FIFTH DIVISION

										  June 14, 2002

No. 1-00-2588

KAMERON BLANCHARD, a Minor, by His

Mother, 

Patricia Blanchard, 

	Plaintiff-Appellant, 

	v.

MEREDITH MURRAY,       

	Defendant-Appellee  

(West Suburban Hospital, Through its  

Nurses and Doctors, and MARK PENN, 

	Defendants). 

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Appeal from the

Circuit Court of

Cook County

Honorable

Diane J. Larsen, 

Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Plaintiff, Patricia Blanchard (Blanchard), on behalf of her son, Kameron Blanchard, filed suit against defendants, Dr. Meredith

Murray, Dr. Mark Penn, and West Suburban Hospital, alleging

negligence in the delivery of Kameron.1  Blanchard appeals from an order of the trial court granting Dr. Murray's motion for summary

judgment based on the court's determination that Dr. Murray was

immune from liability pursuant to the Good Samaritan Act (745 ILCS

49/25 (West 1998)).  Blanchard contends that the trial court erred in granting summary judgment in favor of Dr. Murray because several

genuine issues of material fact exist as to whether the Good

Samaritan Act applies.  For the following reasons, we reverse and

remand.

	On April 29, 1991, Blanchard was admitted to West Suburban

Hospital (West Suburban) with labor pains.  During her pregnancy,

Blanchard was treated through the Chicago Board of Health at St.

Anne's Professional Building (St. Anne's).  However, St. Anne's

closed some time before Blanchard gave birth.  At West Suburban,

Dr. Murray was contacted to perform a cesarean section delivery on

Blanchard.  During the course of the cesarean delivery, Blanchard's

baby, Kameron, suffered an injury to his right ring finger.

	Blanchard filed suit and in Count I of her complaint alleged

that Dr. Murray:

		"a. Negligently performed a cesarean section 

	to deliver the minor, Kameron Blanchard, wherein the said

	minor was injured; 

		b. Negligently extended the uterine incision 

	during the cesarean section too deep; 

		c. Otherwise fell below the standard of care

	of physicians of his type."

	Plaintiff alleged that as a direct and proximate result, Dr.

Murray cut the right ring finger of Kameron and that he suffered

injury to his body and limbs both internally and externally.

	In her deposition, Blanchard testified that she arrived at West Suburban on April 30, 1991, between 11 p.m. and midnight.  Dr.

Penn examined Blanchard and discovered that she was in labor with

contractions occurring every one to two minutes.  Blanchard was

attached to a baby monitor and informed of how much her cervix was

dilated.  Blanchard testified that some time later, she was told

that the baby's heart rate was dropping.  Dr. Penn informed 

Blanchard that an emergency cesarean section would have to be

performed because the baby was in distress.  Blanchard testified

that Dr. Murray, who to her knowledge was an on-call physician,

entered the room and said that he would be performing the cesarean

section.

	Blanchard testified that after the birth of the baby, her

first recollection was of being awakened by a nurse who told her

that something happened and that Kameron had to be transferred to

another hospital.  Some time later, Dr. Murray told Blanchard that

the baby was cut when he threw his right hand up during the course

of the cesarean section.

	In his deposition, Dr. Murray read from Blanchard's medical

file and noted that the baby's heart rate continued to drop between

2:35 a.m. and 3:15 a.m.   At 3:10 a.m., Dr. Penn called Dr. Murray

at his home.  At 4 a.m., Dr. Murray arrived at West Suburban.  The

cesarean started at 4:26 a.m. and was completed by 5 a.m. 

According to Dr. Murray, the progress notes stated that the

neonatologist present during the cesarean section attended the

procedure because of fetal distress.  Dr. Murray testified that these progress notes meant that the neonatologist attended the

procedure because there was fetal distress rather than "in case"

there was fetal distress.  Dr. Murray opined that if the baby had

not been delivered by cesarean section, the delivery may have been

more problematic because the umbilical cord was wrapped around the

baby's neck.

	When asked whether Blanchard's cesarean section was an

emergency, Dr. Murray testified that it was urgent.  Dr. Murray

explained the difference between "emergent" and "urgent" care as

follows:

		"Q.  In your opinion was this cesarean section 

	an emergency?

