Lakatos et al v. The United States of America et al

Filing 61

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 1/23/2012:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GEORGIANNE LAKATOS, et al.,
Case No. 10 C 6393

Plaintiffs,

Hon. Harry D. Leinenweber

v.
UNITED STATES OF AMERICA and
JAY MEDICAR TRANS. LLC,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Jay Medicar Transportation LLC’s
(hereinafter “Jay Medicar”) Motion for Summary Judgment.

For the

reasons stated herein, the Motion is denied.
I.

BACKGROUND

This is a wrongful death suit that was brought by Georgianne
Lakatos and Daniel Freeland, Trustee in Bankruptcy for Andrew
Lakatos Jr., as Co–Administrators of the Estate of Andrew Lakatos
(hereinafter, collectively, the “Plaintiffs.”)

Plaintiffs are

suing the United States for medical negligence under the Federal
Tort Claims Act, and this Court is exercising pendant jurisdiction
over

their

medical

negligence

claim

against

Jay

Medicar.

Plaintiffs’ claims against the United States are not at issue here.
The

following

facts

are

taken

from

the

parties’

Local

Rule 56.1 statements, deposition testimony, and exhibits, with
disputes noted where applicable.

Andrew Lakatos (“Lakatos”) was

discharged from Edward Hines Jr. V.A. Hospital in Hines, Illinois,
(“Hines

Hospital”)

on

November

25,

2009.

Jay

Medicar,

a

transportation service for patients going to and from Hines,
transported Lakatos from the hospital to his home in Lake Station,
Indiana.

Shortly after Lakatos’ arrival home, he collapsed.

died the same day.

He

Jay Medicar seeks summary judgment on the

ground that it owed no duty of medical care or treatment to Lakatos
when transporting him from the hospital to his home.

While Jay

Medicar admits that its driver was required to monitor Lakatos
during

transport

and

call

for

help

if

he

observed

signs

of

distress, it contends that Plaintiffs put forth no evidence to show
that Lakatos experienced distress during the trip.
A.

The Contract

In February 2009, Hines Hospital entered into a contract with
Jay Medicar in which the latter agreed to provide wheelchair van
transportation to Hines’ patients.

The contract was extended to

September 10, 2011 by an amendment dated April 1, 2010.

The

contract provided that the Jay Medicar driver should assist the
patient in entering and exiting the van.

It also provided that

service should be “through the door,” meaning that patients should
be helped inside their homes at the conclusion of the trip.

(The

Court notes, however, that Jay Medicar dispatcher Larry Hawkins
testified in his deposition that Jay Medicar drivers were required
to help passengers out of the van and perhaps to their front steps,
but drivers were not to enter passenger’s homes.
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This seems to

conflict with the contract’s express requirement that “at the
conclusion of their appointments the patient [sic] will be returned
to the ward, inside his/her home, or other stated areas.”)

See

Ex. B to Def.’s Mot. for Summ. J., at 11.
The contract provides for certain vehicle specifications,
including necessary equipment and maintenance standards. Under the
terms of the contract, Jay Medicar drivers are not required to have
any advanced medical training.

They are required to take a basic

first-aid class and complete a training program on transporting
elderly, disabled individuals.

See id. at 10.

The contract required that the driver must ensure that Jay
Medicar

would

transport

“patient

luggage,

medical

records,

medications, prosthetic devices and comfort items from pickup
points to destinations at no additional charge to the Government.”
See id. at 13.

Additionally, it is undisputed that Jay Medicar’s

policies required Lopez to pull over and call 911 if a passenger
appeared to be in medical distress.
B.

See Lopez Dep. at 13:13-14:5.

Treatment and Transport of Lakatos

On November 23, 2009, Lakatos was admitted to the emergency
room at Hines Hospital.

He was treated by doctors at the hospital,

including Drs. Jeffrey Naour (“Naour”), Emily Tuerk, Paul Nemeth,
and Scott Pawlikowski.

