Bovara v. St. Francis Hospital
Annotate this Case
FOURTH DIVISION
AUGUST 20, 1998
1--97--2972
CHERYL HAXBY BOVARA, ) Appeal from the
Indiv. and as ) Circuit Court of
Adm'r of the Estate of ) Cook County
Albert Bovara, Deceased; JENNIFER )
BOVARA; JAMIE BOVARA; and JONATHAN )
BOVARA; )
)
Plaintiffs-Appellants, )
)
v. )
)
ST. FRANCIS HOSPITAL, )
a corporation; CARDIOVASCULAR )
RENAL CONSULTANTS, S.C., )
a corporation; LUKE R. )
PASCALE, M.D.; DOMINICK J. )
ALLOCCO, M.D.; ROY C. BLILEY, )
M.D.; and JOSEPH W. EDGETT, )
M.D.; ) Honorable Maureen
) Durkin Roy, Judge
Defendants-Appellees. ) Presiding.
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Plaintiffs, Cheryl Haxby Bovara, individually and as
administrator of the estate of Albert Bovara, deceased; Jennifer
Bovara; Jamie Bovara; and Jonathan Bovara, appeal from the entry
of summary judgment by the circuit court of Cook County in favor
of defendants Roy C. Bliley, M.D., and Joseph W. Edgett, M.D.
At issue is whether a physician-patient relationship was
formed between Drs. Bliley and Edgett and the plaintiffs'
decedent and/or whether these two defendants owed a duty of care
to Albert Bovara. On request of defendant Luke R. Pascale, M.D.,
who was Bovara's examining cardiologist, Drs. Bliley and Edgett
reviewed Bovara's angiogram film and communicated to Dr. Pascale
that Bovara was a candidate for coronary angioplasty. While
defendant Dominick J. Allocco, M.D., performed the angioplasty
procedure, Bovara died.
We reverse and remand on the basis that there was a genuine
issue of material fact as to whether Drs. Bliley and Edgett acted
as Bovara's physicians and owed a duty of care to Bovara.
Plaintiffs' first amended complaint brought suit against St.
Francis Hospital; Cardiovascular Renal Consultants, S.C.; Dr.
Pascale; Dr. Bliley; Dr. Edgett; and Dr. Allocco. All the
physician defendants allegedly were agents and/or employees of
both the hospital and Cardiovascular Renal Consultants S.C., a
corporation (CRC), at the relevant times. Plaintiffs alleged
that Albert Bovara died as a result of the angioplasty and that
Drs. Bliley and Edgett were negligent in part for failing to
adequately recognize the risks to Bovara of an angioplasty.
Affidavits of physicians were attached to the complaint swearing
that Bovara's arterial lesion was not the type on which
angioplasty should have been performed.
On December 18, 1996, Drs. Bliley and Edgett filed a motion
for summary judgment, arguing in part that no physician-patient
relationship arose between them and Bovara prior to the time that
they assisted in attempting to resuscitate Bovara during
angioplasty.
FACTS
The following facts were established from the depositions
and affidavits filed in connection with the motion for summary
judgment.
At St. Francis Hospital, Albert Bovara met with Dr. Luke R.
Pascale, who was a cardiologist at St. Francis Hospital and CRC,
concerning his heart disease; two of his arteries were blocked.
Dr. Pascale took Bovara's medical history and examined him.
Bovara had brought with him an angiogram of his coronary blood
vessels that was taken at another hospital following a heart
attack. Dr. Pascale was not trained in reading angiograms and
did not perform angioplasty. According to Dr. Pascale,
interventionist cardiologists and surgeons were the physicians
who made the decisions on who was to undergo angioplasty, bypass
surgery, or noninterventionist medical care, and whether
angioplasty was contraindicated for Bovara was "totally" up to
the interventionists. Dr. Pascale did not know how the
conclusion that angioplasty could be done was made.
Dr. Pascale did not review Bovara's angiogram and, as part
of the usual procedure for CRC, gave it to a staff member for a
cardiac interventionist to review. Drs. Edgett and Bliley were
cardiac interventionists at the hospital and CRC, and they
reviewed the angiogram. St. Francis contracted with CRC to
produce cardiology services at St. Francis. Dr. Pascale received
a verbal message that Drs. Bliley and Edgett believed that
Bovara's condition allowed the patient to have angioplasty; he
did not recall if the message was directly from the physicians or
from a nurse. Normally he did not get an opinion in writing from
the interventionists. Dr. Pascale wrote into the hospital chart
that "catheterization reviewed by Drs. Bliley and Edgett."
Dr. Pascale gave Bovara the joint opinion of Drs. Bliley and
Edgett that Bovara was a candidate for angioplasty. He did not
tell Bovara that he was a good candidate; he told Bovara that
"his people" felt Bovara was a candidate. He had no opinion on
angioplasty for Bovara. He told Bovara that he would have a
conference with the interventionist cardiologists because he had
not really discussed the angioplasty issue with them firsthand.
