ILLINOIS OFFICIAL REPORTS

Appellate Court

Home Star Bank & Financial Services v. Emergency Care & Health Organization, Ltd.,

2012 IL App (1st) 112321

Appellate Court

Caption

HOME STAR BANK AND FINANCIAL SERVICES, Guardian of the

Estate of Edward Anderson, a Disabled Person, and DARBY THOMAS,

Plaintiffs-Appellants, v. EMERGENCY CARE AND HEALTH

ORGANIZATION, LTD., and MICHAEL T. MURPHY, DefendantsAppellees (Provena Hospitals, d/b/a Provena St. Mary’s Hospital, a

Corporation, Defendants).

 District & No. First District, Fifth Division

Docket No. 1-11-2321

Filed December 21, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In a negligence action against an emergency room physician who

responded to a “code blue” for a hospital patient and attempted to

intubate him, summary judgment was improperly entered for the

physician on the ground that he was immune from liability under the

Good Samaritan Act, notwithstanding the fact that no one was billed for

the services provided, since the physician was paid to work in the

emergency room and he was not providing his services “without fee” for

purposes of the Act.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 07-L-1340; the Hon.

Elizabeth M. Budzinski, Judge, presiding.

Judgment Reversed and remanded.
Counsel on

Appeal

Keith A. Hebeisen, of Clifford Law Offices, of Chicago (Robert P.

Sheridan, of counsel), for appellants. 

Kevin J. Vedrine and Christopher J. Solfa, both of Cunningham, Meyer

& Vedrine, PC, of Warrenville, for appellees.

Panel JUSTICE PALMER delivered the judgment of the court, with opinion.

Presiding Justice McBride and Justice Taylor concurred in the judgment

and opinion.

OPINION

¶ 1 Plaintiffs Darby Thomas and Home Star Bank & Financial Services, as guardian of the

estate of Edward Anderson, a disabled person, filed suit against defendants Michael T.

Murphy, O.D., and his employer, Emergency Care & Health Organization, Ltd. (ECHO),

alleging Dr. Murphy was negligent in treating Anderson. The trial court granted summary

judgment to defendants, finding Dr. Murphy immune from liability pursuant to section 25

of the Good Samaritan Act (Act) (745 ILCS 49/25 (West 2010)). Plaintiffs appeal, arguing

the court erred in granting summary judgment to defendants as (1) there is a genuine issue

of material fact regarding whether Dr. Murphy’s conduct was in good faith; (2) the Good

Samaritan Act should not apply to Dr. Murphy, a physician compensated to perform services

for patients in a hospital; and (3) there is no other basis for granting summary judgment. We

reverse and remand.

¶ 2 BACKGROUND

¶ 3 On August 25, 2001, Dr. Murphy was working as an emergency physician in the

emergency department at Provena St. Mary’s Hospital (St. Mary’s or hospital). During his

shift, he responded to a “code blue” called for Anderson, a patient on another floor who Dr.

Murphy had never met. Dr. Murphy attempted to intubate Anderson and otherwise respond

to the situation. Anderson suffered permanent brain injury. Plaintiffs filed a negligence action

against Dr. Murphy and ECHO, alleging Dr. Murphy’s care and treatment of Anderson were

the cause of Anderson’s injuries. Dr. Murphy denied the allegations. 1

¶ 4 Dr. Murphyfiled a motion forsummaryjudgment on plaintiffs’ third amended complaint,

asserting that section 25 of the Good Samaritan Act barred the negligence action against him.

Section 25 of the Act provides:

“Any person licensed under the Medical Practice Act of 1987 [(225 ILCS 60/1 et seq.

Plaintiff also filed suit against assorted other defendants. Those cases were settled and 1

dismissed and are not at issue here.

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(West 2010))] 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 2010).

Dr. Murphy asserted he was immune from liability under the Act because he had provided

emergency care to Anderson and no one was ever billed for that emergency care. Dr. Murphy

also asserted his conduct in providing the care and treatment to Anderson met the standard

of care applicable to a reasonably well-qualified or careful emergency room physician.

ECHO subsequently joined in the motion.

¶ 5 Plaintiffs responded that the Good Samaritan Act did not immunize Dr. Murphy from

liability for his services to Anderson. As relevant to this appeal, plaintiffs agreed Dr. Murphy

provided emergencycare to Anderson but asserted that, as a matter of law, he did not provide

emergency care “without fee” as required by the Act. Plaintiffs argued that Dr. Murphy was

not a “volunteer” providing emergency care “without fee” because, as the emergency

physician working in the emergency room at St. Mary’s, it was his job to respond to the code

called for Anderson and he was paid hourly for his services at the hospital, which included

responding to codes. Again as relevant to this appeal, plaintiffs argued, in the alternative, that

there was a genuine issue of material fact regarding whether the failure to bill for Dr.