As part of his treatment, Lakatos’ doctors

put him on an oxygen machine.

It is not clear from the parties’

briefing what caused Lakatos’ death, although Naour’s deposition

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testimony indicated he suffered from lung cancer, sleep apnea, and
poor cardiac functioning.
Regardless, on November 25, 2009, it is undisputed (at least
for the purposes of this motion and by these parties) that Hines
Hospital discharged Lakatos without supplemental oxygen.

Naour

testified that the failure to provide supplemental oxygen upon
discharge would amount to a breach of the standard of care.

Naour

testified that regardless of how long the trip was, Lakatos would
have needed supplemental oxygen.
The Jay Medicar driver who transported Lakatos, Angelo Lopez
(“Lopez”), testified in his deposition, taken in September 2011,
that he could not remember anything about Lakatos or transporting
him.

He could not recall the dispatcher giving him any specific

information about Lakatos or any conversations with anyone at Hines
Hospital related to Lakatos’ transport.
Lopez testified that he was trained to look at and communicate
periodically with his passengers.

If he saw that a passenger was

in medical distress, he was required to pull over and call 911.

In

the past, he had on rare occasions refused to transport a passenger
– once because the passenger was paralyzed and could not be
transported without an escort and once because the passenger had a
contagious disease.
It is undisputed that Lakatos was transported with two other
passengers and was the last passenger dropped off.

Although he

could not remember the trip in question, Lopez testified after
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looking at his “trip sheet” that the trip took about an hour and 15
minutes.

Generally speaking, Lopez determined the route he took

when he dropped off passengers and the order in which they would be
dropped off.

Lopez would frequently get special instructions from

the dispatcher, such as if the patient required oxygen or special
assistance.

Lopez would go into the hospital to get the patients,

and he would ask them whether they had everything they needed.

He

testified that it was his practice to check on passengers about
every four minutes, and if a passenger did not respond because he
or she was asleep, Lopez would wake up the passenger.
Lopez could not recall ever having transported a passenger who
was so oxygen–deprived that the passenger’s skin turned blue.

He

testified that if anything unusual happened during a trip, he would
fill out an incident form and report it to his supervisor right
away.
Prior to his deposition, on June 29, 2011, Lopez signed an
affidavit exhibiting a much clearer recollection of the events of
the day

in

question.

Specifically,

he

averred

that

Lakatos

appeared fit for transport and exhibited no signs of distress
during the trip.

At no point did Lakatos express any discomfort.

Lopez averred that when the trip concluded, he assisted Lakatos out
of the vehicle and inside his home.

At this point, Lakatos did not

exhibit any signs of distress or tell Lopez he was experiencing
discomfort.

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Larry Hawkins (“Hawkins”), a dispatcher for Jay Medicar, also
testified in his September 2011 deposition that he remembered
nothing about the Lakatos transport.

Hawkins testified that if a

driver determined that a patient was in distress, he should go to
the nearest medical facility.

Hawkins testified that Jay Medicar

has transported patients requiring supplemental oxygen in the past,
but it was the patient’s or hospital’s responsibility to ensure
that the patient had his or her oxygen tank.
In an affidavit dated June 28, 2011, Hawkins averred that
Hines Hospital did not provide him with any specific information
indicating that Lakatos required special care, and that he did not
receive any

calls

from

Lopez

indicating

that

Lakatos

was

in

distress.
Georgianne Lakatos, (“Georgianne”) the decedent’s former wife,
was living with him at the time of his death.

(Although they were

divorced,

as

she

and

Lakatos

lived

together

spouses.)

She

testified that Lakatos was first prescribed a home oxygen tank in
2008.

In November of 2009, he was using supplemental oxygen about

once a week, she said.

Georgianne recalled that on November 25,

2009, Lakatos called her to tell her he was being discharged and
that the hospital was arranging his transportation.

The next time

she heard from him was about an hour and a half or two hours later,
when Lakatos called to tell her that he was a few minutes away from
their home.

