what couple to physicians supports summary judgment in this case the second point is that the history of numerous cases that predate in our concluded with he on and on and i may be mispronouncing that  strongly supports a summary judgment in this case number three that hensley the case relied upon presently by the plaintiff is not consistent with the carefully chosen words that the legislature has used in defining the good samaritan act number of number for the public health policy factors are not relevant and into ultimately to this determination and number five that the recent cases since hensley do not tacitly support the decision and hensley so i'd like to talk to start out by talking about the act itself and i'm not going to read it because it's contained in multiple of the briefs but  seven four five i'll see this forty nine slash twenty five starts off by saying physicians exemption from civil liability for emergency care the word emergency care appears twice in the statute it appears in the section right below where i just read it and then it also appears lower it is undisputed in this case that dr murphy at the time of the care and treatment of mr anderson on august twenty fifth two thousand and one was providing a merge and see care he was called into a situation where the patient was in extremis and took certain actions and ultimately there were other physicians who came in as well i would note that the statute itself does not say that when it relates to emergency care it does not use the term volunteered at any point in the statute the word volunteer does not appear in the statute in fact there's case law to suggest the ne which are section two doesn't include the word volunteer i was specifically were referring to section twenty five where i was reading from so i believe that it is in the preamble and other courts have talked about it in specifically meal in terms of being in the and the word volunteer but my position would be no that based on the way that i used the word volunteer he was not in fact a volunteer he was a emergency room doctor who was working in the emergency room and was being compensated by his emergency room group who had a contract with the hospital to provide soem exclusive emergency room services he was called to attend a code which at times he would do it depends on who you believe as to how often that would occur but the code was not in the emergency room it was on a medical floor it is not in their contract that they would per se call for codes but they covered codes when they were available or there was no one else available if they were tending to a patient the emergency room there would be someone else that would cover the co so i would say he's not a volunteer based on my definition in so if i go back to the statute  it talks about any person licensed under the medical practice ect even though dr murphy is a deal he still licensed under the medical practice act of one nine hundred eighty seven and therefore the act would apply to him provided he meets the other parameters and then it goes on to talk about a doctor who is licensed under that act who in good faith provides emergency care without feet to a person shall not as a result of his acts or omissions accept willful or wanton conduct on the part of the person in providing care or be liable for civil damages so the key points there are again it reiterates the emergency care aspect it talks about good faith and the case law defines good faith as an honest intent not intended to defraud and i don't think there's any dispute that in terms of the care the case law has said that the word good faith and they have here on a case that i'm going to talk about a little bit says that the word good faith modifies both the providing emergency care as well as the without feet portion and i don't think there's any dispute really on either one of those points all talk about the billing issue in a moment and up so he provided emergency care in the ultimate really the issue comes down to do so without a fee and what constitutes a fee and up my position is that a fee is a service fee between an individual or in this case a doctor and a patient to be paid by the patient or someone on the patient's behalf an insurance carrier or someone else and that is what constitutes a fee and i believe that the he on cases on all fours as it relates to that between doctors who volunteer their services and those who are compensated for their services right you one of the other hand i think that the legislature and tended to draw a line between those patients who receive a bill and those who don't that fair i don't agree with can you explain why you think bad is the better interpretation well i believe that they had a c interpretation of the second district came up with them was the case that was directly on point us relates to the interpretation of the word feed and i think the traditional connotation of the word feed is different than the word compensation and in fact when i'm going to get to it later but i can i can still the question is freedom in the terms of legislative intent why is the why would then be a better legislative intent than the intent offered by mr ives why i believe that the legislative intent  other sections which i'm going to talk about i can talk about them right now but legislature very specifically used the words without compensation in other sections of the act and they used it they did not use of synonymous with our feet for example if we look at section seven three five i'll say yes forty nine slash ten cardiopulmonary resuscitation exemption from civil liability it talks about not for compensation in there and that if we look at forty nine twelve it talks about without feet or compensation which is the way that they want this statute to read but clearly the legislature knew the difference in that and other sections within the act they used the modifier without fear or compensation and particularly what is most striking is if we look at seven three five or seven four five i also yes forty nine slash thirty five and forty nine slash forty those deal with nurses and exemptions for nurses now we're talking not talking about a nurse in this case but i think it's an instructive to take a look at it because it says in there that nurses are exempt from emergency care when they provide emergency care without a feat and section thirty five it uses the word without feet and it says that applies