SIXTH DIVISION

March 28, 2003

PRESIDING JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff, Latricia Mills, as special administrator of the estate of Malcolm James, appeals theorder of the circuit court dismissing her negligence complaint against defendant County of Cook. On appeal, plaintiff argues that the trial court erred in finding that section 6-106(a) of the LocalGovernmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS10/6-106(a)(West 2000)) immunizes defendant from liability. We reverse and remand.

On November 11, 1996, plaintiff brought her son, five-month-old Malcolm James, todefendant's hospital because Malcolm had a cold and was coughing and wheezing. Defendant'semergency room physician, Doctor Isong, examined Malcolm and determined that he had someupper airway congestion "in keeping with" an upper respiratory infection. Doctor Isong made adifferential diagnosis of pneumonia, meaning that she considered pneumonia to be a possiblecontributing cause of Malcolm's ailments. Doctor Isong ordered a chest Xray, CBC and bloodculture, and nebulizer treatments for the wheezing. The nebulizer treatments consisted of albuterol,a bronchodilator, delivered with oxygen through a mask. Malcolm was also given saline drops inhis nose to loosen secretions so his nose could be suctioned.

After the treatments were administered, Doctor Isong determined that Malcolm's conditionhad improved and she discharged him from the hospital. Upon discharge, Doctor Isong wroteprescriptions for a bronchodilator, Tylenol, and an oral antibiotic. Malcolm died a few hours afterhis discharge.

During his deposition testimony, plaintiff's expert, Doctor Eugene Saltzberg, agreed that "thefailure on the part of the physicians at Cook County Hospital to fully treat Malcolm James'pneumonia was the proximate cause of his death." Specifically, Doctor Saltzberg testified that thenebulizer treatment prescribed by Doctor Isong was only a partial treatment of Malcolm's conditionand did not fully comply with the standard of care. Doctor Saltzberg testified that the propertreatment would have been to admit Malcolm to the hospital while "providing him with ongoingrespiratory support as he needed it and to provide him [with] parenteral (intravenous) antibiotics."

Plaintiff filed her complaint alleging that defendant's negligent treatment proximately causedMalcolm's death. The trial court dismissed plaintiff's complaint pursuant to section 2-619 of theIllinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2000)), finding that section 6-106(a) of the Tort Immunity Act immunizes defendant from liability. Plaintiff filed this timelyappeal.

Section 2-619 of the Code provides a means for the disposition of issues of law and easilyproved issues of fact. People ex rel. Devine v. Time Consumer Marketing, Inc., 336 Ill. App. 3d 74,78, 782 N.E.2d 761, 764 (2002). A section 2-619 motion admits the legal sufficiency of thecomplaint but raises some affirmative matter, appearing on the face of the complaint or establishedby external submissions, which defeats the plaintiff's claim. Time Consumer Marketing, 336 Ill.App. 3d at 78, 782 N.E.2d at 764. On review of an order granting dismissal pursuant to section 2-619, we must determine whether a genuine issue of material fact existed which should haveprecluded dismissal and, if not, whether the dismissal was proper as a matter of law. TimeConsumer Marketing, 336 Ill. App. 3d at 78, 782 N.E.2d at 764.

This case involves the interplay between sections 6-105 and 6-106 of the Tort Immunity Act. Section 6-105 states:

"Neither a local public entity nor a public employee acting within the scope of hisemployment is liable for injury caused by the failure to make a physical or mentalexamination, or to make an adequate physical or mental examination of any person for thepurpose of determining whether such person has a disease or physical or mental conditionthat would constitute a hazard to the health or safety of himself or others." 745 ILCS 10/6-105 (West 2000).

Section 6-106(a) states:

"Neither a local public entity nor a public employee acting within the scope of hisemployment is liable for injury resulting from diagnosing or failing to diagnose that a personis afflicted with mental or physical illness or addiction or from failing to prescribe for mentalor physical illness or addiction." 745 ILCS 10/6-106(a) (West 2000).

Section 6-106(c) states:

"Nothing in this section exonerates a public employee who has undertaken toprescribe for mental or physical illness or addiction from liability for injury proximatelycaused by his negligence or by his wrongful act in so prescribing or exonerates a local publicentity whose employee, while acting in the scope of his employment, so causes such aninjury." 745 ILCS 10/6-106(c)(West 2000).

Section 6-106(d) states:

"Nothing in this section exonerates a public employee from liability for injuryproximately caused by his negligent or wrongful act or omission in administering anytreatment prescribed for mental or physical illness or addiction or exonerates a local publicentity whose employee, while acting in the scope of his employment, so causes such aninjury." 745 ILCS 10/6-106(d)(West 2000).

