1 Alexian Brothers Health Sy stem was voluntarily dismissed on June 2, 2004. