THIRD DIVISION

									May 9, 2001

No. 1--00--1530

MARGARITA RIVERA, Mother and Next

Friend of OSVALDO RIVERA, a Minor, 

		Plaintiff-Appellant,

				v.

ENRIQUE ARANA, M.D., 

		Defendant-Appellee.	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

Kathy M. Flanagan, 

Judge Presiding.

	JUSTICE BURKE delivered the opinion of the court:

	Plaintiff Margarita Rivera, as mother and next friend of

Osvaldo Rivera, a minor, appeals from an order of the circuit court

granting defendant Dr. Enrique Arana's motion for summary judgment

based on the court's determination that defendant was immune from

medical malpractice liability pursuant to the Good Samaritan Act

(745 ILCS 49/25 (West 1998)).  On appeal, plaintiff contends that

the trial court erred in granting summary judgment because genuine

issues of material fact existed.  She also contends that the

immunity provided by the Good Samaritan Act should not apply to a

cause of action against a physician under the Abused and Neglected

Child Reporting Act (Child Reporting Act) (325 ILCS 5/4.02 (West

1998)).  For the reasons set forth below, we affirm.

	STATEMENT OF FACTS

	On September 20, 1994, Dr. Arana treated Osvaldo Rivera (Osvaldo), the minor child of plaintiff, for a foot infection when

his aunt, Marie Baez, who was then Osvaldo's legal guardian,

brought him to Arana's office.  On July 3, 1997, plaintiff filed a

medical malpractice complaint against Arana, alleging that he

failed to take an adequate history or perform an adequate

examination of Osvaldo, he failed to record signs of child abuse,

and he failed to report suspected child abuse.  Defendant answered

and, as an affirmative defense, alleged that the Good Samaritan Act

barred plaintiff's claims.  Thereafter, on December 30, 1999,

defendant filed a motion for summary judgment based on lack of

liability pursuant to the Good Samaritan Act.

	Dr. Arana presented his deposition and the depositions of

Marie Baez and Gloria Miranda in support of his motion for summary

judgment.  Arana, in his deposition, stated that he is an

anatomical and clinical pathologist as well as a general

practitioner at the Pro-Health Medical Center in Chicago.  In

September 1994, three other doctors were working in the clinic with

him and two medical assistants, one of whom was Miranda.  	Arana saw Osvaldo only one time on September 20, 1994.  Arana's records

regarding Osvaldo included an information/consent for treatment

form and his handwritten notes.  Arana's notes stated that Osvaldo

was brought in by his aunt, Baez.  Arana was seeing one of Baez's

children and Baez asked that he also examine Osvaldo for infected

feet.  According to Arana, Osvaldo was an add-on patient because

Baez requested of his medical assistant "to be seen by [Arana] as an add-on without an appointment."  Arana further stated that

seeing Osvaldo "was sort of a[n] emergency, because [Baez] had --

she requested to be seeing [sic] the child as an emergency."  Baez told Arana that she was Osvaldo's legal guardian, that she had no

money, and she did not have a public aid medical card for Osvaldo. 

Arana told Baez that that was okay and that he would see Osvaldo. 

In taking a history, Baez did not know about Osvaldo's family

history, nor whether he had an immunization card.  Baez stated that

Osvaldo was living with her because his mother did not want him. 

She told Arana that she was in the process of getting legal

guardian papers for Osvaldo and a public aid card.

	Dr. Arana performed a routine examination upon Osvaldo, which

he stated took 15 to 20 minutes.  Osvaldo was a normal child with

normal health, except that he was thin and underweight for his age

(three years).  It was Arana's belief that Osvaldo suffered from

poor nutrition.  Upon examination of Osvaldo's feet, Arana noted

that the plantar surfaces of his feet were slightly infected.  Both

feet showed superficial ulcers on the anterior surfaces, close to

the toes.  There was mild inflammation, indicated by slight

redness, and infection, indicated by slight yellow discoloration. 

