2023 IL App (4th) 220238 FILED January 26, 2023 NO. 4-22-0238 Carla Bender th 4 District Appellate IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
JUDY BLAGDEN, Individually and as Independent ) Appeal from the Administrator of the Estate of Dennis Blagden, Deceased, ) Circuit Court of Plaintiff-Appellant, ) Fulton County ) No. 20L13 v. ) ) MATTHEW McMILLIN, M.D.; GRAHAM HOSPITAL ) ASSOCIATION; KENNETH KROCK, M.D.; and ) COLEMAN MEDICAL ASSOCIATES, LTD., ) Defendants, ) ) Honorable (Kenneth Krock, M.D., and Coleman Medical Associates, ) Thomas B. Ewing, Ltd., Defendants-Appellees). ) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion. Presiding Justice DeArmond and Justice Cavanagh concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Judy Blagden, individually and as independent administrator of the estate
of Dennis Blagden, deceased, appeals from a March 2022 summary judgment order entered by the
circuit court of Fulton County in favor of defendants Dr. Kenneth Krock and Coleman Medical
Associates, Ltd. (Coleman), in this medical negligence action. The trial court found there was no
physician-patient relationship between Dr. Krock and decedent Dennis Blagden and, therefore, no
duty was owed.
¶2 This case remains pending in the circuit court as to other defendants but is currently
before this court pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). ¶3 The only issue presented on appeal is whether, as a matter of law, a telephone
consultation between the emergency department physician, Dr. McMillin, and on-call physician,
Dr. Krock, concerning decedent’s medical condition and his possible admission into Graham
Hospital created a physician-patient relationship between Dr. Krock and decedent such that a duty
of care arose.
¶4 For the reasons set forth below, we reverse and remand.
¶5 I. BACKGROUND
¶6 A. The Pleadings
¶7 In January 2019, plaintiff filed a single count complaint in Peoria County against
defendants Matthew McMillin, M.D., Graham Hospital Association, Graham Hospital
Foundation, Inc., and Graham Health System d/b/a Graham Hospital, alleging medical negligence
associated with the death of decedent. Plaintiff filed an amended complaint in July of that year;
count II of the amended complaint was a medical negligence action directed against defendants
Dr. Krock, Coleman, and Graham Hospital Association.
¶8 Count II alleged that decedent had presented to Graham Hospital’s emergency
department with “certain symptoms” and was seen by Dr. McMillin, an agent of Coleman, who
“ordered certain laboratory tests.” It further alleged that Dr. McMillin consulted with Dr. Krock,
who had admitting privileges at Graham Hospital, “to discuss [decedent’s] presentation and
whether [he] should be admitted to the hospital.” It was also alleged that Dr. McMillin “relayed
all [decedent’s] medical information in his possession and in the records to Dr. Krock.” The
amended complaint alleged that, at the conclusion of that conversation, “it was decided that
[decedent] would not be admitted to Graham Hospital and he was discharged from the emergency
-2- department.” It further stated that, at the time of discharge, “infection was still on Dr. Krock’s
differential diagnosis.”
¶9 Count II alleged that, on July 29, decedent again presented to the Graham Hospital
emergency department; his condition at that time “required LifeFlight transport from Graham
Hospital to Methodist Medical Center, where [magnetic resonance imaging (MRI)] revealed a
spinal epidural abscess.” Decedent passed away on August 7, 2017.
¶ 10 Plaintiff contends that Dr. Krock stood in a physician-patient relationship with
decedent that gave rise to a duty of care and that defendants were negligent in one or more of the
following ways: (1) failed to rule out an infectious process, (2) failed to admit and monitor
decedent, or (3) discharged decedent home when it was not safe to do so.
¶ 11 B. Transfer to Fulton County
¶ 12 In 2020, the case was transferred from Peoria County to Fulton County on
forum non conveniens grounds.
¶ 13 C. Summary Judgment
¶ 14 In July 2021, defendants Dr. Krock and Coleman filed a motion for summary
judgment directed against count II of the amended complaint, asserting that there was no
physician-patient relationship between Dr. Krock and decedent and that, as a result, Dr. Krock
owed no duty of care to decedent.