Georgianne said that it actually turned out to be a

“little longer” than a few minutes before Lakatos arrived home. It
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was a short conversation, and Lakatos did not express to her any
complaints about how he was feeling.
When Lakatos arrived home, according to Georgianne, he tried
to get out of the van and was wobbly and unsteady.

She noticed

that his face was blue and “he looked like he didn’t have oxygen,
like somebody who has a lack of oxygen.

He didn’t look right.”

Georgianne Lakatos Dep. at 73:17—25.
Georgianne testified that the Jay Medicar driver was standing
outside the van and did not help her get Lakatos inside the house.
She and their son helped Lakatos up the stairs to the house.
Georgianne was worried about how Lakatos appeared and asked him
what was wrong, but he did not answer her.

Lakatos went to the

bathroom, and when he got out, Georgianne asked him what medication
he was on because he appeared so unsteady.

Lakatos replied, “I

don’t know,” and then collapsed, according to Georgianne.

This

occurred less than five minutes after Lakatos got out of the
transport van, she testified.

Paramedics were called, and he was

taken to St. Mary’s Medical Center in Hobart, Indiana, where he
died later that day.
II.

LEGAL STANDARD

Summary judgment is appropriate where the record shows that
there is no genuine dispute as to an issue of material fact.
R. CIV. P. 56(a).

FED .

A fact is material if it could affect the outcome

of the suit under the governing law, and a dispute is genuine where
the evidence is such that a reasonable jury could return a verdict
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for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
In ruling on summary judgment, the court does not weigh the
evidence or determine the truth of the matter, but determines
whether a genuine issue of material fact exists that warrants
trial.

Id. at 249.

In addressing a motion for summary judgment,

the court must review the record in the light most favorable to the
non-moving party and draw all reasonable inferences in that party's
favor.

Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th

Cir. 1998).

A genuine issue of fact, however, is not shown by

"some metaphysical doubt as to the material facts."

Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986).
The moving party bears the burden of establishing the basis
for its motion, together with evidence demonstrating the absence of
any genuine issue of material fact.
U.S. 317, 323 (1986).

Celotex Corp. v. Catrett, 477

Once the moving party has met its burden,

the nonmoving party may not rest on mere allegations, but must
present specific facts showing that a genuine issue exists for
trial.

Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160,

163 (7th Cir. 1984).

To support their positions that a genuine

issue of material fact does or does not exist, the parties may cite
to materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations, admissions, and interrogatory answers, or show that
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the materials in the record do or do not establish a genuine
dispute.

FED. R. CIV. P. 56(c).
III.

ANALYSIS

As a preliminary matter, the Court notes that both Lopez and
to a lesser extent Hawkins submitted affidavits in response to
summary judgment that contradicted their deposition testimony that
they did not remember transporting Lakatos on November 25, 2009.
The

Court

is

particularly

concerned

about

the

conflicts

between Lopez’s affidavit and his deposition testimony.

Jay

Medicar provides no explanation as to how Lopez’s memory became so
much worse in the few months between signing his affidavit and
testifying.

Regardless, affidavits submitted in summary judgment

proceedings must be based on personal knowledge, and if Lopez’s
deposition testimony is true, it is hard to see how his affidavit
could be based on personal knowledge, as least in regard to the
events surrounding Lakatos’ transportation.

See MCI Worldcom

Network Servs., Inc. v. Atlas Excavating, Inc., 02 C 4394, 2005 WL
1300766, at *4 (N.D. Ill. Feb. 23, 2005).
Additionally, it is well settled that a party who denies
knowledge of events or circumstances during a deposition cannot
later submit a self-serving affidavit asserting such knowledge in
an effort to avoid summary judgment.

See, e.g., Muska v. AT&T

Corp., No. 96 C 5952, 1998 WL 544407, at *6 (N.D. Ill. Aug. 25,
1998).

