No. 2--03--0400

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BYRNE delivered the opinion of the court:

Plaintiffs, Monisola Shittu Somoye and Ken Somoye, filed a complaint alleging the negligentdelivery of their newborn son, Dolapo Somoye, on November 30, 1997. The trial court granteddefendant, James C. Falcone, M.D., summary judgment on the theory that his conduct wasimmunized under section 25 of the Good Samaritan Act (Act) (745 ILCS 49/25 (West 1996)). Plaintiffs appeal, arguing that summary judgment is precluded by two factual questions: (1) whetherdefendant had prior notice of the illness or injury and (2) whether defendant was providing emergencycare. The remaining defendants were dismissed from the action and are not parties to this appeal. We reject plaintiffs' argument and affirm the judgment accordingly.

FACTS

We have identified the following undisputed facts. Monisola received prenatal care atHinsdale Family Medicine Center (the center). Dr. Klein, a family practice resident, was assigned toher case. The center's policy provided that a resident such as Dr. Klein would follow the patient'sprenatal care and perform certain deliveries under the supervision of an attending family practicephysician. If a cesarean section delivery was necessary, an obstetrical consultant must assist.

The center had agreements with obstetricians with privileges at Hinsdale Hospital (thehospital) to perform consulting services including the performance of cesarean section deliveries. InNovember 1997, four obstetricians, who are not involved in this case, were contracted to performconsulting services for the center. An "on call" sheet was posted at the nurses' station identifyingwhich of these consultants was "on call."

At approximately 8 p.m. on November 29, 1997, Monisola was at home when she noticed thatthe baby had stopped moving in her womb. She drank some juice because she had been advised todrink something sweet if she thought the baby was unusually inactive. There was no reaction to thejuice, so the parents went to the hospital emergency room a short time later. Monisola wastransferred to the labor and delivery unit, where Dr. Kuhlman, the "on call" family practice physicianfrom the center, placed her on a fetal monitor. At 10 p.m., Dr. Kuhlman contacted Dr. Hales, thecenter's attending family practice physician, at home and told her that Monisola presented a lack offetal movement and poor heart rate variability. Based on this information, Dr. Hales could notdetermine whether the baby was in distress.

Defendant, an obstetrician, arrived at the labor and delivery unit between 10 and 10:15 p.m.to deliver the baby of one of his patients. He did not anticipate treating Monisola and he was notaware of her medical condition. At approximately 10:30 p.m., Dr. Kuhlman encountered defendantin a hospital hallway and asked defendant to recommend a course of action for his patient based ona brief description of her condition. Dr. Kuhlman explained that he could not reach the "on call"obstetrical consultant, Dr. Kim. Dr. Kuhlman told defendant that the patient came to the hospitalbecause she noticed decreased fetal movement. A fetal monitor revealed that the fetal heart rate wasstable but the variability of the heart rate was flat. Dr. Kuhlman also mentioned that the patient's duedate was in question because she appeared unusually large for the projected gestational period. Defendant recommended to Dr. Kuhlman that he hydrate the patient and determine the status of thefetus by using an oxytocin challenge test. Defendant ended the conversation and returned to his ownpatient.

Jean Kingery, a nurse in the labor and delivery unit, recalled that defendant recommended theoxytocin challenge test to Dr. Kuhlman. Defendant did not prepare a written order, but Kingerywrote "OCT verbal order, [defendant]" on Monisola's chart because Dr. Kuhlman needed to consultan obstetrician before the test could begin. At her deposition, Kingery noted that it was moreaccurate to say that Dr. Kuhlman ordered the test after consulting defendant.

At approximately 12:30 a.m., Dr. Kuhlman again encountered defendant in the hallway andasked for help in evaluating Monisola's condition. Dr. Kuhlman told defendant that Monisola'sattending physician, who was at home, recommended that the baby be delivered that night. Defendant examined Monisola and determined that the baby could not be delivered vaginally. Defendant explained to Monisola that a cesarean section delivery was necessary. Defendant opinedduring his deposition that the cesarean section delivery was elective and not an emergency procedure. He believed that waiting until the following morning to perform the delivery would not have poseda risk to the mother or fetus as long as the fetal heart-rate strip did not change.

Nurse Kingery prepared Monisola for the procedure while defendant returned to his ownpatient to deliver her child by cesarean section. Defendant told Dr. Kuhlman that he would deliverMonisola's baby if no other obstetrician was available. Defendant delivered his patient's baby at 1:37a.m. After that cesarean delivery was completed, Monisola was taken to the surgical suite where defendant delivered her baby by cesarean section at 3:12 a.m. The baby now suffers from cerebralpalsy, seizure disorder, and developmental delay. Defendant did not charge a fee or receive anycompensation for his services.

Plaintiffs filed a complaint alleging the negligent delivery and birth of the baby. Accordingto the complaint, defendants were negligent for delaying the delivery for four hours from 10:30 p.m.on November 29, 1997, to 2:30 a.m. the following morning. The center and the hospital settledplaintiffs' claims for a lump sum of $2.1 million and periodic future payments that have a present cashvalue of $1.9 million. Defendant moved for summary judgment, invoking section 25 of the Act. Thetrial court granted defendant summary judgment, and plaintiffs timely appeal.

ANALYSIS

In every appeal from the entry of summary judgment, we conduct a de novo review of theevidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file,when viewed in the light most favorable to the nonmoving party, show that there is no genuine issueof material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS5/2--1005(c) (West 2002); Bier v. Leanna Lakeside Property Ass'n, 305 Ill. App. 3d 45, 50 (1999)."Summary judgment is a drastic means of resolving litigation and should be allowed only when theright of the moving party is clear and free from doubt." Bier, 305 Ill. App. 3d at 50. "Therefore,where reasonable persons could draw divergent inferences from the undisputed material facts orwhere there is a dispute as to a material fact, summary judgment should be denied and the issuedecided by the trier of fact." Espinoza, 165 Ill. 2d at 114.

On appeal, plaintiffs argue that summary judgment for defendant was inappropriate becausefactual questions exist as to whether defendant's conduct was immunized under section 25 of the Act. At the time of the alleged malpractice, the Act provided as follows:

"Any person licensed under the Medical Practice Act of 1987 or any person licensed topractice 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 and without prior noticeof the illness or injury, provides emergency care without fee to a person, shall not, as a resultof their acts or omissions, except wilful or wanton misconduct on the part of the person, inproviding the care, be liable for civil damages." 745 ILCS 49/25 (West 1996).

In 1998, the legislature amended the Act, dropping the requirement that the treating physicianact "without prior notice of the illness or injury." Pub. Act 90--742,