Thus, governmental medical personnel are immunized if they fail to make an adequateexamination (745 ILCS 10/6-105 (West 2000)), fail to make a diagnosis (745 ILCS 10/6-106(a)(West 2000)), or fail to prescribe treatment (745 ILCS 10/6-106(a)(West 2000)). Governmental medical personnel are afforded no immunity for negligently or wrongfully prescribingtreatment (745 ILCS 10/6-106(c)(West 2000)) or for any negligence, wrongful act, or omission inadministering the prescribed treatment (745 ILCS 10/6-106(d)(West 2000)).

Defendant first argues that Doctor Isong never diagnosed Malcolm with pneumonia and, thus,that the dismissal of plaintiff's complaint was proper under section 6-105, which immunizesdefendant for failing to make an adequate examination, and section 6-106(a), which immunizesdefendant for failing to diagnose an illness or addiction. Plaintiff counters that Doctor Isongexamined Malcolm and correctly diagnosed him with pneumonia and, thus, that the immunitiesafforded defendant under sections 6-105 and 6-106(a) are inapplicable here. Plaintiff contends thatthis case involves negligent treatment, for which defendant is afforded no immunity.

The record reveals that Doctor Isong examined Malcolm at defendant's hospital on November11, 1996. In her deposition testimony, Doctor Isong first stated that after examining Malcolm, sheruled out pneumonia; however, Doctor Isong subsequently admitted during her deposition that in factshe had made a differential diagnosis of pneumonia. Treatment was rendered pursuant to thedifferential diagnosis. Further, both Nurse Carolyn Bobbett, who helped treat Malcolm atdefendant's hospital on November 11, 1996, and plaintiff's expert, Doctor Saltzberg, testified in theirrespective depositions that they examined Malcolm's medical chart and determined that Doctor Isongdiagnosed Malcolm with pneumonia. Accordingly, as an adequate examination and a properdiagnosis was made, the immunities afforded under sections 6-105 and 6-106(a) are inapplicablehere.

Defendant argues that Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493(2000), and Mabry v. County of Cook, 315 Ill. App. 3d 42 (2000), compel affirmance of the trialcourt's dismissal order. Michigan Avenue National Bank and Mabry are inapposite, as both casesinvolved a clear failure on the part of the doctors to correctly examine and diagnose their patients'medical conditions and, thus, the courts held in those cases that section 6-105 and section 6-106(a)immunity applied. Michigan Avenue National Bank, 191 Ill. 2d at 512; Mabry, 315 Ill. App. 3d at53. Unlike in Michigan Avenue National Bank and Mabry, dismissal is precluded here becauseDoctor Isong correctly examined and diagnosed her patient Malcolm's condition.

Next, defendant argues that plaintiff's allegations of negligence involve Doctor Isong's failureto prescribe antibiotics and respiratory monitors and, thus, that dismissal was appropriate becausesection 6-106(a) specifically immunizes defendant for "failing to prescribe for mental or physicalillness or addiction." (Emphasis added.) 745 ILCS 10/6-106(a)(West 2000).

We disagree. This is not a case where the doctor failed to prescribe treatment for her patient. As discussed, Doctor Isong prescribed treatment for Malcolm, specifically, nebulizer treatmentconsisting of albuterol, a bronchodilator, delivered with oxygen through a mask. Rather, this is acase where the plaintiff alleges that the treatment prescribed was inadequate, i.e., that Doctor Isongwas negligent in her treatment for omitting the necessary antibiotics and respiratory monitors thatwould have saved Malcolm's life. The Tort Immunity Act does not immunize defendant for thenegligent treatment of a patient. See 745 ILCS 10/6-106(c)(West 2000)(once treatment is prescribed,defendant is afforded no immunity for "injury proximately caused by [the doctor's] negligence or byhis wrongful act in so prescribing"); 745 ILCS 10/6-106(d) (West 2000)(defendant is afforded noimmunity for the "negligent or wrongful act or omission in administering any treatment prescribed"). See also American National Bank & Trust Co. of Chicago v. County of Cook, 327 Ill. App. 3d 212,218 (2001)(holding that defendant is not immune for any negligent treatment). Accordingly, thetrial court erred in dismissing plaintiff's complaint.

Next, plaintiff argues that the trial court erred in denying her motion to amend her complaintto allege that defendant's negligent prescription of oral antibiotics as treatment of Malcolm'scondition proximately caused his death. The trial court should grant leave to amend a complaintunless it is apparent that even after amendment no cause of action can be stated. Douglas TheaterCorp. v. Chicago Title & Trust Co., 266 Ill. App. 3d 1037, 1045 (1994). Here, plaintiff's amendedcomplaint, alleging negligent treatment on the part of defendant, states a cause of action. (See ourdiscussion above.) Accordingly, the trial court erred in denying plaintiff's motion to amend hercomplaint. On remand, the trial court is directed to allow plaintiff to file her amended complaint.

For the foregoing reasons, we reverse the order of the circuit court dismissing plaintiff'scomplaint and denying her leave to amend, and remand for further proceedings.

Reversed and remanded.

GALLAGHER and O'MARA FROSSARD, JJ's concur.