United States District Court, N.D. Illinois, Eastern Division
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,
PROVENA HOSPITALS, an Illinois Corporation d/b/a PROVENA SAINT JOSEPH HOSPITAL and as PROVENA CONVENIENT CARE; WALTER DRUBKA, M.D.; and ALGONQUIN/LAKE IN THE HILLS FIRE PROTECTION DISTRICT, an Illinois municipal body corporate, Defendants.
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
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.
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.
II. FACTUAL BACKGROUND*fn2
A. DR. DRUBKA AND THE CARE CENTER
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 ¶
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).
B. SUMMARY JUDGMENT STANDARD
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 fact, Celotex, 477 U.S. at 323, the non-moving party
cannot rely upon the pleadings alone, but must use the
evidentiary tools outlined above to identify the material facts
that show there is a genuine issue for trial. Id. at 324;
Insolia, 216 F.3d at 598.
The Illinois Good Samaritan Act was created with the purpose of
establishing "numerous protections for the generous and
compassionate acts of its citizens who volunteer their time and
talents to help others." 745 Ill. Comp. Stat. 49/2. Illinois
courts are to construe the Act liberally, in order "to encourage
persons to volunteer their time and talents." Id. Section 25 of the Illinois Good Samaritan Act, as amended
in 1998, applies to emergency care by physicians. Section 25
Any person licensed under the Medical Practice Act of
1987 or any person licensed to practice the treatment
of human ailments in any other state or territory of
the United States who, in good faith, provides
emergency care without fee to a person, shall not, as
a result of his or her acts or omissions, except
willful or wanton misconduct on the part of the
person, in providing the care, be liable for civil
745 Ill. Comp. Stat. 49/25.
Dr. Drubka moves for summary judgment on the issue of immunity
under the Illinois Good Samaritan Act, 745 Ill. Comp. Stat.
49/25, arguing that Dr. Drubka provided emergency services
without fee to Johnson and therefore he is immune from liability
for any damages arising out of Dr. Drubka's alleged negligence.
The Plaintiffs respond in two parts: First, Plaintiffs argue that
even if the Good Samaritan Act applies, Dr. Drubka's negligent
conduct rises to the level of willful and wanton, and therefore
he would not be immune from liability under the Good Samaritan
Act. Second, Plaintiffs argue that the Good Samaritan Act does
not apply to Dr. Drubka because he accepted payment for his
treatment of Johnson.
A. PLAINTIFFS FAILED TO PLEAD WILLFUL AND WANTON CONDUCT
The Plaintiffs first argue that even if the Good Samaritan Act
applied, Dr. Drubka's negligent conduct arose to the level of
willful and wanton, and therefore he would not be immune from
liability under the Good Samaritan Act. In Counts II and V of
their amended complaint, Plaintiffs allege only that Dr. Drubka
was negligent in providing Johnson with medical care. Because the
Plaintiffs never pled willful and wanton conduct, that issue is
not before this Court. Therefore, the only issue is whether the Good
Samaritan Act shields Dr. Drubka from liability under a theory of
B. THE GOOD SAMARITAN ACT DOES NOT SHIELD DR. DRUBKA FROM
LIABILITY BECAUSE HE WAS PAID FOR HIS SERVICES RENDERED TO
JOHNSON WITHIN THE SCOPE OF HIS EMPLOYMENT
The Plaintiffs next argue that the Good Samaritan Act should
not shield Dr. Drubka from his alleged negligence because he was
paid for his services in treating Johnson. This decision turns on
the interpretation of an Illinois statute. Because the Illinois
Supreme Court has never interpreted this statute, the Court is
tasked with resolving this question of state law as it thinks the
Illinois Supreme Court would resolve it. U.S. v. Navistar
Intern. Transp. Corp., 152 F.3d 702, 713 (7th Cir. 1998) (citing
Konradi v. United States, 919 F.2d 1207, 1213 (7th Cir. 1990)).
1. Legislative History of the Good Samaritan Act
On June 21, 1965, the Illinois Legislature passed an act
designed to encourage physicians fearful of malpractice suits to
stop and render aid to those injured in automobile accidents.