There were no open wounds, no odor, and no pus.  Because both feet

were similar, Arana asked Baez if Osvaldo had been walking around

barefoot since many children get foot infections from walking

around barefoot.  Baez did not know.  Baez also did not know what

happened to cause the foot condition and could not provide any information on how long the condition had existed.  Arana gave Baez

a prescription for an antibiotic and topical ointment.1

	Dr. Arana further stated that he did not notice anything that

appeared to be a burn.  He had seen cigarette burns before and

Osvaldo's feet did not have any cigarette burns on them, nor did he

see any marks that appeared to be healed burns.  Arana did not have

any discussion with Baez about abuse at home and, when he saw

Osvaldo, there were no signs of child abuse as far as medical

evidence and he never considered the possibility that Osvaldo was

a victim of child abuse.  He learned later from his attorney that

Osvaldo was a victim of child abuse.  Arana further stated that he

had attended many seminars on child abuse and, when he examined

Osvaldo, he was aware of the statute requiring reporting of

suspected child abuse.

	Because of Osvaldo's low weight, Dr. Arana believed that

Osvaldo needed a cell blood count (CBC) and a Chem 20 test to rule

out anemia.  He advised Baez that she should bring Osvaldo back the

next week for these tests, with or without a public aid card. 

According to his testimony, Arana wrote on Osvaldo's chart, "return

one week, and then no charge because she didn't have any money or

public aid card."  Arana did not charge Baez for the visit

"[b]ecause she didn't have any money.  This woman was poor, and she requested to be seen as an emergency, as an add-on-case, stating to

Gloria Miranda that she didn't have a Public Aid card."  Arana

testified that he does a lot of charity cases.

	Marie Baez, in her deposition, stated that she was Osvaldo's

aunt; her brother was the boy's father.  Osvaldo lived with her

most of his life, on and off.  His mother, Margarita Rivera,

abandoned Osvaldo when he was a couple of weeks old by leaving him

on a street corner with his father.  Baez further stated that her

brother would often bring Osvaldo to stay at her home.  Baez took

Osvaldo in because her brother would leave him with everyone and

anyone, "dope heads, crack heads, anybody."  When her brother was

jailed, Osvaldo began to live with Baez permanently.  Osvaldo's

mother never had any contact with him during the time he was with

Baez, even though Baez attempted to arrange contact between Rivera

and Osvaldo.

	Baez further stated that every time Osvaldo came to her home,

he had lice.  She also stated that Osvaldo always had pink eye, was

congested, and sick.  She further stated that Osvaldo had had

problems in the past with foot fungus or infection.  However, she

never took Osvaldo to a doctor until he began to live with her

permanently.  She treated him herself because she had three of her

own children and knew how to take care of them.  Baez also stated

that she got temporary custody of Osvaldo when her brother went to

jail so that she had a right to take him for medical treatment.  

	Baez further stated that she first brought Osvaldo to Dr. Arana for pink eye, but she could not remember when.  When she took 

Osvaldo, one of her own children had pink eye.  According to Baez,

Arana looked at Osvaldo, told her he had pink eye, but stated that

he could not give her a prescription because she had no public aid

card.  Baez received medication for her own child, which she used

for both children.  Baez was not charged for this visit.

	Baez also stated that when her son had the measles in

September 1994, she took him to Dr. Arana, and also brought Osvaldo

who had a foot fungus, although she did not have an appointment for

either child.  According to Baez, Osvaldo had blisters of pus on

his feet, the skin was peeling, there was cracking between the

toes, the feet were sweaty, and stunk.  Baez denied that there were

any burns on his feet.  Baez further stated that Arana simply

looked at Osvaldo's feet.  She denied that Arana examined Osvaldo

and that Arana gave her a prescription.  According to Baez, Arana

simply told her to keep Osvaldo's feet dry and let them breathe. 

Baez subsequently used her daughter's eczema medication on

Osvaldo's feet.  Baez also denied that Arana advised her to return

with Osvaldo the following week for other treatment. 