to emergency care but then in section forty it gives nursing exemption from civil liability for everything not only emergency care for everything if they do so without compensation so clearly the legislature crafted certain words in the statute because they used them throughout the statute at times they use feet at times they use compensation at times they use both together of times they used one or the other so i think the correct satchel tory interpretation is to look at the words they used and look at them in the context of the act itself and therefore my position is that the correct interpretation is don't want to be on a book which says that it's not it's without feet and that's the words they selected to you was like being used at other sections and specifically when they were doing it as to nurses when it was without compensation they made they made that an immunity as to everything for a nurse so obviously compensation is different than a fee contrary to what hensley says and i would also note that hensley doesn't even talk about any of these sections and the case that goes on to talk about is me so my position is your honor that the legislative intent the legislative intent has to be derived from the words they use within the context of the act is it your contention counsel the under the terms of eccles contract with privy to dr murphy was free to simply ignore calls for emergencies that happened outside of the emergency room if he wouldn't ignore them he would be able to if he was in aged and something else and or some other physician responded then he would not respond he might respond and go up and not  code if he's engaged it specifically in the contract it says a piece and gauged in something else in the emergency room or some other or another field and ignore them could ignore them i don't believe that he i don't think believe he could ignore them if he was available and does that impact your argument at all no because i don't believe that i believe that neil stands for the proposition that if the statute used to say if you had a preexisting duty that that was critical in terms of the statute and in one nine hundred ninety eight i believe the statute was amended to take out the term preexisting to really connect is that what the statutes i believe that you said earlier statute said without notice statute is currently written that the preexisting duty relationship between the patient and doctor has nothing to do with the statutes in other words if someone has a long term relationship with doctor a crisis occurred the doctor treats something  bill here we know that the bill was not sent because echo never sent bills on any calls at all it was not in the feria smote it is that they would just not send the bill because they were trying to avoid liability under the good samaritan act they never built on echo whether or not he attends one cold or ten codes as it relates to his compensation nor does it matter in his compensation whether or not he sees x many patients in the emergency room or ex determination of why the bill was not sent so if you normally bill the patient for surrounding circumstances and you just accepted this one particular thing the court wants to look into they have to determine whether or not there's some sort of motive obviously is he a physician covered by the act number two was in an emergency situation and did he provide care in good faith and did he not yet a feed in terms of good faith and a lot of the cases posts he onto that the plaint cases ultimately either say well we're sending it back to the of the trial court to determine whether or not the bill was not sent in good faith in other words was the bill sent not said because they were trying to get patients and therefore he would get a fee and if they didn't bill that it would come down to why they didn't build dr dana talks about some circumstances as to why they don't bill so accordingly i think said that what would it come down to i think it comes down to is an emergency situation and did they send a bill and it did the care they provide be in good faith and was that was sending that not sending the bill in good faith so based on my understanding if he provided care in the emergency room echo would always bill for those patients that's what there was a bunch of discovery on that subject and therefore if he if he did the bill he would fall outside the parameters of the good samaritan what about you know what about the wealthy poor disparity that i brought up at one point the fact you're saying good faith community hospital could have the policy where if someone couldn't pay the bill poor person who couldn't pay the bill did they have insurance whatever the situation was and that is their determination as to why not to send a bill and they said well why did you send the bill in this other circumstance well this was a wealthy person with private insurance we sent the bill that would necessarily bad faith but it would send it would set up a disparity where the poor person would not have a right to sue where the wealthy person would wind well i you know that are bit argument is raised in the law journal article feel so no i want journal i forget the i forget the author i have it here if we need it but  number one that that theoretical argument is not in any way happened since he on a was decided in two thousand and five i don't see that as being a real possibility number two i would think that if they destroy it why would there be a real pause all  this and by my point number two is because if they made it a letter that if they made no election that we're just not going to bill people who are on medicare or medicaid or what whatever version of obamacare they're on i mean i don't know which one would categorize because i don't understand that yet but if they did that i think that would go back to the issue of is it bad faith in not billing so if you say why not get a bill that everybody because i'm not going to collect it i mean i think that that you know goes back into the equation that's bad point that  not necessarily a bad faith that could be a business decision but the impact could be that someone with private insurance and has means would have the ability to sue where the person without means wouldn't be abilities if if you and that has only stands for one proposition on the on a stance for another proposition and as i alluded to earlier and i'm going to jump ahead because i'm