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June 14, 2005.

SALLY HENSLEE, as Administrator of the Estate of SHIRLEY J. JOHNSON, Deceased, and KENNETH E. STRECKERT, as Executor of the Estate of Richard A. Johnson, Deceased, Plaintiffs,

The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge



This opinion is the second in a trilogy that addresses the motions for summary judgment filed by each of three defendants in this case.*fn1 This opinion addresses the motion for summary judgment filed by defendant Dr. Walter Drubka ("Dr. Drubka").

  This case began on July 14, 2002, when Shirley Johnson ("Johnson") suffered brain damage and eventually died from an allergic reaction to peanuts. Dr. Drubka was one of the defendant doctors who treated Johnson that day. The Administrator of Johnson's estate and the Executor of her husband's estate (collectively, "Plaintiffs") now bring this suit against Dr. Drubka, claiming that he was negligent. Dr. Drubka has moved for summary judgment on Counts II and V of Plaintiffs' first amended complaint arguing that he is entitled to protection under the Illinois Good Samaritan Act, which makes a good samaritan liable for willful and wanton conduct, but not for negligence. 745 Ill. Comp. Stat. 49/25. This Court finds that the Good Samaritan Act does not apply to Dr. Drubka's conduct because he was paid for services rendered within the scope of his employment, and therefore denies Dr. Drubka's motion for summary judgment.



  On July 14, 2002, Dr. Drubka was one of the physicians working at the Provena Immediate Care Center ("Care Center"), located in Lake-In-The-Hills, Illinois. Def.'s 56.1 ¶ 6. The Care Center is an off-campus facility of Provena Saint Joseph's Hospital, Compl. ¶ 10. The Care Center had a sign outside the facility which stated "Immediate Care". Pl.'s 56.1 ¶ 2. Although Dr. Drubka worked at Provena's facilities since 1990,*fn3 Dr. Drubka was employed and compensated by Midwest Emergency Associates ("MEA"). Def.'s 56.1 ¶ 2-3, 5. MEA had a contract with Provena Saint Joseph's Hospital to provide physicians for both the hospital emergency room and the Care Center. Def.'s 56.1 ¶ 4.

  At the Care Center, patients did not need an appointment to be treated. Pl.'s 56.1 ¶ 3. Also, Dr. Drubka did not bill his patients directly. Def.'s 56.1 ¶ B3. Instead, Dr. Drubka was paid on a per diem basis. See id. at ¶ B8. Dr. Drubka's only accounting of his time was to sign in and sign out of the Care Center. Id. at ¶ B7. He did not maintain an account of the patients he treated for the purpose of billing, nor did he know how his services were billed at the Care Center. Id. ¶ B7, Pl.'s 56.1 ¶ 12. MEA also did not bill individual patients for the time one of their physicians saw the patient. Rather, MEA billed the hospital for their physician's time, regardless of the number of patients seen. Def.'s 56.1 ¶ B 8. Provena was the entity responsible for billing the Care Center's patients.*fn4 B. JOHNSON SEEKS HELP AT THE IMMEDIATE CARE CENTER

  On July 14, 2002, Shirley Johnson experienced an anaphylactic reaction*fn5 to food she had consumed and she began to have trouble breathing. Def.'s 56.1 ¶ B13-14. Johnson's husband, Richard Johnson, drove her to the Care Center. Id. ¶ B14. The Johnsons arrived at the Care Center at approximately 4:52 p.m. Def.'s 56.1 ¶ B15. Richard Johnson entered the center and reported that his wife was in a car in the parking lot and having difficulty breathing. Id. He told the doctor at the reception desk, Dr. Drubka, that his wife had a history of peanut allergies and that Johnson had eaten Chinese food. Id.

