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