This act was called the "Good Samaritan Act" ("Good Samaritan
Act" or "Act"). Ill.Rev.Stat. 1965 ch. 91, par 2(a); Blanchard
v. Murray, 771 N.E.2d 1122, 1126 (Ill.App.Ct. 2002). The
original text read:
Any person licensed pursuant to this Act, or any
person licensed to practice 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 provides emergency care
without fee at the scene of a motor vehicle accident
or in case of nuclear attack shall not, as a result
of his acts or omissions, except wilful or wanton
misconduct on the part of such person, in providing
such care, be liable for civil damages.
Ill.Rev.Stat. 1965 ch. 91, par 2(a).
In 1969, the legislature amended the act by making it
applicable to a "victim of accident" rather than only motor
vehicle accidents. Pub. Act 76-1205. In 1973, the legislature
again amended the Good Samaritan Act, this time to include the
phrase "and without prior notice of the illness or injury" and
substituted the word "person" for "victim or an accident at the
scene of the accident or in the case of nuclear attack." Pub.
Act. 78-385. The Good Samaritan Act then remained unchanged until
1998.*fn6 Thus, between 1973 and 1998, Section 25 of the
Good Samaritan Act involved a three part test: 1) the doctor must
not have notice of the injury; 2) the doctor must provide
emergency care; and 3) the doctor must not charge a fee.
Blanchard, 771 N.E.2d at 1127.
However, in 1998, the legislature dropped the first
requirement, that the doctor must not have notice of the injury.
Pub. Act 90-742, § 40 (eff. August 13, 1998). Illinois courts
recognize that the notice portion of the test required an
analysis as to whether the doctor had a "duty" to render aid to a person. See Blanchard,
771 N.E.2d at 1130 ("When Dr. Murray received the phone call at home, was
told of the nature of the plaintiff's illness, and then elected
to leave home, drive to the hospital and perform the surgery at
issue, such actions constituted `prior notice of the illness'
within the meaning of the statute."); see also Neal v. Yang,
816 N.E.2d 853, 861 (Ill.App.Ct. 2004) ("[A] physician need not
prove the absence of a preexisting duty to render aid to the
patient in order to be immunized under section 25 of the Act.
Rather, . . the preexisting duty or on-call status of a physician
is relevant only in terms of the notice requirement set forth
under section 25.").
Therefore, since the amendment to the Good Samaritan Act, the
Act has been construed to require a doctor seeking to invoke its
protection against a charge of medical negligence to prove only
two things: 1) that the doctor provided emergency care and 2)
that the doctor did not charge a fee. Heanue v. Edgcomb,
823 N.E.2d 1123, 1127 (Ill.App.Ct. 2005). Whether the doctor had a
pre-existing duty to render aid to the patient is no longer part
of the test. Id. at 1127-28.
The current version of the Good Samaritan Act also describes
the Act's purpose: "The General Assembly has established numerous
protections for the generous and compassionate acts of its
citizens who volunteer their time and talents to help others."
745 Ill. Comp. Stat. 49/2 (emphasis added). This stated purpose
is consistent with the legislature's comments regarding the act
throughout its legislative history. For example, in 1996, an
Illinois representative remarked that the Good Samaritan Act's
intent is to "encourage good samaritans to do the right thing on the streets of Illinois,
without fear of repercussions in a court of law." 89th Ill. Gen.
