Appeal from the Circuit of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 11-L-269. The Honorable Michael J. Powers, Judge, Presiding.
Dennis T. Schoen (argued) and Whitney B. Mayster, both of Dennis T. Schoen, P.C., of Chicago, for appellants.
Robert M. Collins, Catherine Basque Weiler (argued), and Lauren M. Wadzunas, all of Swanson, Martin & Bell, LLP, of Chicago, for appellee.
Leslie J. Rosen, of Leslie J. Rosen Attorney at Law P.C., of Chicago, for amicus curiae.
Matthew B. Champlin, Troy A. Bozarth, and Daniel W. Farroll, all of HeplerBroom, LLC, of Edwardsville, for amicus curiae.
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Carter and O'Brien concurred in the judgment and opinion.
[¶1] The plaintiffs, Michelle Mackey and Ronald Mackey, brought multiple medical malpractice counts against Dr. Manual Villarroy Sarroca, M.D., Silver Cross Hospital and Medical Centers, EM Strategies, Ltd., and Dr. John DeFranco. Dr. Sarroca was an attending physician in the emergency department at Silver Cross, and Dr. DeFranco was an on-call urologist under contract with Silver Cross Hospital. The plaintiffs alleged that Michelle Mackey (Michelle) suffered significant injuries (urosepsis and resulting severe complications) as the result of negligent treatment she allegedly received after she was transported to the emergency department at Silver Cross with complaints of persistent and severe abdominal pain. Only the counts against John DeFranco, M.D. (Dr. DeFranco), are at issue in this appeal. Dr. DeFranco filed a motion to dismiss the complaint against him maintaining both that the claim against him was untimely and that he owed no duty of care to the plaintiffs due to the lack of a physician-patient relationship. 735 ILCS 5/2-619 (West 2010). The trial court granted the motion to dismiss based on a finding that Dr. DeFranco owed the plaintiffs no duty of care. The plaintiffs appealed.
[¶2] I. FACTS
[¶3] On Friday, May 14, 2010, Michelle was transported to the emergency department at Silver Cross Hospital complaining of persistent and severe abdominal and right kidney area pain. She was nauseous and vomiting upon arrival. Dr. Sarroca, the attending physician on site, examined
her immediately upon her arrival. He ordered various diagnostic tests, including urinalysis and a complete blood workup. Dr. Sarroca read the tests to reveal a urinary tract infection and a 6mm uteropelvic obstruction ( i.e., a kidney stone). In accordance with established Silver Cross Hospital protocol, Dr. Sarroca paged Dr. DeFranco, the urologist on call for Silver Cross on that particular day. The page was sent at approximately noon and Dr. DeFranco responded to the page within three minutes, using his cell phone to return the call. Dr. DeFranco was driving in his car when he received the page from Dr. Sarroca, so he parked his car to return the call. Dr. Sarroca gave Dr. DeFranco a detailed description of the patient's condition and reported the results of each of the diagnostic tests. Dr. DeFranco made notes from the conversation on a small " sticky" notepad. He wrote that the patient had a 6mm obstructive kidney stone, no fever, a normal white blood count, and reported no pain after receiving pain medication. Dr. DeFranco also wrote down that the patient had received analgesics, and antibiotics. Dr. DeFranco told Dr. Sarroca that the patient should be given Flomax to help pass the stone. He also told Dr. Sarroca to tell the patient that he [Dr. DeFranco] wanted to see her in his office on Monday. Dr. DeFranco's last notation was " office Monday" and the word " sepsis" with a line drawn through it. Dr. DeFranco would later state in his deposition that he wrote the " sepsis" and drew a line through it to indicate that there were no indications that the patient had sepsis at that time.
[¶4] On May 17, 2010, Dr. DeFranco drafted a second set of notes regarding his conversation three days earlier with Dr. Sarroca. He noted that he had been paged by Dr. Sarroca. He noted Dr. Sarroca asked him if he was " the urologist" to which Dr. DeFranco replied " yes." Dr. Sarroca reported that he had a 39-year-old female in the emergency department with a 6 mm obstructing stone. She had been given Dilaudid and was currently pain free. Dr. DeFranco next noted that he asked Dr. Sarroca " is she stable" to which Dr. Sarroca responded " yes." Dr. DeFranco then noted that he asked Dr. Sarroca if the patient was afebrile and was told " yes." He noted asking Dr. Sarroca if the patient had a normal white blood count and being told " yes." ...