Tort Immunity Act, arguing that the immunity
afforded municipal agencies under the Act violated section 19 of article II of
the Illinois Constitution of 1870, the predecessor provision to article I,
section 12, of the 1970 Constitution. In rejecting plaintiff’s assertion that
the Tort Immunity Act unconstitutionally denied her any remedy for injuries
suffered as a proximate result of the negligence of the local governmental
entity, this court determined that the cited constitutional provisions “are an
expression of a philosophy and not a mandate that a ‘certain remedy’ be provided
in any specific form or that the nature of the proof necessary to the award of a
judgment or decree continue without modification.” Sullivan, 51 Ill. 2d
at 277; see also McAlister v. Schick, 147 Ill. 2d 84, 98 (1992);
Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 424 (1986). Moreover, the
legislature has the inherent authority to repeal or change the common law and
may do away with all or part of it. People v. Gersch, 135 Ill. 2d 384,
395 (1990). In enacting the Tort Immunity Act, the legislature specifically
stated that its purpose was to “protect local public entities and public
employees from liability arising from the operation of government.” 745 ILCS
10/1-101.1 (West 1992). Therefore, passage of the Tort Immunity Act constituted
an exercise by the General Assembly of its broad power to determine whether a
statute that restricts or alters an existing remedy is reasonably necessary to
promote the general welfare. See Bilyk v. Chicago Transit Authority,
125 Ill. 2d 230, 245 (1988). Based upon the above principles, we conclude that
plaintiff’s argument fails.

Plaintiff also maintains that “the appellate court erred in failing to
recognize that the special nature of the doctor-patient relationship gives rise
to a duty which is independent of defendants’ position as employees of a public
entity.” Taking this argument to its conclusion, plaintiff contends that local
public entities and their employee physicians and nurses are subject to personal
tort liability, despite the immunities afforded under the Tort Immunity Act. In
support of this proposition, plaintiff cites to three decisions in which the
appellate court held that diagnosis and treatment of patients are not
governmental in character so as to qualify for public officials’ immunity.
Janes v. Albergo, 254 Ill. App. 3d 951 (1993); Watson v. St. Annes
Hospital, 68 Ill. App. 3d 1048 (1979); Madden v. Kuehn, 56 Ill.
App. 3d 997 (1978). We find plaintiff’s reliance upon the cited decisions to be
factually inapposite to the matter at bar.

In Janes, Watson, and Madden, plaintiffs brought
suit against health care professionals who were employed by the State of
Illinois. The defendant doctors and nurses sought dismissal of the actions on
the grounds of public official immunity, a common law doctrine which serves to
protect state officials from being inhibited from acting in the public’s best
interest because of fears of personal liability. See Currie v. Lao, 148
Ill. 2d 151, 166 (1992). However, public official immunity attaches only to
conduct by a state official that is discretionary, rather than ministerial, in
nature. Currie, 148 Ill. 2d at 166. In Janes, Watson,
and Madden, the appellate court rejected the defendants’ arguments,
finding that because the duties of the defendant physicians and nurses arose
from their professional relationships with the plaintiffs, they were not engaged
in actions of a governmental character, and, therefore were not engaged in the
type of discretionary conduct required to invoke public official immunity.
Janes, 254 Ill. App. 3d at 964; Watson, 68 Ill. App. 3d at
1055; Madden, 56 Ill. App. 3d at 1002.

As stated, public official immunity is a common law defense to liability for
employees of the State of Illinois, where those employees engage in
discretionary functions. This concept is inapposite to the matter at bar, where
defendants, a local public entity and its public employees, are specifically
immunized pursuant to the Tort Immunity Act. Indeed, this court has previously
rejected attempts to incorporate the common law discretionary/ministerial
distinction into provisions of the Tort Immunity Act. See Epstein v. Chicago
Board of Education, 178 Ill. 2d 370, 380 (1997) (rejecting attempt to
import the discretionary/ministerial distinction into section 3-108(a) of the
Tort Immunity Act). As discussed above, courts must not read conditions into the
Tort Immunity Act that conflict with its plain meaning. Garza, 172 Ill.
2d at 378.

As its final contention, plaintiff argues that holding defendants immune from
liability under the facts presented in this cause conflicts with public policy
as previously expressed by this court in O’Brien v. Township High School
District 214, 83 Ill. 2d 462 (1980). We disagree with plaintiff’s
assertion, and stress that our holding today does not alter our prior
pronouncement in O’Brien that “public policy, as expressed in [section
6-106], militates in favor of holding public employees liable for negligently
prescribing or administering treatment which causes injury.” O’Brien,
83 Ill. 2d at 468. Neither the Act nor our decision today immunizes negligent
treatment from liability.

Plaintiff also contends that immunizing local public entities and their
public employees from liability for failing to examine, improperly examining, or
diagnosing patients provides incentive to simply refuse to examine and/or
diagnose patients. Although we understand, and are sympathetic to, plaintiff’s
concerns, we are constrained to apply the law as enacted by the General
Assembly. “Under the doctrine of separation of powers, courts may not legislate,
rewrite or extend legislation. If the statute as enacted seems to operate in
certain cases unjustly or inappropriately, the appeal must be to the General
Assembly, and not to the court.” People v. Garner, 147 Ill. 2d 467,
475-76 (1992). Simply put, it is not within the purview of this court to rewrite
portions of the Tort Immunity Act. Because the concerns voiced by plaintiff
compete with the legislative purposes of the immunity provisions as revealed by
the statute’s plain language, we believe that these are questions appropriately
left to the legislature.

CONCLUSION

For the foregoing reasons, we hold that defendants are immunized from
liability pursuant to sections 6-105 and 6-106 of the Tort Immunity Act. The
judgment of the appellate court is affirmed.

Affirmed.

CHIEF JUSTICE HARRISON, dissenting:

The Local Governmental and Governmental Employees Tort Immunity Act is in
derogation of the common law action against local public entities. It must
therefore be strictly construed against the public entity involved. Aikens
v. Morris, 145 Ill. 2d 273, 278 (1991). Applying this strict construction,
I would hold that plaintiff may proceed against defendants pursuant to sections
6-106(c) and 6-106(d) of the Act (745 ILCS 10/6-106(c), (d) (West 1992)).
Sections 6-106(c) and 6-106(d) specify that public entities and their employees
are not exonerated from liability for injuries proximately caused by their
negligence in prescribing or administering treatment for physical illness. There
is no question that defendants prescribed and administered treatment for the
decedent’s illness in the case before us. The problem with their conduct, and
the reason they are not immune, is that after they ascertained that the decedent
was afflicted with a physical condition that posed a hazard to her health, they
prescribed a course of care that was fatally deficient. Instead of ordering
mammograms and biopsies, chemotherapy or surgery, defendants relegated the
decedent to a passive regimen of waiting and watching, and they waited too
long.

Because the wrong remedy was wrongly administered, defendants’ conduct falls
squarely within the terms of subsections (c) and (d) of section 6-106. Any other
conclusion is inconsistent with the public policy underlying that statute, which
“militates in favor of holding public employees liable for negligently
prescribing or administering treatment which causes injury.” O’Brien v.
Township High School District 214, 83 Ill. 2d 462, 468 (1980). Accordingly,
the judgment of the circuit court should be reversed, and the cause should be
remanded for further proceedings. I therefore dissent.

1. ¹We express no opinion on the derivation of
section 6-105.