		A. It was - 

		Q. Why and how?

		A. - urgent.

		Q. You're using the word urgent differently

	than emergency?

		A. I think so, yeah?

		Q. Tell me the difference? 

		A. There are different degrees of emergency.

	One is - the real emergency is imminent death, that all 

	of a sudden the heart tones go to 60 or 40 or 0, ad [sic]

	you got four minutes, you got to cut.  You can't wait for 

	anything.  You just - like a postmortem C-section.

		Q. And the next degree?

		A. The next one is its going to have to be 

	done, and you can't wait till the regular morning 

	schedule to do it.

		Q. And is that called urgent or is that 

	called- 

		A. That would be urgent or emergent.

	Different people could call it different things. In

	order to get people to come in and help you, you have 

	got to tell them it's an emergency, otherwise they're

	going to say wait till morning, call me in the morning,

 	I'm not coming.  So we have to declare that this was an

	emergency, and that was done - 

		Q. In order -

		A. - before I got there.  They called the 

	emergency, they called me at home.

		Q. And-

		A. I came, and I agreed that it should be 

	done, and we went ahead and did it.

		Q. This was not the first description of an 

	emergency that you gave me where you have four minutes

	to act?

		A. No it wasn't."

	Dr. Murray testified that Blanchard was not a regular patient,

that he had not seen her before April 30, 1991, and that he did not

conduct any follow-up care.  Dr. Murray further testified that he did not charge Blanchard for medical services because he was there

as a service to West Suburban in support of its residency program.

	Dr. Murray also testified that he was not a regular on-call

physician for the hospital and that he was unsure why he was called

that night:

		"I could have been covering for my partner or

	they could have called me for some other reason because

	there was - they did have a call schedule for the OB

	attending physician that were backing up.

		It's a requirement.  The hospital has to have 

	a call schedule for the OB service so that they can

	always find somebody in an emergency.  And for whatever

	reason, they called me that night, and I came in." 

	Dr. Penn testified that on April 30, 1991, he was doing his

obstetrics rotation as a resident at West Suburban.  Dr. Penn

testified that Blanchard had no prenatal care with West Suburban so

she was classified as a "walk-in."  As a resident, Dr. Penn's

involvement in the delivery was placing the heart monitor on the

baby.

	Dr. Penn testified that Dr. Murray was on call that day and

that he had not worked with Dr. Murray before or since that day. 

He knew that Dr. Murray was on call for the night because his name

was on a list at the nurse's station.  Dr. Penn telephoned Dr.

Murray at approximately 3:10 a.m. because the baby was experiencing

heart decelerations, which meant that the baby was possibly in distress.

	Dr. Murray filed a motion for summary judgment and argued that

the Good Samaritan Act was applicable, exempted his actions in

treating Blanchard and that he should be dismissed as a defendant. 

In response, Blanchard argued that the Good Samaritan Act was

inapplicable because there was no emergency and there was ample

notice that an injury existed.  Blanchard further argued that the

Good Samaritan Act is inapplicable even though Dr. Murray charged

no fee for his services because he was part of a program

benefitting the residency program at the hospital.

	The trial court granted Dr. Murray's motion for summary

judgment. In doing so, the trial court found that there was no

ample notice, Dr. Murray was not a regular on-call doctor and that 

the situation was an emergency.  The court further found no support

for plaintiff's argument that the Good Samaritan Act is

inapplicable where a doctor charges no fee because he is part of a

program which benefits a residency program at a hospital.

	Blanchard filed a motion to reconsider and in support of her

motion, she submitted the affidavit of Dr. Richard Rock, who

averred that in his opinion, the case involved a medical situation

that was not an emergency but, rather, a cesarean section for

failure to progress.  Dr. Rock stated that his opinion was based on

the "long time lapse between the time Dr. Murray was called and the

cesarean section."  Dr. Rock indicated that the surgery did not

begin until 76 minutes after Murray was called.  The trial court ruled that Blanchard repeated each and every argument made in her

response to the motion for summary judgment.  The court found that

Blanchard failed to explain why this evidence was not available or

could not have been produced at the time of the original motion and

ruled that Blanchard's motion for reconsideration was without

merit.  Blanchard's timely appeal followed.

