Midland State Bank v. United States of America

Filing 85

MEMORANDUM OPINION AND ORDER: For the reasons stated in the Opinion, Dr. Osunero's Motion for Summary Judgment 60 is denied. By April 9, 2021, the parties shall file a joint status report stating (1) whether the parties would like a settlement conference with the Magistrate Judge, (2) whether the parties consent to proceeding with trial before the Magistrate Judge, and (3) whether the parties agree to a bench trial, and, if so, whether the parties agree to a virtual bench trial. Signed by the Honorable Franklin U. Valderrama on 3/29/2021. Mailed notice (axc).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MIDLAND STATE BANK, as guardian
of the minor children and independent
administrator of the Estate of JULIA
CASTELLANOS, deceased,
Plaintiff,

No. 18-cv-02775
Judge Franklin U. Valderrama

v.
UNITED STATES OF AMERICA and
DOMINGO I. OSUNERO, JR., M.D.
Defendants.
MEMORANDUM OPINION AND ORDER
Julia Castellanos (Castellanos) tragically passed away on November 19, 2015
following an incorrect intubation during an emergency Cesarean section operation at
Mount Sinai Hospital. Plaintiff Midland State Bank (Midland), as guardian of
Castellanos’ minor children and independent administrator of her estate, filed this
wrongful death and survival action against the United States of America (USA) and
Dr. Domingo I. Osunero, Jr., M.D. (Dr. Osunero) pursuant to the Federal Tort Claims
Act, 28 U.S.C. § 2671, et seq., the Illinois Wrongful Death Act, the Illinois Survival
Act, and Illinois common law. R. 30, Am. Compl. 1 Midland alleges that Dr. Osunero,
the attending on-call anesthesiologist, was negligent in supervising the Anesthesia
Care Team and in rendering medical treatment to Castellanos. Dr. Osunero’s motion

1Citations

to the docket are indicated by “R.” followed by the docket number or filing name,
and where necessary, a page or paragraph citation.

for summary judgment is before the Court. R. 60, Mot. Summ. J. For the reasons set
forth below, Dr. Osunero’s motion for summary judgment is denied.
Background
The following facts are set forth as favorably to Midland, the non-movant, as
the record and Local Rule 56.1 permit. Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.
2012). This background section details all material undisputed facts and notes where
facts are disputed. At summary judgment, the Court assumes the truth of the
undisputed facts, but does not vouch for them. Arroyo v. Volvo Grp. N. Am., LLC, 805
F.3d 278, 281 (7th Cir. 2015).
On November 16, 2015, Castellanos presented to Mount Sinai Hospital at 38
weeks gestation with complaints of vaginal bleeding and contractions. R. 71, Pl.’s Am.
Resp. DSOF ¶ 10. 2 Dr. Lemuel Shaffer (Dr. Shaffer), Castellanos’ OB/GYN, conducted
an initial evaluation and noted fetal bradycardia and vaginal bleeding. Id. ¶ 11; see
also R. 61, Mot. Summ. J. Exhs., Exh. D, Sood Dep. at 42:7–16 (explaining that the
term, “fetal bradycardia,” refers to a baby’s heart rate holding at a sustained low). At
approximately 7:55 p.m., Dr. Shaffer elected to proceed with an emergent Cesarean
section based on his concern for a placental abruption. Pl.’s Am. Resp. DSOF ¶ 13; see
also Sood Dep. at 54:21–57:1 (explaining that the term, “placental abruption,” refers

2Citations

to the parties’ Local Rule 56.1 Statements of Fact are identified as follows: “DSOF”
for Defendant’s Statement of Facts (R. 60-1); “Pl.’s Am. Resp. DSOF” for Plaintiff’s Amended
Response to Defendant’s Statement of Facts (R. 71); “PSOF” for Plaintiff’s Statement of
Additional Facts (R. 69); and “Def.’s Resp. PSOF” for Defendant’s Response to Plaintiff’s
Statement of Additional Facts (R. 73).

2

to a premature separation of the placenta that can cause bleeding and can deprive a
baby from oxygen). Following Dr. Shaffer’s decision to proceed with an emergent
Cesarean section surgery, CNRA Mary Kammann, a nurse anesthetist (Kammann),
was paged to assist with Castellanos’ surgery. Id. ¶ 14.
Dr. Osunero was the on-call attending anesthesiologist at Mount Sinai
Hospital that evening. Pl.’s Am. Resp. DSOF ¶ 12; R. 73, Def.’s Resp. PSOF ¶ 13. At
that time, Dr. Osunero was a compensated employee of Sinai Medical Group. R. 61,
Mot. Summ. J. Exhs., Exh. D, Osunero Dep. at 19:10–20:13. Crucially, and explored
in greater detail below (see infra, at 11–21), the parties dispute when Dr. Osunero
became involved in Castellanos’ case. Pl.’s Am. Resp. DSOF ¶ 15–16. The parties
specifically dispute whether Dr. Osunero was informed of the decision to proceed by
Cesarean section before anesthesia was induced and whether he participated in the
“anesthesiology preoperative assessment” before anesthesia was induced. Id.
Midland, pointing to the Anesthesiology Preoperative Evaluation form (see
PSOF, Exh. 3, Anesthesiology Preoperative Evaluation Form (detailing Castellanos’
preoperative diagnosis, identifying information, vitals, and the type of anesthetic
plan being administered)), notes that Dr. Osunero’s signature appears on the bottom
right-hand corner of the form with a date (“11/16/2015”) and a time (“20:00” or 8:00
p.m.). Pl.’s Am. Resp. DSOF ¶¶ 15–16. Midland contends that this form indicates that
Dr. Osunero was informed of the emergent Cesarean section decision and completed
the Anesthesiology Preoperative Evaluation Form for Castellanos at 8:00 p.m. Id. Dr.
Osunero disagrees, testifying that he was first paged about Castellanos and her