Dr. Pascale testified that he had a later discussion about Bovara
with Drs. Edgett and Bliley. Bovara called Dr. Pascale the week
following the visit. Dr. Pascale told Bovara that he had
confirmed with the other physicians that Bovara was a candidate
for angioplasty. He never spoke to Bovara again.
Dr. Bliley testified that he was commonly asked by his
"partners" solely to view a film, to tell them if angioplasty was
technically feasible, and to ascertain purely on the basis of the
film the relative risks of the procedure. He believed that
angioplasty was a moderate risk to Bovara because of the length
of the lesion in the artery. At the time of his review, he did
not review Bovara's medical records from the other hospital and
he did not have any contact with Bovara. He did not write
anything down in reference to his review.
Dr. Edgett testified that Dr. Pascale was one of his
"associates" upon whose request he reviewed Bovara's angiogram.
Dr. Edgett never had any discussions with Bovara. He was not
asked whether Bovara could have a bypass operation, and he did
not recommend angioplasty over a bypass; he just answered a
question as to whether angioplasty was possible. He told Dr.
Pascale that the case could be handled with angioplasty. Dr.
Edgett did not recall any other discussions about the case with
Dr. Pascale. He did not have any notes or dictate anything on
his review. Dr. Edgett saw Bovara during resuscitation efforts.
In order to make a recommendation as to what a patient
should do, Dr. Edgett testified that he would do more than just
review the angiogram; he would examine the patient, review other
data, and discuss the relative risks and benefits of each type of
therapy. Dr. Edgett testified that it was not his job to make a
recommendation of which therapy Bovara should have followed. Dr.
Edgett testified that such a recommendation was the job of the
physician who examined the patient, although he also testified
that whether to recommend angioplasty or some other treatment
would be up to the physician who was going to do the procedure.
Dr. Bliley was working in the cardiac catheterization
laboratory the day that Bovara was scheduled, but Dr. Bliley
asked Dr. Allocco to start Bovara's angioplasty because Dr.
Bliley was going to be delayed. Before starting the angioplasty,
Dr. Allocco looked at Bovara's angiogram and examined Bovara.
Based on this, it was Dr. Allocco's opinion that Bovara was a
candidate for angioplasty. Dr. Allocco testified that if he had
felt that Bovara was not a candidate for angioplasty, he could
have cancelled the procedure. Bovara went into full cardiac
arrest during the angioplasty, and Dr. Bliley aided in the
unsuccessful resuscitation.
Drs. Bliley and Edgett did not bill Bovara for their time.
On May 13, 1997, the trial court granted summary judgment
for Drs. Bliley and Edgett. Supreme Court Rule 304(a) (134 Ill.
2d R. 304(a)) language was allowed on July 18, 1997.
DISCUSSION
Plaintiffs argue on appeal that the summary judgment order
in favor of Drs. Bliley and Edgett should be reversed because
there are genuine issues of material fact as to whether Drs.
Bliley and Edgett formed a physician-patient relationship with
Bovara or otherwise owed a duty to Bovara by reviewing the
angiogram, by opining that Bovara was a candidate for angioplasty
and by thereafter expanding their participation in the care and
treatment of Bovara.
A motion for summary judgment is to be granted if "the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." 735 ILCS 5/2--1005(c) (West 1996). The
pleadings, depositions, admissions, and affidavits on file must
be construed against the movant and in favor of the opponent of
the motion. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627 (1994).
Summary judgment is a drastic means of disposing of
litigation, and the right of the moving party to obtain summary
judgment must be clear and free of doubt. Jackson, 158 Ill. 2d
at 249. Where doubt exists as to the right of summary judgment,
the wiser judicial policy is to permit resolution of the dispute
by a trial. Jackson, 158 Ill. 2d at 249. The reviewing court's
function is to determine de novo whether the judgment entered was
correct as a matter of law. Cates v. Cates, 156 Ill. 2d 76, 78,
619 N.E.2d 715 (1993).
In a negligence action for medical malpractice, a plaintiff
must prove that the defendant owed a duty to the plaintiff, a
breach of that duty, and an injury resulting from the breach.
Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507,
525, 513 N.E.2d 387 (1987). Reasonable foreseeability of injury
is a key concern in determining whether a duty exists, but it is
not the only consideration. Kirk, 117 Ill. 2d at 526. The
question of duty takes into account the likelihood of injury, the
magnitude of the burden of guarding against it and the
consequences of placing that burden upon the defendant. Lance v.
Senior, 36 Ill. 2d 516, 518, 224 N.E.2d 231 (1967).