¶ 15 The following facts were established from the depositions and exhibits filed in
connection with the motion for summary judgment papers.
¶ 16 1. July 26 Emergency Department Visit
¶ 17 Decedent presented at Graham Hospital’s emergency department at 7:08 p.m. on
July 26 with complaints of severe pain to his right posterior neck and trapezius area, a bug bite to
-3- his right elbow, and right elbow swelling. According to hospital records, his symptoms began the
night before with a bad headache that involved his neck when he awoke. He was unable to move
his head side-to-side or up-and-down, and he reported that movement caused increased pain. His
records stated he had a “fever last night—none today” and reported no difficulty breathing. They
further indicated he had experienced “some nausea without vomiting—feels this is related to pain.”
He had no report of injury. The records stated, “[no] current headache—no fever—no light
sensitivity—no generalized symptoms.”
¶ 18 Dr. McMillin, decedent’s attending physician at Graham Hospital, reviewed the
nursing records, performed his own physical examination of decedent, and ordered a complete
blood count and comprehensive metabolic panel to “help isolate what [he] thought was going on
with his care.” He later ordered a sedimentation rate test, which is “a very generalized measure of
inflammation” which “relates the likelihood of general inflammation in the body.” One of Dr.
McMillin’s early concerns was a possible infection. Dr. McMillin prescribed Toradol (an anti-
inflammatory pain medication) and Norflex (a muscle relaxer), which helped somewhat, but
decedent continued to have “pain in the area and some muscular spasm that was not relieved by
what I had given him to that point.”
¶ 19 The test results showed an elevated white blood count, a normal distribution of
neutrophils, and a slightly elevated sedimentation rate. When asked to explain his differential
diagnosis after reviewing the various test results, Dr. McMillin testified that, as of 8:39 p.m., “the
things [he] would worry about would be primarily muscular and to a lesser extent infectious.” Dr.
McMillin’s notes showed he diagnosed decedent with torticollis, a muscular condition of the
shoulders and neck.
-4- ¶ 20 When asked why he did not, at that point, release decedent to go home, Dr.
McMillin said, “I think at that time, given the fact that he was still having some symptoms, I
wanted to make sure I consulted with the primary care provider on call to determine what the next
appropriate steps would be.” He added, “I wanted [him] either admitted to the hospital or arranged
for appropriate follow-up,” which he clarified would consist of seeing his primary care provider
the next day. At that point, Dr. McMillin called the on-call physician, Dr. Krock.
¶ 21 Because Dr. McMillin did not have admitting authority at Graham Hospital,
admission orders were required to come from either the patient’s primary care provider or the on-
call physician. According to Dr. McMillin, “The whole point of calling a physician on call is to
discuss hospitalization.” Dr. McMillin agreed that, if decedent was going to be hospitalized that
evening, it would have been pursuant to the order of Dr. Krock, who had admitting authority at
Graham Hospital. However, had Dr. McMillin intended to release a patient, he did not need to
consult with any other physician.
¶ 22 2. The Call to Dr. Krock
¶ 23 Dr. Krock was the on-call internal medicine physician on the evening of July 26
pursuant to a contractual agreement between Coleman (his employer) and Graham Hospital,
whereby Coleman physicians provided on-call services as a part of their employment. At
approximately 8:57 p.m., he took a call from emergency department physician Dr. McMillin
relating to decedent’s condition. Dr. Krock had no memory of the interaction with Dr. McMillin
that evening.
¶ 24 Dr. McMillin testified that he discussed all available medical information
concerning decedent with Dr. Krock, including the various test results, complaints, and history.
He did not recall whether Dr. Krock contributed to the diagnosis of torticollis, but the emergency
-5- department medical records show torticollis as a possible condition prior to Dr. McMillin’s call to
Dr. Krock.
¶ 25 Dr. McMillin agreed that the topic of decedent’s hospitalization came up during his
call with Dr. Krock and said that his call “went like every conversation I would have” where “we
would go through the entire case and come to a consensus of whether based on all the information
available if hospitalization was warranted at the time.” Concerning decedent’s possible admission,
Dr. McMillin was asked the following series of questions:
“Q. And based on your notes, your records and all this, did you ever
consider asking Dr. Krock whether or not he needed to be admitted as a patient?