It seems to the Court that an affidavit that contradicts

the affiant’s sworn statements similarly cannot be used to support
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summary

judgment.

See

Illaraza

v.

Anthony

Crane

Int'l,

Nos. 2007–CV–125, 2008–CV–59, 2011 WL 4479254, at *2 (D. V.I.
Sept. 26, 2011).

One possible course of action would be for the

Court to disregard Lopez’s affidavit, and instead consider his
deposition testimony in determining the existence of a genuine
issue of material fact.

However, as will be discussed, the Court

is concerned that these inconsistent statements also raise a
factual issue about the credibility of Lopez, a key witness in this
dispute.
A. Existence of a Common–Law Duty
Jay Medicar bases its motion for summary judgment on its
argument that it had no duty to administer medical care to Lakatos.
Under Illinois law, in order to state a legally sufficient claim
for negligence, a complaint must allege facts establishing the
existence of a duty of care owed by the defendant, a breach of that
duty, and an injury proximately caused by that breach.
Gross, 879 N.E.2d 278, 284 (Ill. 2007).
duty was owed is question of law.

Iseberg v.

The question of whether a

Id.

Plaintiffs assert that Jay Medicar had — and breached — a
duty:

(1) to make sure that Lakatos had his oxygen tank during the

trip home; and (2) to report any incidents of patient distress
during the trip.

Plaintiffs base these duties on Jay Medicar’s

contract with Hines Hospital as well as several other common-law
theories:

(1)

the

voluntary

undertaking

doctrine;

(2)

Jay

Medicar’s duty as a private carrier; (3) because of the alleged
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“custodian-ward” relationship arising from the transportation of
Lakatos; and (4) the traditional duty analysis.
Jay Medicar responds that the duty of care it owed to Lakatos
is limited by its contract with Hines Hospital.
Gordon, 948 N.E.2d 39, 51 (Ill. 2010).

See Thompson v.

In Thompson, the Illinois

Supreme Court held that the scope of an engineering firm’s duty in
a lawsuit for negligent road design brought by the relatives two
people killed in a car crash was limited by the contract between
the developer and the engineer.

Id.

Jay Medicar argues that the same principles apply here, and
that the contract between it and Hines Hospital sets the outer
limits of its duties.

Plaintiffs respond that Thompson should not

be read so broadly “as to immunize a medicar for acts of negligence
it commits against its passengers,” but do little to develop this
argument.
The principles of Thompson, and the cases upon which it
relied, see Ferentchak v. Village of Frankfort, 475 N.E.2d 822
(Ill.

1985),

apply

to

cases

in

which

the

issue

was

whether

engineers were required to answer to third parties who were injured
while using projects designed by the engineers.

It is far from

clear to the Court that the only duties imposed on Jay Medicar in
regard to its passengers should be those in its contract with Hines
Hospital.

However, the Court need not decide this issue.

The

additional

sources

are

of

duty

cited

by

Plaintiffs

either

inapplicable or add little to the contractual duties already
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imposed on Jay Medicar, particularly because Jay Medicar admits
that its drivers have a duty to monitor passengers and summon help
in the event of an emergency.
For example, the voluntary undertaking doctrine provides that
a person who undertakes “gratuitously or for consideration, to
render services to another is subject to liability for bodily harm
caused to the other by one's failure to exercise due care in the
performance of the undertaking.” Rhodes v. Ill. Central Gulf R.R.,
665 N.E.2d 1260, 1273 (Ill. 1996).

However, the doctrine is

construed narrowly, and is a means to impose a duty where it would
not otherwise arise.

See Torres v. City of Chi., 816 N.E.2d 816,

818 (Ill. App. Ct. 2004); Ordman v. Dacon Mgmt. Corp., 633 N.E.2d
1307, 1310 (Ill. App. Ct. 1994).