The physician-patient relationship is a consensual
relationship in which the patient knowingly seeks the physician's
assistance and in which the physician knowingly accepts the
person as a patient. Reynolds v. Decatur Memorial Hospital, 277
Ill. App. 3d 80, 85, 660 N.E.2d 235 (1996). A consensual
relationship can be found to exist where a physician contacts
another physician on behalf of the patient (Reynolds, 277 Ill.
App. 3d at 85) or where a physician accepts a referral of a
patient (Davis v. Weiskopf, 108 Ill. App. 3d 505, 512-13, 439 N.E.2d 60 (1982)); the reasoning is that the consent of the
patient to the service provided by the second physician is
implied (Walters v. Rinker, 520 N.E.2d 468, 472 (Ind. App.
1988)).
Defendants argue that their case is governed by Reynolds,
277 Ill. App. 3d 80, 660 N.E.2d 235, in which the examining
physician telephoned a second physician at home seeking advice on
diagnosing a child, and the second physician's only participation
in the treatment of the child was his suggestion that a
particular test be used to rule out certain illnesses. The first
physician allegedly misdiagnosed the child's illness, and the
second physician was made a defendant in the medical-malpractice
lawsuit.
The court held that there was no physician-patient
relationship between the second physician and the patient, nor
any duty owed by him, because he gave an "informal opinion" at
the request of the treating physician. Reynolds, 277 Ill. App.
3d at 85. The court noted that this was not the case where a
physician was asked to provide a service for the patient, conduct
laboratory tests, or review test results. Reynolds, 277 Ill.
App. 3d at 85. The physician "did nothing more than answer an
inquiry from a colleague." Reynolds, 277 Ill. App. 3d at 85.
The court distinguished the case where a physician accepts a
referral of the patient. Reynolds, 277 Ill. App. 3d at 85.
The facts of Reynolds are distinguishable. While the
consulting physician in Reynolds just suggested a test and was
not responsible for any portion of the patient's diagnosis or
treatment, Drs. Bliley and Edgett reviewed test results and
interpreted them. Reynolds distinguished the case where a
physician reviews test results. 277 Ill. App. 3d at 85.
We find helpful the cases that have found a physician-
patient relationship between the patient and a radiologist or a
pathologist, who had no actual contact with the patient, where
they performed a service for the benefit of the patient. E.g.,
Walters v. Rinker, 520 N.E.2d 468 (Ind. App. 1988) (pathologist);
Phillips v. Good Samaritan Hospital, 65 Ohio App. 2d 112, 416 N.E.2d 646 (1979)(radiologist); Dougherty v. Gifford, 826 S.W.2d 668 (Tex. Ct. App. 1992) (pathologist).
Similarly, a trier of fact might conclude that Drs. Bliley
and Edgett performed a service for Bovara as part of a CRC team
of physicians. Drs. Pascale, Bliley and Edgett were employees
and associates of St. Francis Hospital and CRC. Drs. Bliley and
Edgett knew or should have known that Dr. Pascale was not trained
to read angiograms and did not perform angioplasty operations.
The trier of fact may find that, when they received the angiogram
that came from Dr. Pascale, they knew or should have known that
their medical opinion would be passed on to the patient by Dr.
Pascale. If their medical opinion would have been that Bovara
was not a candidate for an angioplasty operation, it was probable
that there would not have been an angioplasty operation. On the
other hand, if their medical opinion was that Bovara was a
candidate for an angioplasty operation, it was probable that Dr.
Pascale would inform Bovara that he could have an angioplasty
procedure. In any event, the trier of fact could find that Drs.
Bliley and Edgett knew or should have known that their medical
opinion was crucial to Bovara.
When Dr. Pascale needed an interventionist cardiologist to
read an angiogram and give an opinion, he would turn to someone
from CRC and would rely on that opinion. Also, if an angioplasty
operation were to be performed on Bovara, an interventionist
cardiologist from CRC would perform the operation. The trier of
fact might find that Drs. Bliley and Edgett gave their medical
opinion during the regular course of their duties and not as mere
volunteers.
Drs. Bliley and Edgett argue that similarly to the physician
in Reynolds they just gave an "opinion." While in general an
opinion is a "belief or conclusion held with confidence, but not
substantiated by positive knowledge or proof" (American Heritage
Dictionary 872 (2d Coll. ed. 1985)), a medical opinion in
contrast connotes a conclusive and knowledgeable statement: an
"evaluation or judgment based on special knowledge and given by
an expert" (American Heritage Dictionary 872 (2d Coll. ed. 1985).
Whether the recommendation of Drs. Bliley and Edgett was of the
latter or former kind of opinion is for the trier of fact to
determine.
Drs. Bliley and Edgett also argue that their opinion was
"informal." Whether the statements of Drs. Bliley and Edgett
were informal--not rendered according to prescribed procedures
(American Heritage Dictionary 526 (2d Coll. ed. 1985))--is also
for the trier of fact to decide. Formality of an opinion is not
a determinative test of the presence of a physician-patient
relationship; Dr. Pascale stated that normally he did not get an
opinion in writing from the interventionists.
