The opinion of the court was delivered by: Justice O'brien
Appeal from the Circuit Court of Cook County. Honorable Robert B. Berland, Judge Presiding.
Plaintiff, Adrienne Gathings, individually and as administrator for the decedent, Artrail Harvey, appeals the circuit court's order granting a directed verdict for defendant, Doctor Jean-Wilson Muscadin, on plaintiff's wrongful death action. On appeal, plaintiff argues that the circuit court erred in finding that defendant owed no duty to the decedent. We affirm.
The undisputed facts show that on June 26, 1993, plaintiff brought her 20-month-old son, Artrail, to Roseland Community Hospital to treat Artrail's fever, overall weakness, and repeated vomiting. Artrail was admitted to the hospital under the care of Doctor Sales, a general surgeon.
On the evening of June 28, Doctor Sales decided to obtain a consultation with a pediatrician because he was uncertain as to the cause of Artrail's persistent vomiting. At approximately 11:30 p.m., Doctor Sales told the nursing staff to contact defendant to request a consultation. Defendant was a member of Roseland Community Hospital's professional staff.
A nurse subsequently paged defendant and asked him to consult on Artrail's case. Defendant, who was in Rockford, Illinois, for a meeting of a charitable organization, told the nurse that he was not "on call" and was unavailable to accept the consultation.
The following morning, Artrail suffered a cardiorespiratory arrest and died. An autopsy revealed that Artrail had died from complications from an undiagnosed bowel obstruction.
Plaintiff filed a wrongful death action based on medical malpractice, alleging that Artrail was not properly diagnosed and treated in a timely manner as a result of defendant's failure to come to the hospital in response to Doctor Sales' request for a consultation. A jury trial was held on plaintiff's second amended complaint. At the close of plaintiff's case, the court directed a verdict for defendant, finding that he owed no duty to Artrail. Plaintiff filed this timely appeal.
Defendant filed a motion to dismiss the appeal, arguing that plaintiff failed to provide an adequate record for the appellate court. The motion to dismiss is denied, as the record on appeal is sufficient for a determination of the propriety of the circuit court's order.
The appellate court reviews de novo the circuit court's order granting a directed verdict to defendant. Susnis v. Radfar, No. 1-99-0519, slip op. at 13-14 (November 3, 2000). The circuit court should grant a directed verdict only if all the evidence, viewed in the light most favorable to the non-moving party, so overwhelmingly favors the movant that no contrary verdict could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967).
In a negligence action for medical malpractice, plaintiff must prove a duty owed by defendant, a breach of duty, an injury proximately caused by the breach, and resultant damages. Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80, 85 (1996). A physician's duty is limited to those situations in which a direct physician-patient relationship exists or there is a special relationship such as when an infant sues for prenatal injuries foreseeably caused by the physician's negligent care of the mother prior to conception. Reynolds, 277 Ill. App. 3d at 85. The determination of whether a duty exists is a matter of law to be determined by the court. Tsoukas v. Lapid, 315 Ill. App. 3d 372, 386 (2000).
In the present case, the undisputed facts show that defendant declined the consultation because he was out of town and not "on call." In his conversation with the nurse, defendant did not take any information about Artrail, nor did he review Artrail's records, recommend any treatment, or accept Artrail as a patient. Thus, the circuit court correctly found that defendant owed no duty to Artrail, as no physician-patient or other special relationship existed between them.
This case is similar to Reynolds. In Reynolds, a pediatrician examined a child who had become limp after falling off a couch. Reynolds, 277 Ill. App. 3d at 82. The pediatrician telephoned a colleague, Doctor Fulbright, at his home and they discussed the child's symptoms. Reynolds, 277 Ill. App. 3d at 82. Doctor Fulbright suggested that the pediatrician perform a spinal tap to determine whether meningitis or encephalitis was involved. Reynolds, 277 Ill. App. 3d at 82. The pediatrician performed the spinal tap, which apparently did not indicate the presence of either meningitis or encephalitis. Reynolds, 277 Ill. App. 3d at 83. When the child was transferred to another hospital, doctors there discovered that he had a spinal cord injury. Reynolds, 277 Ill. App. 3d at 83. The child later became quadriplegic. Reynolds, 277 Ill. App. 3d at 81.
Plaintiffs filed a medical malpractice action, alleging that the child's quadriplegia resulted from Doctor Fulbright's failure to properly diagnose him. Reynolds, 277 Ill. App. 3d at 81. The trial court granted summary judgment for Doctor Fulbright. Reynolds, 277 Ill. App. 3d at 81. The appellate court affirmed:
"A consensual relationship can exist where other persons contact the physician on behalf of the patient, but this is not a case in which Fulbright was asked to provide a service for [the child], conduct laboratory tests, or review test results. Fulbright did nothing more than answer an inquiry from a colleague. He was not contacted again and he charged no fee. A doctor who gives an informal opinion at the request of a treating ...