FIFTH DIVISION
June 14, 2002

No. 1-00-2588

JUSTICE QUINN delivered the opinion of the court:

Plaintiff, Patricia Blanchard (Blanchard), on behalf of herson, Kameron Blanchard, filed suit against defendants, Dr. MeredithMurray, Dr. Mark Penn, and West Suburban Hospital, allegingnegligence in the delivery of Kameron.⁽¹⁾ Blanchard appeals from anorder of the trial court granting Dr. Murray's motion for summaryjudgment based on the court's determination that Dr. Murray wasimmune from liability pursuant to the Good Samaritan Act (745 ILCS49/25 (West 1998)). Blanchard contends that the trial court erredin granting summary judgment in favor of Dr. Murray because severalgenuine issues of material fact exist as to whether the GoodSamaritan Act applies. For the following reasons, we reverse andremand.

On April 29, 1991, Blanchard was admitted to West SuburbanHospital (West Suburban) with labor pains. During her pregnancy,Blanchard was treated through the Chicago Board of Health at St.Anne's Professional Building (St. Anne's). However, St. Anne'sclosed some time before Blanchard gave birth. At West Suburban,Dr. Murray was contacted to perform a cesarean section delivery onBlanchard. During the course of the cesarean delivery, Blanchard'sbaby, Kameron, suffered an injury to his right ring finger.

Blanchard filed suit and in Count I of her complaint allegedthat Dr. Murray:

"a. Negligently performed a cesarean section

to deliver the minor, Kameron Blanchard, wherein the said

minor was injured;

b. Negligently extended the uterine incision

during the cesarean section too deep;

c. Otherwise fell below the standard of care

of physicians of his type."

Plaintiff alleged that as a direct and proximate result, Dr.Murray cut the right ring finger of Kameron and that he sufferedinjury to his body and limbs both internally and externally.

In her deposition, Blanchard testified that she arrived atWest Suburban on April 30, 1991, between 11 p.m. and midnight. Dr.Penn examined Blanchard and discovered that she was in labor withcontractions occurring every one to two minutes. Blanchard wasattached to a baby monitor and informed of how much her cervix wasdilated. Blanchard testified that some time later, she was toldthat the baby's heart rate was dropping. Dr. Penn informed Blanchard that an emergency cesarean section would have to beperformed because the baby was in distress. Blanchard testifiedthat Dr. Murray, who to her knowledge was an on-call physician,entered the room and said that he would be performing the cesareansection.

Blanchard testified that after the birth of the baby, herfirst recollection was of being awakened by a nurse who told herthat something happened and that Kameron had to be transferred toanother hospital. Some time later, Dr. Murray told Blanchard thatthe baby was cut when he threw his right hand up during the courseof the cesarean section.

In his deposition, Dr. Murray read from Blanchard's medicalfile and noted that the baby's heart rate continued to drop between2:35 a.m. and 3:15 a.m. At 3:10 a.m., Dr. Penn called Dr. Murrayat his home. At 4 a.m., Dr. Murray arrived at West Suburban. Thecesarean started at 4:26 a.m. and was completed by 5 a.m. According to Dr. Murray, the progress notes stated that theneonatologist present during the cesarean section attended theprocedure because of fetal distress. Dr. Murray testified thatthese progress notes meant that the neonatologist attended theprocedure because there was fetal distress rather than "in case"there was fetal distress. Dr. Murray opined that if the baby hadnot been delivered by cesarean section, the delivery may have beenmore problematic because the umbilical cord was wrapped around thebaby's neck.

When asked whether Blanchard's cesarean section was anemergency, Dr. Murray testified that it was urgent. Dr. Murrayexplained the difference between "emergent" and "urgent" care asfollows:

"Q. In your opinion was this cesarean sectionan emergency?

A. It was -

Q. Why and how?

A. - urgent.

Q. You're using the word urgent differently than emergency?

A. I think so, yeah?

Q. Tell me the difference?

A. There are different degrees of emergency.

One is - the real emergency is imminent death, that all of a sudden the heart tones go to 60 or 40 or 0, ad [sic] you got four minutes, you got to cut. You can't wait for anything. You just - like a postmortem C-section.

Q. And the next degree?

A. The next one is its going to have to be done, and you can't wait till the regular morning schedule to do it.

Q. And is that called urgent or is that called-

A. That would be urgent or emergent.  Different people could call it different things. In order to get people to come in and help you, you have got to tell them it's an emergency, otherwise they're going to say wait till morning, call me in the morning, I'm not coming. So we have to declare that this was an emergency, and that was done -

Q. In order -

A. - before I got there. They called the emergency, they called me at home.

Q. And-

A. I came, and I agreed that it should be done, and we went ahead and did it.

Q. This was not the first description of an emergency that you gave me where you have four minutes to act?

A. No it wasn't."

Dr. Murray testified that Blanchard was not a regular patient,that he had not seen her before April 30, 1991, and that he did notconduct any follow-up care. Dr. Murray further testified that hedid not charge Blanchard for medical services because he was thereas a service to West Suburban in support of its residency program.