According to Dr. Pascale, he was not the physician
ultimately responsible for determining whether angioplasty was
possible because he was not qualified to evaluate angiograms. It
is a question of fact as to whether Drs. Bliley and Edgett were
requested by Dr. Pascale to render a service for Bovara of
interpreting test results to determine the suitability of a
medical procedure that would be performed by a CRC cardiologist.
After the film was reviewed, Dr. Pascale met with Drs.
Bliley and Edgett in the office, where they discussed Bovara's
history and the decision was made to perform angioplasty. Dr.
Pascale told Bovara that the recommendation to perform
angioplasty was coming from the physicians who were scheduled to
perform the operation. Dr. Bliley was scheduled to perform the
procedure on that day but was temporarily delayed a few minutes.
Dr. Allocco stated:
"Dr. Bliley came to me and stated he had a
patient who was going to do PTCA [the
angioplasty], and he was going to be delayed a
few minutes and could I go down and start the
procedure."
This follow up by the two defendants indicated that they were
more involved with the patient than merely reviewing a film. The
decision to recommend angioplasty was made in the office with
Drs. Pascale, Bliley and Edgett present after discussing Bovara's
history. Also, Dr. Bliley told Dr. Allocco that he had a patient
on whom he was going to operate.
In addition, Dr. Pascale recorded on Bovara's hospital chart
that "catheterization reviewed by Drs. Bliley and Edgett." All
the facts that the plaintiff could introduce in a trial show that
there is a genuine issue of material fact as to whether a
physician-patient relationship was formed between Drs. Bliley and
Edgett and Bovara and whether they owed a duty of care to Bovara
and breached that duty.
Drs. Bliley and Edgett also argue that summary judgment was
properly entered in their favor because their joint opinion was
inconsequential because Dr. Allocco could have decided to cancel
the angioplasty if he did not believe that angioplasty was
indicated. However, Dr. Allocco would not have had to decide
whether to perform angioplasty if Drs. Bliley and Edgett had not
informed Dr. Pascale that Bovara was a candidate for the
procedure. Whether the alleged negligence of Drs. Bliley and
Edgett was a proximate cause of Bovara's death is another fact
issue that precludes summary judgment.
Summary judgment in favor of Drs. Bliley and Edgett also
could not have been based on the fact, which these defendants
stress, that they did not opine whether angioplasty was the best
treatment option for Bovara. This argument is incorrect because
defendants are not alleged to have chosen the wrong treatment--
defendants are sought to be held liable for negligence in
performing the service of concluding whether Bovara was a
candidate for an angioplasty procedure knowing that their opinion
was crucial.
We note that most of the cases that defendants have cited
that found no physician-patient relationship or other duty owed
by a physician are easily distinguishable as not involving a
consulting physician's providing a service for a patient. Oliver
v. Brock, 342 So. 2d 1, 4 (Ala. 1976) (a second physician had a
casual conversation with the treating physician concerning
another patient in which the treating physician described
generally the injuries of plaintiff patient and the type of
treatment being given to which the second physician responded
that he thought the treatment was correct); Hill v. Kokosy, 186
Mich. App. 300, 463 N.W.2d 265 (1990) (the consulting physician
was contacted by telephone by a treating physician to discuss
treatment alternatives and gave recommendations--which were not
described in the court's opinion-- that were to be accepted or
rejected by the treating physician); Flynn v. Bausch, 238 Neb.
61, 67, 469 N.W.2d 125, 129 (1991) (in a general conversation
occurring in a nursery, where the second physician was attending
to another infant, he advised that a transfusion be delayed
pending the development of further data and that he be contacted
again if the information indicated something different);
Sullenger v. Setco Northwest, Inc., 74 Or. App. 345, 348-49, 702 P.2d 1139, 1141 (1985) (the consulting physician did not have
duty to patient before he assumed management of the case where he
turned down the treating physician's earlier request to manage
the case); Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex. Ct. App.
1993) (a specialist who was consulted once by telephone by the
treating physician advised a complete laboratory work-up); but
cf. Minster v. Pohl, 206 Ga. App. 617, 621, 426 S.E.2d 204, 206
(1992) (although, on request of a nurse, the emergency-room
physician on duty viewed an X ray to verify that the nurse had
properly replaced a feeding tube, the physician was not acting as
the patient's physician).
We hold that the trial court erred in entering summary
judgment in favor of Drs. Bliley and Edgett because there was a
genuine issue of fact as to whether they acted as Bovara's
physicians by providing a service for Bovara and whether they
owed a duty to Bovara.
The judgment of the trial court is reversed, and the cause
is remanded.
Reversed and remanded.