noticing one short of time i believe that he on a was is is a correct statement of the law it went through all most of these theoretical arguments that have been talked about and raised by mr hay bison about it talked about the issue of withholding a bill intentionally and waiting and things of that nature and i would suggest that their solution and was this good faith in terms of not billing and that was the way that they were going to deal with it i'd like to just for a couple of minutes talk about he on who is a lock there's a line of cases that come before it and they all stand for the proposition that the issue turns on whether or not you send a bill and that's and that's what feed means without feet and so in terms of hensley i guess i'd like to just chat about that for a moment it's a federal  and i believe that the sister court in the when the first district was looking at the case the sister court of the second district had already spoken on the subject and the quarter elected to follow the decision in hensley and i believe that if you look carefully at the statute and the sections that i talked about the sections that are cited in the brief hazily doesn't make any sense the logic is contorted first of all in terms of them saying there's a two step process that the fee is paid in the physician summary judgment and it boils down to as you've already been discussing here the interpretation of the statute your honour's all know full well that the supreme court of illinois is the ultimate arbiter of that as far as only state laws concerned what is called courts say or what the federal district or circuit court says may be interesting may be persuasive it may be irrelevant to you i might point out that the battle of hensley versus he knew that my my opponent just mentioned  is a battle that was re in them you know a case in the second district a long time ago and there is there is a definite the disparity there in terms of how the courts have looked at this but i think i have a few points i believe i can bear out with they've been borne out of the breach but i believe i'll bear them out here with the time i have to talk to you the one question is was was dr murray murphy providing emergency care without feet i believe the answer there is no the next question is is the phrase without feeling in the statute ambiguous or unambiguous and if it is unambiguous we know we look at the statute as a whole new term for the legislature's intent without going beyond that and if it's unambiguous we go beyond that in this case to the legislative history i submit that the that if in fact the statute is ambiguous then the legislative history is crystal clear without any dispute that there was never an intent by the legislature all the way up through the one nine hundred ninety eight amendment which is the last minute of the statute to immunize doctors inside a hospital and certainly no intent to immunize doctors who are not volunteer if the statute is unambiguous the statute as a whole is clear that someone who is paid for his services is not a volunteer and is not immunize immunized and either way dr murphy is not immunized under this act under these facts as you're using paid for services you mean simply because there is a contract and he's employed to provide services at the hospital no matter what the services are correct and now could get to th emergency in the e r it's an emergency on the floor responding to cold blues in the e r and on the floor was part of his job dr murphy admitted under oath that minute responding to him on the floor was part of his job echo had a contract with the hospital to provide what is defined in the of in the contract as services and that's at the supplemental record of one fifty one fifty four to one fifty five one fifty eight an echo was paid in  for providing those services and that's one fifty seven in the supplemental record murphy contract refers to an hourly service fee that's what he's been paid it's called an hourly service fee the word fee is in both of those contracts and he was providing all services supplemental record one sixty eight to one seventy one seventy three and one seventy six at this time also one seventy refers to the hourly service fee dr murphy but by way of volunteer or someone i think common definition is someone who does work without getting paid to do it or someone does something he has no obligation or duty to do dr murphy was not a volunteer he did not as the legislature would call it volunteer his time and talents to help with this hospital he wasn't engaged in quote generous and compassionate acts on call he was being paid to do what he did here it was part of his job he was not a good samaritan and there's no way the legislature ever contemplated someone like this being covered by the good samaritan that look we understand his family yes or here i think your position is that this was part of his job the urgency services if his contract or if a contractor who had was put murphy in the emergency room would do only work in the emergency room and not respond to code lose this is the coverage situation different even though he's being compensated all the while he's in  to change that question does a little bit if he had not admitted it was part of his job to respond to this call yes it would change things ok but that would be a different case right now ice ice i submit that the  phrase with alfie must be ambiguous why do i say that number one the dictionaries don't agree on that definition and we cited a case in our brief landis and page thirty six of our brief it's of any of this court that says of dictionaries can't agree on a different conclusions about what what with alfie means different courts know very educated people lawyers come to different conclusions about what that means so it doesn't necessarily mean it's ambiguous the last amendment as i mentioned in  hundred eighty the legislative history of there was a question asked on the floor is whether the purpose was to encourage good samaritans to do the right thing on the streets of illinois and the answer was this is exactly the point of the bill and i submit the legislature never intended as i said to protect doctors in hospitals or to protect of doctors who are not volunteers under circumstances like this case and interesting there's a couple of cases of pointed out that the good samaritan at this particular after it was intended to protect backers has never