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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Plaintiff, Lorraine Neal, filed this medical malpractice action for the injuries sustained byplaintiff's decedent, Samantha Neal, at the time of her birth. Plaintiff initially sued the attendingobstetrician, Albert C. Yang, M.D.; the hospital, Provena Health, d/b/a St. Therese Medical Center;and nurse, Constance Fossler. Plaintiff subsequently amended the complaint to add pediatrician,Manoochehr Sharifi, M.D.; and defendant, Michelle Lee, M.D., who answered an urgent call for helpin resuscitating the unresponsive newborn. The trial court granted defendant summary judgment onthe theory that her conduct was immunized under section 25 of the Good Samaritan Act (Act) (745ILCS 49/25 (West 1996)). The remaining defendants were dismissed from the action and are notparties to this appeal. Plaintiff appeals, arguing that the trial court erred in granting summaryjudgment. She contends that defendant was the on-call physician obligated by contract to providemedical care to Samantha and that, in order to obtain immunity under the Act, defendant was requiredto prove the absence of a preexisting duty to render care. For the reasons that follow, we hold that,under the plain language of section 25 of the Act, there is no requirement that a physician prove theabsence of a preexisting duty to render care to a patient; rather, the physician's preexisting duty torender care is relevant only to how much notice the physician had of the illness. Because plaintiffconcedes that defendant satisfied the requisite elements under section 25, we affirm the judgment.

FACTS

The following facts are undisputed. On November 1, 1996, plaintiff went to St. ThereseMedical Center for delivery of her first child, Samantha. She did not have a private obstetrician forpurposes of delivery. All physicians with staff privileges at St. Therese were required to be on calland available to treat patients who were admitted to St. Therese and did not have their own doctors. Albert Yang was the on-call obstetrician on November 1, 1996, and was required to deliverSamantha.

On the date of the occurrence, defendant was an employee of St. Therese AnesthesiologyAssociates, which had entered into a contract with St. Therese Medical Center for exclusive privilegesto provide anesthesia services to the hospital's patients. Pursuant to the contract, St. ThereseAnesthesiology Associates agreed to provide board certified or certification-eligible anesthesiologistson a 24-hour, 7-day-per-week basis, "to render all services and perform all anesthesia dutiescustomarily performed by anesthesiologists ***, so as to effectively serve the needs of the patientsand professional staff of the hospital." The contract required one anesthesiologist to be in the hospitalat all times, another to be on call at all times, and at least one to be physically present in the hospitalon weekdays to cover surgeries.

On November 1, 1996, defendant finished her elective surgical cases at 3:30 p.m. and wenthome. She was called back to the hospital to provide anesthesia service for a patient in labor and wasadministering an epidural anesthesia to the patient at the time Dr. Yang and members of the hospitalstaff were in a nearby labor and delivery room attempting a forceps delivery of Samantha. Defendantwas not aware of Samantha's delivery or of the ensuing complications.

During plaintiff's labor, a fetal monitoring device indicated that Samantha's heart was in fetaldistress. Dr. Yang repeatedly used forceps in an effort to deliver Samantha. When he wasunsuccessful with the multiple forceps applications, he applied a vacuum suction device to facilitatethe delivery. Despite the possibility that plaintiff would deliver a depressed infant and despiteunsuccessful attempts at a forceps delivery, Dr. Yang did not alert the on-call pediatrician, Dr.Manoochehr Sharifi, in time for him to be present to treat the newborn immediately after birth. WhenDr. Sharifi was first paged, he was not on the premises and had to travel to the hospital. Samanthawas born without a heart rate or respiration.

Because Dr. Sharifi was not immediately available when Samantha was born, Dr. Yangrequested that defendant assist in Samantha's neonatal resuscitation (NNR). St. Therese obstetricalnurses, including Connie Fossler, testified that defendant, as the anesthesiologist on call and in thehospital, was paged as part of the NNR team to respond to Samantha's resuscitation. Defendant hadno prior information concerning Samantha's delivery. She was not told why she was paged. Defendant had no doctor-patient relationship and no prior contact with plaintiff before she assistedwith the NNR.

When defendant entered plaintiff's delivery room, she saw that a full NNR was already inprogress with nurses and other medical care professionals providing bag and mask ventilation as wellas chest compressions for Samantha. Defendant participated in the remainder of the resuscitation. Defendant was the only physician involved in the NNR and, as such, was in charge. Twenty-twominutes after Samantha's birth, cardiac activity was achieved. After Samantha was stabilized, she wasairlifted to Lutheran General Hospital and admitted to its neonatal intensive care unit. As a result ofoxygen deprivation, Samantha suffered, inter alia, cerebral anoxia, permanent spastic quadriparesis,hypoxic damage, and seizure disorder. Because she required 24-hour care due to all the injuries shesuffered, upon her discharge Samantha resided in various children's nursing homes until her death inNovember 2000.