McNAMARA and SOUTH, JJ., concur.
AUGUST 20, 1998
1--97--2972
CHERYL HAXBY BOVARA, ) Appeal from the
Indiv. and as ) Circuit Court of
Adm'r of the Estate of ) Cook County
Albert Bovara, Deceased; JENNIFER )
BOVARA; JAMIE BOVARA; and JONATHAN )
BOVARA; )
)
Plaintiffs-Appellants, )
)
v. )
)
ST. FRANCIS HOSPITAL, )
a corporation; CARDIOVASCULAR )
RENAL CONSULTANTS, S.C., )
a corporation; LUKE R. )
PASCALE, M.D.; DOMINICK J. )
ALLOCCO, M.D.; ROY C. BLILEY, )
M.D.; and JOSEPH W. EDGETT, )
M.D.; ) Honorable Maureen
) Durkin Roy, Judge
Defendants-Appellees. ) Presiding.
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Plaintiffs, Cheryl Haxby Bovara, individually and as
administrator of the estate of Albert Bovara, deceased; Jennifer
Bovara; Jamie Bovara; and Jonathan Bovara, appeal from the entry
of summary judgment by the circuit court of Cook County in favor
of defendants Roy C. Bliley, M.D., and Joseph W. Edgett, M.D.
At issue is whether a physician-patient relationship was
formed between Drs. Bliley and Edgett and the plaintiffs'
decedent and/or whether these two defendants owed a duty of care
to Albert Bovara. On request of defendant Luke R. Pascale, M.D.,
who was Bovara's examining cardiologist, Drs. Bliley and Edgett
reviewed Bovara's angiogram film and communicated to Dr. Pascale
that Bovara was a candidate for coronary angioplasty. While
defendant Dominick J. Allocco, M.D., performed the angioplasty
procedure, Bovara died.
We reverse and remand on the basis that there was a genuine
issue of material fact as to whether Drs. Bliley and Edgett acted
as Bovara's physicians and owed a duty of care to Bovara.
Plaintiffs' first amended complaint brought suit against St.
Francis Hospital; Cardiovascular Renal Consultants, S.C.; Dr.
Pascale; Dr. Bliley; Dr. Edgett; and Dr. Allocco. All the
physician defendants allegedly were agents and/or employees of
both the hospital and Cardiovascular Renal Consultants S.C., a
corporation (CRC), at the relevant times. Plaintiffs alleged
that Albert Bovara died as a result of the angioplasty and that
Drs. Bliley and Edgett were negligent in part for failing to
adequately recognize the risks to Bovara of an angioplasty.
Affidavits of physicians were attached to the complaint swearing
that Bovara's arterial lesion was not the type on which
angioplasty should have been performed.
On December 18, 1996, Drs. Bliley and Edgett filed a motion
for summary judgment, arguing in part that no physician-patient
relationship arose between them and Bovara prior to the time that
they assisted in attempting to resuscitate Bovara during
angioplasty.
FACTS
The following facts were established from the depositions
and affidavits filed in connection with the motion for summary
judgment.
At St. Francis Hospital, Albert Bovara met with Dr. Luke R.
Pascale, who was a cardiologist at St. Francis Hospital and CRC,
concerning his heart disease; two of his arteries were blocked.
Dr. Pascale took Bovara's medical history and examined him.
Bovara had brought with him an angiogram of his coronary blood
vessels that was taken at another hospital following a heart
attack. Dr. Pascale was not trained in reading angiograms and
did not perform angioplasty. According to Dr. Pascale,
interventionist cardiologists and surgeons were the physicians
who made the decisions on who was to undergo angioplasty, bypass
surgery, or noninterventionist medical care, and whether
angioplasty was contraindicated for Bovara was "totally" up to
the interventionists. Dr. Pascale did not know how the
conclusion that angioplasty could be done was made.
Dr. Pascale did not review Bovara's angiogram and, as part
of the usual procedure for CRC, gave it to a staff member for a
cardiac interventionist to review. Drs. Edgett and Bliley were
cardiac interventionists at the hospital and CRC, and they
reviewed the angiogram. St. Francis contracted with CRC to
produce cardiology services at St. Francis. Dr. Pascale received
a verbal message that Drs. Bliley and Edgett believed that
Bovara's condition allowed the patient to have angioplasty; he
did not recall if the message was directly from the physicians or
from a nurse. Normally he did not get an opinion in writing from
the interventionists. Dr. Pascale wrote into the hospital chart
that "catheterization reviewed by Drs. Bliley and Edgett."
Dr. Pascale gave Bovara the joint opinion of Drs. Bliley and
Edgett that Bovara was a candidate for angioplasty. He did not
tell Bovara that he was a good candidate; he told Bovara that
"his people" felt Bovara was a candidate. He had no opinion on
angioplasty for Bovara. He told Bovara that he would have a
conference with the interventionist cardiologists because he had
not really discussed the angioplasty issue with them firsthand.