So the voluntary undertaking

doctrine is inapplicable here because there clearly are contractual
duties.
Next,

Plaintiffs

point

to

an

alleged

“custodian–ward”

relationship arising from Jay Medicar’s transport of Lakatos. This
relationship arises when a person voluntarily takes custody of
another under such circumstances as to deprive the other of his
normal opportunities for protection. See Fancil v. Q. S. E. Foods,
Inc.,

328

N.E.2d

538,

542

(Ill.

1975)

(describing

special

relationships which may give rise to a duty to protect another from
a risk of harm).
In arguing the existence of a custodian-ward relationship,
Plaintiffs liken this case to Jackson v. Ill. Medi-Car, Inc., 300
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F.3d 760, 765–66 (7th Cir. 2002), where the court held that a
medical transport company driver was not deliberately indifferent
to

a

detainee’s

serious

medical

needs

when

he

refused

the

detainee’s requests to take him to a hospital and instead followed
police instructions to take him to the station.

The Seventh

Circuit noted that the primary responsibility for the detainee
rested with the police officers who were his custodians.
766.

Id. at

It was the officers who decided not to take the detainee to

the hospital even though he had swallowed pills, and the medical
transport driver had no indication the detainee was in distress
during the transport.

Id.

Given the driver’s lack of medical

training and the fact that the detainee showed no outward signs of
distress, there was no basis for imposing liability.

Id.

Plaintiffs argue that unlike in Jackson, Jay Medicar had
authority over Lakatos because it dictated his path home.

The

Court is skeptical as to whether a custodian–ward relationship
exists in regard to a medical transport van and its passengers, but
ultimately it does not matter.

The key issue here is whether Lopez

observed any signs of distress from Lakatos; the parties agree that
if he did, then he was obligated to take action.

This is a duty

that Jay Medicar admits it owed under its contract with Hines
Hospital.

Plaintiffs fail to establish any additional relevant

duties that would flow from a custodian-ward relationship, even if
it existed here.

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Finally,

Plaintiffs

urge

that

under

a

traditional

duty

analysis, Jay Medicar had a duty to assess Lakatos’ oxygen need and
to provide supplemental oxygen, as well as to monitor Lakatos
during the trip.

As noted, the duty to monitor is undisputed, at

least as a matter of contract, but Jay Medicar strongly disputes
that it had a duty to assess Lakatos’ oxygen needs either under the
contract or at common law.

As for the common law duty of care,

courts consider four facts to determine whether a duty exists: (1)
the reasonable foreseeability of the injury; (2) the likelihood of
the injury; (3) the magnitude of the burden of guarding against the
injury; and (4) the consequences of placing the burden on the
defendant.

Marshall v. Burger King Corp., 856 N.E.2d 1048, 1057

(Ill. 2006).

“The existence of a duty turns in large part on

considerations of public policy.” Id. Plaintiffs acknowledge that
Jay Medicar’s staff is not medically trained, and articulate no
convincing basis as to why the company should have a duty to assess
independently a patient’s oxygen needs.

As Jay Medicar argues,

imposing such a duty at common law would essentially transform nonmedical transport vehicles into ambulances, at great expense to the
transport companies and ultimately to their customers.

This is

unsupportable, and the Court cannot fathom that the Illinois courts
would impose such a duty.

Plaintiffs also cite Jay Medicar’s duty

as a private carrier, but this duty would extend only to ordinary
duties of care.

Finding a private carrier duty would not aid

Plaintiffs’ case, then, in light of the Court’s analysis as to the
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extent of the duty of ordinary care.

So the Court will turn to the

duties imposed under the contract between Jay Medicar and Hines.
B.

Defendant’s Duty under the Hines Contract

First, the parties dispute whether, even in the absence of a
common–law duty, the contract independently imposed a duty upon Jay
Medicar to make sure Lakatos had his oxygen tank with him when he
was transported home.