3

surgery at 8:36 p.m., and he was not involved in Castellanos’ case or care before that
time. Def.’s Resp. PSOF ¶ 8; Osunero Dep. at 142:16–147:18. When questioned about
his signature and the inclusion of the 8:00 p.m. timestamp on the Anesthesiology
Preoperative Evaluation Form, Dr. Osunero testified that he signed the
Anesthesiology Preoperative Evaluation Form after the surgery had concluded (but
does not recall the exact time), and “the time [he] put – put [on the form] was the time
that [his] CRNA examined [Castellanos], so it just went along with that.” Osunero
Dep. at 144:2–14.
Addressing these discrepancies later, the parties do agree that Kammann
intubated Castellanos to administer general anesthesia, and Dr. Osunero was not
present during the intubation. Pl.’s Am. Resp. DSOF ¶¶ 17, 19. Kammann placed the
endotracheal tube in Castellanos’ esophagus (a complication called an esophageal
intubation), which prevented Castellanos from receiving adequate oxygenation or
adequate ventilation. Id. ¶ 27. Dr. Shaffer delivered Castellanos’ infant at
approximately 8:10 p.m. Id. ¶ 20. Shortly thereafter, Dr. Shaffer and the care team
addressed Castellanos’ uterine atony. Id. ¶ 21; see also R. 61, Mot. Summ. J. Exhs.,
Exh. D, Shaffer Dep. at 65:19–66:6 (explaining that the term, “uterine atony,” refers
to a postpartum hemorrhage that occurs when the uterus fails to contract).
Dr. Osunero received a page at 8:36 p.m. that requested his presence in the
operating room. Pl.’s Am. Resp. DSOF ¶ 24. After receiving the page at 8:36 p.m., Dr.
Osunero testified that he went directly to the Labor and Delivery Department
operating room. Id. ¶ 26; Def.’s Resp. PSOF ¶ 17. Dr. Osunero testified that it took

4

him approximately three minutes to arrive at the operating room after receiving the
page, but he does not recall the exact time of his arrival. Pl.’s Am. Resp. DSOF ¶ 26;
Def.’s Resp. PSOF ¶ 17.
Upon arrival, Dr. Osunero observed the anesthesia monitor and saw that
Castellanos’ heart rate was zero, and the capnograph wave was a straight line. Def.’s
Resp. PSOF ¶ 17. Dr. Osunero turned off the ventilator, tried to “handbag” the
patient, and suspected an esophageal intubation. Id.; Pl.’s Am. Resp. DSOF ¶ 28. Dr.
Osunero grabbed the laryngoscope and performed a laryngoscopy, confirming an
esophageal intubation. Def.’s Resp. PSOF ¶ 17. Dr. Osunero pulled out the existing
endotracheal tube and successfully reintubated Castellanos. Pl.’s Am. Resp. DSOF ¶
29. Dr. Osunero testified that it took approximately one to two minutes from the time
he entered the operating room to verify the incorrect placement of the endotracheal
tube and effectively obtain a tracheal intubation. Def.’s Resp. PSOF ¶ 17. Dr. Osunero
testified that he initiated a Code Blue and stated that he believes he called the Code
Blue also approximately one to two minutes after entering the operating room. Id.
Importantly, and as explained further by Midland’s anesthesiology expert, Midland
disputes the exact time Dr. Osunero successfully reintubated Castellanos. Pl.’s Am.
Resp. DSOF ¶ 29. Midland also disputes the exact time Dr. Osunero initiated the
Code. Id. Midland points to the Code Blue Sheet (“Code Sheet”) and notes that the
Code Sheet includes “20:30” (8:30 p.m.) as the time the Code was called. Def.’s Resp.
PSOF ¶ 28.

5

Following the initiation of the Code, Dr. Kunal Patel (a pulmonologist and
critical care physician) and the Code Team took over management of Castellanos.
Pl.’s Am. Resp. DSOF ¶ 30. The Code Team resuscitated Castellanos. Id. ¶ 31. After
the Code was concluded, Dr. Osunero took photographs (see PSOF, Exh. 6, Osunero
Photographs) of his pager showing the 8:36 p.m. page, the minute-by-minute trends
showing the vital statistics of Castellanos as recorded on the anesthesia monitor
starting at 8:02 p.m. until 9:16 p.m. 3, and the writing on the white board hanging in
the operating room. Def.’s Resp. PSOF ¶ 18. Dr. Osunero did not “interrogate” his
pager after the Code was concluded, other than noting that he did not receive any
pages prior to 8:36 p.m. Id. ¶ 19. 4 On November 19, 2015, three days after the
operation and delivery, Castellanos passed away. Pl.’s Am. Resp. DSOF ¶ 32.
John Downs, M.D. (Dr. Downs), an anesthesiology expert, provided expert
testimony for Midland. PSOF ¶ 23. Dr. Downs first opined that a patient-physician
relationship existed between Dr. Osunero and Castellanos. PSOF ¶ 11. Dr. Downs
testified that certain hospital records—including a consent for operative/invasive and
3Midland

explains that the military time shown at the bottom of each photograph reflecting
“21:00 hours” is incorrect by one hour due to the failure of Mount Sinai Hospital to change
the time on the anesthesia monitor after daylight savings. PSOF ¶ 18, n.1. The photographs
show vital statistics from “21:02” to “22:16,” but it is undisputed that those times should
instead read “20:02” to “21:16.” Id.