Plaintiff filed a complaint alleging that Dr. Yang, St. Therese, and Nurse Fossler werenegligent in the delivery of the baby and, inter alia, for failing to timely assemble a skilled NNR team. Plaintiff amended her complaint and added Dr. Sharifi and defendant. Plaintiff alleged in hercomplaint against defendant that the delay in regaining cardiac and respiratory activity and oxygento Samantha's brain was due to defendant's negligent performance of the NNR and that the attendingpediatrician, Dr. Sharifi, failed to assess and timely treat Samantha.

Plaintiff's expert, Dr. Charles Falcone, opined that it was within the customary training ofanesthesiologists who were educated in the early to mid 1990s to be trained in NNR as part of theirresidency programs. He further opined that, in the context of the St. Therese hospital setting that hehad been made aware of, and considering the persons available who possessed the level of trainingto provide NNR at St. Therese, defendant would have been an appropriate person to provideresuscitation to Samantha. Dr. Falcone further testified that resuscitation would have been part ofthe anesthesiology services required to be provided to all patients of St. Therese.

Dr. Kenneth Tuman, director of the American Board of Anesthesiology, testified that adetermination of what specific services are "customarily" performed by anesthesiologists is madelocally at the hospital in question. According to Dr. David Shoults, the chairman of anesthesia at St.Therese from 1987 to 2000, NNR was not a responsibility of the anesthesia group. The anesthesiagroup was not expected to run NNR emergencies at St. Therese. The group's NNR-related servicewas limited to intubating newborns delivered by cesarean section, but only if the pediatrician neededthe assistance and the anesthesiologist could safely leave the mother. Dr. Shoults testified thatanesthesiologists in his group were not required to intubate newborns delivered vaginally and he knewof no occasion prior to this case where an anesthesiologist had intubated a newborn deliveredvaginally at St. Therese.

Defendant has no subspecialty in pediatric anesthesiology and, before this incident, had neverbeen called to St. Therese as the on-call anesthesiologist to participate in an NNR. While a resident,defendant took the course and was certified in NNR by the American Academy of Pediatrics and the American Heart Association.

Plaintiff reached a settlement with Dr. Yang and St. Therese. Defendant moved for summaryjudgment, raising section 25 of the Act. The trial court granted defendant summary judgment, andplaintiff timely appeals.

ANALYSIS

In every appeal from the entry of summary judgment, we conduct a de novo review of theevidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file,when viewed in the light most favorable to the nonmoving party, show that there is no genuine issueof material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS5/2--1005(c) (West 2002); Bier v. Leanna Lakeside Property Ass'n, 305 Ill. App. 3d 45, 50 (1999). "Summary judgment is a drastic means of resolving litigation and should be allowed only when theright of the moving party is clear and free from doubt." Bier, 305 Ill. App. 3d at 50. "Therefore,where reasonable persons could draw divergent inferences from the undisputed material facts orwhere there is a dispute as to a material fact, summary judgment should be denied and the issuedecided by the trier of fact." Espinoza, 165 Ill. 2d at 114.

On appeal, plaintiff first contends that the trial court erred in granting summary judgment,because defendant was the on-call physician contractually obligated to provide medical care toSamantha and, in order to obtain immunity under the Act, defendant was required to prove theabsence of a preexisting duty to render care. Defendant contends that the trial court properly grantedsummary judgment in her favor because she established the requisite elements necessary for theapplication of the Act, and the Act does not require a physician to prove the added element of theabsence of a preexisting duty to render aid.

At the time the alleged malpractice occurred, the following version of section 25 of the Actapplied:

"Any person licensed under the Medical Practice Act of 1987 or any person licensedto practice the treatment of human ailments in any other state or territory of the UnitedStates, except a person licensed to practice midwifery, who, in good faith and without priornotice of the illness or injury, provides emergency care without a fee to a person, shall not,as a result of their acts or omissions, except wilful or wanton misconduct on the part of theperson, in providing the care, be liable for civil damages." 745 ILCS 49/25 (West 1996).

In 1998, the legislature amended the Act and omitted the requirement that the treatingphysician act "without prior notice of the illness or injury." Pub. Act 90--742,