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Home Star Bank and Financial Services v. Emergency Care and Health Organization

December 21, 2012


Appeal from the Circuit Estate ofCourt of Cook County No. 07 L 1340 Honorable Elizabeth M. Budzinski, Judge Presiding.

The opinion of the court was delivered by: Justice Palmer

JUSTICE PALMER delivered the judgment of the court, with opinion.

Presiding Justice McBride and Justice Taylor concurred in the judgment and opinion.


¶ 1 Plaintiffs Darby Thomas and Home Star Bank & Financial Services, as guardian of the estate of Edward Anderson, a disabled person, filed suit against defendants Michael T. Murphy, O.D., and his employer, Emergency Care & Health Organization, Ltd. (ECHO), alleging Dr. Murphy was negligent in treating Anderson. The trial court granted summary judgment to defendants, finding Dr. Murphy immune from liability pursuant to section 25 of the Good Samaritan Act (Act) (745 ILCS 49/25 (West 2010)). Plaintiffs appeal, arguing the court erred in granting summary judgment to defendants as (1) there is a genuine issue of material fact regarding whether Dr. Murphy's conduct was in good faith; (2) the Good Samaritan Act should not apply to Dr. Murphy, a physician compensated to perform services for patients in a hospital; and (3) there is no other basis for granting summary judgment. We reverse and remand.


¶ 3 On August 25, 2001, Dr. Murphy was working as an emergency physician in the emergency department at Provena St. Mary's Hospital (St. Mary's or hospital). During his shift, he responded to a "code blue" called for Anderson, a patient on another floor who Dr. Murphy had never met. Dr. Murphy attempted to intubate Anderson and otherwise respond to the situation. Anderson suffered permanent brain injury. Plaintiffs filed a negligence action against Dr. Murphy and ECHO, alleging Dr. Murphy's care and treatment of Anderson were the cause of Anderson's injuries.*fn1 Dr. Murphy denied the allegations.

¶ 4 Dr. Murphy filed a motion for summary judgment on plaintiffs' third amended complaint, asserting that section 25 of the Good Samaritan Act barred the negligence action against him. Section 25 of the Act provides:

"Any person licensed under the Medical Practice Act of 1987 [(225 ILCS 60/1 et seq. (West 2010))] 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 damages." 745 ILCS 49/25 (West 2010).

Dr. Murphy asserted he was immune from liability under the Act because he had provided emergency care to Anderson and no one was ever billed for that emergency care. Dr. Murphy also asserted his conduct in providing the care and treatment to Anderson met the standard of care applicable to a reasonably well-qualified or careful emergency room physician. ECHO subsequently joined in the motion.

¶ 5 Plaintiffs responded that the Good Samaritan Act did not immunize Dr. Murphy from liability for his services to Anderson. As relevant to this appeal, plaintiffs agreed Dr. Murphy provided emergency care to Anderson but asserted that, as a matter of law, he did not provide emergency care "without fee" as required by the Act. Plaintiffs argued that Dr. Murphy was not a "volunteer" providing emergency care "without fee" because, as the emergency physician working in the emergency room at St. Mary's, it was his job to respond to the code called for Anderson and he was paid hourly for his services at the hospital, which included responding to codes. Again as relevant to this appeal, plaintiffs argued, in the alternative, that there was a genuine issue of material fact regarding whether the failure to bill for Dr. Murphy's emergency care to Anderson was in "good faith."

¶ 6 Exhibits and discovery depositions were filed by both parties in support of their pleadings. The "exclusive emergency room services agreement" between ECHO and St. Mary's showed that, in exchange for a monthly stipend, ECHO agreed to provide physician services to staff the emergency room at St. Mary's 24 hours a day and 7 days a week. The agreement stated that "[t]he primary obligation of ECHO's physicians when in service at [St. Mary's] emergency room shall be to care for any and all patients presenting themselves for treatment at the emergency room." ECHO physicians would "not furnish follow-up care to emergency patients except on an emergency basis or when requested by the Chief Executive Officer or Executive Committee of the Medical Staff of [St. Mary's]." Physicians covered by the agreement were to discharge their duties in accordance with the bylaws, rules, regulations and policies of the hospital and its medical staff. ECHO would bill and collect fees directly from patients and/or third-party payors for the services of its emergency room physicians.

¶ 7 An "independent contractor agreement" between ECHO and Dr. Murphy provided that ECHO engaged Dr. Murphy to provide "emergency medical services" at St. Mary's. An attachment to the agreement described the "emergency medical services" as follows:

"The Physician shall provide such professional services ordinarily provided by emergency physicians in a hospital, including but not limited to the following:

Physician shall provide emergency medical care for the following classes of patients ***:

1. Emergency Department * * *

2. Inpatient

Physician shall not provide any general or routine care of patients already hospitalized under the care of another physician.

However, in dire emergencies, [i.e.], cardiorespiratory (or impending) arrest, Physician may render service to any patient, as long as there is not an emergency department patient requiring his/her immediate presence, and only until the patient[']s personal physician has assumed ongoing care."

The agreement provided that Dr. Murphy would be paid hourly and the hourly fee would be the "sole amount" he would receive for his services. Dr. Murphy agreed to abide by and render emergency medical services in accordance with the bylaws, rules and regulations of the hospital and departmental policies and procedures, using his professional judgment.

¶ 8 A typed "Clinical Operations/Nursing" department policy titled "Code Blue and Cardiac Arrest Team" set out the "standardized response" for a patient suffering a cardiopulmonary arrest at St. Mary's. The policy provided that it affected assorted departments, including the emergency department, and identified "ER Physician" as a code blue team member with the duty to "[r]espond[ ] to all Code Blues in the hospital. Direct[ ] [the] Code Blue Team." A typed "Clinical Operations/Nursing" department policy titled "Power Outage Emergency Code Blue" directed that "[s]hould a Code Blue occur [during a power outage], the unit that has the emergency will send a runner to: *** [t]he E.R. for the physician."

ΒΆ 9 It is uncontested that ECHO billed Anderson for services its physicians provided to him during a previous emergency room visit on August 22, 2001, but did not bill for Dr. Murphy's services in responding to the code blue on August 25. St. Mary's billed Anderson for ...

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