	Blanchard contends that the trial court erred in granting

summary judgment in favor of Dr. Murray.  Blanchard asserts that

several genuine issues of material fact exist as to whether the

Good Samaritan Act (Act) (745 ILCS 49/25 (West 1998)) immunized Dr.

Murray's actions.

	A motion for summary judgment is properly granted when the

pleadings, depositions, admissions, and affidavits on file

demonstrate that no genuine issue as to any material fact exists

and that the moving party is entitled to judgment as a matter of

law.  735 ILCS 5/2-1005(c) (West 1998); Rumford v. Countrywide Funding Corp., 287 Ill. App. 3d 330, 334, 678 N.E.2d 369 (1997).  We review the trial court's grant of such a motion de novo.  McNamee v. State, 173 Ill. 2d 433, 438, 672 N.E.2d 1159 (1996).  

	The legislative history of the Good Samaritan Act proves

illuminating.  On June 21, 1965, our legislature passed an act

designed to encourage physicians fearful of malpractice suits to

stop and render aid to those injured in automobile accidents.  It

provided:

		"Any person licensed pursuant to this Act, or 

	any person licensed to practice the treatment 

	of human ailments in any other state or territory 

	of the United States, except a person licensed to 

	practice midwifery, who in good faith provides 

	emergency care without fee at the scene of a motor 

	vehicle accident or in case of nuclear attack shall 

	not, as a result of his acts or omissions, except 

	wilful or wanton misconduct on the part of such 

	person, in providing such care, be liable for civil 

	damages." Ill. Rev. Stat. 1965 ch. 91, par. 2(a).

	The Act was amended in 1969 by making it applicable "to a

victim of an accident" rather than only motor vehicle accidents. 

Pub. lic Act 76-1205.  In 1973, the Act was amended by adding the

phrase "and without prior notice of the illness or injury" and

substituted the word "person" for "victim of an accident at the

scene of the accident or in the case of nuclear attack." Pub.lic Act

78-385. The Act remained essentially unchanged from 1973 until

1998.          

	At the time of the alleged malpractice, the Act provided:    

 		"Any person licensed pursuant to this Act 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, and without prior notice of

	the illness or injury, provides emergency care without 

	fee to a person, shall not, as a result of his acts or

	omissions, except wilful or wanton misconduct on the 

	part of the person, in providing the care, be liable for 

	civil damages."  Ill. Rev. Stat. 1985, ch. 111, par.

	4404.

	We note that effective August 13, 1998, the Act was amended to 

provide as follows:

		"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).

	The 1998 amendment to the Act dropped the requirement that the

treating physician had to act "without prior notice of the illness

or injury."  Pub. Act 90-742, § 40 (eff. August 13, 1998).

	Our legislature intends that the provisions of the Act be

liberally construed.  745 ILCS 49/2 (West 1998).  The application

of the pre-amended Act involves a three-part test: (1) the doctor

must not have notice of the injury; (2) the doctor must provide

emergency care; and (3) the doctor must not charge a fee.  Villamil v. Benages, 257 Ill. App. 3d 81, 84, 628 N.E.2d 568 (1993).  The language of the pre-amended Act is applicable as "statutes are

presumed to apply prospectively only and will not be given

retroactive effect absent clear language within the statute

indicating that the legislature intended such effect."  First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 182 (1995).  

	Blanchard asserts that there is a genuine issue of material

fact as to whether Dr. Murray was "on call" when he delivered

Kameron by cesarean section.  According to Blanchard, there are two 

pieces of evidence that demonstrate Dr. Murray was on call.  First, Blanchard points to Dr. Penn's testimony that Dr. Murray "was on

call for that particular night."  Second, Blanchard asserts that

Dr. Penn testified that he obtained Dr. Murray's name from a list

of on-call physicians at the nurse's station.  In response, Dr.

Murray asserts that the fact he was included on a list of all

obstetricians on staff at West Suburban so the hospital would be

able to reach someone in case of an emergency did not make him on

call.