Dr. Pascale testified that he had a later discussion about Bovara
with Drs. Edgett and Bliley. Bovara called Dr. Pascale the week
following the visit. Dr. Pascale told Bovara that he had
confirmed with the other physicians that Bovara was a candidate
for angioplasty. He never spoke to Bovara again.
Dr. Bliley testified that he was commonly asked by his
"partners" solely to view a film, to tell them if angioplasty was
technically feasible, and to ascertain purely on the basis of the
film the relative risks of the procedure. He believed that
angioplasty was a moderate risk to Bovara because of the length
of the lesion in the artery. At the time of his review, he did
not review Bovara's medical records from the other hospital and
he did not have any contact with Bovara. He did not write
anything down in reference to his review.
Dr. Edgett testified that Dr. Pascale was one of his
"associates" upon whose request he reviewed Bovara's angiogram.
Dr. Edgett never had any discussions with Bovara. He was not
asked whether Bovara could have a bypass operation, and he did
not recommend angioplasty over a bypass; he just answered a
question as to whether angioplasty was possible. He told Dr.
Pascale that the case could be handled with angioplasty. Dr.
Edgett did not recall any other discussions about the case with
Dr. Pascale. He did not have any notes or dictate anything on
his review. Dr. Edgett saw Bovara during resuscitation efforts.
In order to make a recommendation as to what a patient
should do, Dr. Edgett testified that he would do more than just
review the angiogram; he would examine the patient, review other
data, and discuss the relative risks and benefits of each type of
therapy. Dr. Edgett testified that it was not his job to make a
recommendation of which therapy Bovara should have followed. Dr.
Edgett testified that such a recommendation was the job of the
physician who examined the patient, although he also testified
that whether to recommend angioplasty or some other treatment
would be up to the physician who was going to do the procedure.
Dr. Bliley was working in the cardiac catheterization
laboratory the day that Bovara was scheduled, but Dr. Bliley
asked Dr. Allocco to start Bovara's angioplasty because Dr.
Bliley was going to be delayed. Before starting the angioplasty,
Dr. Allocco looked at Bovara's angiogram and examined Bovara.
Based on this, it was Dr. Allocco's opinion that Bovara was a
candidate for angioplasty. Dr. Allocco testified that if he had
felt that Bovara was not a candidate for angioplasty, he could
have cancelled the procedure. Bovara went into full cardiac
arrest during the angioplasty, and Dr. Bliley aided in the
unsuccessful resuscitation.
Drs. Bliley and Edgett did not bill Bovara for their time.
On May 13, 1997, the trial court granted summary judgment
for Drs. Bliley and Edgett. Supreme Court Rule 304(a) (134 Ill.
2d R. 304(a)) language was allowed on July 18, 1997.
DISCUSSION
Plaintiffs argue on appeal that the summary judgment order
in favor of Drs. Bliley and Edgett should be reversed because
there are genuine issues of material fact as to whether Drs.
Bliley and Edgett formed a physician-patient relationship with
Bovara or otherwise owed a duty to Bovara by reviewing the
angiogram, by opining that Bovara was a candidate for angioplasty
and by thereafter expanding their participation in the care and
treatment of Bovara.
A motion for summary judgment is to be granted if "the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." 735 ILCS 5/2--1005(c) (West 1996). The
pleadings, depositions, admissions, and affidavits on file must
be construed against the movant and in favor of the opponent of
the motion. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627 (1994).
Summary judgment is a drastic means of disposing of
litigation, and the right of the moving party to obtain summary
judgment must be clear and free of doubt. Jackson, 158 Ill. 2d
at 249. Where doubt exists as to the right of summary judgment,
the wiser judicial policy is to permit resolution of the dispute
by a trial. Jackson, 158 Ill. 2d at 249. The reviewing court's
function is to determine de novo whether the judgment entered was
correct as a matter of law. Cates v. Cates, 156 Ill. 2d 76, 78,
619 N.E.2d 715 (1993).
In a negligence action for medical malpractice, a plaintiff
must prove that the defendant owed a duty to the plaintiff, a
breach of that duty, and an injury resulting from the breach.
Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507,
525, 513 N.E.2d 387 (1987). Reasonable foreseeability of injury
is a key concern in determining whether a duty exists, but it is
not the only consideration. Kirk, 117 Ill. 2d at 526. The
question of duty takes into account the likelihood of injury, the
magnitude of the burden of guarding against it and the
consequences of placing that burden upon the defendant. Lance v.
Senior, 36 Ill. 2d 516, 518, 224 N.E.2d 231 (1967).
