## Facts

- Dorothy Ficke, age 81, was admitted to a hospital in March 1993 under Dr. Jose Aruguete’s care after a stroke and with multiple chronic conditions.
- The complaint alleged Dorothy was seriously ill, unable to communicate meaningfully, and lacked decisional capacity.
- A do-not-resuscitate order was entered.
- Dorothy had no written advance directive and no formally appointed health-care agent.
- Dorothy’s daughter (Darlene) told hospital staff Dorothy did not want life-saving treatment and that aggressive measures conflicted with Dorothy’s wishes.
- Plaintiffs alleged the physician ordered life-saving treatment despite those statements and that neither the physician nor the hospital followed statutory procedures to identify and rely on a surrogate decision-maker.
- Plaintiffs sued the hospital and the physician under the Illinois Health Care Surrogate Act, seeking damages for the estate and for Dorothy’s adult children individually.
- The trial court dismissed with prejudice the counts asserting statutory liability against the hospital (estate and children) and the children’s statutory claims against the physician; plaintiffs appealed.

## Issues

1. Whether the hospital could be liable to the estate under the Illinois Health Care Surrogate Act for not implementing surrogate-decision procedures when the attending physician did not make the statute’s threshold determinations.
2. Whether the Act created an individual cause of action for the patient’s adult children against the hospital for their own alleged injuries.
3. Whether the Act created an individual cause of action for the patient’s adult children against the physician for their own alleged injuries based on his alleged misapplication of the Act.

## Decision

- The appellate court affirmed dismissal with prejudice of the statutory counts against the hospital (estate and children) and the children’s statutory count against the physician.
- The hospital had no statutory liability to the estate on the pleaded facts because the Act’s surrogate-decision framework was not triggered without the attending physician’s predicate findings.
- The Act did not create an implied private right of action for family members to recover damages for their own physical or emotional injuries.
- The Act did not expand liability to permit the children to recover individual damages from the physician for alleged misunderstanding or misapplication of the statute.

## Legal Principles

- The Illinois Health Care Surrogate Act’s surrogate-decision process is triggered only after the attending physician determines and documents the patient’s lack of decisional capacity and the existence of a statutory “qualifying condition.”
- A hospital’s responsibilities under the Act are derivative of, and presuppose, the attending physician’s required threshold determinations.
- Absent clear legislative intent, Illinois courts will not imply a private right of action; the Act’s purpose of allocating decision-making authority and procedures does not imply damages remedies for family members.
- Statutory duties under the Act do not, by themselves, enlarge tort liability beyond traditional malpractice or other recognized common-law claims.

## Conclusion

The court held that, on the allegations pleaded, the Health Care Surrogate Act did not support damages claims by the patient’s children and did not impose statutory liability on the hospital where the attending physician had not made the Act’s predicate findings necessary to initiate surrogate decision-making.


Ficke v. Evangelical Health Sys., 285 Ill. App. 3d 886, 674 N.E.2d 888 (Ill. App. Ct. 1996)