A. Yes.
Q. And do you believe that you would have discussed with Dr. Krock
whether Dr. Krock believed he should be admitted as a patient?
Q. And is it your belief that Dr. Krock was of the mind that he should not
be admitted that evening?
A. Yes.”
¶ 26 Dr. Krock could not comment on whether that happened on this occasion but
testified that such questions, “happen[ ] pretty regularly.” Dr. Krock was asked, if a physician “has
a question about whether a patient is to be admitted or not, he has someone to call who is on-call
to discuss that with?” He responded, “That’s not typically our role, but, yes, sometimes we’ll do
that.” Dr. Krock then explained, “Typically the decision to admit has already been made” by the
emergency department physician. Dr. Krock testified that he had a “right of refusal to decline the
admission” but noted that he had never done that in all his years of practice. Dr. Krock further
-6- testified that when asked by an emergency department physician about admitting a particular
patient, his typical response to the physician is, “you’re the one looking at the patient.” He added,
“You tell me what you want to do with the patient.”
¶ 27 Both physicians agreed that whether to admit decedent “was a collaborative
decision,” but both acknowledged that the decision was ultimately Dr. Krock’s. Dr. Krock
elaborated, “it’s a collaborative decision. We work together, talk together, figure out what is best
for the patient.”
¶ 28 Following the discussion between Dr. Krock and Dr. McMillin, decedent was
released from Graham Hospital with instructions to follow up with his personal physician the next
day; he was also told to return to the emergency department if his symptoms worsened or he
developed signs of illness. At that point, infection had not been excluded from the differential
diagnosis, but as Dr. McMillin explained, “[i]t was just not the most likely diagnosis at that time
and needed closer follow-up.” Dr. McMillin recalled telling decedent and his wife upon discharge,
“I didn’t know exactly what was going on, this was the most likely diagnosis, but that I could not
exclude 100 percent there was some other process going on, and it needed immediate follow-up.”
He added, “I suggested [decedent] needed follow-up just so he could be evaluated by his primary
care provider to assess whether things have changed, and he could make the determination if
[decedent] needed further intervention.”
¶ 29 3. July 29 Emergency Department Visit
¶ 30 Decedent did not follow up with his personal physician and instead returned to the
Graham Hospital emergency department on July 29 with hypercapnic respiratory failure, sepsis,
and an altered mental state. He was intubated by Dr. McMillin and transferred by LifeFlight
-7- services to Methodist Medical Center in Peoria, Illinois. Following an MRI at that facility, he was
diagnosed with a spinal epidural abscess. He died on August 7.
¶ 31 D. Circuit Court Disposition
¶ 32 At the conclusion of the arguments on defendants’ motion for summary judgment,
the court stated in open court, “I’m going to find that the motion should be granted.” He said,
“There was no direction here, there was just confirmation, and I think that’s an important
distinction ***.”
¶ 33 On March 2, 2022, the circuit court entered a written order granting defendants’
motion for summary judgment for the reasons set forth on the record at the summary judgment
hearing and further found, pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), that
“there is no just reason for delaying enforcement and appeal” of the court’s order granting
summary judgment.
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
¶ 36 The singular question before this court is whether the circuit court properly granted
defendants’ motion for summary judgment as to count II of the amended complaint based upon
the court’s finding that Dr. Krock owed no duty of professional care to decedent. Central to that
question is whether Dr. Krock stood in a physician-patient relationship with decedent because of
the phone call between him and the emergency department physician, Dr. McMillin.
¶ 37 A. Standard of Review
¶ 38 Summary judgment is properly granted when the pleadings, depositions,
admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party,
show that (1) there is no genuine issue of material fact and (2) the moving party is entitled to
-8- judgment as a matter of law. Lewis v. OSF Healthcare System, 2022 IL App (4th) 220016, ¶ 37
(citing Enbridge Pipeline (Illinois), LLC v. Temple, 2017 IL App (4th) 150346, ¶ 69, and 735 ILCS
5/2-1005(c) (West 2016)). The purpose of summary judgment is not to try an issue of fact but to
determine whether a genuine issue of material fact exists. Evans v. Brown, 399 Ill. App. 3d 238,
243 (2010).