4Midland

disputes the contention that the 8:36 p.m. page was the only page Dr. Osunero
received regarding Castellanos’ care. Pl.’s Am. Resp. DSOF ¶¶ 15–16. Midland contends that
because Dr. Osunero, Mount Sinai Hospital, and Sinai Medical Group failed to preserve the
data on Dr. Osunero’s pager in an effort to show that no pages were sent to Dr. Osunero
before 8:36 p.m., an adverse inference can be drawn therefrom. Id. Notably, while Midland
questions Dr. Osunero’s pager records, it does not reference an adverse inference with regard
to the pager in arguing that the patient-physician relationship began prior to 8:36 p.m. Resp.
at 10. Instead, and as discussed further below, Midland relies on documents to establish an
earlier patient-physician relationship. Id.

6

other medical procedures (see PSOF, Exh. 2, Consent), an anesthesiology
preoperative evaluation form (see Anesthesiology Preoperative Evaluation Form),
and a billing record (see PSOF, Exh. 4, Billing Record)—“are typically used by doctors
to establish a physician-patient relationship.” PSOF ¶ 8–11.
Dr. Downs next opined that Dr. Osunero, as the only on-call attending
anesthesiologist, deviated from the standard of care required of supervising
attendings by: failing to contact Kammann at the beginning of his shift; failing to
assess Castellanos and formulate an anesthesia care plan prior to the procedure;
failing to be present for the induction of anesthesia and major portions of the
operation; and failing to supervise or medically direct Kammann during the
procedure. Osunero Mot. Summ. J. Exhs., Exh. J, Downs Report at 2–3; see also
Downs Dep. at 164:16–165:14.
Finally, based upon his review of the Osunero Photographs, Dr. Downs further
testified that Dr. Osunero’s estimated timing of when he successfully reintubated
Castellanos was incorrect by a margin of as much as seven minutes. PSOF ¶ 23. Dr.
Downs stated that the vital signs values shown in the photographs for the period 8:40
p.m. to 8:47 p.m. demonstrated that the endotracheal tube incorrectly remained in
Castellano’s esophagus during those seven minutes. Id. Dr. Downs further stated that
there is a gap in the photographic evidence taken by Dr. Osunero between 8:47 p.m.
and 8:50 p.m., and only at 8:50 p.m. do the vital sign values show the endotracheal
tube in the correct position. Id. Based on this photographic evidence, Dr. Downs
opined that the reintubation did not take place at 8:40 p.m. or 8:41 p.m. (as stated in

7

Dr. Osunero’s testimony), but rather would not have taken place until sometime after
8:47 p.m. and before 8:50 p.m. Id. Dr. Downs concluded that this “delay in
reintubation was a departure from the standard of care,” and “this departure bore a
direct causal relationship to the injuries suffered by Julia Castellanos and her
ultimate death.” Id. ¶ 24 (citing Osunero Mot. Summ. J. Exhs., Exh. I, Downs Dep.
at 174:15–175:12). Dr. Downs described the causes of Castellanos’ death as “. . .
cardiac arrest secondary to severe arterial hypoxemia, and then due to the delay in
resuscitation, irreversible and severe brain injury, all of which led to coagulopathy,
renal failure, liver failure, multi-system organ failure, and ultimately death.” PSOF
¶ 25 (citing Downs Dep. at 175:14–22). 5
Standard of Review
Summary judgment must be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). The party seeking summary judgment has the
initial burden of showing that there is no genuine dispute and that they are entitled
to judgment as a matter of law. Carmichael v. Vill. of Palatine, 605 F.3d 451, 460 (7th
Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v.
Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the adverse party
must then “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A genuine issue of material
fact exists if “the evidence is such that a reasonable jury could return a verdict for
5While

Dr, Osunero admits that Dr. Downs offered opinion testimony, he generally denies
that Dr. Downs’ opinions constitute facts. See generally Def.’s Resp. PSOF.

8

the nonmoving party.” Anderson, 477 U.S. at 248. In evaluating summary judgment
motions, courts must view the facts and draw reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The court
may not weigh conflicting evidence or make credibility determinations, Omnicare,
Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must consider
only evidence that can “be presented in a form that would be admissible in evidence.”
FED. R. CIV. P. 56(c)(2).
Analysis
Midland seeks to recover damages for Castellanos’ pain, suffering, and death
caused by Dr. Osunero’s alleged medical negligence under the Illinois Wrongful
Death Act and the Illinois Survival Act. Am. Compl. ¶¶ 49–61 (Counts III and IV).
The Illinois Wrongful Death Act states, “[w]henever the death of a person shall be
caused by wrongful act, neglect or default, and the act, neglect or default is such as
would, if death had not ensued, have entitled the party injured to maintain an action
and recover damages in respect thereof.” 740 ILCS 180/1. The Illinois Survival Act
provides for a derivative action allowing “a representative of the decedent to maintain
those statutory or common law actions which had already accrued to the decedent
before he died.” Kmak v. Sorin Grp. Deutschland GmbH, 2017 WL 8199974, at *3
(N.D. Ill. Dec. 12, 2017); see 735 ILCS 5/27-6. Dr. Osunero contends (and Midland
does not dispute) that because both the Wrongful Death Act claim and the Survival
Act claim are premised on allegations of medical negligence, Midland must prove the
four elements of medical negligence to prevail against Dr. Osunero. R. 60-2, Mot.