Murphy’s emergency care to Anderson was in “good faith.”

¶ 6 Exhibits and discovery depositions were filed by both parties in support of their

pleadings. The “exclusive emergency room services agreement” between ECHO and St.

Mary’s showed that, in exchange for a monthly stipend, ECHO agreed to provide physician

services to staff the emergency room at St. Mary’s 24 hours a day and 7 days a week. The

agreement stated that “[t]he primaryobligation of ECHO’s physicians when in service at [St.

Mary’s] emergency room shall be to care for any and all patients presenting themselves for

treatment at the emergency room.” ECHO physicians would “not furnish follow-up care to

emergency patients except on an emergency basis or when requested by the Chief Executive

Officer or Executive Committee of the Medical Staff of [St. Mary’s].” Physicians covered

by the agreement were to discharge their duties in accordance with the bylaws, rules,

regulations and policies of the hospital and its medical staff. ECHO would bill and collect

fees directly from patients and/or third-party payors for the services of its emergency room

physicians.

¶ 7 An “independent contractor agreement” between ECHO and Dr. Murphy provided that

ECHO engaged Dr. Murphy to provide “emergency medical services” at St. Mary’s. An

attachment to the agreement described the “emergency medical services” as follows:

“The Physician shall provide such professional services ordinarily provided by

emergency physicians in a hospital, including but not limited to the following:

Physician shall provide emergencymedical care for the following classes of patients

***:

1. Emergency Department

* * *

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2. Inpatient

Physician shall not provide any general or routine care of patients already

hospitalized under the care of another physician.

However, in dire emergencies, [i.e.], cardiorespiratory (or impending) arrest,

Physician may render service to any patient, as long as there is not an emergency

department patient requiring his/her immediate presence, and only until the

patient[’]s personal physician has assumed ongoing care.”

The agreement provided that Dr. Murphy would be paid hourly and the hourly fee would be

the “sole amount” he would receive for his services. Dr. Murphy agreed to abide by and

render emergency medical services in accordance with the bylaws, rules and regulations of

the hospital and departmental policies and procedures, using his professional judgment.

¶ 8 A typed “Clinical Operations/Nursing” department policy titled “Code Blue and Cardiac

Arrest Team” set out the “standardized response” for a patient suffering a cardiopulmonary

arrest at St. Mary’s. The policy provided that it affected assorted departments, including the

emergency department, and identified “ER Physician” as a code blue team member with the

duty to “[r]espond[ ] to all Code Blues in the hospital. Direct[ ] [the] Code Blue Team.” A

typed “Clinical Operations/Nursing” department policy titled “Power Outage Emergency

Code Blue” directed that “[s]hould a Code Blue occur [during a power outage], the unit that

has the emergency will send a runner to: *** [t]he E.R. for the physician.”

¶ 9 It is uncontested that ECHO billed Anderson for services its physicians provided to him

during a previous emergency room visit on August 22, 2001, but did not bill for Dr.

Murphy’s services in responding to the code blue on August 25. St. Mary’s billed Anderson

for supplies used during the code blue but not for any physician’s services.

¶ 10 By deposition, Dr. Murphy testified that the emergency room physician on duty at St.

Mary’s was the physician who would be expected to respond to a code blue. He was the only

emergency room physician working at St. Mary’s on the night of Anderson’s code blue. As

soon as he was notified of the code, he went to Anderson’s room. Dr. Murphy stated it was

part of his job in the emergency room at St. Mary’s to respond to a code. He had been

involved in “a lot” of codes at St. Mary’s.

¶ 11 Joseph Danna, M.D., the president and chief executive officer of ECHO, testified ECHO

was an independent contractor for St. Mary’s, with an exclusive contract with the hospital

to provide emergencyroom physician services to the hospital. OnlyECHO physicians staffed

St. Mary’s emergency department. Dr. Murphy was one of those physicians under an

independent contractor agreement he had with ECHO.

