Excerpt From Report of Proceedings, Man Kwan NG v. Edward-Elmhurst Healthcare - 11.5.21

1
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF DU PAGE )
3
IN THE CIRCUIT COURT OF DU PAGE COUNTY
4 FOR THE EIGHTEENTH JUDICIAL CIRCUIT OF ILLINOIS
5
MAN KWAN NG, as HEALTH CARE )
6 PROXY for SUN NG, )
) No. 21 CH 427
7 Plaintiff, )
) JUDGE'S RULING
8 -vs- )
)
9 EDWARD-ELMHURST HEALTHCARE, )
d/b/a EDWARD-ELMHURST HEALTH, )
10 et al., )
)
11 Defendants. )
12 EXCERPT FROM THE REPORT OF PROCEEDINGS
13 taken at the video-conference hearing via Zoom
14 of the above-entitled cause, before the
15 Honorable PAUL M. FULLERTON, Judge of said Court,
16 recorded on the DuPage County Computer Based Digital
17 Recording System, DuPage County, Illinois, and
18 transcribed by LILI B. CINTA, Certified Shorthand
19 Official Court Reporter, commencing on the 5th day
20 of November, A.D. 2021.
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24
LILI B. CINTA, CSR #084 - 002979 , Official Court Reporter

2
1 PRESENT VIA ZOOM:
2
LAW OFFICE OF RALPH LORIGO, by
3 MR. RALPH LORIGO,
and
4 MAUK & BAKER, LLC, by
MS. KIRSTIN M. ERICKSON,
5
appeared on behalf of the Plaintiff;
6
MONAHAN LAW GROUP, LLC, by
7 MR. JOSEPH T. MONAHAN
and
8 MR. JOHN W. WHITCOMB,
9 appeared on behalf of the Defendants.
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1 THE COURT: 21 CH 427, Inc. versus
2 Edward-Elmhurst Healthcare et al. And if I could
3 have the attorneys identify themselves, spell the
4 last name and, for the record, just identify who you
5 represent.
6 MR. LORIGO: Ralph Lorigo, L-o-r-i-g-o, on
7 behalf of the plaintiff, your Honor.
8 MS. ERICKSON: Kirstin Erickson,
9 E-r-i-c-k-s-o-n, on behalf of the plaintiff.
10 MR. MONAHAN: Good morning, Judge Fullerton and
11 counsel. Joseph Monahan and John Whitcomb for
12 Edward-Elmhurst Healthcare doing business as
13 Edward-Elmhurst Health and Edward Hospital.
14 THE COURT: All right. Good morning to all.
15 All right. We are continuing with this evidentiary
16 hearing on this case. And Mr. Monahan has one more
17 witness that the Court will hear from. So, let's
18 proceed.
19 * * * * * *
20 THE COURT: All right. We are back on the
21 record for Case No. 21 CH 427.
22 All right. As I indicated earlier, I have
23 had this case since Monday and then Tuesday and then
24 yesterday and today. So, I have heard a lot. And I

4
1 understand the situation.
2 Mr. Monahan pointed out that what
3 Plaintiffs are asking for is an extraordinary remedy.
4 And that's true. They are asking for injunctive
5 relief which is an extraordinary remedy. But I can't
6 think of a more extraordinary situation than when we
7 are talking about a man's life.
8 So, factually, Mr. Ng was admitted
9 October 14th. He went on the respirator either on
10 the 18th or 19th, and he is on a respirator today.
11 That's 17 or 18 days still on a respirator. There
12 is no dispute from the testimony of the doctors --
13 Dr. Bain, as well as Dr. Greenhill and Dr. Pinsky --
14 that his risk of dying is over 50 percent. He has a
15 high risk of dying.
16 As I indicate, he's been on the ventilator
17 for 17 or 18 days. And Dr. Greenhill acknowledged
18 that someone in his condition being on a ventilator
19 like that has a 10 or 15 percent chance of survival,
20 taking into account his condition, etc.
21 So, the Court understands the bylaws and
22 the policies of the hospital. And I will say that
23 Edward Hospital and its doctors have an excellent
24 reputation in the community. The bylaws are internal