  The Care Center called 911 almost immediately after the Johnsons arrived. Id. ¶ B17. Dr. Drubka left the Care Center and went to the car where Johnson was seated in the front passenger seat of the car. Id. ¶ B18. Dr. Drubka did a quick assessment. Johnson was unconscious, handling her secretions, had a carotid pulse and spontaneous breathing motions. She was hypotensive and responsive to painful stimuli. Id. ¶ B19. Dr. Drubka concluded that Johnson had an emergency medical condition. Id. ¶ B20. Dr. Drubka went back to the Care Center and returned to the car with an Ambu Bag, oral airway, endotracheal tube, and laryngoscope. Id. ¶ B21. Dr. Drubka placed the oral airway in Johnson and began ambuing. The police and paramedics arrived at approximately 4:56 p.m. as Dr. Drubka worked on Johnson in the passenger seat. Id. ¶ B22-23. The paramedics transferred Johnson from the car into the ambulance in order to transport her to the hospital; she was never brought into the Care Center. Id. ¶ B27. Dr. Drubka testified that, had Johnson actually made it through the doors of the Care Center, he would not have rendered treatment to her any differently than he did in the parking lot. Pl.'s 56.1 ¶ 11.

  Johnson arrived in the ambulance at Provena St. Joseph's Hospital approximately 30 minutes later, clinically dead, and having suffered irreversible brain damage. Compl. ¶ 27. Johnson recently died due to complications from her condition.

  Although Johnson was later billed by Provena St. Joseph Hospital for the services its doctors provided to Johnson on July 14, 2002, Johnson never received a bill from the Care Center for Dr. Drubka's services. Pl.'s 56.1 ¶ 22. Despite never receiving a bill, it appears that Johnson received both a billing account number and a patient medical records number at the Care Center on July 14, 2002. Pl.'s 56.1 ¶ 10. Dr. Drubka did nothing different as far as accounting for his time regarding his treatment of Johnson than he did with any of the other patients whom he treated at the Care Center. Pl.'s 56.1 ¶ 7. Further, he never had any conversations with anyone at the Care Center concerning whether to bill Johnson for her treatment there. Id. ¶ 8. Despite the fact that Johnson was never billed specifically for Dr. Drubka's services, Dr. Drubka was paid for his time working at the Care Center on July 14, 2002. Pl.'s 56.1 ¶ 5. III. LEGAL STANDARDS


  Plaintiffs invoke the jurisdiction of the Court pursuant to the Court's federal question jurisdiction set forth in 28 U.S.C. § 1331. Plaintiffs allege that Defendants violated the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §§ 1395, et seq. The Court therefore has supplemental jurisdiction over the remaining state law claims in the complaint pursuant to 28 U.S.C. § 1357(a). Venue is proper because at all relevant times, the parties resided and all actions complained of occurred within the Northern District of Illinois. The parties have also consented to a Magistrate Judge's jurisdiction under 28 USC § 636 (c)(1).


  Summary judgment is proper if the record shows that there is no genuine issue as to any material fact, and that the moving parties are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249-50; see also NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776, 785 (7th Cir. 2000). In deciding a motion for summary judgment, the Court must view all evidence in the light most favorable to the nonmoving party, Germano v. Winnebago County, Ill., 403 F.3d 926, 927 (7th Cir. 2005), and must draw all reasonable inferences in the nonmovant's favor. Harper v. Albert, 400 F.3d 1052, 1067 (7th Cir. 2005).

  When a material fact or a set of facts yields competing, but reasonable inferences, then there is a genuine issue that precludes summary judgment. The non-moving party's burden is to identify facts that are both material and genuinely disputed. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). To be material, a fact must be outcome determinative under the substantive law governing the motion. Insolia v. Philip Morris Inc., 216 F.3d 596, 598-99 (7th Cir. 2000). A "genuine issue" exists when the party opposing the motion for summary judgment serves and files, pursuant to Local Rule 56.1, a concise statement outlining the material facts that require denial of summary judgment, supported by citations to the evidentiary materials that support those denials (e.g., affidavits, depositions, answers to interrogatories, admissions etc.). Fed.R.Civ.P. 56(c). Although the party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material ...

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