	We first address whether Dr. Murray's on-call status is

relevant in the context of the requirements of the Act.  Blanchard

asserts that whether Dr. Murray was on call is an issue of material

fact based upon the legislative purpose of the Act, which provides: 

		"The General Assembly has established numerous 

	protections for the generous and compassionate acts of

	its citizens who volunteer their time and talents to help

	others.  These protections or good samaritan provisions

	have been codified in many Acts of the Illinois Compiled 

	Statutes.  This Act recodifies existing good samaritan 

	provisions.  Further, without limitation the provisions

	of this Act shall be liberally construed to encourage 

	persons to volunteer their time and talents."  745 ILCS

	49/2 (West 1998).

	This language was added as part of the amendment of the Act in

1998.  As explained in section 2, "This Act recodifies existing

Good Samaritan provisions." 745 ILCS 49/2 (West 1998). 

Consequently, Blanchard argues that there is no reason to believe

that the legislative purpose of protecting "volunteers" as

reflected in section 2 is any different then it was when the Act

was first passed in 1965.  The legislative history of the amended

Act reveals that its intent is to "encourage good samaritans to do the right thing on the streets of Illinois, *** without fear of

repercussions in a court of law."  89th Ill. Gen. Assem., House Proceedings, March 26, 1996 at 100 (statements of Representative

Lang).  This legislative intent is in line with the intent of the

Act in other jurisdictions as noted in Colby v. Schwartz, 78 Cal. App. 3d 885, 890, 144 Cal. Rptr. 624, 627 (1978):

		"At common law, a physician could with legal

	impunity refuse to aid a stranger in need of immediate

	medical care.  But a physician who stopped and gave aid

	created a doctor-patient relationship and thereby assumed

	the duty of reasonable care toward the patient. Further,

	under the exigent circumstances of this type of care, 

	the quality and quantity of a physicians's treatment is 

	[sic] necessarily reduced.  As a result, the chances of 

	medical failure are increased.  Thus, notwithstanding

	a best efforts attempt, a physician who rendered 

	emergency medical care became the natural target of

	malpractice actions."     

	The duty of physicians to respond to the requests of fellow

doctors and other hospital staff was extensively discussed in a

recent article in The Journal of Legal Medicine:

		"Because of the requirements of hospital 

	accrediting organizations, adequate protections to 

	ensure a physician's response to patient emergencies 

	in hospitals are written into hospital bylaws and 

	the rules and regulations of the medical staff. 

	Physicians must agree to abide by these documents 

	as a condition of medical staff appointment. In 

	addition, interphysician relationships and hospital-

	physician relationships guarantee that physicians 

	in hospitals, and even physicians who are at home, 

	will respond to colleagues' calls for assistance. 

	Thus, the hospital patient who suffers an emergency 

	is not among a class of persons who might not 

	otherwise receive care.

		For these same reasons, physicians who care for 

	patients in hospitals are not volunteers in the sense 

	of the person who by chance comes upon the scene of

	an accident." S. Reuter, Physicians as Good Samaritans, 

	the Genre of Legal Medicine, 20 J. Legal Med. 157 at 

	189 (1999).

	The article notes that in 6 states Good Samaritan statutes

expressly allow immunity in hospitals, 12 expressly disallow such

immunity, and 2 states have held emergency care in hospitals are

not granted such immunity.  20 J. Legal Med. at 193 n.1.        

	Blanchard strenuously argues that the drafters of the Act

intended it to be used to encourage doctors to assist injured

parties in situations such as a roadside accident or injuries along

a public street.  

	As already mentioned, the legislative history would lend support to this argument. It is interesting to note that in a

column in 1967, a commentator noted at the time of the initial

enactment of the Good Samaritan Act: "it is curious that its

enactment was thought to be necessary in Illinois where there is

not a single reported case of a doctor being sued for malpractice

after stopping to render aid in an emergency situation. The object

of the statute must have been to remove what was apparently an

unfounded fear."  M.  Hoyt, The Good Samaritan Statute, 44 Chi.-

Kent L. Rev. 166-67 (1967).  Although 35 years have passed since

this insightful observation was made, there is still no reported

case in Illinois of a doctor being sued for malpractice after

stopping to render aid in an emergency situation arising outside of

a hospital setting. 