5
1 documents for the operation of the hospital. I
2 understand it. I understand Dr. Greenhill's
3 testimony and Dr. Pinsky's testimony.
4 So, the issue is administering Ivermectin
5 which is not an FDA approved drug. However, the
6 document provided -- and it is in evidence -- is
7 the NAH study. And specifically, Table 2-E lists
8 Ivermectin and the side effects under the table
9 adverse events -- number one, generally well
10 tolerated; number two, dizziness; number three,
11 pruritus; number four, nausea/diarrhea. These are
12 the side effects for the dosage that's being asked to
13 be administered.
14 So, the risks of the side effects the Court
15 kept asking, and Mr. Monahan picked up on it. What's
16 the downside? The risks of these side effects are so
17 minimal that Mr. Ng's current situation outweighs
18 that risk by one-hundredfold. Dr. Pinsky testified
19 that the risk is that there is no benefit. So,
20 the possible benefit this Court sees is helping save
21 Mr. Ng's life with this drug.
22 Having said all of that, I need to look at
23 the law. And the law that's being brought before me,
24 this is a one-count Complaint asking for injunctive

6
1 relief with a declaratory judgment action. And for
2 an action for declaratory judgment, Plaintiff --
3 Plaintiff needs to have a tangible legal interest;
4 there needs to be a defendant with adverse interest;
5 and three, there is an actual controversy regarding
6 that interest. That's the underlying requirements of
7 a declaratory judgment. Those are present here.
8 So then we look at the requirements which
9 you both stated with respect to an injunctive relief
10 in this situation. And in Illinois, those four
11 factors, clearly ascertainable right in need of
12 protection. Despite the statute that Mr. Lorigo
13 brought up and Mr. Monahan addressed, despite that
14 statute, choosing a patient's ability to choose their
15 own path to healthcare, especially in a situation
16 where they have been on a ventilator for 17 and 18
17 days, is clearly an ascertainable right in need of
18 protection.
19 The second factor, an irreparable injury.
20 The evidence that I heard and that has been brought
21 before me, it's overwhelming that there is an
22 irreparable injury in this situation. No adequate
23 remedy at law. Again, clearly present in this
24 situation. And the likelihood of success on the

7
1 merits, two-part test, the party moving for
2 injunctive relief must raise a fair question as to
3 the existence of the right claimed and show that it
4 probably will be entitled to the injunctive relief if
5 the allegations are proven.
6 It's here. The evidence in this case is
7 overwhelming for this situation.
8 The balance of harms, another factor that a
9 Court can consider. The balance of harms goes back
10 to the Court's question what's the downside. The
11 downside are risks to the side effects of the
12 medicine. I have heard testimony from all doctors
13 that all medicine has side effects. But the side
14 effects here, again, are so minimal that the -- the
15 right of a patient to choose to have this medicine in
16 this type of situation where this Court believes he
17 is -- he is basically on his death bed.
18 I did -- I did hear testimony -- actually
19 more argument that you believe he is getting better.
20 He has been on the respirator for the 18 days. I
21 don't believe he is getting better. He may be in
22 some stable condition. But again, the Ivermectin
23 that's being requested, based on the risks and based
24 on a patient's right to choose their ability, I am

8
1 granting the motion, the injunction.
2 I do want to say the Court is not -- I am
3 not forcing this hospital to do anything other than
4 to step aside. I am not forcing any doctor in Edward
5 Hospital to do this. I am just asking -- or not
6 asking -- I am ordering through the Court's power to
7 allow Dr. Bain to have the emergency privileges and
8 administer this medicine.
9 So, I am ordering that the defendants and
10 their agents, assigns, and any other third parties
11 acting on their behalf shall immediately allow
12 Dr. Bain -- and only Dr. Bain -- temporary emergency
13 privileges, solely to administer Ivermectin to this
14 patient, Mr. Ng, pursuant to the order and
15 prescription of Dr. Allen Bain.
16 With respect to that, Dr. Bain is only to
17 deal with this patient. And any discussions he is to
18 have with staff at Edward Hospital solely needs to
19 deal with this patient and the administration of
20 Ivermectin.
21 Also, there needs to be a release. So,
22 that release needs to be provided to the hospital
23 from Mr. Ng's daughter who has the proxy for
24 healthcare. She needs to provide a release and

