Solomon v. Ctr. for Comprehensive Servs., Inc.

2023 IL App (5th) 210391

217 N.E.3d 1079

466 Ill.Dec. 803

Theresa A. SOLOMON, as Guardian of the Estate of Megan Leigh Farmer, a Disabled Person, and Julia Lotus Farmer, a Minor, Plaintiff-Appellant,

v.CENTER FOR COMPREHENSIVE SERVICES, INC., d/b/a NeuroRestorative Illinois and NeuroRestorative Carbondale; Naomi Booker ; Darcy Kriegsman; Elbert Fasnacht, M.D.; Elbert Fasnacht, II, M.D., Ltd.; Rhonda Melvin, R.N.; D. Douglas Strobel; and Josephson, Wallack, Munshower Neurology, P.C., Defendants and Counterplaintiffs-Appellees,

v.Jamey A. Carlson, Counterdefendant.

NO. 5-21-0391

Appellate Court of Illinois, Fifth District.

Rule 23 Order Filed January 25, 2023

Motion to Publish Allowed February 17, 2023

Opinion Filed February 17, 2023

Christopher Cueto and James E. Radcliffe, of Law Office of Christopher Cueto, Ltd., of Belleville, and Michael J. Gras, of Davis & Gras, LLC, of St. Louis, Missouri, for appellants.

Jeremiah P. Connolly, Jeffrey J. Escher, and Corinne M. Cundiff, of Connolly Krause, LLC, of Chicago, for appellees Center for Comprehensive Services, Inc., Naomi Booker, Darcy Kriegsman, and Rhonda Melvin.

Timothy C. Sansone, Michael F. Lecinski, Katherine A. Melzer, and Kathleen L. Pine, of Sandberg Phoenix & von Gontard P.C., of St. Louis, Missouri, for appellees Elbert Fasnacht and Elbert Fasnacht, II, M.D., Ltd.

Jerrod H. Montgomery and Charles E. Schmidt, of Brandon, Schmidt, Baczewski & Montgomery, of Carbondale, for other appellees.

JUSTICE CATES delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Theresa Solomon, as guardian of the estates of Megan Leigh Farmer, a disabled person (Megan), and Julia Lotus Farmer, a minor (Julia), brought a personal injury action against the defendants, Center for Comprehensive Services Inc., doing business as NeuroRestorative Illinois and NeuroRestorative Carbondale (NeuroRestorative); Naomi Booker; Darcy Kriegsman; Rhonda Melvin, R.N.; Elbert Fasnacht, M.D.; Elbert Fasnacht, II, M.D., Ltd.; D. Douglas Strobel, M.D.; and Josephson, Wallack, Munshower Neurology, P.C. (JWM Neurology),¹ based upon theories of medical negligence, transferred negligence, and negligent supervision. The trial court dismissed the claims against Dr. Strobel and JWM Neurology for lack of personal jurisdiction and granted summary judgments for the remaining defendants on the claims for transferred negligence and negligent supervision. The plaintiff appeals those rulings. We affirm in part and reverse in part.

¶ 2 I. BACKGROUND

¶ 3 This action was originally filed in October 2012, by Jamey Carlson, as guardian of her daughter, Megan, against NeuroRestorative. In February 2016, Theresa Solomon was substituted as the nominal plaintiff. Solomon is the grandmother of Megan and the great-grandmother of Julia. Over the course of the litigation, the complaint has been amended several times, and the record is lengthy. An overview of the evidence taken from the pleadings, depositions, and discovery materials on file follows.

¶ 4 Megan Farmer was born August 27, 1986. Jamey Carlson and Tim Farmer are Megan's parents. On August 27, 1995, Megan suffered a traumatic brain injury after being hit by a car. Megan received medical care and seemed to be recovering from her injuries. As Megan entered her early teens, Jamey noted changes in Megan's cognitive abilities, behavior, and judgment. Megan "zoned out" at times and acted out at others. Megan had sexual relations with a classmate and became pregnant when she was 16 years old. She miscarried early in the pregnancy. Because of Megan's ongoing mental health struggles, Jamey took Megan out of school after the tenth grade. At that time, Megan's symptoms included staring spells followed by periods of confusion, deterioration in cognitive functioning and judgment, and occasional acts of aggression.

¶ 5 In September 2006, Megan started seeing Dr. Douglas Strobel at his offices in Indiana. Dr. Strobel diagnosed Megan with a traumatic brain injury and a seizure disorder. He placed Megan on trials of several medications, none of which was particularly effective.

¶ 6 In October 2007, Megan was admitted to an Indiana hospital after she attempted to assault her mother. Dr. Anne Gilbert, a psychiatrist, evaluated Megan. Dr. Gilbert noted that Megan was avolitional, amotivational, and socially withdrawn.