Assem., House Proceedings, March 26, 1996 at 100 (statements of
Surprisingly, despite the legislature's original intent to
protect volunteer doctors who happened by the scene of an
automobile accident and chose to render aid, the Good Samaritan
Act has never been applied in such a situation.*fn7 See
Blanchard, 771 N.E.2d at 1129. Instead, Illinois courts have
primarily used the Good Samaritan Act to immunize doctors in the
context of an emergency situation arising within a
hospital.*fn8 Indeed, the manner in which Illinois courts have been applying
the Good Samaritan Act appears to expand coverage beyond the
stated purpose of the Act. Especially since the 1998 amendment,
when the legislature took away the requirement that a doctor have
no pre-existing duty to render aid, doctors in hospitals have
routinely escaped liability under the Act when there was an
emergency for which they never charged a "fee." "While this
application may not be consistent with what the legislature
intended," lower Illinois courts have found that "the plain
language of the Act makes it applicable to emergency situations
in hospital settings." Blanchard, 771 N.E.2d at 1129. In case
after case, lower Illinois courts have determined that the
language of the Good Samaritan Act is so clear that they may not
look beyond the language of the statute in order to give weight
to the legislature's original intent. See e.g., Heanue,
823 N.E.2d at 1128 ("We may not depart from the plain language by
reading into it exceptions, limitations, or conditions that the
legislature did not express."); Blanchard, 771 N.E.2d at 1129.
("The best indication of the legislature's intent is the language
of the subject statute, and courts must give clear and
unambiguous terms in a statute their plain and ordinary
meaning."); Neal, 816 N.E.2d at 858 ("A court has no right to
say that the legislature did not mean what the plain language of the
2. The "Without Fee" Requirement
The parties do not contest that Johnson presented an
"emergency" as provided by the Act. The only issue therefore is
whether Dr. Drubka rendered those services "without fee". In
interpreting the "without fee" requirement, Illinois appellate
courts have consistently held that the language of the statute,
"provides emergency care without fee to a person", is so clear
and unambiguous that the courts cannot look beyond the plain and
ordinary meaning of those words. Though there is no definition of
the term "fee" in the statute, Illinois courts appear to have
concluded that the plain and ordinary meaning of the word "fee"
means only a situation where a patient is billed for the specific
services the doctor provides. In other words, the Act will apply
"except where a doctor charges a fee specifically for the
services at issue." Heanue, 823 N.E.2d at 1129.
Therefore, if the doctor or hospital neglects to send the
patient a bill which itemizes the doctor's specific professional
services, the Act will apply to the doctor. According to these
Illinois appellate cases, it does not matter whether the doctor
intended to bill the patient. See Rivera v. Arana,
749 N.E.2d 434, 440 (Ill.App.Ct. 2001) ("[W]hatever [the doctor's]
intentions were with respect to possible billing in the future
for his services, they are irrelevant. [The doctor] states that
he was never paid and that fact is controlling."). It also does
not matter whether the doctor indirectly received an economic
benefit from the patient's care. Heanue v. Edgcomb,
823 N.E.2d 1123, 1129 (Ill.App.Ct. 2005) ("The legislature could have easily said that the immunity conferred by section 25
is available to those who provide emergency care without deriving
any economic benefits, but it did not. It specifically chose the
For example, in Johnson v. Matviuw, an Illinois appellate
court held that the Good Samaritan Act protected a physician with
staff privileges at a hospital who, responding to a Code Blue,
attempted to resuscitate another doctor's patient and did not
charge a fee for his services. Johnson v. Matviuw,
531 N.E.2d 970, 972 (Ill.App.Ct. 1989). In that case, the bill sent to the
plaintiff only included a charge for a different doctor's
services and a charge for the medical supplies and drugs used by
the defendant doctor; the bill did not include a charge for the
defendant's services. Id. at 976. Thus, there was no "fee"
because the hospital bill sent to the plaintiff was not for the
defendant's professional services but for supplies and drugs used
during the emergency. Id.
Similarly, in Villamil v. Benages, the court granted summary
judgment for the defendant because the doctor never sent the
patient or public aid a bill for his services. 628 N.E.2d 568
(Ill.App.Ct. 1993). In that case, after the doctor rendered
services to the plaintiff, the doctor actually sent the plaintiff
a letter requesting her public aid number so that he could bill
her; he just never actually did.*fn9 Id. at 575. The court
determined that the doctor's intent did not matter:
Although a request for a public aid number was sent, nothing
was ever produced to indicate that a bill was sent either to plaintiffs or
public aid. The statute provides that service must be made
gratuitously. Since the defendant was not paid and the plaintiffs
were unable to produce anything that indicated they had received
a bill, we must find that the services were rendered
gratuitously. The fact that the public aid letter was sent is a
red herring, the statute mentions nothing of intent, and
therefore, even if the public aid letter could be construed as an
intent to bill in the future, the fact that no bill was ever sent
or payment provided must be controlling on this issue.