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Summ J. Memo. at 3. Specifically, Midland must prove that: (1) Dr. Osunero owed a
duty of care to Castellanos; (2) Dr. Osunero breached that duty; and (3) injury and
damages resulted from that breach. Siwa v. Koch, 902 N.E.2d 1173, 1176 (Ill. App.
Ct. 2009).
As noted above, Midland retained Dr. Downs as its medical expert witness. Dr.
Downs has opined that Dr. Osunero deviated from the standard of care in his
supervision and treatment of Castellanos. See R. 70, Resp. at 7. Dr. Osunero’s
summary judgment motion classifies Dr. Downs’ opinions into two temporal
categories—(i) criticisms of Dr. Osunero’s conduct before 8:36 p.m. and (ii) criticisms
of Dr. Osunero’s conduct after 8:36 p.m. Mot. Summ J. Memo. at 2. Dr. Osunero uses
8:36 p.m. as the pertinent divider because, per his testimony, he was first paged
regarding Castellanos at that time. Id. Dr. Osunero argues that with each category
of conduct, Midland cannot establish an essential element of the medical negligence
claim, and as such, summary judgment should be granted in his favor. Id.
First, Dr. Osunero maintains that he cannot be held liable for medical
negligence related to his conduct prior to 8:36 p.m., because Midland cannot establish
that Dr. Osunero owed a duty of care (the first element of a medical negligence claim)
to Castellanos before he was paged to treat her. Mot. Summ. J. Memo. at 2. Second,
Dr. Osunero asserts that he also cannot be held liable for medical negligence related
to his conduct after 8:36 p.m., because Midland cannot establish that his treatment
of Castellanos after his arrival in the operating room caused or contributed to cause

10

Castellanos’ injuries and ultimate death (the third element of a medical negligence
claim). Id. The Court addresses each of these arguments in turn.
I.

Whether Dr. Osunero Owed a Duty of Care Prior to 8:36 p.m.

Dr. Downs opined that Dr. Osunero, as the only on-call attending
anesthesiologist, deviated from the standard of care by: (i) failing to contact
Kammann at the beginning of his shift; (ii) failing to assess Castellanos and formulate
an anesthesia care plan prior to the procedure; (iii) failing to be present for the
induction of anesthesia and major portions of the operation; (iv) and failing to
supervise Kammann during the case. Mot. Summ. J. Memo. at 4 (citing Osunero Mot.
Summ. J. Exhs., Exh. J, Downs Report at 2–3). Noting that these criticisms refer to
conduct pre-8:36 p.m., Dr. Osunero argues that summary judgment is proper, because
Midland can prove no set of facts supporting the existence of a physician-patient
relationship between Dr. Osunero and Castellanos before he was first paged about
her case. Mot. Summ. J. Memo. at 3.
Dr. Osunero correctly explains that under Illinois law, a physician’s duty arises
(i) when a physician-patient relationship has been expressly established, or (ii) when
a special relationship exists. Mot. Summ J. Memo. at 3 (citing Siwa, 902 N.E.2d at
1176). An express physician-patient relationship is a consensual relationship,
established when a patient seeks the physician’s medical care, and the physician
knowingly accepts the person as a patient. Id. (citing Reynolds v. Decatur Mem’l
Hosp., 660 N.E.2d 235, 239 (Ill. App. Ct. 1996)). A special relationship, on the other
hand, may exist without any meeting between the physician and the patient. Id.

11

(citing Mackey v. Sarroca, 35 N.E.3d 631, 638 (Ill. App. Ct. 2015)). But a special
relationship exists only where the physician takes some affirmative action to
participate in the care, evaluation, diagnosis, or treatment of a specific patient. Id. at
4 (citing Mackey, 35 N.E.3d at 638). “The central inquiry is whether the physician
has been asked to provide a specific service for the benefit of a specific patient.”
Mackey, 35 N.E.3d at 638 (emphasis added).
Dr. Osunero, focusing only on the special relationship inquiry, contends that
he was not asked to provide a specific service for Castellanos’ benefit before 8:36 p.m.,
and as such, did not owe her a duty of care before that time. Mot. Summ J. Memo. at
4. Dr. Osunero notes (and the Court agrees) that Mackey is instructive to understand
the applicable standard. In Mackey, a patient was transported to the hospital
emergency department complaining of severe abdominal pain. 35 N.E.3d at 633. Per
hospital protocol, the emergency room physician paged the defendant, the “on-call”
attending urologist, after test results revealed a urinary tract infection and kidney
stone. Id. at 634. Over the phone, the urologist obtained a detailed description of the
patient’s condition and the results of diagnostic tests; took notes on the conversation;
and recommended that the patient be prescribed a medication and discharged with
the instruction to seek an out-patient follow-up appointment. Id. After discharge, the
patient developed severe septic shock and died. Id. The trial court granted the
defendant-urologist’s motion to dismiss, finding that, as the on-call urologist, he owed
no duty of care to the decedent, because a physician-patient relationship had not been
established. Id. at 636.

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The Illinois Appellate Court reversed, finding that the on-call urologist and the
decedent had a special relationship, giving rise to a duty of care. Mackey, 35 N.E.3d
at 640. In making that determination, the court examined four Illinois cases on the
physician-patient special relationship—Weiss v. Rush N. Shore Med. Ctr., 865 N.E.2d
555 (Ill. App. Ct. 2007); Lenahan v. Univ. of Chi., 808 N.E.2d 1078 (Ill. App. Ct. 2004);
Bovara v. St. Francis Hosp., 700 N.E.2d 143 (Ill. App. Ct. 1998); and Reynolds, 660
N.E.2d at 235. The court noted that Lenahan and Bovara stand for the proposition
that “a special relationship establishing a physician-patient relationship exists where
[…] the consulting physician is assigned the task of consulting as part of established
procedures, protocols or contractual obligation with the hospital, is compensated for
those consulting services, orders tests or reviews test results, gives specific medical
advice regarding contemporaneous patient care, and makes decisions regarding the
patient’s current medical care.” Mackey, 35 N.E.3d at 640 (citing Lenahan, 808
N.E.2d at 1086; Bovara, 700 N.E.2d at 148–49). Whereas, Weiss and Reynolds stand
for the proposition that where “a physician is consulted or advice is sought on an
informal basis, where no compensation is received by the consulting physician, the
consulting physician does not order tests or review test results, and has no input in
the actual treatment of the patient, no special relationship creating a physicianpatient relationship has been established.” Mackey, 35 N.E.3d at 640 (citing
Weiss, 865 N.E.2d at 557; Reynolds, 660 N.E.2d at 239). Reviewing the totality of the
facts—including that the on-call urologist (i) was assigned to consult with treating
physicians pursuant to a contract; (ii) was compensated for his consulting services;