The physician-patient relationship is a consensual
relationship in which the patient knowingly seeks the physician's
assistance and in which the physician knowingly accepts the
person as a patient. Reynolds v. Decatur Memorial Hospital, 277
Ill. App. 3d 80, 85, 660 N.E.2d 235 (1996). A consensual
relationship can be found to exist where a physician contacts
another physician on behalf of the patient (Reynolds, 277 Ill.
App. 3d at 85) or where a physician accepts a referral of a
patient (Davis v. Weiskopf, 108 Ill. App. 3d 505, 512-13, 439 N.E.2d 60 (1982)); the reasoning is that the consent of the
patient to the service provided by the second physician is
implied (Walters v. Rinker, 520 N.E.2d 468, 472 (Ind. App.
1988)).
Defendants argue that their case is governed by Reynolds,
277 Ill. App. 3d 80, 660 N.E.2d 235, in which the examining
physician telephoned a second physician at home seeking advice on
diagnosing a child, and the second physician's only participation
in the treatment of the child was his suggestion that a
particular test be used to rule out certain illnesses. The first
physician allegedly misdiagnosed the child's illness, and the
second physician was made a defendant in the medical-malpractice
lawsuit.
The court held that there was no physician-patient
relationship between the second physician and the patient, nor
any duty owed by him, because he gave an "informal opinion" at
the request of the treating physician. Reynolds, 277 Ill. App.
3d at 85. The court noted that this was not the case where a
physician was asked to provide a service for the patient, conduct
laboratory tests, or review test results. Reynolds, 277 Ill.
App. 3d at 85. The physician "did nothing more than answer an
inquiry from a colleague." Reynolds, 277 Ill. App. 3d at 85.
The court distinguished the case where a physician accepts a
referral of the patient. Reynolds, 277 Ill. App. 3d at 85.
The facts of Reynolds are distinguishable. While the
consulting physician in Reynolds just suggested a test and was
not responsible for any portion of the patient's diagnosis or
treatment, Drs. Bliley and Edgett reviewed test results and
interpreted them. Reynolds distinguished the case where a
physician reviews test results. 277 Ill. App. 3d at 85.
We find helpful the cases that have found a physician-
patient relationship between the patient and a radiologist or a
pathologist, who had no actual contact with the patient, where
they performed a service for the benefit of the patient. E.g.,
Walters v. Rinker, 520 N.E.2d 468 (Ind. App. 1988) (pathologist);
Phillips v. Good Samaritan Hospital, 65 Ohio App. 2d 112, 416 N.E.2d 646 (1979)(radiologist); Dougherty v. Gifford, 826 S.W.2d 668 (Tex. Ct. App. 1992) (pathologist).
Similarly, a trier of fact might conclude that Drs. Bliley
and Edgett performed a service for Bovara as part of a CRC team
of physicians. Drs. Pascale, Bliley and Edgett were employees
and associates of St. Francis Hospital and CRC. Drs. Bliley and
Edgett knew or should have known that Dr. Pascale was not trained
to read angiograms and did not perform angioplasty operations.
The trier of fact may find that, when they received the angiogram
that came from Dr. Pascale, they knew or should have known that
their medical opinion would be passed on to the patient by Dr.
Pascale. If their medical opinion would have been that Bovara
was not a candidate for an angioplasty operation, it was probable
that there would not have been an angioplasty operation. On the
other hand, if their medical opinion was that Bovara was a
candidate for an angioplasty operation, it was probable that Dr.
Pascale would inform Bovara that he could have an angioplasty
procedure. In any event, the trier of fact could find that Drs.
Bliley and Edgett knew or should have known that their medical
opinion was crucial to Bovara.
When Dr. Pascale needed an interventionist cardiologist to
read an angiogram and give an opinion, he would turn to someone
from CRC and would rely on that opinion. Also, if an angioplasty
operation were to be performed on Bovara, an interventionist
cardiologist from CRC would perform the operation. The trier of
fact might find that Drs. Bliley and Edgett gave their medical
opinion during the regular course of their duties and not as mere
volunteers.
Drs. Bliley and Edgett argue that similarly to the physician
in Reynolds they just gave an "opinion." While in general an
opinion is a "belief or conclusion held with confidence, but not
substantiated by positive knowledge or proof" (American Heritage
Dictionary 872 (2d Coll. ed. 1985)), a medical opinion in
contrast connotes a conclusive and knowledgeable statement: an
"evaluation or judgment based on special knowledge and given by
an expert" (American Heritage Dictionary 872 (2d Coll. ed. 1985).
Whether the recommendation of Drs. Bliley and Edgett was of the
latter or former kind of opinion is for the trier of fact to
determine.
Drs. Bliley and Edgett also argue that their opinion was
"informal." Whether the statements of Drs. Bliley and Edgett
were informal--not rendered according to prescribed procedures
(American Heritage Dictionary 526 (2d Coll. ed. 1985))--is also
for the trier of fact to decide. Formality of an opinion is not
a determinative test of the presence of a physician-patient
relationship; Dr. Pascale stated that normally he did not get an
opinion in writing from the interventionists.