	Sometime after the September office visit, Baez was severely

beaten by her husband and was hospitalized.  She was comatose for

9 days and received 37 stitches in her neck.  It was at this time

that her husband allegedly abused Osvaldo, which abuse is the

underlying basis of plaintiff's medical malpractice claim in this

lawsuit.  Baez was adamant that her husband had never abused any of the children prior to this time.  According to her, he was a

perfect father but a bad husband.  Baez stated that she learned of

her husband's abuse of Osvaldo from newspapers and the news while

she was in the hospital.  She heard that her husband had beaten up

Osvaldo, burned him, or put Nair in his eyes.  She also learned

that her children were taken away by the Department of Children and

Family Services.  She vehemently denied ever discussing her

husband's abuse of Osvaldo with anyone either before, during, or

after her hospitalization, and, in fact, denied any knowledge of it

at all.  Baez also reiterated that she never paid Dr. Arana for

Osvaldo's treatment and that she never received a bill for his

services.

	Gloria Miranda, in her deposition, stated that she was Dr.

Arana's medical assistant.  During the time she worked for Arana,

the clinic took care of many public aid patients.  Miranda did not

know Osvaldo prior to September 20, 1994, but did know Baez and her

children.  When Baez brought Osvaldo to the clinic on September 20,

she told Miranda that she had Osvaldo, who was her brother's son,

because her brother was in jail and Osvaldo's mother did not want

him.  According to Miranda, Baez told her that she was attempting

to get a medical card for Osvaldo and that she had brought Osvaldo

to the clinic because he had a foot fungus or infection.

	Miranda further stated that the visit was not a scheduled

appointment.  Baez just walked in, which, according to Miranda, was

a typical occurrence at the clinic.  Miranda had Baez fill out an information sheet for Osvaldo, and then she took Osvaldo's vital

signs and reported them on his chart.  Miranda also stated that she

looked at Osvaldo's feet, probably when she was weighing him, and

noticed that the bottom of his feet were red.  With respect to

payment by Baez, Miranda stated that even if Baez had returned with

a medical card, the clinic may have not billed her because the card

might not be retroactive for the September 20 visit.  Miranda also

stated that Dr. Arana took this visit as a charity case and that

public aid was not billed for the visit.

	On March 29, 2000, the trial court granted defendant's motion

for summary judgment based on its determination that Dr. Arana was

immune from liability under the Good Samaritan Act.  In so ruling,

the court considered the three factors necessary for application of

the Act.  The trial court first noted that plaintiff did not

contest the issue of notice of injury.  According to the court, the

pertinent "illness or injury" was the purported child abuse.  The

trial court then concluded that it was clear from all of the

deposition testimony that Arana received no fee for his services,

nor did he ever bill for them.  According to the trial court, even

if Arana intended to bill for them, his intention was irrelevant. 

With respect to whether Arana saw Osvaldo on an emergency basis,

the trial court noted that both Arana and Baez characterized the

visit as an emergency.  Additionally, Arana testified that the

infection could spread throughout the minor's system and cause

serious harm if it were not treated.  The trial court then relied upon an Oklahoma case to define emergency in its broadest sense. 

It concluded, based on the "testimony of Dr. Arana, the Act's

purpose and meaning, relevant case law and the dictates of logic,"

that Arana provided emergency care to Osvaldo.  Because all three

factors were satisfied, the trial court concluded that Arana was

immune from liability.  This appeal followed.

	ANALYSIS

	I.  Genuine Issues of Material Fact

	A motion for summary judgment is properly granted when the

pleadings, depositions, admissions, and affidavits on file

establish that no genuine issue as to any material fact exists and,

therefore, the moving party is entitled to judgment as a matter of

law.  735 ILCS 5/2--1005(c) (West 1998); Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 530, 675 N.E.2d 897 (1996).  We review the trial court's granting of such a motion de novo.  McNamee v. State, 173 Ill. 2d 433, 438, 672 N.E.2d 1159 (1996).