¶ 39 When determining whether a genuine issue of material fact exists, the court must
construe all pleadings and attachments strictly against the moving party and liberally in favor of
the nonmoving party. Lucasey v. Plattner, 2015 IL App (4th) 140512, ¶ 22. A triable issue exists
when there is a dispute concerning material facts or when those facts are undisputed but reasonable
persons might draw different inferences from them. Messerly v. Boehmke, 2014 IL App (4th)
130397, ¶ 32. Summary judgment is a drastic means of disposing of litigation and, therefore,
should only be allowed when the right of the moving party is clear and free from doubt. Lewis,
2022 IL App (4th) 220016, ¶ 38 (citing Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)). Whether a
duty of care exists is a question of law to be determined by the court and thus may be determined
on a motion for summary judgment. Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 421 (1992).
¶ 40 A trial court’s ruling on a motion for summary judgment is reviewed de novo.
Boehmke, 2014 IL App (4th) 130397, ¶ 32; City of Springfield v. Ameren Illinois Co., 2018 IL App
(4th) 170755, ¶ 21. “ ‘The term “de novo” means that the court reviews the matter anew—the same
as if the case had not been heard before and as if no decision had been rendered previously.’ ”
Freeburg Community Consolidated School District No. 70 v. Country Mutual Insurance Co., 2021
IL App (5th) 190098, ¶ 80 (quoting Ryan v. Yarbrough, 355 Ill. App. 3d 342, 346 (2005)). “Where,
as here, the issues are all reviewed de novo, ‘ “we perform the same analysis a trial court would
perform and give no deference to the judge’s conclusions or specific rationale.” ’ ” Id. (quoting
-9- Hassebrock v. Ceja Corp., 2015 IL App (5th) 140037, ¶ 79, quoting Bituminous Casualty Corp.
v. Iles, 2013 IL App (5th) 120485, ¶ 19).
¶ 41 B. A Physician’s Duty of Care
¶ 42 In a medical negligence action, a plaintiff must prove a duty owed by the defendant
physician to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and
resultant damages. Lewis, 2022 IL App (4th) 220016, ¶ 49 (citing Lenahan v. University of
Chicago, 348 Ill. App. 3d 155, 163 (2004)). A physician’s duty arises only when a physician-
patient relationship has been expressly established or there is a special relationship such as when
one physician is asked by another physician to provide a service to the patient, conduct laboratory
tests, or review test results. Siwa v. Koch, 388 Ill. App. 3d 444, 447 (2009); Weiss v. Rush North
Shore Medical Center, 372 Ill. App. 3d 186, 188 (2007); Reynolds v. Decatur Memorial Hospital,
277 Ill. App. 3d 80, 85 (1996). In this case, our question is whether a special relationship existed
between Dr. Krock and decedent that gave rise to a physician-patient relationship and imposed a
professional duty of care upon Dr. Krock.
¶ 43 Illinois law is well settled that the special relationship giving rise to a duty of care
may exist even in the absence of any meeting between the physician and the patient where the
physician performs specific services for the benefit of the patient. Mackey v. Sarroca, 2015 IL App
(3d) 130219, ¶ 20 (citing Weiss, 372 Ill. App. 3d at 189, and Bovara v. St. Francis Hospital, 298
Ill. App. 3d 1025, 1026-27 (1998)). A physician-patient relationship is established “where the
physician takes some affirmative action to participate in the care, evaluation, diagnosis or
treatment of a specific patient.” Id. (citing Lenahan, 348 Ill. App. 3d at 164). “The central inquiry
is whether the physician has been asked to provide a specific service for the benefit of a specific
patient” (id.), such as conducting laboratory tests, reviewing the patient’s test results, directing the
- 10 - treating physicians in their care of the patient, or otherwise knowingly accepting the patient as his
or her patient. Reynolds, 277 Ill. App. 3d at 85. Merely dispensing medical advice or offering a
professional opinion in response to an inquiry from the patient’s treating physicians is not
sufficient to create a duty. See Estate of Kundert v. Illinois Valley Community Hospital, 2012 IL
App (3d) 110007, ¶ 28.