In the most recent Illinois appellate court case on the issues
of fees, Heanue v. Edgcomb, the court determined that the Act
will immunize a physician who gains an economic benefit from the
treatment of the patient, so long as no actual bill is sent which
includes an itemization of his services. 823 N.E.2d 1123. In
Heanue, the decedent plaintiff underwent a surgical operation
by a doctor who was a member of the Rockford Surgical Service.
Id. at 1126. After the decedent came out of surgery, a nurse
noticed that the medication given to the decedent was not working
properly. Unable to contact the original doctor, the nurse
contacted Rockford Surgical Service and asked them to send over a
doctor immediately. Rockford sent over the defendant doctor who
took over the treatment of decedent. Id. The defendant never
billed the decedent for the services he rendered during the
emergency. Instead, the plaintiff received a bill for treatment
prior to the emergency and for treatment following the emergency
on the same day. These bills included time for the services of
the defendant. Id. The lower court dismissed the plaintiffs'
complaint, finding that the defendant was protected under the
Good Samaritan Act. Id.
On review, although the appellate court recognized that the
defendant doctor had probably benefitted financially from Rockford Surgical by doing
business with the decedent, the court concluded that the
defendant had not charged a "fee" under the meaning of Section 25
of the Good Samaritan Act because the doctor had never billed the
decedent directly for the emergency services. Id. at 1128. By
examining the statutory language of the Act and by examining the
typical meaning of "fee", the court concluded that a physician's
mere gain of an economic benefit was not sufficient to remove the
protection of Section 25. Id. The Court noted:
[The legislature] envision[ed] a very specific sort
of relationship where the economic benefit is derived
directly from the service performed. In other words,
a fee is generated by and tied to the service
The legislature could have easily said that the
immunity conferred by section 25 is available to
those who provide emergency care without deriving any
economic benefits, but it did not. It specifically
chose the term "fee".
Id. at 1128-29 (emphasis added).
However, the Heanue court realized that its interpretation of
the term "fee" could lead to an unjust result because "any doctor
providing emergency care could avoid liability simply by omitting
from an itemized bill any specific charge for the doctor's
services." Id. at 1129. Therefore, the court tried to soften
the result by examining additional language in the Act which had
been largely ignored in other cases. The court concluded that
there is a good faith requirement to Section 25 of the Good
Samaritan Act. It noted that Section 25 states that a physician
"who, in good faith, provides emergency care without fee to a
person" is immune. Heanue, 823 N.E.2d at 1129. The Heanue
court concluded that the "good faith" provision modifies both
"provides emergency care" and "without fee". Therefore,
"[r]efraining from charging a fee simply to invoke the protection of section 25
would seem to violate the requirement that the doctor's actions
be taken in good faith, particularly if the decision not to
charge a fee was made following treatment that could potentially
expose a doctor to liability." Id.*fn10
In Heanue, the court found that the record in the case
allowed for an inference that the reason no bill was sent for the
emergency care was that defendant sought to trigger the Good
Samaritan Act. Id. at 1130. The court reached this conclusion
because the decedent plaintiff was billed for treatment prior to
the emergency and for treatment following the emergency on the
same day. These bills included time for the services of the
defendant. Id. The court reversed the trial court's decision
and remanded the case so that the parties could address the issue
of whether the defendant's decision not to charge a fee was made
in good faith. Id.
3. The Term "Without Fee" Is Ambiguous and Should Be
Considered in Light of Legislative Intent
The Illinois courts' interpretation of the Good Samaritan Act
is largely based upon the courts' conclusion that the Act is
clear on its face. See Heanue, 823 N.E.2d at 1128; Blanchard,
771 N.E.2d at 1129; Neal, 816 N.E.2d at 858. Because they have
determined that the Act's language is so clear and unambiguous,
these courts have not looked at the intent of the legislature in creating the Act. This Court concludes that
the Act is ambiguous on its face; therefore the purposes of the
Act should be considered when considering the Act's meaning.
a. "Without Fee" is Not Defined by the Act and its Meaning is
The Good Samaritan Act states that any medical person who
"provides emergency care without fee to a person" is immune from
liability due to negligence. The statute never defines the term
"without fee". Although previous Illinois appellate courts have
determined that the phrase "without fee" is clear and
unambiguous, this Court respectfully disagrees.
