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Bovara v. St. Francis Hospital

August 20, 1998

CHERYL HAXBY BOVARA, INDIV. AND AS ADM'R OF THE ESTATE OF ALBERT BOVARA, DECEASED; JENNIFER BOVARA; JAMIE BOVARA; AND JONATHAN BOVARA; PLAINTIFFS-APPELLANTS,
v.
ST. FRANCIS HOSPITAL, A CORPORATION; CARDIOVASCULAR RENAL CONSULTANTS, S.C., A CORPORATION; LUKE R. PASCALE, M.D.; DOMINICK J. ALLOCCO, M.D.; ROY C. BLILEY, M.D.; AND JOSEPH W. EDGETT, M.D.; DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Cerda delivered the opinion of the court

Appeal from the Circuit Court of Cook County

Honorable Maureen Durkin Roy, Judge Presiding.

Plaintiffs, Cheryl Haxby Bovara, individually and as administrator of the estate of Albert Bovara, deceased; Jennifer Bovara; Jamie Bovara; and Jonathan Bovara, appeal from the entry of summary judgment by the circuit court of Cook County in favor of defendants Roy C. Bliley, M.D., and Joseph W. Edgett, M.D.

At issue is whether a physician-patient relationship was formed between Drs. Bliley and Edgett and the plaintiffs' decedent and/or whether these two defendants owed a duty of care to Albert Bovara. On request of defendant Luke R. Pascale, M.D., who was Bovara's examining cardiologist, Drs. Bliley and Edgett reviewed Bovara's angiogram film and communicated to Dr. Pascale that Bovara was a candidate for coronary angioplasty. While defendant Dominick J. Allocco, M.D., performed the angioplasty procedure, Bovara died.

We reverse and remand on the basis that there was a genuine issue of material fact as to whether Drs. Bliley and Edgett acted as Bovara's physicians and owed a duty of care to Bovara.

Plaintiffs' first amended complaint brought suit against St. Francis Hospital; Cardiovascular Renal Consultants, S.C.; Dr. Pascale; Dr. Bliley; Dr. Edgett; and Dr. Allocco. All the physician defendants allegedly were agents and/or employees of both the hospital and Cardiovascular Renal Consultants S.C., a corporation (CRC), at the relevant times. Plaintiffs alleged that Albert Bovara died as a result of the angioplasty and that Drs. Bliley and Edgett were negligent in part for failing to adequately recognize the risks to Bovara of an angioplasty. Affidavits of physicians were attached to the complaint swearing that Bovara's arterial lesion was not the type on which angioplasty should have been performed.

On December 18, 1996, Drs. Bliley and Edgett filed a motion for summary judgment, arguing in part that no physician-patient relationship arose between them and Bovara prior to the time that they assisted in attempting to resuscitate Bovara during angioplasty.

FACTS

The following facts were established from the depositions and affidavits filed in connection with the motion for summary judgment.

At St. Francis Hospital, Albert Bovara met with Dr. Luke R. Pascale, who was a cardiologist at St. Francis Hospital and CRC, concerning his heart disease; two of his arteries were blocked. Dr. Pascale took Bovara's medical history and examined him. Bovara had brought with him an angiogram of his coronary blood vessels that was taken at another hospital following a heart attack. Dr. Pascale was not trained in reading angiograms and did not perform angioplasty. According to Dr. Pascale, interventionist cardiologists and surgeons were the physicians who made the decisions on who was to undergo angioplasty, bypass surgery, or noninterventionist medical care, and whether angioplasty was contraindicated for Bovara was "totally" up to the interventionists. Dr. Pascale did not know how the Conclusion that angioplasty could be done was made.

Dr. Pascale did not review Bovara's angiogram and, as part of the usual procedure for CRC, gave it to a staff member for a cardiac interventionist to review. Drs. Edgett and Bliley were cardiac interventionists at the hospital and CRC, and they reviewed the angiogram. St. Francis contracted with CRC to produce cardiology services at St. Francis. Dr. Pascale received a verbal message that Drs. Bliley and Edgett believed that Bovara's condition allowed the patient to have angioplasty; he did not recall if the message was directly from the physicians or from a nurse. Normally he did not get an opinion in writing from the interventionists. Dr. Pascale wrote into the hospital chart that "catheterization reviewed by Drs. Bliley and Edgett."

Dr. Pascale gave Bovara the joint opinion of Drs. Bliley and Edgett that Bovara was a candidate for angioplasty. He did not tell Bovara that he was a good candidate; he told Bovara that "his people" felt Bovara was a candidate. He had no opinion on angioplasty for Bovara. He told Bovara that he would have a conference with the interventionist cardiologists because he had not really discussed the angioplasty issue with them firsthand. Dr. Pascale testified that he had a later discussion about Bovara with Drs. Edgett and Bliley. Bovara called Dr. Pascale the week following the visit. Dr. Pascale told Bovara that he had confirmed with the other physicians that Bovara was a candidate for angioplasty. He never spoke to Bovara again.

Dr. Bliley testified that he was commonly asked by his "partners" solely to view a film, to tell them if angioplasty was technically feasible, and to ascertain purely on the basis of the film the relative risks of the procedure. He believed that angioplasty was a moderate risk to Bovara because of the length of the lesion in the artery. At the time of his review, he did not review Bovara's medical records from the other hospital and he did not have any contact with Bovara. He did not write anything down in reference to his review.

Dr. Edgett testified that Dr. Pascale was one of his "associates" upon whose request he reviewed Bovara's angiogram. Dr. Edgett never had any Discussions with Bovara. He was not asked whether Bovara could have a bypass operation, and he did not recommend angioplasty over a bypass; he just answered a question as to whether angioplasty was possible. He told Dr. Pascale that the case could be handled with angioplasty. Dr. Edgett did not recall any other Discussions about the case with Dr. Pascale. He did not have any notes or dictate anything on his review. Dr. Edgett saw Bovara during resuscitation efforts. In order to make a recommendation as to what a patient should do, Dr. Edgett testified that he would do more than just review the angiogram; he would examine the patient, review other data, and discuss the relative risks and benefits of each type of therapy. Dr. Edgett testified that it was not his job to make a recommendation of which therapy Bovara should have followed. Dr. ...


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