been used since one thousand nine hundred sixty five to protect backers for the original purpose which was on the streets or outside of a hospital or somewhere else it's never been applied for that purpose and the pointed out that it appears that the courts have expanded the individual intent of the statute to go far beyond what the legislature originally intended so it's not your position that if a doctor were paid to travel to two or hospitals and he encountered emergency on the street and supplied services that he would not be a good samaritan in that situation even though he's being paid all the while are you asking if he's in between the hospitals and ri being paid at that time he's being paid because he's paid for travelling to and from hospitals and providing services but he encounters what you might can consider is a good samaritan situation by eckl he's automatically not a good samaritan or is it because of the scope of the duties that record he undertook and he admitted i actually think that both of those combined in this case take him outside the purview and each one of those i say the the with the fact that he is receiving a service fee and it's called the feet takes him out of the without fee that by itself would take him out of the immunization saw the doctor who was traveling from hospital hospital who is being paid for travel time and whatever he's being paid a fee his can he not be a good samaritan like when he comes upon an accident and provides services i think the answer might would depend on more facts and i'm not trying to avoid your question the hensley case  statute as a whole just as face touched on this with her questions earlier the the legislative purpose section that preceded section twenty five is considered part of the part of the statutory interpretation it is not a preamble as mr britling suggested it's not called the preamble it comes after the language be it and they acted and that's classic aurore statutory construction that has to be read when you say read the statute as a whole and it talks about generous and compassionate compassionate acts of citizens in the balance of the time and talents to help others it talks about people bonds or in their time and talents of all it talks about his good samaritan bio interior ism and then you go to what it says about the doctors and that's providing emergency care without feet that clearly manifest see what you know backing up to where i was before the legislative history that tells you that's exactly what this is was intended all the way along up through i think i only have one more point to make if there's no further questions and that is that there was a question earlier i don't remember which justice asked but the question was if this happened in the emergency room and they don't son of bill into the debate about whether there was good faith or not but in depending on how this turns out in the court system yes that could turn out to be the most absurd result i can imagine is you're in the emergency room where there's emergency room doctors taking care of you there's a code blue there's there's mel back his involvement there and then a decision is made not to send the bill and then because of how the you know you never know how things turn around in the lawsuit that that doctor ends up in the united immunize for something that's part of his job that he's being paid for and i do take one step back and you have this case it's part of his job he's receiving a service fee himself for taking care of this patient and because of the technicality of a bill wasn't sent to the patient so that echo dollars an hour as a service fee to take care of emergencies ok that's that this far removed from the service a result of that happy emergency room and i suggest this is only slightly less it would have to presume that the legislature doesn't know the difference between the words without compensation and without feet we know dr murphy was being compensated but if you look at the various provisions of this same statu legislature chose in certain circumstances to use the broader term without compensation and in other circumstances to use the narrower term without feet they did not do so randomly when they were say without feet was generally only in the context of emergency care where the doctor didn't have higher notice of this patient in my relationship where they were going to react to something emergent like when they said without compensation they actually provided broader protection for the physician for instance they didn't limit it to emergency care as is counsel noted with nurses a nurse only has protection against ordinary negligence without be in an emergency situation well what does that mean without fee why have two sections one discussing with outfeed and wrong without feet or compensation unless the legislature was intentionally making that distinction between the two situations clearly they intended to do so  correctly makes that distinction hensley wants to wipe it out and if we talk about absurd results that may come as a result of hensley or as a result of this this disparity what happens if a doctor does charge a fee and the patient chooses not to pay the second half of these this fee situation then hasn't occurred is now the doctor brought under the ambit of the of the good samaritan act clearly that would be absurd as well there has to be a situation where the doctor does not intend to collect defeat we talked about the obligation of dr murphy into this case and i think it's important to understand the difference between a volunteer as a generic proposition and the duty of a doctor under the hippocratic oath doctors have duties that exceed what may be a strictly contractual obligation in this case the contract says the following physician shall not provide any general or routine care of patients already hospitalized under the care of another physician however in dire emergencies how do repertory or impending arrest physician may not shall but may render service to any patient as long as there is not an emergency department patient requiring his or her immediate presence and only until the patient's personal physician has assumed ongoing care that's what the contract between echo and the hospital says in this case now based upon the longstanding medical tradition and based upon the interaction of the doctors in this hospital have the physicians of echo assumed a moral obligation to attend