Black's Law Dictionary defines fee as "[a] charge for labor or
services, esp. professional services." Black's Law Dictionary
(7th ed. 1999). The Illinois appellate courts have concluded that
"without fee" means that a fee exists only when an invoice
specifically lists the services rendered. However, this Court is
troubled by this interpretation because it seems to capture only
one side of a typical fee situation the client being billed.
Indeed, the typical fee transaction implicitly includes two
steps: first, a party is billed; second, a professional is paid.
Because the Good Samaritan Act does not restrict "fee" to only
one side of the typical fee transaction, this Court determines
that the meaning of "fee" is ambiguous. This Court proposes that
a reasonable definition of "fee" would be a situation in which
either a doctor is paid for his services or the client pays a
bill for those services. Under this interpretation of the Act, a
"fee" exists when a doctor is paid for the emergency services he
renders. b. The Intent of the Legislature Suggests a Broader Definition
of "Without Fee"
Because ambiguity exists as to the meaning of "fee" in Section
25 of the Act, this Court must follow the primary rule of
statutory construction which requires the Court to give effect to
the intent of the legislature. Boaden v. Dep't of Law
Enforcement, 664 N.E.2d 61, PIN (Ill. 1996). As previously
stated, the Good Samaritan Act was meant to "encourage good
samaritans to do the right thing on the streets of Illinois,
without fear of repercussions in a court of law." 89th Ill. Gen.
Assem., House Proceedings, March 26, 1996 at 100 (statements of
This Court's proposed definition of fee is more consistent with
the Act's purpose of shielding volunteers from liability.
Again, the purpose of the Act is to "establish? numerous
protections for the generous and compassionate acts of its
citizens who volunteer their time and talents to help others."
745 Ill. Comp. Stat. 49/2. If the legislature meant to create a
provision wherein a doctor, who is a paid employee at an
immediate care center, on duty and bound to help anyone who comes
through his doors,*fn11 could avoid liability by neglecting
to bill the patient for those emergency services, the legislature
would not have used the word "volunteer". Thus, a definition of
fee which looks only at the first part of the fee transaction
that of the patient being billed seems to be inconsistent with
§ 2 of the Act. By using the terms "volunteer", the legislature
seems to also contemplate the second part of a fee transaction
the doctor being paid. It follows that a doctor who is being paid
to work at an emergency facility is neither a volunteer nor is he
rendering "emergency care without fee".
The parties agree that Johnson was never billed directly by the
Care Center or by Dr. Drubka. Indeed, Dr. Drubka never billed any
patients directly, rather, he was paid for his services on a per
diem basis, no matter how many patients he happened to treat
that day. Johnson arrived at the Care Center during Dr. Drubka's
regular shift and Dr. Drubka received payment from MEA for his
work during that shift. When Johnson arrived at the Care Center,
Dr. Drubka was duty-bound to assist her. To summarize, Dr. Drubka
was being paid by the hospital to work at the emergency care
center it was his job to help Johnson when she arrived at his
doors and Provena billed Johnson for the other services she
received that day, except for Dr. Drubka's assistance.
Under the Illinois appellate courts' definition of "fee", the
Good Samaritan Act would seemingly insulate Dr. Drubka from
liability because Dr. Drubka's service to Johnson cannot be "tied
to" any clear bill or payment. Although Dr. Drubka was clearly
compensated for his services that day at the Care Center, the
hospital never billed Johnson for Dr. Drubka's services. Under
Heanue, it would be inconsequential whether Dr. Drubka gained
an economic benefit if there was no "fee" tied to his specific
services for the particular patient. See Heanue, 823 N.E.2d at 1130. It is clear that according to
Illinois case law, the fact that the hospital never billed
Johnson for Dr. Drubka's services is enough to shield Dr. Drubka
from any liability.