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1 informed consent releasing Edward Hospital from any
2 liability for administrating Ivermectin to this
3 patient. And that release needs to be provided
4 before any Ivermectin is administered.
5 So, I don't know -- Ms. Erickson, I don't
6 know if you have the ability to do electronic orders
7 or not.
8 MS. ERICKSON: Yes. Uh-huh.
9 THE COURT: Send me an order. Send it by
10 Mr. Monahan.
11 MS. ERICKSON: Okay.
12 THE COURT: Send me the order. And I will sign
13 off.
14 Mr. Monahan, you get to review the order
15 before it's sent to me.
16 MR. MONAHAN: A couple of things.
17 THE COURT: Yes.
18 MR. MONAHAN: The daughter is going to sign a
19 release in her individual name and in her -- in her
20 role as proxy.
21 THE COURT: Yes.
22 MR. MONAHAN: And they are going to release any
23 employee, officer, director, independent contractor,
24 anybody who has anything to do with this. And the

10
1 time on that is from the date of his admission
2 until --
3 THE COURT: Until his discharge, which we are
4 all hoping for.
5 MR. LORIGO: I will submit the proposed release
6 to you, Mr. Monahan, this afternoon. We have them.
7 I will submit it to you this afternoon for your
8 consideration.
9 THE COURT: In the order that I vacated on
10 Monday, I had some language in there about releasing.
11 And to Mr. Monahan's point, the release needs to
12 release the hospital, its executors, administrators,
13 employees, doctors, nurses, staff, successors,
14 assigns, etc. So, make it complete. I really don't
15 want to hear an argument on a release. I will, if I
16 need to. But just make it complete and basically --
17 MR. LORIGO: I will, your Honor. I will.
18 THE COURT: I think you get what I am saying.
19 MR. LORIGO: Yes, I do.
20 THE COURT: Okay. I will look for the order.
21 MR. LORIGO: Thank you very much, your Honor.
22 THE COURT: What I'd like to -- well, I know
23 this case is pretty much concluded. I would like to
24 give it a status date for a couple of weeks. I'd

11
1 like to know what happens to Mr. Ng.
2 MR. LORIGO: I think that's certainly
3 appropriate, your Honor. Whatever date you want, I
4 would hope that two to three weeks from now we'd be
5 hopefully out of that hospital.
6 THE COURT: Today is the 5th. How about on the
7 19th, which is two weeks from today, just at 9:00,
8 just a status.
9 MR. LORIGO: That will be fine, your Honor.
10 THE COURT: And it's via Zoom.
11 MR. MONAHAN: Judge, another thing is we don't
12 have the medicine in our formulary. We just don't
13 carry it. And so, it's -- I guess Dr. Bain is going
14 to have to bring the appropriate medication.
15 MR. LORIGO: We can do that.
16 THE COURT: I would assume that's correct.
17 MR. LORIGO: That's fine, your Honor. We can do
18 that.
19 THE COURT: Okay.
20 MR. LORIGO: Thank you very much, your Honor.
21 THE COURT: Thank you.
22 MR. LORIGO: Have a great weekend. I appreciate
23 it.
24 MS. ERICKSON: Thank you.