According to Dr. Pascale, he was not the physician
ultimately responsible for determining whether angioplasty was
possible because he was not qualified to evaluate angiograms. It
is a question of fact as to whether Drs. Bliley and Edgett were
requested by Dr. Pascale to render a service for Bovara of
interpreting test results to determine the suitability of a
medical procedure that would be performed by a CRC cardiologist.
After the film was reviewed, Dr. Pascale met with Drs.
Bliley and Edgett in the office, where they discussed Bovara's
history and the decision was made to perform angioplasty. Dr.
Pascale told Bovara that the recommendation to perform
angioplasty was coming from the physicians who were scheduled to
perform the operation. Dr. Bliley was scheduled to perform the
procedure on that day but was temporarily delayed a few minutes.
Dr. Allocco stated:
"Dr. Bliley came to me and stated he had a
patient who was going to do PTCA [the
angioplasty], and he was going to be delayed a
few minutes and could I go down and start the
procedure."
This follow up by the two defendants indicated that they were
more involved with the patient than merely reviewing a film. The
decision to recommend angioplasty was made in the office with
Drs. Pascale, Bliley and Edgett present after discussing Bovara's
history. Also, Dr. Bliley told Dr. Allocco that he had a patient
on whom he was going to operate.
In addition, Dr. Pascale recorded on Bovara's hospital chart
that "catheterization reviewed by Drs. Bliley and Edgett." All
the facts that the plaintiff could introduce in a trial show that
there is a genuine issue of material fact as to whether a
physician-patient relationship was formed between Drs. Bliley and
Edgett and Bovara and whether they owed a duty of care to Bovara
and breached that duty.
Drs. Bliley and Edgett also argue that summary judgment was
properly entered in their favor because their joint opinion was
inconsequential because Dr. Allocco could have decided to cancel
the angioplasty if he did not believe that angioplasty was
indicated. However, Dr. Allocco would not have had to decide
whether to perform angioplasty if Drs. Bliley and Edgett had not
informed Dr. Pascale that Bovara was a candidate for the
procedure. Whether the alleged negligence of Drs. Bliley and
Edgett was a proximate cause of Bovara's death is another fact
issue that precludes summary judgment.
Summary judgment in favor of Drs. Bliley and Edgett also
could not have been based on the fact, which these defendants
stress, that they did not opine whether angioplasty was the best
treatment option for Bovara. This argument is incorrect because
defendants are not alleged to have chosen the wrong treatment--
defendants are sought to be held liable for negligence in
performing the service of concluding whether Bovara was a
candidate for an angioplasty procedure knowing that their opinion
was crucial.
We note that most of the cases that defendants have cited
that found no physician-patient relationship or other duty owed
by a physician are easily distinguishable as not involving a
consulting physician's providing a service for a patient. Oliver
v. Brock, 342 So. 2d 1, 4 (Ala. 1976) (a second physician had a
casual conversation with the treating physician concerning
another patient in which the treating physician described
generally the injuries of plaintiff patient and the type of
treatment being given to which the second physician responded
that he thought the treatment was correct); Hill v. Kokosy, 186
Mich. App. 300, 463 N.W.2d 265 (1990) (the consulting physician
was contacted by telephone by a treating physician to discuss
treatment alternatives and gave recommendations--which were not
described in the court's opinion-- that were to be accepted or
rejected by the treating physician); Flynn v. Bausch, 238 Neb.
61, 67, 469 N.W.2d 125, 129 (1991) (in a general conversation
occurring in a nursery, where the second physician was attending
to another infant, he advised that a transfusion be delayed
pending the development of further data and that he be contacted
again if the information indicated something different);
Sullenger v. Setco Northwest, Inc., 74 Or. App. 345, 348-49, 702 P.2d 1139, 1141 (1985) (the consulting physician did not have
duty to patient before he assumed management of the case where he
turned down the treating physician's earlier request to manage
the case); Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex. Ct. App.
1993) (a specialist who was consulted once by telephone by the
treating physician advised a complete laboratory work-up); but
cf. Minster v. Pohl, 206 Ga. App. 617, 621, 426 S.E.2d 204, 206
(1992) (although, on request of a nurse, the emergency-room
physician on duty viewed an X ray to verify that the nurse had
properly replaced a feeding tube, the physician was not acting as
the patient's physician).
We hold that the trial court erred in entering summary
judgment in favor of Drs. Bliley and Edgett because there was a
genuine issue of fact as to whether they acted as Bovara's
physicians by providing a service for Bovara and whether they
owed a duty to Bovara.
The judgment of the trial court is reversed, and the cause
is remanded.
Reversed and remanded.
McNAMARA and SOUTH, JJ., concur.
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