However, this conclusion seems to contradict the Act's clearly
stated purpose: to establish "numerous protections for the
generous and compassionate acts of its citizens who volunteer
their time and talents to help others." Dr. Drubka was not a
volunteer he was paid for his services. Under a definition of
"fee" which is more consistent with the Act's stated purpose,
this Court predicts that the Illinois Supreme Court would decide
that Dr. Drubka was not eligible for immunity under the Good
Samaritan Act because he was paid an hourly fee for his services.
c. The Current State of Medical Practice Requires a Broader
Definition of "Without Fee"
This Court's proposed definition, that "fee" should be defined
as a situation in which either a doctor is paid for his
services or the client pays a bill, also makes sense in a world
where billing for medical services is no longer a simple
transaction between two parties. Before the days of private
health insurance, physician's groups, and Medicaid, doctors used
to bill patients directly for their services; in return, the
patient would pay the doctor directly. Charging for medical
services is no longer so simple. For example, in this case, Dr.
Drubka worked for MEA, which had a contract with Provena Saint
Joseph's Hospital to provide physicians for both the hospital
emergency room and the Care Center. The doctors never billed the
patients directly; neither, for that matter, did MEA. Instead,
the hospital billing department was the unit responsible for charging Johnson for Dr.
Drubka's services. Had the hospital billed Johnson for Dr.
Drubka's services, it would have had to send a bill to Johnson
specifying the doctor's individual services and then most likely
attempt to collect money from Johnson's insurance carriers.
Paying Dr. Drubka a per diem fee for his services was a system
most likely constructed by the hospital to deal with the
realities of the new generation of health care in this
country.*fn12 Therefore, because most doctors are no longer
compensated directly by their patients, and thus it is difficult
to link a charge for services and the eventual payment, a
definition of "fee" should include both the doctor's compensation
and the patient's eventual payment.
d. Public Policy Considerations Support a Broader Definition
of "Without Fee"
A one-sided definition of fee (focusing only on the patient
being billed) also creates a situation in which doctors could
potentially engineer immunity. As the Heanue court
acknowledged, "any doctor providing emergency care could avoid
liability simply by omitting from an itemized bill any specific
charge for the doctor's services." Heanue, 823 N.E.2d at 1129. Therefore, whenever a patient suffered an adverse
outcome under a doctor's care, the hospital or doctor could
merely wait to bill the patient for the doctor's services until
the threat of litigation had passed. This Court does not consider
the good faith standard relied upon by Heanue to adequately
protect patients in this situation; shifting the burden onto the
plaintiff to prove the reasons why a hospital did or did not bill
for specific services creates an unnecessary level of complex
proof. The Good Samaritan Act was meant to protect volunteers; it
was never meant to be a shelter for practicing physicians who,
acting in the scope of their employment, receive payment for
their emergency services.
Further, a one-sided definition of "fee" might inequitably
apply the Act to patients without means but not to those with
means. For example, if an emergency room physician who is being
paid by the hour treated a wealthy patient who had insurance, and
the hospital billed the patient for the doctor's services, the
doctor would not have immunity under the Act and the patient
could sue the doctor for negligence. However, if the same doctor
treated a poor patient without insurance, such that the hospital
was unable to collect on the bill, the same doctor would be
shielded from his negligence under the Act. This Court is
confident that the Illinois legislature did not intend the Good
Samaritan Act to create a situation in which a poor, uninsured
person would not be able to sue a paid doctor for negligence,
especially when a wealthy person in the same situation would be
able to sue for negligence. IV. CONCLUSION
The Illinois Good Samaritan Act was intended to encourage
doctors to volunteer their time and talents in rendering
emergency care without fee. Because Dr. Drubka was paid an hourly
fee for his services at the Immediate Care Center at the time
Johnson sought his help, the Good Samaritan Act does not apply to
protect Dr. Drubka from Plaintiffs' claim of negligence. For the
reasons set forth in this opinion, Dr. Walter Drubka's Motion
for Summary Judgment is DENIED.