¶ 44 C. Case Law Involving On-Call Physicians
¶ 45 This is not the first case to consider whether a physician-patient relationship is
established when an on-call physician participates in a telephone conference with another
physician about the proper management of a patient’s care. The analysis is often fact specific.
Consequently, we examine existing case law in this area for guidance.
¶ 46 1. Cases Finding a Physician-Patient Relationship
¶ 47 In Mackey, 2015 IL App (3d) 130219, the plaintiffs filed a medical negligence
action asserting that Michelle Mackey, who was seen in the emergency department for a variety
of complaints, suffered from sepsis and was misdiagnosed. The emergency department physician,
Dr. Sarroca, telephoned Dr. DeFranco, the on-call urologist, and related Michelle’s history and
complaints, exam findings, test results, and medications. At the conclusion of their discussion, Dr.
DeFranco instructed the emergency department physician that Michelle should be given Flomax
to help pass the stone and she should see him in his office the following Monday. Michelle was
discharged from the emergency department but subsequently developed a severe case of septic
shock as well as severe respiratory and renal failure. The plaintiff subsequently filed a medical
negligence action against Dr. DeFranco, but the circuit court dismissed the claim because it
concluded that no physician-patient relationship existed, and no duty was owed.
- 11 - ¶ 48 On appeal, the court concluded that the well-pleaded facts “establish[ed] that Dr.
DeFranco’s relationship with Michelle was more akin to those physicians found to have a special
relationship giving rise to a professional duty of care.” Id. ¶ 27. The court explained:
“Specifically, the complaint established that Dr. DeFranco: (1) was the on-call
urologist assigned to consult with treating physicians at Silver Cross Hospital
pursuant to a contract between the hospital and his employer; (2) was compensated
for his consulting services; (3) was consulted by the emergency room physician for
Michelle’s benefit for the specific purpose of rendering diagnostic and medical
advice regarding her treatment; (4) received specific information regarding her
history, symptoms, and diagnostic test results; (5) evaluated those tests results and
formed a medical opinion that she was not in danger of sepsis; (6) was actually
responsible for making decision[s] regarding her care and whether she was to be
admitted or released; and (7) decided that Michelle did not need to be admitted but
could be discharged with an instruction to seek an out-patient follow-up
appointment on Monday.” Id.
¶ 49 The court stated,
“Our review of the case law leads a conclusion that a special relationship
establishing a physician-patient relationship exists where *** the consulting
physician is assigned the task of consulting as part of established procedures,
protocols or contractual obligation with the hospital, is compensated for those
consulting services, orders tests or reviews test results, gives specific medical
advice regarding contemporaneous patient care, and makes decisions regarding the
- 12 - patient’s current medical care.” Id. ¶ 26 (citing Bovara, 298 Ill. App. 3d at 1032,
and Lenahan, 348 Ill. App. 3d at 164-65).
¶ 50 Accordingly, the appellate court reversed and remanded. Id., ¶ 27.
¶ 51 Another case which examined the duty owed by an on-call physician was Bovara,
298 Ill. App. 3d 1025. There, tests were administered at the hospital to the plaintiff-patient, and
the results were sent to two cardiac interventionists for review. The cardiac interventionists were
employed by the hospital and were responsible for reviewing cardiac test results and making the
decision regarding surgical intervention or noninterventionist care. After reviewing the plaintiff’s
test results and discussing the case with the treating physician, the cardiac interventionists
informed the treating cardiologist that the plaintiff was a candidate for surgical intervention. The
plaintiff underwent an angioplasty procedure during which he went into cardiac arrest and died.
The circuit court entered summary judgment for the defendant, finding no physician-patient
relationship.
¶ 52 On appeal, the court reversed and held that there were genuine issues of material
facts as to whether a physician-patient relationship existed between the cardiac interventionists
and the plaintiff. Bovara, 298 Ill. App. 3d at 1033. The court reasoned that the cardiac
interventionists were assigned by the hospital with the task of consulting with the treating
physician, they reviewed the plaintiff’s angiogram, were compensated for their services, and
rendered a medical opinion as to whether the plaintiff was a candidate for surgery. Id. at 1031.