13

(iii) was consulted by the emergency room for the patient’s benefit for the specific
purpose of rendering diagnostic and medical advice regarding her treatment; (iv)
received specific information regarding her history, symptoms, and diagnostic test
results; (v) evaluated those tests and formed a medical opinion; (vi) was actually
responsible for making a decision regarding her care and whether she should be
admitted or discharged; and (vii) decided that the patient could be discharged and
relayed that recommendation to the emergency physician—the court found the oncall urologist and decedent’s relationship to be closer to that of the special
relationship found in Lenahan and Bovara. Id.
Here, Dr. Osunero was the on-call anesthesiologist pursuant to a contract at
Mount Sinai Hospital and was compensated for his services. See Osunero Dep. at
19:10–20:13. Dr. Osunero, however, insists that the other Mackey factors are absent,
as he was not contacted for Castellanos’ benefit; did not receive specific information
regarding her case; did not evaluate her diagnostic tests; did not form a medical
opinion regarding her care; was not responsible for making a decision regarding her
care; and did not make a decision regarding her care at any time before 8:36 p.m.
Mot. Summ. J. Memo. at 5 (Mackey, 35 N.E.3d at 640). Overall, Dr. Osunero contends
that under Illinois law, he must have been contacted and made aware of a request for
his services regarding a specific patient, and then must take some affirmative action
to participate in the patient’s care before he can be held to owe a duty. Mot. Summ.
J. Memo. at 7.

14

In response, Midland maintains that Dr. Osunero did owe Castellanos a duty
of care before 8:36 p.m. Resp. at 8. Without citing to any case law, Midland first insists
that Dr. Osunero and Castellanos had an express patient-physician relationship,
because Dr. Downs testified that certain hospital records related to Castellanos—
including a consent for operative/invasive and other medical procedures (see
Consent), an anesthesiology preoperative evaluation form (see Anesthesiology
Preoperative Evaluation Form), and a billing record (see Billing Record)—“are
typically used by doctors to establish a physician-patient relationship.” Resp. at 8
(PSOF ¶ 11). The Court disagrees. Illinois courts are clear that the question of
whether a physician owed a patient a duty of care is one of law for the court and not
a question of medicine. See Reynolds, 660 N.E.2d at 239. McIntyre v. Balagani, 2020
WL 7232097, at *1 (Ill. App. Ct. Dec. 7, 2020) is clear: “Plaintiffs may not, in the guise
of offering expert medical opinion, arrogate to themselves a judicial function and
obviate a ruling on the existence of or extent of a legal duty which might be owed by
a physician to a patient.” As such, Dr. Down’s opinion may not be relied upon in
determining the existence of an express duty here. Further, based this time on its
own evaluation, the Court finds that without any direct contact between Dr. Osunero
and Castellanos, Midland cannot establish an express patient-physician relationship.
See Reynolds, 277 Ill. App. 3d at 85.
This leaves the special relationship analysis. In alternatively arguing that a
special (or as Midland calls it, an implied) relationship existed before 8:36 p.m.,
Midland first relies on an Illinois statute (210 ILCS 85/10.7(4)(B)), hospital policies

15

and procedures related to anesthesia, Dr. Downs’ testimony (again), and out-of-state
cases 6 to support the contention that as the on-call attending anesthesiologist, Dr.
Osunero had a “responsibility” to supervise the anesthesia services being rendered at
Mount Sinai Hospital. See Resp. at 10–15. The Court finds this argument and
supporting authority wholly unpersuasive. Midland does not cite (nor has the Court
identified) any Illinois case that finds the existence of a special relationship based on
a state statute or a hospital policy. Nor does the Court find Dr. Downs’ opinions
regarding the patient-physician relationship and the out-of-state cases useful in
determining whether a patient-physician relationship has been established under
Illinois law.
However, the Court does find Midland’s secondary argument compelling.
Quoting Mackey (“a physician-patient relationship is established where the physician
takes some affirmative action to participate in the care, evaluation, diagnosis, or
treatment of a specific patient”), Midland contends that Dr. Osunero did take two
affirmative actions to participate in Castellanos’ care before 8:36 p.m. Resp. at 9
(Mackey, 35 N.E.3d at 638 (emphasis added)). Midland argues that Dr. Osunero (1)
“prepared and signed the affirmation of the attending anesthesiologist to form the
basis for documentary proof of informed consent” and (2) “signed a pre-anesthesia
evaluation form timed in his own handwriting at 8:00 p.m.” Resp. at 10 (citing PSOF

6Resp.

at 12–15 (citing Lownsbury v. VanBuren, 762 N.E.2d 354 (Ohio 2002); Mozingo by
Thomas v. Pitt Cty. Mem’l Hosp., Inc., 415 S.E.2d 341 (N.C. 1992)).