¶ 12 Dr. Danna testified it was “not an inherent part of [Dr. Murphy’s] work, of his job,” to

respond to code blues at the hospital but, “if there were a dire emergency somewhere in the

hospital where there was no one else available to respond, we would respond in the manner

a good Samaritan would respond to that dire emergency.” Dr. Danna had no understanding

with the hospital that ECHO’s emergency physicians were part of the standard code blue

response team. He considered his physicians one of many available resources and, without

exception, they were “the last person” the hospital would call and would do so only if the

private physician, cardiologist, pulmonologist, surgeon or anaesthesiologist did not “show

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up.” Dr. Danna assumed Dr. Murphy responded to the code called for Anderson because “he

was available to” and no other doctor was available that night. He was aware that other

emergency room physicians had responded to codes at the hospital in the past but felt they

were not obligated to respond.

¶ 13 Dr. Danna testified he knew “very little” about the Good Samaritan Act but understood

it to protect him if he were driving home and stopped to help at the scene of an accident or

if he responded to a dire emergency at the hospital. He thought the Good Samaritan Act

applied to emergency room physicians responding to emergencies outside the emergency

room.

¶ 14 Dr. Danna explained that ECHO contracted with an outside company, Per-Se

Technologies, to do the billing for any of ECHO physicians’ services. ECHO only billed for 2

services its physicians provided in the emergencydepartment. Dr. Danna testified that ECHO

“never billed” when its emergency room physicians responded to codes outside the

emergency department. He stated ECHO understood there would be “circumstances beyond

anyone’s control where a patient might need [them] because there was nowhere else to go.”

ECHO had never received payment for any services Dr. Murphy rendered to Anderson

because it had never billed for those services. ECHO had sent no such bill; Dr. Murphy was

not allowed to bill Anderson or any patient; and the hospital would never bill for the services

of ECHO’s doctors. Dr. Danna testified ECHO might decide not to charge a patient if the

patient “was particularly unhappy with the emergency department care,” such as where a

patient waited hours to be seen and left because he was not happy. Typically the emergency

room physician would have to make such a request.

¶ 15 Heather Cluver, the office manager for Echo Management and Consulting, an ECHO

affiliated company, and Richard K. Mullin, founder of Abrix Emergency Billing Services,

LLC, testified that Abrix did the billing for the services of ECHO’s emergency room

physicians from 1999 to 2003; it was up to ECHO whether to send a bill to a patient; and

there were situations in which a physician would call Dr. Danna and request that a patient

who had been seen in the emergency room not be billed.

¶ 16 Paula Jacobi, the president and chief executive officer of St. Mary’s in 2001, testified that

the exclusive emergency room service agreement with ECHO provided for overall

compensation to ECHO for the services of its doctors and that the doctors were independent

contractors and not employees of the hospital. There was no reference in the agreement to

emergency room doctors responding to code blue calls. For the 20-plus years Jacobi had

worked at the hospital, first as a nurse and then as an administrator, the emergency room

doctors “were the one[s] responding to codes.” Jacobi testified the agreement with ECHO

did not address whether the doctors were to respond to code blues because she assumed the

long-standing practice at St. Mary’s that the emergency room physician on duty would

respond to a code blue would continue. She considered responding to a code blue to be “part

of [the ECHO emergency department physicians’] responsibilities” and stated a code blue

In 2001, at the time of Anderson’s code blue, Abrix Emergency Billing Services, LLC, did 2

the billing for ECHO.

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is an emergency.

¶ 17 Jacobi testified that if a patient used services in the emergencydepartment, ECHO would

bill for the services of its emergency department physicians and the hospital would bill for

the facility charges, such as supplies and overhead. Jacobi testified that a code blue was a

billable event for St. Mary’s. The hospital had, therefore, billed for the drugs and equipment

used in the resuscitation of Anderson during the code blue. The hospital was not involved

in any billing by ECHO and Jacobi did not know whether ECHO billed for the services of

its physicians during a code blue.

¶ 18 Jacobi testified that the “Clinical Operations/Nursing” department “Code Blue and

Cardiac Arrest Team” policy, as it had for many years, stated that it was the responsibility

of emergency room physicians to respond to code blue calls. She did not know whether there

was anything else in writing that would inform a physician directly of the requirement that

the emergency room doctors respond to codes. She clarified that it was up to the emergency

room doctor to determine whether he should leave a patient he was treating in the emergency

room to attend to a code, depending on which patient had the more emergent needs.

¶ 19 Nancy Frizzell, RN, was the nursing supervisor at St. Mary’s on the night of Anderson’s

code blue. Frizzell testified it was part of her job to be part of a code team. When a code was

“announced overhead,” she would respond. She had responded to over 100 codes. She stated

the “Code Blue and Cardiac Arrest Team” policy was a nursing policy but every employee

of the hospital was expected to follow it. It was Frizzell’s understanding and experience that

“during the night the ER physician normally comes to codes”; the emergency room doctor

would “drop” what he was doing in the emergency room to respond to a code; and, even

when physicians on the unit responded to a code, the emergency room doctor would still

come “when [he] can.”