Additionally, the court found that the interventionists were more involved with the plaintiff’s
treatment than merely reviewing test results. Id. at 1032.
¶ 53 Similarly, in Lenahan, the decedent was admitted to a hospital where the defendant
physician had responsibility for determining which patients were eligible for inclusion in an
- 13 - experimental high-dose chemotherapy program. The defendant physician never personally
examined the decedent and made the decision to admit the decedent in the experimental program
based entirely upon reviewing test results and consulting with treating physicians. The appellate
court held that a physician-patient relationship existed because the defendant had an active role in
the decedent’s care, was compensated for his services rendered for the plaintiff, reviewed test
results, and made treatment determinations. Lenahan, 348 Ill. App. 3d at 164-65.
¶ 54 2. Cases Finding No Physician-Patient Relationship
¶ 55 In Reynolds, 277 Ill. App. 3d 80, a case cited by defendants and relied upon by the
circuit court, the plaintiffs’ son, Kevin, was admitted to the hospital and Dr. Bonds, a pediatrician,
was asked to evaluate him. After examining the patient, Dr. Bonds called Dr. Fulbright, a
neurologist, at his home and relayed the minor’s condition and the test results. At the conclusion
of the conversation, Dr. Fulbright suggested “a spinal tap to determine whether meningitis,
encephalitis, or something similar was involved.” Id. at 82. According to the testimony, “Kevin’s
family never asked [Dr.] Fulbright to treat Kevin, and he never saw, examined, or came to a
diagnosis as to Kevin’s condition.” Id. at 83. Moreover, “[Dr.] Fulbright did not bill for any
services to Kevin.” Id. Dr. Bond ultimately diagnosed Kevin with an infectious process. The next
day, however, Kevin was transferred to St. John’s Hospital and was diagnosed with a spinal cord
injury.
¶ 56 When Kevin’s parents later filed a medical negligence action, the circuit court
granted summary judgment in favor of Dr. Fulbright on the basis that there was no physician-
patient relationship with Kevin. In affirming the summary judgment, the appellate court stated
that, although
- 14 - “[a] consensual relationship can exist where other persons contact the physician on
behalf of the patient, *** this is not a case in which [Dr.] Fulbright was asked to
provide a service for Kevin, conduct laboratory tests, or review test results.
Fulbright did nothing more than answer an inquiry from a colleague. He was not
contacted again and he charged no fee.” Id. at 85.
Dr. Fulbright “often received informal inquiries from other doctors asking questions and seeking
suggestions” without “a request to see a patient, review a patient, or render an opinion, but only to
discuss the case.” Id. at 83. Dr. Fulbright “considered this a courtesy service for which he did not
bill.” Id. According to the appellate court, “A doctor who gives an informal opinion at the request
of a treating physician does not owe a duty of care to the patient whose case was discussed.” Id. at
85. The court further noted that the case before it was not one in which Dr. Fulbright “had accepted
a referral of the patient” nor was it “a case in which a physician undertook to direct the actions of
hospital employees in a telephone conversation with an emergency room nurse.” Id. For these
reasons, the appellate court in Reynolds affirmed the circuit court’s entry of summary judgment.
¶ 57 In Weiss, 372 Ill. App. 3d 186, the plaintiff was seen for a mental health issue in
the emergency department. The treating physician contacted the on-call psychiatrist solely to
arrange for the plaintiff’s follow-up care. Although the physician discussed the plaintiff’s
condition and the need for follow-up care with the on-call psychiatrist, the discussion was limited
to the need for future care; the treating physician did not seek any advice regarding any treatment
currently needed by the plaintiff. The appellate court held that there was no physician-patient
relationship between the plaintiff and the psychiatrist because the psychiatrist did not perform any
services for the plaintiff, did not perform any tests, did not analyze any test results, did not direct
- 15 - the physician in treating the plaintiff, did not form any clinical impressions of the plaintiff, and did
not render a medical opinion regarding the plaintiff. Id. at 189.