16

¶¶ 8–9). 7 The Consent (which on its face, shows Castellanos’ consent to undergo a
Cesarean section) does indeed contain Dr. Osunero’s signature at the bottom, but
there does not appear to be a timestamp. As such, this form is not particularly helpful
in determining whether a physician-patient relationship was formed prior to 8:36
p.m.
The Anesthesiology Preoperative Evaluation Form, however, does include Dr.
Osunero’s signature with a 8:00 p.m. timestamp. See Anesthesiology Preoperative
Evaluation Form. Midland argues that based on the face of the form, the medical
record indicates that Dr. Osunero was first aware of Castellanos at 8:00 p.m. when
he completed a pre-anesthesia assessment. Resp. at 4. The face of the medical record,
then, appears to create a question of fact as to when/if Dr. Osunero participated in a
pre-anesthesia evaluation.
Challenging Midland’s contention of a disputed fact in reply, Dr. Osunero
argues that Midland is “taking a myopic view” of the Anesthesiology Preoperative
Evaluation Form, which “misrepresents the facts surrounding the surgical case in an
effort to alter the timeline of Dr. Osunero’s involvement in Julia Castellanos’ care.”
R. 74, Reply at 3. Dr. Osunero, citing no case law, further argues that “[e]xamination
of all the evidence, as required by a motion for summary judgment, demonstrates that
there is no issue of fact as to when Dr. Osunero was notified of Julia Castellanos or

7Midland

adds that these documents show another example of Dr. Osunero’s negligence in
that he signed documents related to Castellanos’ care without (per his testimony) actually
evaluating her. Resp. at 10. The Court disregards this negligence argument, as the issue in
dispute here is whether Dr. Osunero had a patient-physician relationship with Castellanos,
not whether he acted negligently in completing hospital forms.

17

became involved in her care.” Id. at 4. Dr. Osunero points to specific testimony that
contradicts the 8:00 p.m. timestamp: (i) he testified that he signed the Anesthesiology
Preoperative Evaluation Form after he was first paged at 8:36 p.m. and included 8:00
p.m. next to his signature because Kammann had examined Castellanos at 8:00 p.m.,
and (ii) Kammann testified that she performed the pre-anesthesia evaluation without
Dr. Osunero present. Id. (citing Osunero Dep. at 142:16–147:18; Kammann Dep. at
66:8–19). Dr. Osunero argues that Midland’s assertion of a question of fact as to the
Anesthesiology Preoperative Evaluation Form “asks this Court to view [the form] in
a vacuum that ignores the medical testimony in the case.” Id.
Of course, in asking the Court not to ignore certain medical testimony to
determine whether facts are in dispute, Dr. Osunero is, at the same time, asking the
Court to ignore certain documentary evidence proffered by Midland. The
Anesthesiology Preoperative Evaluation Form, on its face, shows Dr. Osunero signed
a form related to Castellanos’ care at 8:00 p.m. While Dr. Osunero proffers an
explanation for his signature on the form, the Court cannot ignore this evidence. The
Court cannot weigh conflicting evidence or make credibility determinations at the
summary judgment stage, meaning that the Court cannot, as Dr. Osunero suggests,
find the deposition testimony more credible than a medical record. Omnicare, 629
F.3d at 704. Those tasks are reserved for the jury. Id. at 704–705. As such, the Court,
in viewing the evidence in the light most favorable to Midland, as it must, finds that
there are indeed questions of fact as to when Dr. Osunero signed the Anesthesia

18

Preoperative Evaluation Form and when/if Dr. Osunero participated in a preanesthesia evaluation of Castellanos. Scott, 550 U.S. at 378.
The summary judgment inquiry does not end there, however. The pertinent
question now becomes: is this disputed fact material to the physician-patient
analysis? See Egan v. Freedom Bank, 659 F.3d 639, 643 (7th Cir. 2011) (citing
Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (In ruling on
a motion for summary judgment, a district court “has one task and one task only: to
decide, based upon the evidence of record, whether there is any material dispute of
fact that requires a trial.”)); First Ind. Bank v. Baker, 957 F.2d 506, 508 (7th Cir.
1992) (noting that disputed facts are “material” if they might affect the outcome of
the suit).
Notably, neither party meaningfully addresses the materiality question. Dr.
Osunero could have, for example, argued that even if he signed the form and
participated in the pre-anesthesia evaluation at 8:00 p.m., that participation would
not have created a special relationship and is not material to the patient-physician
relationship determination. Although Dr. Osunero does not engage in this analysis,
the Court cannot follow suit. On its face, the Anesthesiology Preoperative Evaluation
Form includes Castellanos’ preoperative diagnosis, identifying information, and
vitals; details the type of anesthetic plan being administered; and is signed and dated
by Dr. Osunero. See Anesthesiology Preoperative Evaluation Form. Weighing the
testimony of Dr. Osunero and Kammann against the face of this document, a
reasonable jury could find the testimony credible and find that Dr. Osunero did not