¶ 20 Kenneth Johnston, M.D., a laryngologist, testified that Anderson was his patient. In the

early morning of August 25, Dr. Johnston received a call at home from the hospital. He was

told Andersonwas having serious respiratoryproblems and Dr. Murphy, the emergencyroom

doctor, was trying to intubate him. It was Dr. Johnston’s understanding that an “in-house

emergency room physician” was available 24 hours a day at the hospital and would respond

to an emergency such as a code.

¶ 21 Eunice Riemer, a certified registered nurse anesthetist at St. Mary’s, attended the code

blue called for Anderson. She testified she was not told why she was called to the code but

assumed it was because “the emergency physician could not access the airway so requested

help from someone else” because this was “the standard in the hospital.” Riemer had worked

at St. Mary’s since 1994 and it was her understanding that “when code blues were called that

the emergencyroom physician would respond.” She testified that she assumed the emergency

room physician was in charge of the code because “they’re usually there first, and then they

call us.”

¶ 22 On May 8, 2009, following a hearing, the trial court granted summary judgment to both

Dr. Murphy and ECHO. The court found no evidence that ECHO ever billed Anderson or

his insurer for Dr. Murphy’s services or that the decision not to bill was done in bad faith.

It held that Dr. Murphy’s actions were, therefore, immune under the Good Samaritan Act.

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¶ 23 The court gave plaintiffs leave to file an amended complaint in order to allege wilful and

wanton misconduct. Plaintiffs filed fourth and fifth amended complaints, alleging wilful and

wanton misconduct. Plaintiffs moved for a Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26,

2010)) finding with respect to the order of summary judgment, asserting Dr. Murphy and

ECHO were the only remaining defendants and the facts underlying the wilful and wanton

counts were the same as those underlying the dismissal of the negligence counts under the

Good Samaritan Act. The court granted the motion on August 12, 2011, finding no just

reason to delay the appeal or enforcement of the order. Plaintiffs timely appealed on August

15, 2011.

¶ 24 ANALYSIS

¶ 25 Plaintiffs argue summary judgment should be reversed as (1) a genuine issue of material

fact exists regarding whether Dr. Murphy’s conduct in failing to bill for his emergency care

of Anderson was in good faith; (2) the Good Samaritan Act does not apply to people such

as Dr. Murphy who are hired and paid to work in hospitals; and (3) there is no merit to Dr.

Murphy’s alternate basis for summary judgment that, as a matter of law, he did not deviate

from the standard of care.

¶ 26 A motion for summary judgment is a drastic means of disposing of litigation and should

be “granted only when ‘the pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’ ” (Internal quotation marks

omitted.) Axen v. Ockerlund Construction Co., 281 Ill. App. 3d 224, 229 (1996) (quoting

Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)). The purpose of summary judgment is not to try

a question of fact but to determine whether one exists or if reasonable people could draw

different inferences from the undisputed facts. Golden Rule Insurance Co. v. Schwartz, 203

Ill. 2d 456, 462 (2003); Wood v. National Liability & Fire Insurance Co., 324 Ill. App. 3d

583, 585 (2001). When ruling on a motion for summary judgment, we construe the

pleadings, depositions, admissions and affidavits strictly against the moving party and

liberally in favor of the respondent. Gauthier v. Westfall, 266 Ill. App. 3d 213, 219 (1994).

We review the trial court’s entry of summary judgment de novo. Golden Rule InsuranceCo.,

203 Ill. 2d at 462.

¶ 27 1. “Without Fee”

¶ 28 Plaintiffs first argue summary judgment should be reversed because a genuine issue of

material fact exists regarding whether the failure to bill for Dr. Murphy’s services to

Anderson was in good faith. Since we agree with plaintiffs’ second contention on appeal that

the legislature did not intend section 25 of the Good Samaritan Act to apply to the facts of

this case, we need not reach the question of whether Dr. Murphy acted in good faith when

he did not bill for the emergency care he provided to Anderson.

¶ 29 Barring wilful and wanton misconduct, a physician who, “in good faith, provides

emergency care without fee to a person,” is immune from liability for that emergency care

pursuant to section 25 of the Good Samaritan Act. 745 ILCS 49/25 (West 2010). State courts

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have historically found that a physician claiming immunity under the Act must show that he

or she in good faith (1) provided “emergency care” and (2) “did not charge a fee.” Estate of

Heanue v. Edgcomb, 355 Ill. App. 3d 645, 648 (2005). Courts have applied the Act to protect

physicians who provided emergency care without fee in hospital and medical clinic settings.

