Clifford’s Notes, Chicago Lawyer March 1, 2013
By Robert A. Clifford
A hospital patient goes into cardiac arrest and a “code blue” is called. An independent contractor physician from the emergency room responds as part of his job and he negligently intubates the patient. The patient, as a result, suffers permanent brain damage. The family files a negligence action against the hospital and the physician. The doctor responds by saying that because he was a “volunteer” by not charging the patient a “fee,” he was merely a “Good Samaritan” and should not be held liable for his negligence.
Maybe I’ve seen too many episodes of “Grey’s Anatomy” on television, but I find it difficult to believe that anyone would be able to hide behind a statute that was never meant to apply to someone working for pay in a hospital setting. Yet, time and again, doctors are bringing such actions under this act. I’ve written about Illinois’ Good Samaritan law in the past and how it has been maligned in the courts over the years. The General Assembly amended the act a few times in an attempt to clarify various issues since it was originally enacted in 1965. Ill.Rev.Stat. 1965. Ch. 91, par. 2(a); current version at 745 ILCS 49/25 (2008). Initially, it was meant to protect physicians from liability who rendered “emergency care without fee at the scene of a motor vehicle accident or in case of nuclear attack.” In 1969, the legislature broadened the scope to any “victim of an accident.” In 1973, an amendment expanded it to include “without prior notice or injury,” but the General Assembly eliminated that requirement in 1998. Perhaps it is again time for another legislative change to make clear the obvious — that it was never meant to apply to persons being paid to provide health-care services in a hospital setting.
The facts involving the code blue are those of a real case that was recently decided. Home Star Bank & Financial Services v. Provena Hospitals. 2012 Ill.App. (1st) 112321 (decided Dec. 21, 2012). The court examined the meaning of “fee” in the statute and determined it was not clear and unambiguous. “‘Fee’ is capable of being understood in two different ways, the client being billed or the physician being paid, and is, therefore, ambiguous,” the court said.
In discussing previous decisions that considered the fee issue, the Home Star Bank court quoted a federal district court case which found that “routinely [doctors have] escaped liability under the act when there was an emergency for which they never charged a ‘fee.'” Henslee v. Provena Hospitals, 373 F.Supp.2d 802, 809 (2005). The Home Star Bank court also touched on the notion that a “one-sided definition of ‘fee’ could result in a disparity of legal remedies between the affluent and the less-privileged.” Home Star Bank, supra. Whereas an affluent person with insurance would be billed for services and the doctor not be immune under the act, the court pointed out that an indigent, uninsured patient would likely not be billed because the provider of medical services would not be able to collect, thereby immunizing the doctor under the act. “The physician could arguably provide substandard care to all poor, uninsured patients because those patients would have no legal recourse against him,” the Home Star Bank court wrote. In Home Star Bank, the appellate court found that summary judgment was improperly granted to the emergency room doctor and that, as a matter of law, he was not protected by the Illinois’ Good Samaritan law.
The emergency room physician argued that he was a “volunteer” because he was treating the patient outside of the ER. The Home Star Bank court examined the ambiguity of the “fee” requirement in the act. The setting itself also should be further examined in an appropriate case. As is apparent from an examination of the various legislative debates that took place during the passage of the law and its amendments over the years, state lawmakers did not intend for the act to apply inside the hospital setting.
Doctors there have state-of-the-art equipment, nurses and medical records. It is not the same as coming upon a victim on the roadway who may not even be able to communicate. The Home Star Bank court referenced the preamble of the act which states its legislative purpose — “‘numerous protections for the generous and compassionate acts of its citizens who volunteer their time and talent to help others.'” As the court further noted, “One cannot be a volunteer if one is paid for the services provided, whether one is paid by the hour, the day, the month, the year or the patient visit. Dr. Murphy was not voluntarily present at the hospital. He was paid by the hour to be there… He did not provide that emergency care ‘without fee.’ We find that to hold otherwise would lead to an absurd result.” The court took a realistic look at what is happening, especially when a doctor is performing services at a hospital with all of the equipment and help at his disposal and is being paid to do so. “The act should not apply to physicians who provide emergency services in a hospital where they have been hired and paid to work, such as a staff member, an employee, an independent contractor or an on-call physician,” the court said. It might be time for the General Assembly to act again to ensure an “absurd result” does not occur. Future courts should see how common sense should prevail in these Good Samaritan cases.