19

sign the form at or around 8:00 p.m and did not participate in Castellanos’ preanesthesia evaluation. On the other hand, a reasonable jury could find Dr. Osunero’s
deposition testimony not credible and could find instead that at 8:00 p.m., Dr.
Osunero signed the form, was informed of Castellanos’ condition, and offered medical
advice to administer general anesthesia. A reasonable jury could further find that Dr.
Osunero, as the on-call attending anesthesiologist, was assigned to advise on cases
requiring anesthesia services pursuant to a contract; was compensated for his
services; and by participating in a pre-anesthesia evaluation, was consulted for the
benefit of Castellanos, received specific information regarding her symptoms and test
results, and recommended the use of general anesthesia. The Court notes that such
findings of fact could support a finding of a special relationship under the Mackey
framework and decide the outcome of the case as to Dr. Osunero’s conduct before 8:36
p.m. Finding a genuine issue of material fact as to whether Dr. Osunero participated
in a pre-anesthesia evaluation at 8:00 p.m. precludes summary judgment on the duty
of care issue. Jones v. O’Brien Tire & Battery Serv. Ctr., Inc., 871 N.E.2d 98, 112
(2007) (“Ordinarily, the existence of a duty is a question of law to be determined by
the court,” but where “the existence of a duty is dependent on disputed facts, however,
the existence of the relevant facts is a question for a trier of fact to resolve.”). As such,
Dr. Osunero’s motion for summary judgment as to his conduct before 8:36 p.m. is
denied. 8 Daum v. Staffing Network, L.L.C., 2002 WL 31572557, at *3 (N.D. Ill. Nov.
8The

Court notes that Dr. Osunero, in his Reply, briefly argues for the first time that his
conduct before 8:36 p.m. (namely, that he failed to communicate with Kammann) also could
not have proximately caused Castellanos’ injuries or death. Reply at 11. Dr. Osunero

20

19, 2002) (finding that sworn deposition testimony and the EEOC submissions
contradicted each other as to when the alleged discrimination occurred and
accordingly denying summary judgment on the ADA count).
II.

Whether Dr. Osunero’s Conduct After 8:36 p.m. Proximately
Caused Castellanos’ Injuries and Death

Dr. Downs levels one criticism at Dr. Osunero after he was paged—that Dr.
Osunero delayed in reintubating Castellanos. Mot. Summ J. Memo. at 7 (citing
Downs Dep. at 103:22–104:11). Dr. Osunero moves for summary judgment as to this
claimed intubation delay, arguing that his actions at that point did not cause or
contribute to cause Castellanos’ alleged injuries and ultimate death. Mot. Summ. J.
Memo. at 7. Essentially, Dr. Osunero argues that the damage was done before he was
asked to assist in the operating room. Id.
While the issue of proximate cause is ordinarily a question of fact for the
jury (Townsend v. Univ. of Chi. Hosps., 861 N.E.2d 1055, 1058 (Ill. App. Ct. 2001)),
at the summary judgment stage, the plaintiff must present affirmative evidence that
the defendant’s negligence was arguably the proximate cause of the plaintiff’s
injuries (Hussung v. Patel, 861 N.E.2d 678, 684 (Ill. App. Ct. 2007)). If the
plaintiff fails to do so, summary judgment is proper as a matter of law. Id. at 685.
Proximate cause must be established by expert testimony to a reasonable degree of
medical certainty. Susnis v. Radfar, 739 N.E.2d 960, 967 (Ill. App. Ct. 2000). The

presumably added this argument in the alternative should his argument regarding duty of
care fail. The Court does not consider this untimely argument in deciding summary judgment
here. Dyson, Inc. v. Sharkninja Operating LLC, 2016 WL 4720019, at *1 (N.D. Ill. Sept. 9,
2016) (“Arguments raised for the first time in a reply brief are waived.”) (citing U.S. v.
Kennedy, 726 F.3d 968, 974 n.4 (7th Cir. 2013)).

21

causal connection between treatment, or a delay and treatment, and the claimed
injury “must not be contingent, speculative, or merely possible.” Aguilera v. Mount
Sinai Hosp. Med. Ctr., 691 N.E.2d 1, 7 (Ill. App. Ct. 1998). An expert’s opinion is only
as valid as the reasons for the opinion. Petraski v. Thedos, 887 N.E.2d 24, 28 (Ill. App.
Ct. 2008). While testimony grounded in “expert analysis of the known physical facts”
is welcomed, conclusory opinions based on sheer, unsubstantiated speculation should
be considered irrelevant. Id. at 31.
Dr. Osunero argues that summary judgment should be granted as to proximate
cause in connection with his post-8:36 p.m. conduct for three reasons. See Mot. Summ.
J. Memo. at 8–9. First, Dr. Osunero contends that Dr. Downs’ opinion regarding a
delay in reintubation should be rejected, because it constitutes “impermissible
speculation.” Id. at 8. Second, Dr. Osunero argues that Dr. Downs’ speculative opinion
should be considered irrelevant, because it runs contrary to the testimony of every
individual in the operating room. Id. at 8–9. Third, Dr. Osunero maintains that his
actions after being paged bear no causal relation to the alleged injuries. Id. at 9–10.
The Court addresses each argument in turn.
Dr. Osunero contends that Dr. Downs’ opinion regarding a delay in
reintubation is based on “sheer, unsubstantiated speculation,” because “there has
been no correlation between the photographs taken by Dr. Osunero after the
procedure and the actual, exact timing of events that transpired in the operating
room.” Mot. Summ. J. Memo. at 8. As such, Dr. Osunero asserts that there is no