Estate of Heanue, 355 Ill. App. 3d 645 (in hospital); Blanchard v. Murray, 331 Ill. App. 3d

961 (2002) (in hospital); Rivera v. Arana, 322 Ill. App. 3d 641 (2001) (in medical center);

Johnson v. Matviuw, 176 Ill. App. 3d 907 (1988) (in hospital).

¶ 30 The most recent state law development regarding the “without fee” requirement occurred

in Estate of Heanue, 355 Ill. App. 3d 645, where the court held that unless a physician has

billed specifically for the emergency care services, he has not charged “a fee” as

contemplated by the legislature in section 25 of the Act. Estate of Heanue, 355 Ill. App. 3d

at 650.

¶ 31 In Heanue, a physician provided emergency care to a patient when the patient’s own

doctor was not available. The physician was a member of the same surgical practice as the

patient’s own doctor and treated the patient at the request of the practice. He did not charge

a fee for the emergency care he provided and claimed immunity under the Act. The plaintiffs

asserted the physician was not immune because (1) as a member and compensated agent of

the practice, he had a preexisting duty to treat a patient of the practice; and (2) he did not

provide the emergency care “without fee” because the practice received thousands of dollars

from the patient and, as a member of the practice, he benefitted financially from the

practice’s relationship with the patient.

¶ 32 The Heanue court found the first argument was foreclosed, because “ ‘a physician need

not prove the absence of a preexisting duty to render aid to the patient in order to be

immunized under section 25 of the Act.’ ” Estate of Heanue, 355 Ill. App. 3d at 648 (quoting

Neal v. Yang, 352 Ill. App. 3d 820, 829 (2004)). With regard to the second argument,

accepting for purposes of appeal that the physician benefitted financially from the practice’s

relationship with the patient, the court “nevertheless” concluded this financial relationship

did “not constitute charging a fee for services as contemplated by the Act.” Estate of Heanue,

355 Ill. App. 3d at 649.

¶ 33 The court found that the mere fact that the physician received some economic benefit

from the relationship was not sufficient to remove him from the protection of the Act where

he did not charge a fee specifically for the services at issue. Estate of Heanue, 355 Ill. App.

3d at 649-50. Looking to the plain and ordinary meaning of the word “fee,” the court found

definitions of the word “envision a very specific sort of relationship where the economic

benefit is derived directly from the service performed. In other words, a fee is generated by

and tied to the service performed.” Estate of Heanue, 355 Ill. App. 3d at 649. As a matter of

first impression, the court held “the legislature contemplated that section 25 would apply

except where a doctor charges a fee specifically for the services at issue.” Estate of Heanue,

355 Ill. App. 3d at 650.

¶ 34 In Heanue, the physician had not billed specifically for the emergency care he provided.

The court, therefore, found the physician had not charged “a fee” as contemplated by the

legislature and the question of whether the physician acquired some economic benefit from

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the patient’s relationship with the surgical group immaterial. Estate of Heanue, 355 Ill. App.

3d at 650. The court then remanded for a determination regarding whether the physician’s

decision not to charge a fee was made in good faith. Estate of Heanue, 355 Ill. App. 3d at

651. It explained: “[a]s it appears in the statute, ‘good faith’ modifies both ‘provides

emergency care’ and ‘without fee.’ ” Estate of Heanue, 355 Ill. App. 3d at 650. The record

in the case allowed an inference that the reason no bill was sent for the emergency care was

to trigger the Act, i.e., it was done in bad faith. The court remanded so that the parties could

address whether the decision not to bill was made in good faith. Estate of Heanue, 355 Ill.

App. 3d at 651.

¶ 35 It is uncontested that Dr. Murphy in good faith provided emergency care to Anderson.

It is also uncontested that: neither Anderson nor his insurer was billed for the emergencycare

provided by Dr. Murphy; neither Dr. Murphy nor ECHO was everspecifically compensated

for that emergency care; although the hospital billed for the supplies used during the code

blue, it did not bill and was not compensated for Dr. Murphy’s emergency care during the

code blue; pursuant to St. Mary’s agreement with ECHO, only ECHO could bill for the

services of its physicians; and ECHO did not bill for Dr. Murphy’s emergency care to

Anderson. Under Heanue, since no bill was sent for Dr. Murphy’s emergency care services

to Anderson, Dr. Murphyperformed those services “without fee” as contemplated by section

25 of the Act. Estate of Heanue, 355 Ill. App. 3d at 649-50. We find Heanue unpersuasive.