¶ 58 Similarly, in Gillespie v. University of Chicago Hospitals, 387 Ill. App. 3d 540
(2008), a medical negligence action arising out of the patient’s death was brought against several
healthcare providers, including Dr. Vashi, an on-call internist. The trial court directed a verdict in
Dr. Vashi’s favor on the basis that no physician-patient relationship existed. The appellate court
affirmed, holding that Dr. Vashi was not involved in the decedent’s treatment or care because her
“role of interpreting the EKG and reviewing any other test results came only after [the decedent]
was discharged and her report was not used to diagnose or treat [her]” and was based on “the same
results that the emergency room doctors had available to them when [the decedent] was in the
emergency room.” Id. at 546.
¶ 59 D. Application of the Foregoing Principles Here
¶ 60 Based on the undisputed facts, we conclude that Mackey, Bovara, and Lenahan are
more analogous to our case and that it was error for the circuit court to enter summary judgment
on count II of the amended complaint. Specifically, the undisputed facts establish that Dr. Krock
(1) was the on-call physician assigned to consult with emergency department physicians at Graham
Hospital pursuant to a contract between the hospital and his employer; (2) was compensated for
his on-call consulting services; (3) was consulted by the emergency department physician for
decedent’s benefit for the specific purpose of rendering medical advice regarding his possible
hospital admission; (4) received specific information from the emergency department physician
regarding decedent’s history, symptoms, and diagnostic test results; (5) considered those tests
results and collaborated on a medical opinion that decedent was not in immediate danger of
infection; (6) was ultimately responsible for making decision regarding whether decedent was to
- 16 - be admitted; and (7) decided that decedent did not need to be admitted but could be discharged
with an instruction to seek an outpatient follow-up appointment with his personal physician.
¶ 61 Of these facts, two stand out as having special significance. First, pursuant to
Graham Hospital’s protocols, Dr. Krock had admitting privileges but Dr. McMillin, as an
emergency department physician, did not. Thus, an integral part of Dr. Krock’s job was to assess—
either himself or in cooperation with the emergency department physician—whether a patient
should be admitted. Indeed, this is precisely why Dr. Krock was consulted in the first instance. Dr.
McMillin contacted Dr. Krock for the specific purpose of obtaining his opinion concerning
decedent’s admission or discharge. According to Dr. McMillin, “The whole point of calling a
physician on call is to discuss hospitalization.” Dr. McMillin agreed that, if decedent was going to
be hospitalized that evening, it would have been by Dr. Krock, who had admitting authority at
Graham Hospital. Had Dr. McMillin intended to simply release decedent, he did not need to
consult with any other physician. This testimony makes it clear that Dr. McMillin called Dr. Krock
to seek his advice concerning whether decedent needed to be admitted. At a minimum, he wanted
a professional assessment as to whether discharge with instructions to follow-up was a proper
course of action.
¶ 62 Second, although there was testimony from both physicians that the decision
whether to admit had collaborative aspects, admission to the hospital was ultimately Dr. Krock’s
to make. Dr. McMillin agreed that decedent’s hospitalization was discussed during his call with
Dr. Krock and that the call “went like every conversation I would have” where “we would go
through the entire case and come to a consensus of whether based on all the information available
if hospitalization was warranted at the time.” Dr. Krock could not recall the conversation, but he
acknowledged that his role as on-call physician occasionally was to discuss whether to admit. As
- 17 - Dr. Krock explained, “it’s a collaborative decision. We work together, talk together, figure out
what is best for the patient.”
¶ 63 These undisputed facts satisfy Mackey’s central inquiry test and justify the
imposition of the physician-patient relationship and its associated duty of care. The facts here more
closely resemble those of Mackey, Bovara, and Lenahan, where the physicians in question
provided a specific service to the plaintiff or decedent and were involved in the patient’s medical
care and treatment decisions. Additionally, the physicians in each case were under some type of
contractual relationship with the emergency department facility.
¶ 64 We note that the circuit court declined to follow Mackey because it concluded there
was “no direction here, there was just confirmation.” However, that distinction is not the only
conclusion supported by the uncontested facts, as Dr. Krock was asked for his view in connection
with the decision whether to admit the patient—a matter which only he had the authority to decide.