22

evidence of any delay. Id. (citing Wiedenbeck v. Searle, 895 N.E.2d 1067, 1075 (Ill.
App. Ct. 2008)).
In Wiedenbeck, an urgent care doctor failed to order a CT scan when he saw
the patient two days before she died of a brain herniation. 895 N.E.2d at 1068. In
affirming the trial court’s grant of the defendant’s motion for summary judgment, the
appellate court found that the plaintiff had failed to offer expert evidence to a
reasonable degree of medical certainty that the defendant-doctor’s failure to order a
CT scan caused the plaintiff’s injuries. Id. at 1074. Importantly, and not mentioned
by Dr. Osunero, the court made this determination based on the plaintiff’s expert’s
testimony during cross-examination that it would only be “pure speculation” to state
that an earlier CT scan would have shown the necessity of earlier intervention Id. at
1075. In fact, when asked about causation, the plaintiff’s expert only said that
treatment “would have been sooner, and sooner would have been better.” Id. Based
on this speculative evidence, the court explained that the “mere possibility of a causal
connection is not sufficient to sustain the burden of proof of proximate causation.” Id.
(quoting Susnis, 739 N.E.2d at 967)
Here, the Court finds that Midland has offered more than “pure speculation.”
Indeed, Dr. Downs opined that the Osunero Photographs (namely, the minute-byminute trends showing the vital statistics of Castellanos as recorded on the
anesthesia monitor) showed no oxygenation recorded, no blood pressure recorded, and
no end-tidal CO2 or gas exchange (which would have occurred within a matter of a
breath or two of successful reintubation) at 8:44 p.m., which arguably contradicts Dr.

23

Osunero’s estimates of arrival time and reintubation time. PSOF ¶¶ 18, 22–23. Dr.
Downs further opined that the first objective evidence of a successful reintubation
was at 8:50 p.m. when the patient recorded a SP02 level of 43, a blood pressure of
121/61, respiration rate of 18, end-tidal CO2 of 23, and an end-tidal oxygen and
inspired oxygen differential of 85/94. Id. ¶ 23. Dr. Downs stated these recorded vital
signs demonstrate an unreasonably delayed reintubation of at least seven minutes,
and perhaps as many as ten minutes when the negative effects of Castellanos having
suffered a cardiac arrest at 8:39 p.m. could have been reversed or minimized. Id. ¶¶
18, 22–24. Based on training, experience, and review of the Osunero Photographs,
Dr. Downs concluded, to a degree of medical certainty, that there was a direct causal
relationship between this unreasonable delay and Castellanos’ injuries. Downs Dep.
at 175:18–22 (“She suffered cardiac arrest, secondary to severe arterial hypoxemia,
and then due to the delay in resuscitation, irreversible and severe brain injury, all of
which then led to coagulopathy, renal failure, liver failure, multi-system organ
failure, and ultimately death.”). This is more than speculation.
As for Dr. Osunero’s contention that there has been no correlation between the
Osunero Photographs and the actual, exact timing of events that transpired in the
operating room, the Court finds this contention to be a challenge of Dr. Downs’
opinions and interpretations rather than an admissibility/relevance argument. Dr.
Downs testified that the Osunero Photographs are the most reliable medical
information about Castellanos’ vital signs and status during the operative procedure,
because the anesthesia record and its addendum are unreliable, and in some

24

instances unintelligible. Downs Dep. at 106:18–107:16. Dr. Osunero is free to
challenge that opinion at trial but not at summary judgment.
Next, Dr. Osunero argues that Dr. Downs’ opinions should also be rejected,
because they are contrary to the testimony of every individual in the operating room.
Mot. Summ. J. Memo. at 8–9. The Court also finds this argument unpersuasive. The
fact that an expert’s opinion contradicts other witnesses’ testimony does not render
the expert opinion inadmissible. Moreover, this argument goes to weight of conflicting
evidence and should not be decided at summary judgment. Omnicare, 629 F.3d at
704.
Finally, alternatively accepting Dr. Downs’ testimony as admissible and
relevant, Dr. Osunero maintains that his actions after 8:36 p.m. bear no causal
relation to Castellanos’ injuries. Mot. Summ. J. Memo. at 9–10. Dr. Osunero insists
that Dr. Downs testified that Castellanos had already suffered cardiac arrest
secondary to severe arterial hypoxemia and likely brain damage before he was ever
paged. Id. at 10. But Dr. Osunero mischaracterizes Dr. Downs’ testimony here. Dr.
Downs actually testified that Castellanos “suffered cardiac arrest, secondary to
severe arterial hypoxemia, and then due to the delay in resuscitation, irreversible and
severe brain injury.” Downs Dep. at 175:18–22. 9

9For

the first time in his Reply, Dr. Osunero makes one final argument regarding causation.
Reply at 14. He notes that Dr. Downs opined that he would have had to arrive in the operating
room five minutes earlier in order to change the outcome in the present case. Id. at 14 (citing
Downs Dep. at 69:12–19). Dr. Osunero contends that he did not have a patient-physician
relationship with Castellanos five minutes before his arrival in the operating room, and as
such, he owed no duty of care to Castellanos at that time. Reply at 14. Because this Opinion
finds that there is a material question of fact with regard to the existence of a patient-

25

The Court finds Dr. Osunero’s arguments regarding causation to be
unpersuasive and further finds that Midland has presented affirmative evidence that
Dr. Osunero’s negligence was arguably the proximate cause of Castellanos’ injuries.
Dr. Osunero is, of course, free to challenge Dr. Downs’ conclusions at trial or to
present evidence that it would have been impossible for him to intubate earlier than
he did, or that an earlier intubation would have made no difference. Dr. Osunero has
not established the absence of a material dispute, however. As such, Dr. Osunero’s
motion for summary judgment as to his conduct after he was paged is also denied.
Conclusion
For the reasons given above, Dr. Osunero’s Motion for Summary Judgment
[60] is denied. By April 9, 2021, the parties shall file a joint status report stating (1)
whether the parties would like a settlement conference with the Magistrate Judge,
(2) whether the parties consent to proceeding with trial before the Magistrate Judge,
and (3) whether the parties agree to a bench trial, and, if so, whether the parties
agree to a virtual bench trial.

Dated: March 29, 2021

United States District Judge
Franklin U. Valderrama

physician relationship before 8:36 p.m., Dr. Osunero cannot prevail on this argument at
summary judgment.

26