12
1 THE COURT: You bet. I will look for the order.
2 MR. LORIGO: Thank you for all your attention,
3 your Honor.
4 THE COURT: You are welcome.
5 MR. MONAHAN: Thank you, Judge.
6 THE COURT: You are welcome.
7 (Which were all the proceedings had
8 at the hearing of the above-entitled
9 cause, this date.)
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1 STATE OF ILLINOIS )
) SS:
2 COUNTY OF DU PAGE )
5 I, LILI B. CINTA, hereby certify the
6 foregoing to be a true and accurate transcript of the
7 computer-based digitally recorded proceedings of the
8 above-entitled cause to the best of my ability to
9 hear and understand, based upon the quality of the
10 audio recording, pursuant to Local Rule 1.03(c).
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18 LILI B. CINTA
OFFICIAL COURT REPORTER
19 Eighteenth Judicial Circuit of Illinois
DuPage County, Illinois
20 CSR License No. 084-002979
21
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24

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1

12 EXCERPT FROM THE REPORT OF PROCEEDINGS

13 taken at the video-conference hearing via Zoom

14 of the above-entitled cause, before the

15 Honorable PAUL M. FULLERTON, Judge of said Court,

16 recorded on the DuPage County Computer Based Digital

17 Recording System, DuPage County, Illinois, and

18 transcribed by LILI B. CINTA, Certified Shorthand

19 Official Court Reporter, commencing on the 5th day

20 of November, A.D. 2021.

LILI B. CINTA, CSR #084 - 002979 , Official Court Reporter

1 PRESENT VIA ZOOM:

9 appeared on behalf of the Defendants.

LILI B. CINTA, CSR #084 - 002979 , Official Court Reporter

1 THE COURT: 21 CH 427, Inc. versus

2 Edward-Elmhurst Healthcare et al. And if I could

3 have the attorneys identify themselves, spell the

6 MR. LORIGO: Ralph Lorigo, L-o-r-i-g-o, on

7 behalf of the plaintiff, your Honor.

8 MS. ERICKSON: Kirstin Erickson,

9 E-r-i-c-k-s-o-n, on behalf of the plaintiff.

10 MR. MONAHAN: Good morning, Judge Fullerton and

11 counsel. Joseph Monahan and John Whitcomb for

12 Edward-Elmhurst Healthcare doing business as

13 Edward-Elmhurst Health and Edward Hospital.

14 THE COURT: All right. Good morning to all.

15 All right. We are continuing with this evidentiary

16 hearing on this case. And Mr. Monahan has one more

17 witness that the Court will hear from. So, let's

20 THE COURT: All right. We are back on the

21 record for Case No. 21 CH 427.

22 All right. As I indicated earlier, I have

24 yesterday and today. So, I have heard a lot. And I

LILI B. CINTA, CSR #084 - 002979 , Official Court Reporter

1 understand the situation.

2 Mr. Monahan pointed out that what

3 Plaintiffs are asking for is an extraordinary remedy.

4 And that's true. They are asking for injunctive

5 relief which is an extraordinary remedy. But I can't

6 think of a more extraordinary situation than when we

7 are talking about a man's life.

8 So, factually, Mr. Ng was admitted

9 October 14th. He went on the respirator either on

10 the 18th or 19th, and he is on a respirator today.

11 That's 17 or 18 days still on a respirator. There

12 is no dispute from the testimony of the doctors --

13 Dr. Bain, as well as Dr. Greenhill and Dr. Pinsky --

14 that his risk of dying is over 50 percent. He has a

15 high risk of dying.

16 As I indicate, he's been on the ventilator

17 for 17 or 18 days. And Dr. Greenhill acknowledged

18 that someone in his condition being on a ventilator

19 like that has a 10 or 15 percent chance of survival,

20 taking into account his condition, etc.

21 So, the Court understands the bylaws and

22 the policies of the hospital. And I will say that

23 Edward Hospital and its doctors have an excellent

24 reputation in the community. The bylaws are internal

LILI B. CINTA, CSR #084 - 002979 , Official Court Reporter

1 documents for the operation of the hospital. I

2 understand it. I understand Dr. Greenhill's

3 testimony and Dr. Pinsky's testimony.

4 So, the issue is administering Ivermectin