code when they're able to do so yes they have does that make them a volunteer or not the statute refers to volunteers but it clearly clearly does not limit its coverage to only the generic term volunteers why are there sections that deal with free cl and other sections that deal with doctors in hospitals there are advantages sections of town and forty going back to earlier and many of the expat the providers are immune if they perform without compensation section ten says not for compensation section forty says  doesn't matter in fact argument aren't they using fee and compensation interchangeable to them no i don't think so your honor because when they use without compensation in those sections they're applying a different standard to the those scenarios for instance in forty yes they say without compensation but in that case they are not limiting the protections of the act to only emergency situations they're giving a broad protection to nurse providing any care if they're doing it completely for free without any circumstance circumstances where they used the terms without compensation and other very specific circumstances where they said without feet and there's a logical basis for that when you're talking about an emergency as opposed to generic care where somebody just decides that they're not being compensated  the obligations the difficulties consider what dr murphy was facing here he's in the emergency room caring for patients he gets a page come up to this room you don't know this patient you don't know this patient situation or you know that this patient is dying and you've got to do whatever you can try to save this patient that's a very different circumstance from somebody providing care in a free clinic however the courts have said if you're going to go to provide care to free clinic we're going to provide even broader protection than a doctor an emergency situation who doesn't charge a fee and by the way the party here is dr murphy it's not echo dr murphy was going to be quote unquote compensated for his time whether he attended this code or not if he had another patient that he was caring for at the time he wouldn't gone to this code he still would have gotten in that same compensation whether he went to the code or not an echo was never going to bill for this code yes there is a distinction if the code would have taken place in the emergency room because it was taking place in the emergency room the emergency room doctor would have been the one caring for the patient at the time the code of rose here he's being asked to step out of his normal go to a different place in the hospital assume responsibility for a patient that's not his you know a life or death situation and and counsel want to impose on him a duty of ordinary negligence the legislature has rationally chosen to say no we're going to get the latest and most hey guys it was this hypothetical to let me give you one thirty in the emergency in this case is just outside of the emergency room in a hallway and that there murphy decides to roll him into the emergency room where there's some apparatus there that he needs whether reason has to take a cat scan whatever the situation different situation if he truly is he's still a good summer long i think if he's treating the patient in the emergency room or the contract when he's treated patients why he would choose to actually be the person physically take somebody into the mergence the room i don't know as i said if they even if they can hold a great thing about hypothetical and certainly but assuming the care takes place in the emergency room where he can attend to his normal duties the patients brought to him or their right outside he drags them in so he can work within his normal parameters yes he's going to be billed for that because that's what the contract says and that's their normal practice and then he's not going to fall into the input of that of the good samaritan and however he's called away from his normal responsibilities in a situation where they are not and never will be compensated for that care in a much more strenuous and difficult circumstance the legislature has chosen to extend greater protection to doctors under the circumstances and yes the word volunteer appears in what it was a preamble of legislative intent but if that's all the statute meant all that was volunteered we'd have a much shorter staff why get into all these different situations where you say without compensation here there are even sections of the statute that make a distinction between whether the care without compensation occurs in around side the hospital the legislature is chosen in certain circumstances to say we're only going to provide that protection outside of a hospital or we will provide something different in a hospital they chose their words carefully here the court may disagree with the public policy choices made by the legislature but respectfully those are still the legislature's choices to make and must they absolutely offend fundamental principles of justice as set forth in the only constitution and i don't see how that occurs here there were specific choices made and i think they arguments were interesting and certainly there are interesting arguments i think and i agree that the choice of the federal judge in hensley relied on some tortured logic to try to separate out the term feed into some sort of a two step process when the legislature spoke very clearly and chose the words very clearly they knew what he meant is a clear thing doctor more people is not going to get him any more whether he attended this code or not dr murphy had the discretion although ordinarily pursuant t tradition pursued the hospital policy he would ordinarily attend combs if he was available has something else going on at the time that prevented him from being there are we saying that he would have violated his duty to this patient by not going there even though he was caring for another patient in the emergency room with that then had been a violation of his responsibilities no he did not have an absolute affirmative all obligation because he did not hear existing relationship with that patient that required him to be the primary person providing the care his obligation was to be an emergency room and every patient was in the emergency room was certainly his patient but the legislature chose to draw a distinction and i think it's a perfectly rational one to draw thank you