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Neal v. Yang9/30/2004
the anesthesiologist could safely leave the mother. Dr. Shoults testified that anesthesiologists in his group were not required to intubate newborns delivered vaginally and he knew of no occasion prior to this case where an anesthesiologist had intubated a newborn delivered vaginally at St. Therese.
Defendant has no subspecialty in pediatric anesthesiology and, before this incident, had never been 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 summary judgment, raising section 25 of the Act. The trial court granted defendant summary judgment, and plaintiff timely appeals.
ANALYSIS
In every appeal from the entry of summary judgment, we conduct a de novo review of the evidence 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 issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2--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 the right 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 or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided 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 to Samantha and, in order to obtain immunity under the Act, defendant was required to prove the absence of a pre-existing duty to render care. Defendant contends that the trial court properly granted summary judgment in her favor because she established the requisite elements necessary for the application of the Act, and the Act does not require a physician to prove the added element of the absence of a pre-existing duty to render aid.
At the time the alleged malpractice occurred, the following version of section 25 of the Act applied:
"Any person licensed under the Medical Practice Act of 1987 or any person licensed to practice the treatment of human ailments in any other state or territory of the United States, except a person licensed to practice midwifery, who, in good faith and without prior notice 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 the person, 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 treating physician act "without prior notice of the illness or injury ." Pub. Act 90--742, ยง40, eff. August 13, 1998. The preamended version of the Act applies here because a statute is presumed to apply prospectively only and cannot be given retroactive effect absent clear language within the statute indicating that the legislature intended such effect. See Blanchard v. Murray, 331 Ill. App. 3d 961, 967-68 (2002).
The preamended v
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