	Section 25 of the Good Samaritan Act provides:

					"Any person licensed under the Medical

Practice Act of 1987 or any person licensed to

practice the treatment of human ailments in any

other state or territory of the United States who,

in good faith, provides emergency care without fee

to a person, shall not, as a result of his or her

acts or omissions, except willful or wanton misconduct on the part of the person, in providing

the care, be liable for civil damages."  745 ILCS

49/25 (West 1998).2

It is the intent of the legislature that the provisions of the Good

Samaritan Act be liberally construed.  745 ILCS 49/2 (West 1998). 

A three-part test is employed to determine whether the Good

Samaritan Act applies.  "First, the doctor must not have notice of

the illness or injury; second, the doctor must provide emergency

care, and third, the doctor must not charge a fee."  Villamil v. Benages, 257 Ill. App. 3d 81, 84, 628 N.E.2d 568 (1993).

	Plaintiff contends that the trial court erred in granting

summary judgment to defendant because two issues of material fact

existed.  Plaintiff does not contest the fact that Dr. Arana had no

notice of the injury or illness for which he treated plaintiff

minor prior to his treatment--in fact, plaintiff admits that Arana

had no notice.

A.	Payment for Services

	Plaintiff contends that there is a dispute as to whether or

not Dr. Arana would be paid for his services.  Plaintiff maintains

that because Osvaldo was to return the following week with a public

aid card, Arana intended to be paid.  Plaintiff also contends that the number of times Arana treated Osvaldo is in dispute and is

material to the issue before this court because it goes to the

question of whether a physician-patient relationship existed. 

According to plaintiff, because there was an ongoing physician-

patient relationship, Arana had a reasonable expectation of being

paid.

	In Villamil, the defendant doctor's office forwarded a letter requesting the plaintiffs' public aid number following the doctor's

delivery of the plaintiffs' premature infant.  In concluding that

the third factor required for application of the Good Samaritan Act

was met, the court stated:

		"Although a request for a public aid number

was sent, nothing was ever produced to

indicate that a bill was sent either to

plaintiffs or public aid.  The statute

provides that service must be made

gratuitously.  Since the defendant was not

paid and the plaintiffs were unable to produce

anything that indicated they had received a

bill, we must find that the services were

rendered gratuitously.  The fact that the

public aid letter was sent is a red herring,

the statute mentions nothing of intent, and

therefore, even if the public aid letter could

be construed as an intent to bill in the future, the fact that no bill was ever sent or

payment provided must be controlling on this

issue."  Villamil, 257 Ill. App. 3d at 92.

The facts of the case before us are similar to those in Villamil.  Baez was told to return to the doctor the following week with

Osvaldo's public aid card.  However, she did not.  There is no

evidence that a bill was ever sent to Baez, plaintiff, or public

aid.  Baez specifically testified that she was not billed.  As in Villamil, whatever Dr. Arana's intentions were with respect to possible billing in the future for his services, they are

irrelevant.  Arana stated that he was never paid and this fact is

controlling.  

	We also reject plaintiff's argument that the number of times

Dr. Arana treated Osvaldo is material.  She cites to no authority

to support her position.  Failure to cite to relevant authority

waives the issue.  Campbell v. Wagner, 303 Ill. App. 3d 609, 613, 708 N.E.2d 539 (1999).  Like the issue of intent, Arana's

expectations are irrelevant.  As with intent, the statute mentions

nothing with respect to expectations.  The pertinent fact is that

no fee was charged or received.

	Based on the foregoing, we conclude that there was no question

of material fact precluding the trial court's decision that Dr.

Arana rendered his services to Osvaldo gratuitously and received no

fee.  Arana sent no bill, no bill was received and, more

importantly, Arana was paid nothing.

B.	Definition of Emergency Care

	Plaintiff next contends that the trial court erred in relying

on an Oklahoma case to define "emergency."  According to her,

because the trial court relied on the "proposition that the phrase

[emergency care] must be given the broadest possible meaning and

that an emergency occurs whenever a person appears or is perceived

to be ill or in need of succor," the trial court expanded the scope

of emergency to include a routine examination.  Plaintiff further

argues that the trial court's reliance on the Oklahoma case is

misplaced because the Oklahoma statute defined emergency, whereas

the Illinois statute does not.  It is plaintiff's position that

Osvaldo's foot fungus did not present an emergency situation. 

