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Neal v. Yang9/30/2004
elivery. The plaintiff's expert testified that there was no indication of fetal distress until the plaintiff was taken to the delivery room. No question was directly raised regarding a pre-existing duty. Rather, the question was indirectly raised in the context of whether the defendant was "on call" in the sense that he was covering for the plaintiff's own obstetricians and therefore should have been held to have had complete knowledge of her condition. Roberts, 210 Ill. App. 3d at 415. In his deposition, the defendant testified that he was not on call and that his progress notes were entitled "Covering Attending Delivery Note" simply because he was the one delivering the baby. Roberts, 210 Ill. App. 3d at 411-12. Moreover, the evidence showed that the defendant did not have notice of the illness or injury. The Roberts court affirmed summary judgment for the defendant, holding that there was no question of fact precluding the trial court's decision that the defendant did not have notice of the illness or injury. Roberts, 210 Ill. App. 3d at 417.
In Villamil v. Benages, 257 Ill. App. 3d 81 (1993), the defendant physician was in the hospital attending to his own patient when he was called into the operating room to deliver the plaintiff's baby. The question of whether the defendant was on call was raised in the context of whether the defendant provided emergency care to the plaintiff. The court noted that it was undisputed that the defendant was not on call but that he did, in fact, provide emergency care to the plaintiff, and the court affirmed summary judgment in favor of the defendant based upon the Act. Villamil, 257 Ill. App. 3d at 92.
Finally, in Blanchard v. Murray, 331 Ill. App. 3d 961 (2002), the defendant physician was on call at home when he was informed of the baby's heart decelerations and summoned to the hospital for the sole purpose of delivering the baby. The plaintiff argued that the issue of whether the defendant was on call went to whether he owed a duty to respond. The plaintiff asserted that if the defendant did not have a duty to respond, then the " ' "need to encourage physicians to render emergency medical care when they otherwise might not" prevails over the policy of vindicating the rights of a malpractice victim.' " Blanchard, 331 Ill. App. 3d at 972, quoting McKenna v. Cedars of Lebanon Hospital, Inc., 93 Cal. App. 3d 282, 288, 155 Cal. Rptr. 631, 635 (1979), quoting Colby, 78 Cal. App. 3d at 892-93, 144 Cal. Rptr. at 629. The Blanchard court noted that, while the court in Johnson cited Colby, it did so in the context of pointing out how other jurisdictions have dealt with the issue of when Good Samaritan statutes apply to given situations. However, in applying the plain language the Act to the facts of the case, the Blanchard court recognized that whether the defendant was on call when he responded to the request for assistance was relevant only in terms of the notice requirement, i.e., whether he had "prior notice of the illness" within the meaning of section 25. Blanchard, 331 Ill. App. 3d at 972. The Blanchard court did not adopt an additional pre-existing-duty requirement based on the defendant's on-call status, pre-existing duty, or contractual relationship with the hospital but confined the analysis to the three elements set forth under section 25 of the Act. Accordingly, the court concluded that because the defendant received the phone call at home, was told of the nature of the plaintiff's illness, and then elected to leave home and drive to the hospital for the sole purpose of treating the plaintiff and performing the surgery, he had prior notice of the illness within the meaning of the Act. Because these facts established that no genuine issue of material fact exis
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