2015 IL App (3d) 130219
Ill. App. Ct.2015Background
- Michelle Mackey presented to Silver Cross Hospital ED on May 14, 2010 with severe abdominal/flank pain; tests showed a 6 mm obstructing kidney stone and urinalysis suggesting UTI.
- ED attending Dr. Sarroca paged on-call urologist Dr. John DeFranco pursuant to hospital protocol; DeFranco returned the page, took notes, and recommended Flomax and office follow-up Monday rather than admission.
- Dr. Sarroca followed DeFranco’s recommendations, did not admit Michelle or (according to plaintiffs) begin antibiotics, and discharged her with instructions to see DeFranco as an outpatient.
- Michelle developed fulminant urosepsis and severe complications before the scheduled visit; plaintiffs sued multiple defendants and later amended to add DeFranco after his role was revealed in discovery.
- DeFranco moved to dismiss under 735 ILCS 5/2-619, arguing the claim was untimely and that no physician-patient relationship (and thus no duty) existed; the trial court dismissed for lack of duty.
- The appellate court reversed, holding the well-pled complaint alleged facts sufficient to establish a special physician-patient relationship and duty of care by DeFranco, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness (statute of limitations) | Mackey filed against DeFranco within two years of discovering his role (discovery occurred at Sarroca deposition). | DeFranco contends the claim is time-barred. | Timely: complaint against DeFranco was filed within two years of plaintiffs’ discovery of his alleged negligence. |
| Existence of duty / physician-patient relationship | DeFranco was on-call under contract, was compensated, received patient-specific data, formed a contemporaneous opinion, and directed disposition — creating a special relationship and duty. | DeFranco argues no duty because he gave only an informal consult by phone and never established a physician-patient relationship. | Duty exists: facts alleged are analogous to cases recognizing a special relationship (on-call, contracted, compensated, gave specific treatment advice and disposition), so complaint survives 2-619 dismissal. |
Key Cases Cited
- Bovara v. St. Francis Hospital, 298 Ill. App. 3d 1025 (Ill. App. 1998) (hospital-assigned consultants who review tests, render opinions, and decide interventions can have physician-patient relationship)
- Lenahan v. University of Chicago, 348 Ill. App. 3d 155 (Ill. App. 2004) (physician who reviewed tests, made treatment determinations, and was compensated owed duty despite no in-person exam)
- Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80 (Ill. App. 1996) (informal consults without review of records, compensation, or protocol do not create physician-patient relationship)
- Weiss v. Rush North Shore Medical Center, 372 Ill. App. 3d 186 (Ill. App. 2007) (on-call psychiatrist who only arranged follow-up and did not direct current treatment owed no duty)
- Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507 (Ill. 1987) (elements of medical malpractice: duty, breach, proximate cause, injury)
- Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161 (Ill. 1981) (discovery rule: limitations period runs when plaintiff knows or should know injury and its wrongful cause)