Plaintiff urges us to adopt, as a matter of law, the definition of

emergency in Black's Law Dictionary and to limit the conditions to

those defined in medical literature, such as Merck's Manual.

	Defendant contends that it was proper for the trial court to

rely upon the Oklahoma case because Illinois courts, in construing

the Good Samaritan Act, take a broad approach to interpretation,

which was the approach taken in Oklahoma.  Defendant also maintains

that routine examinations can be a part of emergency care.

	No Illinois case, addressing the Good Samaritan Act, has

defined emergency or emergency care.  In fact, our independent

research has revealed only three Illinois cases that define

emergency, although in unrelated contexts.  In Young v. Forgas, 308 Ill. App. 3d 553, 561, 720 N.E.2d 360 (1999), the issue was what

constituted an emergency call for purposes of the Tort Immunity

Act.  The court defined "emergency" as an "urgent need for

assistance or relief," quoting Merriam-Webster Collegiate

Dictionary 377 (10th ed. 1998).  In Nagel v. Gerald Dennen & Co., 272 Ill. App. 3d 516, 520, 650 N.E.2d 547 (1995), in interpreting

what was an emergency motion, the court defined emergency as:

			" 'A sudden unexpected happening; an

unforeseen occurrence or condition; perplexing

contingency or complication of circumstances;

a sudden or unexpected occasion for action;

exigency; pressing necessity.  Emergency is an

unforeseen combination of circumstances that

calls for immediate action without time for

full deliberation.'  Black's Law Dictionary

522-23 (6th ed. 1990)."  

The last Illinois case to define emergency was Opyt's Amoco, Inc. v. Village of South Holland, 149 Ill. 2d 265, 277-278, 595 N.E.2d 1060 (1992).  The court, in interpreting the constitutionality of

a village Sunday closing ordinance, quoted Black's Law Dictionary,

giving the same definition quoted above.

	Several other jurisdictions have addressed the definition of 

emergency with specific reference to Good Samaritan laws.  The

trial court here relied upon one of them, i.e., Jackson v. Mercy Health Center, Inc., 864 P.2d 839 (Okla. 1993).  In Jackson, the court stated that "[k]eeping in mind that the Act's purpose is to

invite medical providers to intervene, the term 'emergency' must be

given the broadest sense possible."  Jackson, 864 P.2d at 845.  Accordingly, the court concluded that "[w]ithin the Act's intended

meaning an emergency occurs whenever a stranger appears (or may be

perceived) to be ill or in need of succor."  Jackson, 864 P.2d at 845.

	In Breazeal v. Henry Mayo Newhall Memorial Hospital, 234 Cal. App. 3d 1329, 286 Cal. Rptr. 207 (1991), the court provided the

following explanation of emergency:

			"An emergency within the meaning of the

Good Samaritan statutes exists when there is

an urgent medical circumstance of so pressing

a character that some kind of action must be

taken.  [Citations.]  It would seem obvious

that in determining whether a patient's

condition constitutes such an emergency the

trier of fact must consider the gravity, the

certainty, and the immediacy of the

consequences to be expected if no action is

taken.  However, beyond observing that these

are the relevant considerations, the variety

of situations that would qualify as

emergencies under any reasonable set of

criteria is too great to admit of anything approaching a bright line rule as to just how

grave, how certain, and how immediate such

consequences have to be."  Breazeal, 234 Cal.  App. 3d at 1338, 286 Cal. Rptr. at 213.

The Breazeal court concluded that the issue of whether an emergency exists is an issue of fact.  Breazeal, 234 Cal. App. 3d at 1337, 286 Cal. Rptr. at 213.  See also Jackson, 864 P.2d at 846 (Summers, J., dissenting) (agreeing with Breazeal that a bright line rule is not feasible and whether an emergency exists may be a question of

fact for the jury).  Lastly, in Kearns v. Superior Court, 204 Cal. App. 3d 1325, 1328, 252 Cal. Rptr. 4, 6 (1988), the court stated

that "[a]n emergency exists '... where the exigency is of so

pressing a character that some kind of action must be taken.'