The Court agrees with Jay Medicar that

Plaintiffs stretch the contractual language too far when it asserts
that such a duty existed.
Plaintiffs
“Contractor

point

shall

to

this

transport

language

patient

from

luggage,

the

contract:

medical

records,

medications, prosthetic devices and comfort items from pickup
points to destinations at no additional charge to the Government.”
See Ex. B to Def.’s Mot. for Summ. J., at 13.
provides that:

The contract also

“When transporting patients to or from Medical

facilities, the driver, acting for the Contractor, shall ensure
that the patient’s luggage, medical records, medications, and
prosthetic devices are properly accounted for and delivered with
the patient as required.”

See id.

The Court, however, cannot

accept Plaintiffs’ argument that these provisions come anywhere
close to requiring Jay Medicar to determine independently that a
patient required oxygen and obtain it for him even if doctors
discharged him from the hospital without it.
Rather,

the

Court

agrees

with

Jay

Medicar

that

these

provisions are meant simply to require drivers to help passengers
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collect and transport their belongings.

It is undisputed that Jay

Medicar drivers are not required to have advanced medical training,
and there is nothing in the language of the contract that indicates
that drivers should determine a passenger’s medical needs.
Lopez did testify that if a patient told him he was unsure of
whether he needed any medicine, Lopez would check with a nurse or
doctor.

However, there is no evidence that Lakatos made any

comments to Lopez about needing supplemental oxygen.

Where there

is no evidence that either Hines Hospital staff or Lakatos himself
told Lopez that he needed oxygen, there is no basis to conclude
that Lopez himself should have made that determination.
It

is

undisputed

that

Jay

Medicar

drivers

did

have

a

responsibility to monitor patients for signs of distress, to call
for help in the event of a medical emergency, and to report any
such instances to their supervisors. Georgianne testified that her
former husband was in evident distress when he arrived at their
home and that there was no mistaking the blushish hue to his skin.
Georgianne Lakatos Dep. at 74:15.

Viewed in the light most

favorable to Plaintiffs, this is sufficient to raise a genuine
issue

of

fact

as

to

whether

Lakatos

was

in

distress

during

transport, such that Lopez should have called for help.
The Court notes that Plaintiff has not brought forth evidence
to show when Lakatos’ distress began.

Lakatos apparently did not

communicate any distress to his former wife when he called her
shortly before the medical van arrived at their home.
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However,

under the contract between Jay Medicar and Hines, Lopez had a duty
to monitor Lakatos for signs of distress that continued until
Lakatos was

inside

his

home

“through the door” service.

because the

contract

called

for

As such, although the evidence is

thin, the Plaintiffs have presented some evidence that Jay Medicar
failed to respond to a medical emergency.

Given that the best

Plaintiffs can show is that Lakatos was in medical distress at the
end of his trip, whether Plaintiffs can prove that any negligence
by Lopez in failing to call for help caused Lakatos death is
another question, but one not raised by the parties here.
As noted above, the Court also is concerned about the evident
inconsistencies
affidavit.

between

Lopez’s

deposition

testimony

and

his

In his affidavit, Lopez asserted that Lakatos did not

exhibit or communicate any signs of distress during the trip.

He

asserted that he assisted Lakatos into his home and that Lakatos
was not in evident distress at that time, which is in direct
conflict with Georgianne’s testimony.

More importantly, Lopez’s

affidavit raises the question of why Lopez did not offer any of
these details during his deposition, when he could be questioned
about them.

The essential facts of what condition Lakatos was in

during the last leg of the journey, when Lakatos and Lopez were the
only ones in the vehicle, must come from Lopez.

His credibility is

obviously a key issue in this case, and it is doubt given his
conflicting statements.

Cf. Cellini v. Moss, 232 F.2d 371, 373

(D.C. Cir. 1956) (when, at trial, plaintiff may be able to elicit
- 17 -

from defendant facts that defendant had duty to observe and which
may prove plaintiff’s case, summary judgment is inappropriate).
For these reasons, summary judgment is inappropriate.
IV.

CONCLUSION

For the reasons stated, Jay Medicar’s Motion for Summary
Judgment is denied.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 1/23/2012

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