	However, there are four cases in Illinois addressing the Act

within the context of an emergency situation arising within a

hospital.  While this application may not be consistent with what

the legislature intended, the plain language of the Act makes it

applicable to emergency situations in hospital settings.  The

primary rule of statutory construction requires courts to give

effect to the intent of the legislature.  Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237, 664 N.E.2d 61 (1996).  The best indication of the legislature's intent is the language of the

subject statute, and courts must give clear and unambiguous terms

in  a statute their plain and ordinary meaning.  Brooks v. City of Peoria, 305 Ill. App. 3d 806, 811, 712 N.E.2d 387 (1999).  A court has no right to say that the legislature did not mean what the

plain language of the statute provides.  In re D.L., 191 Ill. 2d 1, 19 (2000).          	       

	This court has addressed the Act four times.  A review of the

holdings in those cases reveals that we have indeed liberally

construed the plain language of the Act.  In Johnson v. Matviuw, 176 Ill. App. 3d 907, 531 N.E.2d 970 (1988), the defendant

physician had staff privileges at the hospital.  The plaintiff was

admitted to the hospital 37 weeks pregnant, complaining of numbness

and pain in her leg, hyperventilation and chest pain. The

defendant, who was attending to one of his own patients in the

hospital, was summoned to assist when plaintiff experienced

respiratory and cardiac arrest.  The defendant inserted an

endotracheal tube and began resuscitation. A respiratory team

arrived and provided more assistance. Subsequently, the plaintiff's

doctor arrived to take over rendering assistance, but the plaintiff

could not be resuscitated. The plaintiff and her child died. The

administrator of the plaintiff's estate filed suit against the

defendant and others. The defendant filed a motion for summary

judgment on the ground that he was immune pursuant to the Good

Samaritan Act.  The court granted the defendant's motion for

summary judgment and on appeal, the plaintiff contended, inter alia, that as a staff member of the hospital, the defendant had a preexisting duty to assist in the emergency, and, therefore,  the

Good Samaritan Act did not apply. In dicta, the appellate court noted the following: "California has disallowed statutory immunity

where there is a preexisting duty to render emergency aid, as in

the case of members of a hospital's emergency call panel.  Colby v. Schwartz (1978), 78 Cal. App. 3d 885, 144 Cal. Rptr. 624."   Johnson, 176 Ill. App. 3d at 918.  The court in Johnson ultimately held that the defendant's actions fell squarely within the Act and

affirmed summary judgment in his favor.  Johnson, 176 Ill. App. 3d at 917-18.     

	In Roberts v. Myers, 210 Ill. App. 3d 408, 569 N.E.2d 135 (1991), the defendant had staff privileges at the hospital and was

attending to one of his own obstetrical patients when he was called

to assist with the plaintiff, who was experiencing labor pains. 

The plaintiff arrived at the hospital at 5:30 a.m. and had been

seen by her personal obstetrician. At 5:12 p.m., the defendant was

informed that there was a deceleration in fetal heart tones for the

plaintiff's baby. The defendant conducted a fetal exam 18 minutes

later and then went to the doctors' lounge.  Approximately 10

minutes later, a nurse was unable to detect any fetal heart tones

and the defendant was summoned to conduct an emergency delivery. 

Plaintiffs' expert testified that there was no indication of fetal

distress until the plaintiff was taken to the delivery room.  In

his deposition, the defendant testified that he was not on call and

that his progress notes were entitled "Covering Attending Delivery

Note" simply because he was the one delivering the baby.  Roberts, 210 Ill. App. 3d at 411-12.  This court affirmed summary judgment in favor of the defendant, holding there was no question of fact

precluding the trial judge's decision that the defendant did not

have notice of the illness or injury.  Roberts, 210 Ill. App. 3d at 417.