[Citation.]"

	In addition to the above definitions, we have consulted two

medical dictionaries.  The Attorney's Dictionary of Medicine

defines "emergency" as "[a]n urgent demand for medical or surgical

action; a medical or surgical condition demanding immediate

action."  2 J.E. Schmidt, Attorney's Dictionary of Medicine E-71

(1999).  Stedman's Medical Dictionary defines "emergency" as "[a]n

unlooked for contingency or happening; a sudden demand for action." 

Stedman's Medical Dictionary 456 (24th ed. 1982).

	We reject plaintiff's contention to define "emergency," as a

matter of law, with a bright line rule and limit emergency care to

those conditions outlined in medical journals.  As the Breazeal court noted, there are a variety of situations which may qualify as

emergency care under the particular facts of a case, yet may not

fall within any specific definition of emergency and may not be

identified in medical literature as an emergency.   Accordingly, a

flexible broad definition, given the purposes of the Good Samaritan

Act and the need for medical providers to intervene and take care

of individuals under a variety of situations without the threat of

liability, is more logical.  Rather than a bright line rule, we

believe that whether an emergency situation exists is to be

resolved based on the unforeseen, unexpected combination of

circumstances presented which require the need for immediate

action, assistance, or relief.  Based on this definition, we

conclude that the situation that Dr. Arana was presented was an

emergency situation.  Osvaldo had an inflammation and, more

importantly, an infection in his feet that required immediate

attention.  The ulcers could have turned into a more serious and

severe infection absent treatment.  We therefore conclude that

there was no question of fact precluding the trial court's

determination that Arana rendered emergency care to Osvaldo.  

	Based on the foregoing, we find that the trial court properly

granted defendant's motion for summary judgment.

	II.  Application of Child Reporting Act

	Plaintiff next contends that the Good Samaritan exception

should not apply to a cause of action against a physician for his failure to report suspected child abuse pursuant to the Child

Reporting Act.  In essence, it appears that plaintiff is asking

this court to recognize a private cause of action under the Child

Reporting Act for a physician's failure to report suspected child

abuse.

	Section 4 of the Child Reporting Act requires a physician,

among others, "having reasonable cause to believe a child known to

them in their professional or official capacity may be an abused

child or a neglected child [to] immediately report or cause a

report to be made."  325 ILCS 5/4 (West 1998).  Section 4.02

provides:

		"Any physician who willfully fails to report

suspected child abuse or neglect as required

by this Act shall be referred to the Illinois

State Medical Disciplinary Board for action in

accordance with paragraph 22 of Section 22 of

the Medical Practice Act of 1987."  325 ILCS

5/4.02 (West 1998).

We conclude that plaintiff has waived this issue by failing to

raise it in the trial court.  In other cases reviewing the issue on

appeal of whether a private cause of action exists under a

particular statute, the issue had first been raised in the trial

court.  See, e.g., Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 76, 744 N.E.2d 845 (2001); Abbasi ex rel. Abbasi v. Paraskevoulaskos, 187 Ill. 2d 386, 388, 718 N.E.2d 181 (1999); McNeil v. Carter, 318 Ill. App. 3d 939, 941, 742 N.E.2d 1277 (2001); Rekosh v. Parks, 316 Ill. App. 3d 58, 61, 735 N.E.2d 765 (2000); Gonzalzles v. American Express Credit Corp., 315 Ill. App. 3d 199, 210, 733 N.E.2d 345 (2000).  Because

plaintiff failed to plead a cause of action under the Child

Reporting Act in the trial court, and thus failed to have the trial

court determine the propriety of such a cause of action, she has

waived the issue.

	CONCLUSION

	For the reasons stated, we affirm the judgment of the circuit

court of Cook County.

	Affirmed.

	HALL, P.J., and WOLFSON, J., concur.