In this respect, Dr. Krock was asked to provide “a specific service for the benefit of a specific
patient.”
¶ 65 We also conclude that Reynolds, which found no physician-patient relationship, is
factually distinguishable from this case. The consulting physician in Reynolds recommended a test
but was not responsible for any portion of the patient’s diagnosis or treatment. Moreover, he did
not stand in any contractual relationship with the emergency department’s hospital, he received no
compensation, and he was contacted on a much more informal basis. The same cannot be said of
Dr. Krock, who was contractually obligated to serve as an on-call physician, consulted and
collaborated with the emergency department physician concerning the decision to admit or
discharge, and had the ultimate authority to admit.
- 18 - ¶ 66 The same is true concerning Weiss and Gillespie. Neither physician participated in
the patient’s medical care or treatment. Although the physicians in both cases were under contract
with the defendant hospitals, neither physician played any role in the treatment or care rendered
prior to the patient’s discharge; one physician was consulted solely to arrange follow-up
psychiatric care after discharge and the other physician’s report came after the patient’s discharge
and was not used to treat or diagnose.
¶ 67 In Lewis, 2022 IL App (4th) 220016, ¶¶ 56-58, we recently held that a supervising
physician with final authority over the patient’s medical care provided by a third-year medical
intern stood in a physician-patient relationship with the patient. Factually, Lewis is dissimilar to
this case, as the physician’s role was supervisory rather than consultative. Despite that difference,
however, there are principles seen in Lewis that are in harmony with our decision here. In both
cases, the physician-patient relationship arose from the defendant physicians’ direct involvement
in decisions concerning the patient’s care—decisions which belonged to them alone pursuant to
hospital policies.
¶ 68 E. Public Policy Concerns
¶ 69 Both parties have raised public policies arguments respecting our potential ruling,
with defendants and the circuit court relying heavily on the following passage from Reynolds:
“Plaintiffs suggest that what needs to be done is to find a physician-patient
relationship to result from every such conversation. The consequence of such a rule
would be significant. It would have a chilling effect upon practice of medicine. It
would stifle communication, education and professional association, all to the
detriment of the patient. The likely effect in adopting plaintiff’s argument also
would be that such informal conferences would no longer occur. To reiterate, this
- 19 - would inhibit the exchange of information and expertise among physicians and
would not benefit the medical profession or persons seeking treatment.” Reynolds,
277 Ill. App. 3d at 86-87 (citing Lopez v. Aziz, 852 S.W.2d 303, 307 (Tex. Ct. App.
1993)).
¶ 70 We agree that these observations from Reynolds are important, but unlike
defendants, we find that they support the finding of a physician-patient relationship here. The
discussion between Dr. McMillin and Dr. Krock was not an “informal conference” of the type
noted in Reynolds. It was a conference that was contemplated by hospital bylaws because Dr.
McMillin was unsure of whether to admit the patient, and the sole authority to decide whether to
admit rested with Dr. Krock. The physician-patient relationship between Dr. Krock and the
decedent arises from a contractual obligation requiring him, as the on-call consulting physician, to
make admission decisions for compensation. While public policy should encourage informal
consultations between physicians, it must not ignore actual physician involvement in decisions
that directly affect a patient’s care.
¶ 71 III. CONCLUSION
¶ 72 For the reasons stated, we reverse the trial court’s summary judgment and remand
this case for further proceedings.
¶ 73 Reversed and remanded.
- 20 - Blagden v. McMillin, 2023 IL App (4th) 220238
Decision Under Review: Appeal from the Circuit Court of Fulton County, No. 20-L-13; the Hon. Thomas B. Ewing, Judge, presiding.
Attorneys Matthew D. Ports and Alexander J. Marsh, of Pfaff, Gill & Ports, for Ltd., of Chicago, for appellant. Appellant:
Attorneys Adrian E. Harless, of Heyl, Royster, Voelker & Allen, P.C., of for Springfield, and Karen Kies DeGrand and Jeffrey E. Eippart, of Appellee: Donohue Brown Mathewson & Smyth LLC, of Chicago, for appellees.
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