	In Villamil v. Benages, 257 Ill. App. 3d 81, 628 N.E.2d 568 (1993), the defendant doctor was in the hospital attending to his

own patient when he was called into the operating room to deliver

plaintiff's baby.  The baby was delivered 10 to 15 minutes after

defendant's arrival.  The court raised the issue of whether the

defendant was on call in the context of whether the defendant

provided emergency care to the plaintiff and noted that it was

undisputed that the defendant was not on call, but did in fact

provide emergency care to the plaintiff.  Villamil, 257 Ill. App. 3d at 92.  The court subsequently affirmed summary judgment in

favor of the defendant based upon the Act.

	We note that this court recently addressed the applicability

of the Act in Rivera v. Arana, 322 Ill. App. 3d 641 (2001).  In Rivera, the minor plaintiff was treated by defendant for a foot infection when he was brought to a medical clinic.  It was

undisputed that the defendant was a physician on staff at the

clinic working with three other doctors.  Plaintiff conceded that

the defendant had no notice of the injury or illness he treated.  

The court in Rivera did not raise the issue of whether the defendant was on call within the context of the provision of

emergency care or otherwise.  Rivera, 322 Ill. App. 3d at 647.

Rather, the court examined the elements of the Act to decide

whether the defendant was immune from liability and affirmed the

trial court's grant of summary judgment in favor of the defendant. 

	This court's decisions in Johnson, Roberts, Villamil, and Rivera all addressed the Act in the context of motions for summary judgment. On appeal, plaintiff argues that the holdings in Johnson, Roberts and Villamil turned, at least in part, on the fact that the doctors in those cases were not on call, unlike defendant.

	Plaintiff argues that the issue of whether Dr. Murray was on

call goes to whether he owed a duty to respond.  If he did not have

a duty to respond, then the " 'need to encourage physicians to

render emergency medical care when they otherwise might not'

prevails over the policy of vindicating the rights of a malpractice

victim."  McKenna v. Cedars of Lebanon Hospital, 93 Cal. App. 3d 282, 288, 155 Cal. Rptr. 631, 635 (1987), quoting Colby, 78 Cal. App. 3d at 892-93, 144 Cal. Rptr. at 629.  While this court in Johnson cited Colby, we did so in the context of pointing out how other jurisdictions have dealt with the issue of when good

samaritan statutes apply to given situations.

	In applying the plain language of Illinois' Good Samaritan Act

to the facts of this case, it becomes clear that it does matter

whether Dr. Murray was on call when he responded to Dr. Penn's

request for assistance.  When Dr. Murray received the phone call at

home, was told of the nature of plaintiff's illness, and then

elected to leave home, drive to the hospital and perform the surgery at issue, such actions constituted "prior notice of the

illness" within the meaning of the statute.  

	A review of the record establishes that no genuine issue as to

any material fact exists as to whether Dr. Murray had prior notice.

It is uncontested that Blanchard was never a patient at West

Suburban prior to April 29, 1991. There is also no dispute that Dr.

Murray had not seen Blanchard before the date of her delivery.  Dr.

Murray was called  at approximately 3:10 a.m. and informed of the

baby's heart decelerations.  Dr. Murray went to the hospital for

the purpose of treating the plaintiffs.  Dr. Murray arrived at the

hospital at 4 a.m. and approximately 26 minutes later, the cesarean

section operation began.  

	These facts are extremely different than those in the cases

previously cited.  In Johnson and Villamil, the doctors rendering aid were in the hospital treating other patients when they were

asked to assist patients who were undergoing cardiac arrest and

immediate childbirth, respectively.  The facts in Roberts are much closer, where the doctor first examined a patient 18 minutes after

first being told of a deceleration in fetal heart tones.  The

doctor began an emergency delivery 10 minutes later when a nurse

was unable to detect any fetal heart tones.  But even there, the

plaintiff's expert testified that there was no indication of fetal

distress until the plaintiff was taken to the delivery room.  In

the instant case, 76 minutes passed from the time Dr. Penn

contacted Dr. Murray to the time Dr. Murray began the cesarean section.  While a lack of prior notice is no longer a prerequisite 

for application of the protections of the Act, it was a necessary

factor prior to August 13, 1998.