Dr. Murray also testified that he was not a regular on-callphysician for the hospital and that he was unsure why he was calledthat night:

"I could have been covering for my partner or they could have called me for some other reason because there was - they did have a call schedule for the OB attending physician that were backing up. It's a requirement. The hospital has to have a call schedule for the OB service so that they can always find somebody in an emergency. And for whatever reason, they called me that night, and I came in."

Dr. Penn testified that on April 30, 1991, he was doing hisobstetrics rotation as a resident at West Suburban. Dr. Penntestified that Blanchard had no prenatal care with West Suburban soshe was classified as a "walk-in." As a resident, Dr. Penn'sinvolvement in the delivery was placing the heart monitor on thebaby.

Dr. Penn testified that Dr. Murray was on call that day andthat he had not worked with Dr. Murray before or since that day. He knew that Dr. Murray was on call for the night because his namewas on a list at the nurse's station. Dr. Penn telephoned Dr.Murray at approximately 3:10 a.m. because the baby was experiencingheart decelerations, which meant that the baby was possibly indistress.

Dr. Murray filed a motion for summary judgment and argued thatthe Good Samaritan Act was applicable, exempted his actions intreating Blanchard and that he should be dismissed as a defendant. In response, Blanchard argued that the Good Samaritan Act wasinapplicable because there was no emergency and there was amplenotice that an injury existed. Blanchard further argued that theGood Samaritan Act is inapplicable even though Dr. Murray chargedno fee for his services because he was part of a programbenefitting the residency program at the hospital.

The trial court granted Dr. Murray's motion for summaryjudgment. In doing so, the trial court found that there was noample notice, Dr. Murray was not a regular on-call doctor and that the situation was an emergency. The court further found no supportfor plaintiff's argument that the Good Samaritan Act isinapplicable where a doctor charges no fee because he is part of aprogram which benefits a residency program at a hospital.

Blanchard filed a motion to reconsider and in support of hermotion, she submitted the affidavit of Dr. Richard Rock, whoaverred that in his opinion, the case involved a medical situationthat was not an emergency but, rather, a cesarean section forfailure to progress. Dr. Rock stated that his opinion was based onthe "long time lapse between the time Dr. Murray was called and thecesarean section." Dr. Rock indicated that the surgery did notbegin until 76 minutes after Murray was called. The trial courtruled that Blanchard repeated each and every argument made in herresponse to the motion for summary judgment. The court found thatBlanchard failed to explain why this evidence was not available orcould not have been produced at the time of the original motion andruled that Blanchard's motion for reconsideration was withoutmerit. Blanchard's timely appeal followed.

Blanchard contends that the trial court erred in grantingsummary judgment in favor of Dr. Murray. Blanchard asserts thatseveral genuine issues of material fact exist as to whether theGood Samaritan Act (Act) (745 ILCS 49/25 (West 1998)) immunized Dr.Murray's actions.

A motion for summary judgment is properly granted when thepleadings, depositions, admissions, and affidavits on filedemonstrate that no genuine issue as to any material fact existsand that the moving party is entitled to judgment as a matter oflaw. 735 ILCS 5/2-1005(c) (West 1998); Rumford v. CountrywideFunding Corp., 287 Ill. App. 3d 330, 334, 678 N.E.2d 369 (1997). We review the trial court's grant of such a motion de novo. McNamee v. State, 173 Ill. 2d 433, 438, 672 N.E.2d 1159 (1996).

The legislative history of the Good Samaritan Act provesilluminating. On June 21, 1965, our legislature passed an actdesigned to encourage physicians fearful of malpractice suits tostop and render aid to those injured in automobile accidents. Itprovided:

"Any person licensed pursuant to this Act, or any person licensed to practice the treatment of human ailments in any other state or territory of the United States, except a person licensed to practice midwifery, who in good faith provides emergency care without fee at the scene of a motor vehicle accident or in case of nuclear attack shall not, as a result of his acts or omissions, except wilful or wanton misconduct on the part of such person, in providing such care, be liable for civil damages." Ill. Rev. Stat. 1965 ch. 91, par. 2(a).

The Act was amended in 1969 by making it applicable "to avictim of an accident" rather than only motor vehicle accidents. Pub. Act 76-1205. In 1973, the Act was amended by adding thephrase "and without prior notice of the illness or injury" andsubstituted the word "person" for "victim of an accident at thescene of the accident or in the case of nuclear attack." Pub. Act78-385. The Act remained essentially unchanged from 1973 until1998.

At the time of the alleged malpractice, the Act provided:

"Any person licensed pursuant to this Act or any person licensed to practice the treatment of human ailments in any other state or territory of the United States, ***who, in good faith, and without prior notice of the illness or injury, provides emergency care without fee to a person, shall not, as a result of his acts or omissions, except wilful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages." Ill. Rev. Stat. 1985, ch. 111, par. 4404.

We note that effective August 13, 1998, the Act was amended to provide as follows:

"Any person licensed under the Medical Practice Act of 1987 or any person licensed to practice the treatment of human ailments in any other state or territory of the United States who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts oromissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages." 745 ILCS 49/25 (West 1998).

The 1998 amendment to the Act dropped the requirement that thetreating physician had to act "without prior notice of the illnessor injury." Pub. Act 90-742,