“We are not bound by the opinions of sister appellate courts.” Valent BioSciences Corp. v.

Kim-C1, LLC, 2011 IL App (1st) 102073, ¶ 24 n.4.

¶ 36 Our main objective in interpreting a statute is to determine and give effect to the intent

of the legislature. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 (2010). The

most reliable indicator of the legislature’s intent is the language of the statute, which must

be given its plain and ordinary meaning. Solon, 236 Ill. 2d at 440. Clear and unambiguous

statutory language must be applied as written, without resort to extrinsic aids of statutory

construction and without reading into it exceptions, limitations or conditions that conflict

with the expressed intent or that render any part of the statute meaningless or superfluous.

Solon, 236 Ill. 2d at 440-41. We may consider the consequences that would result from

construing the statute one way or the other, always presuming that the legislature did not

intend absurd, inconvenient or unjust consequences. Solon, 236 Ill. 2d at 441. Only if a

statute is ambiguous, if it is capable of being understood by reasonably well-informed

persons in two or more different ways, will we consider extrinsic aids of construction to

discern the legislative intent. Solon, 236 Ill. 2d at 440.

¶ 37 State court decisions have found the Act clear on its face and, therefore, have not

examined the intent of the legislature in creating the Act. However, as explained persuasively

by the United States District Court in Henslee v. Provena Hospitals, 373 F. Supp. 2d 802

(N.D. Ill. 2005), the Act is ambiguous. Henslee, 373 F. Supp. 2d at 812. The Act does not 3

We recognize that federal district court and subsequent Seventh Circuit rulings are not 3

binding on us, but decisions of the lower federal courts may be persuasive authority. Cooney v.

Rossiter, 2012 IL App (1st) 102129, ¶ 30.

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define “without fee” and, as did the court in Henslee, we respectfully disagree with previous

Illinois appellate courts that have found the phrase to be clear and unambiguous. Henslee,

373 F. Supp. 2d at 812.

¶ 38 “Fee” is undefined in the statute. Therefore, we must give it its ordinary and properly

understood meaning. Johnson v. Matviuw, 176 Ill. App. 3d 907, 917 (1988). But “fee” has

more than one meaning. It does not only encompass a situation where a patient is billed for

the specific services a physician provides, as Heanue appears to hold. Henslee, 373 F. Supp.

2d at 809. If this were its sole meaning, then if a doctor or hospital neglected to send the

patient a bill itemizing the doctor’s specific emergency care, the Act would apply to the

doctor, regardless of whether the doctor intended to bill for that care in the future or whether

he received an indirect economic benefit from the patient’s care. Henslee, 373 F. Supp. 2d

at 809-10 (citing Rivera, 322 Ill. App. 3d at 648 (physician’s intentions regarding future

billing for emergency care he provided are irrelevant under the Act); Heanue, 355 Ill. App.

3d at 649-50 (only a specific fee or bill for emergency care provided triggers the Act)).

¶ 39 The word “fee” also encompasses a situation where a physician is paid.

“[T]he typical fee transaction implicitlyincludes two steps: first, a partyis billed; second,

a professional is paid. Because the Good Samaritan Act does not restrict ‘fee’ to only one

side of the typical fee transaction, this Court determines that the meaning of ‘fee’ is

ambiguous. This Court proposes that a reasonable definition of ‘fee’ would be a situation

in which either a doctor is paid for his services orthe client pays a bill for those services.

Under this interpretation of the Act, a ‘fee’ exists when a doctor is paid for the

emergencyservices he renders.” (Emphases in original.) Henslee, 373 F. Supp. 2d at 812.

Heanue’s interpretation of “fee” captures only one side of a typical fee situation–the client

being billed. Henslee, 373 F. Supp. 2d at 812. The Act does not restrict “fee” to only the one

part of a fee transaction. “Fee” is capable of being understood in two different ways, the

client being billed or the physician being paid, and is, therefore, ambiguous.

¶ 40 Heanue’s interpretation of the statute reinforces our determination that the term “without

fee” is ambiguous. Heanue held “the legislature contemplated that section 25 would apply

except where a doctor charges a fee specifically for the services at issue.” Estate of Heanue,

355 Ill. App. 3d at 650. Heanue essentially adds language to the statute, limiting the statutory

“without fee” by adding “specifically for the services at issue.” If the Act were unambiguous,

this additional language would not be necessary to effectuate the Act’s statutory purpose.

