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Neal v. Yang9/30/2004
d pre-existing duties to assist in the emergencies. However, none of the cases imposes a requirement that the defense must establish the absence of a pre-existing duty to render emergency aid.
In Johnson v. Matviuw, 176 Ill. App. 3d 907 (1988), the defendant physician had staff privileges at the hospital where the plaintiff, who was 37 weeks pregnant, was admitted. The defendant, who was attending to one of his own patients in the hospital, was summoned when the plaintiff experienced respiratory and cardiac arrest. The defendant assisted in resuscitation until the plaintiff's doctor arrived, but the plaintiff could not be resuscitated. The plaintiff and her child died. The administrator of the plaintiff's estate filed suit against the defendant and others, and the trial court granted the defendant's motion for summary judgment on the ground that he was immune pursuant to the Act. The plaintiff contended, inter alia, that as a staff member of the hospital, the defendant had a pre-existing duty to assist in the emergency and, therefore, the Act did not apply. The Johnson court held that it was beyond its power to limit the ordinary meaning of the word "emergency" by adding "except when occurring in a hospital," and that the statute clearly applied to a physician like the defendant, who, in good faith and without prior notice of the illness, rendered emergency care without charging a fee. Johnson, 176 Ill. App. 3d at 917.
The Johnson court noted the few other states that have addressed the pre-existing duty issue. A series of California Good Samaritan statutes is substantively similar to the Act except that hospital emergency room care is expressly covered in the event of a medical disaster, as are doctors called in to aid another doctor. See Cal. Bus. & Prof. Code §§2395, 2395.5, 2396 (Deering 1998). California courts have held that, when a doctor on a hospital medical staff who happens to be in the hospital and gives emergency aid to a patient not his own, the doctor has no duty to that patient. See, e.g., Burciaga v. St. John's Hospital, 187 Cal. App. 3d 710, 232 Cal. Rptr. 75 (1986). However, California has disallowed statutory immunity where there is a pre-existing duty to render emergency aid, as in the case of members of a hospital's emergency call panel. See Colby v. Schwartz, 78 Cal. App. 3d 885, 144 Cal. Rptr. 624 (1978). The Johnson court also noted that a Georgia statute exempts from liability doctors who in good faith give emergency care "at the scene of an accident or emergency" with no charge. Ga. Code Ann. §51--1--29 (1987). A Georgia court interpreted that statute to be applicable to emergency care rendered in a hospital by a physician, but held that summary judgment was inappropriate because issues of fact existed as to whether the doctors involved were protected under the statute in light of requirements in the hospital's rules and regulations relating to their duties. Clayton v. Kelly, 183 Ga. App. 45, 357 S.E.2d 865 (1987). The Johnson court believed that, if the legislature so intended, it could have specifically included in the Act emergencies occurring within a hospital or other licensed medical care facility. However, given the clear language of the statute, the courts must apply the Act as written and any changes in the scope of its protection are within the realm of the legislature, not the courts. Johnson, 176 Ill. App. 3d at 918.
In Roberts v. Myers, 210 Ill. App. 3d 408 (1991), the defendant had staff privileges at the hospital and was attending one of his own patients when he was called to assist with the plaintiff, who was experiencing labor pains. A nurse was unable to detect any fetal heart tones and the defendant was summoned to conduct an emergency d
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