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Somoye v. Klein

June 08, 2004

MONISOLA SHITTU SOMOYE, INDIV. AND AS NEXT FRIEND OF DOLAPO SOMOYE, A MINOR, AND KEN SOMOYE, PLAINTIFFS-APPELLANTS,
v.
JAMES A. KLEIN, HINSDALE FAMILY EDICINE CENTER, HINSDALE HOSPITAL, AND JONI S. HALES, DEFENDANTS (JAMES C. FALCONE, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Du Page County. No. 99-L-273. Honorable Hollis L. Webster, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

PUBLISHED

Plaintiffs, Monisola Shittu Somoye and Ken Somoye, filed a complaint alleging the negligent delivery of their newborn son, Dolapo Somoye, on November 30, 1997. The trial court granted defendant, James C. Falcone, M.D., summary judgment on the theory that his conduct was immunized 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) whether defendant had prior notice of the illness or injury and (2) whether defendant was providing emergency care. 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 at Hinsdale Family Medicine Center (the center). Dr. Klein, a family practice resident, was assigned to her case. The center's policy provided that a resident such as Dr. Klein would follow the patient's prenatal care and perform certain deliveries under the supervision of an attending family practice physician. If a cesarean section delivery was necessary, an obstetrical consultant must assist.

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

At approximately 8 p.m. on November 29, 1997, Monisola was at home when she noticed that the baby had stopped moving in her womb. She drank some juice because she had been advised to drink something sweet if she thought the baby was unusually inactive. There was no reaction to the juice, so the parents went to the hospital emergency room a short time later. Monisola was transferred to the labor and delivery unit, where Dr. Kuhlman, the "on call" family practice physician from the center, placed her on a fetal monitor. At 10 p.m., Dr. Kuhlman contacted Dr. Hales, the center's attending family practice physician, at home and told her that Monisola presented a lack of fetal movement and poor heart rate variability. Based on this information, Dr. Hales could not determine 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 not aware of her medical condition. At approximately 10:30 p.m., Dr. Kuhlman encountered defendant in a hospital hallway and asked defendant to recommend a course of action for his patient based on a 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 hospital because she noticed decreased fetal movement. A fetal monitor revealed that the fetal heart rate was stable but the variability of the heart rate was flat. Dr. Kuhlman also mentioned that the patient's due date 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 the fetus by using an oxytocin challenge test. Defendant ended the conversation and returned to his own patient.

Jean Kingery, a nurse in the labor and delivery unit, recalled that defendant recommended the oxytocin challenge test to Dr. Kuhlman. Defendant did not prepare a written order, but Kingery wrote "OCT verbal order, [defendant]" on Monisola's chart because Dr. Kuhlman needed to consult an obstetrician before the test could begin. At her deposition, Kingery noted that it was more accurate 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 and asked for help in evaluating Monisola's condition. Dr. Kuhlman told defendant that Monisola's attending 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 opined during 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 posed a 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 own patient to deliver her child by cesarean section. Defendant told Dr. Kuhlman that he would deliver Monisola's baby if no other obstetrician was available. Defendant delivered his patient's baby at 1:37 a.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 cerebral palsy, seizure disorder, and developmental delay. Defendant did not charge a fee or receive any compensation for his services.

Plaintiffs filed a complaint alleging the negligent delivery and birth of the baby. According to 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 settled plaintiffs' claims for a lump sum of $2.1 million and periodic future payments that have a present cash value of $1.9 million. Defendant moved for summary judgment, invoking section 25 of the Act. The trial 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 the evidence 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 issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(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 the right of the moving party is clear and free from doubt." Bier, 305 Ill. App. 3d at 50. "Therefore, where reasonable persons could draw ...


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