¶ 41 Since “fee” as used in section 25 is ambiguous, we must follow the primary rule of

statutory construction and give effect to the intent of the legislature. Henslee, 373 F. Supp.

2d at 812. Heanue and the other Illinois cases stray far from the intent of the Act. In 1965,

in section 2a of the Medical Practice Act, the legislature originally provided immunity for

a physician “who in good faith provides emergency care without fee at the scene of a motor

vehicle accident or in case of a nuclear attack.” Ill. Rev. Stat. 1965, ch. 91, ¶ 2a. In 1969, the

legislature expanded coverage under section 2a by amending it to apply to emergency care

provided “without fee to a victim of an accident at the scene of [the] accident or in the case

of nuclear attack,” thereby eliminating the requirement that the accident be vehicular. Pub.

Act 76-1205 (eff. Sept. 11, 1969) (amending Ill. Rev. Stat. 1965, ch. 91, ¶ 2a).

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¶ 42 In 1973, section 2a was expanded again when the legislature substituted “person” for

“victim of an accident at the scene of the accident or in the case of nuclear attack.” Pub. Act

78-385 (eff. Aug. 28, 1973) (amending Ill. Rev. Stat. 1971, ch. 91, ¶ 2a). This amendment

also added “without prior notice of the illness or injury” so the section protected a physician

“who, in good faith, and without prior notice of the illness or injury, provides emergencycare

without fee to a person.” Pub. Act 78-385 (eff. Aug. 28, 1973) (amending Ill. Rev. Stat.

1971, ch. 91, ¶ 2a). During legislative debate on the amendment, Senator Shaffer explained:

“This bill only gives a doctor a safeguard that [sic] if he comes upon an emergency

situation if one of us falls down the stairs and rolls to the foot of the stairs here and a

doctor treats us, and this is on the spot, not in his doctor’s office or in the hospital on the

operating table, that he has a little protection that if we have bad effects because he

wasn’t able to do the things he might do in a hospital, he would be somewhat protected.”

(Emphasis added.) 78th Ill. Gen. Assem., Senate Proceedings, May 22, 1973, at 49-50

(statements of Senator Shaffer).

¶ 43 In 1996, the legislature enacted the Good Samaritan Act (765 ILCS 49/1 et seq. (West

1996)). Pub. Act 89-607 (eff. Jan 1, 1997). The legislature also amended the Medical

Practice Act to reflect that “[e]xemption from civil liability for emergencycare is as provided

in the Good Samaritan Act.” 225 ILCS 60/30 (West 1996). Thus, former section 2a of the

Medical Practice Act became section 25 of the Good Samaritan Act.

¶ 44 A final amendment in 1998 (Pub. Act 90-742, § 40 (eff. Aug. 13, 1998)) eliminated the

requirement that the physician have no prior notice of the injury or illness, setting out the

current version of the Act. 745 ILCS 49/25 (West 2010). During legislative debate on this

amendment in 1996, Representative Lang asked Representative Winters whether it was his

position “that the passage of th[e] [Act] would encourage good samaritans to do the right

thing on the streets of Illinois, I suppose, without fear of repercussions in a court of law.”

(Emphasis added.) 89th Ill. Gen. Assem., House Proceedings, Mar. 25, 1996, at 100

(statements of Representative Lang). Representative Winters responded “that is exactly the

point of the Bill.” 89th Ill. Gen. Assem., House Proceedings, Mar. 25, 1996, at 100

(statements of Representative Winters).

¶ 45 The preamble to the Act states its legislative purpose is to codify the “numerous

protections for the generous and compassionate acts of its citizens who volunteer their time

and talents to help others.” (Emphasis added.) 745 ILCS 49/2 (West 2010). It directs that

“without limitation the provisions of this Act shall be liberally construed to encourage

persons to volunteertheir time and talents.” (Emphasis added.) 745 ILCS 49/2 (West 2010).

¶ 46 One cannot be a volunteer if one is paid for the services provided, whether one is paid

by the hour, the day, the month, the year or the patient visit. Dr. Murphy was not voluntarily

present at the hospital. He was paid by the hour to be there. He received that pay in exchange

for his services as emergency room physician and would be paid regardless of which or how

many patients he saw or whether he saw those patients in the emergency room or on another

floor. Dr. Murphy was compensated for the time he spent responding to the code blue called

for Anderson. He did not provide that emergency care “without fee.” We find that to hold

otherwise would lead to an absurd result.