	While our holding that Dr. Murray had prior notice of the

injury or illness for purposes of the Good Samaritan Act requires

us to reverse the trial court's grant of summary judgment for Dr.

Murray, we choose to address the remaining issues as there is so

little case law addressing the Act. 

	Blanchard contends that the trial court erred in granting

summary judgment under the Act where her medical situation was not

an emergency. Blanchard argues that Dr. Murray's deposition

testimony in which he described the difference between an emergent

and urgent situation demonstrates that it was not an emergency

situation. Blanchard finds further support for her position by

referencing Dr. Murray's testimony that, sometimes, a patient's

physical condition is characterized as an emergency in order to

persuade a physician to assist.

	In examining Dr. Murray's testimony, we emphasize the

following statements he made regarding emergent care: 

		"There are different degrees of emergency.  One

	is - the real emergency is imminent death, that all of 

	a sudden the heart tones go to 60 or 40 or 0, ad [sic] 

	you got four minutes, you got to cut.  You can't wait

	for anything.

						* * *

		The next one is its going to have to be done,

	and you can't wait till the regular morning schedule to

	do it."  

Dr. Murray indicated that the second degree of emergency he 

described could be characterized as either "emergent or "urgent" 

because different people describe the situation in different ways.

Dr. Murray specifically testified that in Blanchard's case, the

latter type of emergency he described fit her situation.

	As Illinois has few cases addressing the Act, we look to other

jurisdictions to guide us in defining an emergency.  In Breazeal v. Henry Mayo Newhall Memorial Hospital, 234 Cal. App. 3d 1329, 1338, 286 Cal. Rptr. 207 (1991), the court reviewed what constitutes an

emergency within the context of the Act: "An emergency within the

meaning of the Good Samaritan statute exists when there is an

urgent medical circumstance of so pressing a character that some

kind of action must be taken."  Breazeal, 234 Cal. App. 3d at 1338, 286 Cal. Rptr. at 213 (1991).

	Further support for Dr. Murray's definition of emergent care

is found in Rivera, where this court held:  	  

	"[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." Rivera, 322 Ill. App. 3d at 651.  

	While we agree that a bright-line rule is inappropriate, we

hold that in determining whether a patient's condition constitutes 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.  Breazeal, 234 cal. App. 3d at 1338, 286 Cal. Rptr. at 213.

	Dr. Murray also testified that not only was Blanchard's baby

in fetal distress due to heart decelerations, but that the

umbilical cord was wrapped around the baby's neck.  Based upon this

record, we conclude that the trial court correctly found that the

situation Dr. Murray was presented with was an emergency.

	Regarding the third requirement under the Act, Blanchard

contends that the Act is inapplicable where the reason that Dr.

Murray did not charge a fee for his services was because he was

supporting the residency program at West Suburban, rather than

volunteering his time and talent with charitable intent toward

Blanchard.  Blanchard again cites section 2 of the Act, which

provides that the purpose of the Act is to establish protections

for the acts of citizens who volunteer their time and talents for

the benefit of others. Dr. Murray responds that whom he intended to

benefit by not charging for the emergency care is irrelevant.

	A review of the Act reveals that there is no requirement that

the intent behind not charging a fee for medical services must be

solely to benefit the person receiving those services.  In Johnson, this court held that the fact that the hospital billed plaintiff

for services to his wife and unborn child had no bearing on Dr.

Matviuw's alleged liability as the bill did not indicate a charge for the doctor's professional services.  Johnson, 176 Ill. App. 3d at 917.  In Villamil, the defendant doctor's office sent a letter to plaintiff asking for her public aid number following the

delivery of her premature infant. This court found that the

services were rendered gratuitously. "[T]he 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.  Rivera followed Villamil and held that the fact that the defendant doctor was never paid was controlling as to whether the third factor required for

application of the Act was met.  Rivera, 322 Ill. App. 3d at 648. 

	Based on the aforementioned reasons, the trial court's entry

of summary judgment for Dr. Murray is reversed and the cause is

remanded to the trial court for further proceedings consistent with

this opinion.

	Reversed and remanded. 

	GREIMAN and REID, jjJJ., CONCconcur.