Megan had to be "cued" to perform basic personal hygiene. Dr. Gilbert also noted that Megan "had no abstract reasoning whatsoever." Megan responded to questions with "yes or no" answers. She was able to provide simple factual answers, but without elaboration. For example, Megan could name her medications, but she could not explain why she was taking them.

¶ 7 Dr. Gilbert prescribed Ativan and Depakote for Megan. Depakote is an antiepileptic drug, prescribed for seizure disorders, bipolar disorders, and other neurologic conditions. Dr. Gilbert testified that Depakote carried a "Black Box Warning,"² advising of the serious risk of birth defects, particularly spina bifida, when Depakote was taken during pregnancy. Dr. Gilbert testified that she typically discussed Depakote's risks of birth defects with patients who were of childbearing age. In Megan's case, however, Dr. Gilbert discussed these risks with Megan's mother because Megan was not able to process that information. Dr. Gilbert testified that she had no discussions with Megan's mother regarding a power of attorney or guardianship during Megan's hospital stay. Dr. Gilbert also testified that she did not think Megan could have made decisions about medications on her own. She thought Megan would have needed a guardian. Dr. Gilbert provided only inpatient treatment. Megan was discharged with instructions to follow up with Dr. Strobel.

¶ 8 Dr. Strobel saw Megan after she was discharged from the hospital. Dr. Strobel decided to maintain Megan on Depakote because it was effective. He advised Megan and her mother that Megan should not get pregnant while she was taking Depakote. He also advised them that Megan should take a vitamin supplement called folate, but he did not prescribe any form of birth control for Megan. Dr. Strobel admitted that he did not warn Megan or her mother specifically about an increased risk of birth defects in the babies of women who took Depakote while pregnant. He explained that he ordinarily advised his patients to take folate and exercise family planning while on Depakote. He did not inform his patients about the specific risks of spina bifida and other birth defects associated with Depakote because he did not want to "poison the well." He noted that some patients would refuse to take the drug because of the potential side effects. From time to time, Dr. Strobel had conversations with Megan's mother, Jamey, about switching Megan from Depakote to another medication, but Jamey resisted.

¶ 9 Dr. Strobel clarified that, when he testified that he had conversations with Megan, those conversations were with Jamey. He described Jamey as the "responsible party" and "very directive" in Megan's care. Dr. Strobel recognized that Megan was of legal age and entitled to make decisions, and also that she had a brain injury and she was not interacting with her surroundings. In 2012, at Jamey's request, Dr. Strobel prepared a report indicating that Megan did not have the mental capacity to make medical decisions for herself. Dr. Strobel testified that he had not recommended a guardianship for Megan prior to 2012, because Jamey was in "a supervisory role." There was, however, within Dr. Strobel's records, a prescription form dated October 13, 2006, on which Dr. Strobel noted that Megan lacked "the capacity for decision-making and self-determination."

¶ 10 In 2010, Jamey discovered that NeuroRestorative offered inpatient brain-injury rehabilitation and independent living programs in Carbondale, Illinois. Jamey asked Dr. Strobel to write a letter of medical necessity to Indiana Medicaid so that she could secure insurance coverage for the rehabilitation program. In May 2010 and again in August of 2011, Dr. Strobel wrote letters to the Indiana Medicaid Prior Authorization Unit to request authorization and Medicaid coverage. He did not consult with anyone from NeuroRestorative regarding Megan's admission to the program.

¶ 11 On October 11, 2011, Megan was admitted to NeuroRestorative's facility in Carbondale, Illinois. Megan, then 25 years old, signed admissions paperwork, including an admissions agreement. The admissions agreement included a waiver of liability. The waiver provided that the participant agreed to release NeuroRestorative from any and all liability for the resultant consequences of the participant's decision to voluntarily engage in certain activities, including unprotected sexual activity.

¶ 12 The NeuroRestorative records included admissions notes, dated October 10, 2012, and a "participant overview profile," dated October 19, 2012. In the records, Megan was identified as her own guardian, and Jamey was identified as "closely involved." Megan's barriers and challenges included impairment of executive functioning; lack of insight, judgment, and initiative; poor problem solving, distractibility, and memory; and lack of safety in community settings. Megan was at risk of being victimized by others, easily led, and prone to exploitation by peers. The records also identified areas to pay attention to, and these included "potential issues with peers (males)," exploitation by others, and personal safety skills. As part of the treatment plan, Megan was permitted to be independent "up to 4 hours per day with intermittent supervision and safety plans in place." Megan was not under 24-hour supervision because the staff tried to afford all participants some level of privacy.

¶ 13 The NeuroRestorative records also contained a written report of a psychiatric evaluation performed by Dr. Claudia Kachigian on October 21, 2011. In the report, Dr. Kachigian noted that Megan had undergone a neuropsychological evaluation on...