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¶ 47 Further, Heanue’s one-sided definition of “fee” could result in a disparity of legal

remedies between the affluent and the less-privileged. See Ben Bridges, Comments, Curb

Your Immunity: The Improper Expansion of Good Samaritan Protection in Illinois, 34 S. Ill.

U. L.J. 373, 391 (2010). If a hospital physician paid by the hour negligently provided

emergency care to an affluent patient and the patient or the patient’s insurer was billed for

that care, the doctor would not be immune under the Act. Bridges, supra, at 391. If the same

doctor provided negligent emergency care to an indigent uninsured patient and the hospital

did not bill the patient because it would not be able to collect payment, the doctor would be

immune under the Act. Bridges, supra, at 391. The affluent patient would be able to file a

negligence action against the physician and the indigent patient would not. Bridges, supra,

at 391. The physician could arguably provide substandard care to all poor, uninsured patients

because those patients would have no legal recourse against him. Bridges, supra, at 391. The

legislature cannot have intended such a result.

¶ 48 We agree with Henslee that a reasonable definition of “fee” in section 25 encompasses

a situation “in which either a doctor is paid for his services or the client pays a bill for those

services.” (Emphases in original.) Henslee, 373 F. Supp. 2d at 812. “Under this interpretation

of the Act, a ‘fee’ exists when a doctor is paid for the emergency services he renders.”

Henslee, 373 F. Supp. 2d at 812. “By using the term[ ] ‘volunteer’, the legislature seems to

also contemplate the second part of a fee transaction–the doctor being paid. It follows that

a doctor who is being paid to work at an emergency facility is neither a volunteer nor is he

rendering ‘emergency care without fee.’ ” Henslee, 373 F. Supp. 2d at 813.

¶ 49 As Henslee points out, billing for medical services is no longer a simple transaction

between two parties. Henslee, 373 F. Supp. 2d at 813. It typically involves contracts between

hospitals, doctors, practice groups and insurers. Doctors rarely bill patients directly and are

seldom compensated directly by their patients, making it difficult to link a charge for services

to a payment received from a patient. Henslee, 373 F. Supp. 2d at 814. Therefore, a definition

of “fee” that includes both the doctor’s compensation and the patient’s eventual payment

circumvents the possibility that doctors or their employers will attempt to “engineer

immunity,” such as by avoiding itemized billing or waiting to bill until threat of litigation has

passed. Henslee, 373 F. Supp. 2d at 814.

¶ 50 “The Good Samaritan Act was meant to protect volunteers; it was never meant to be a

shelter for practicing physicians who, acting in the scope of their employment, receive

payment for their emergency services.” Henslee, 373 F. Supp. 2d at 814. As the legislative

history and preamble make clear, the Act is intended to protect physicians who step into the

breach when coming upon an emergency, without aid of the usual equipment and services

at their disposal and without thought of contractual duty or pay. The Act should not apply

to physicians who provide emergency services in a hospital where they have been hired and

paid to work, such as a staff member, an employee, an independent contractor or an on-call

physician. These doctors are not providing their services “without fee.”

¶ 51 Defendants’interpretation of the statute, taken together with modern billing practices and

the facts that a majority of emergency room physicians are independent contractors or in a

physicians’ group, are compensated for their time and must respond to code blue calls as part

of their job, leads to a situation where most code blue responses by physicians would be

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immunized under the Act. This was not the intent of the Act. Nowhere in the legislative

history of the Act is it everstated that the intent of the Act was to immunize emergency room

physicians who are paid for their time.

¶ 52 We do not find that the Act can never apply in a hospital setting. The determination of

whether emergency care was provided “without fee” is not dependent on the geography of

where that care was provided. We merely state that, on these facts, as a matter of law, Dr.

Murphy received “a fee” for his emergency care of Anderson and thus did not provide

emergency care “without fee” as contemplated by the Act. Dr. Murphy is not immune from

liability under the Good Samaritan Act. Summary judgment on this basis is reversed.

¶ 53 2. Deviation From the Standard of Care

¶ 54 Plaintiffs lastly argue that there is no merit to Dr. Murphy’s alternate basis for summary

judgment, in which he asserted that, as a matter of law, he had not deviated from the standard

of care. The trial court did not address this theory because it found Dr. Murphy immune from

liability under the Act. We leave it to the trial court to address this alternate basis for

summary judgment on remand.

¶ 55 CONCLUSION

¶ 56 For the reasons stated above, we reverse and remand the decision of the trial court.

¶ 57 Reversed and remanded.

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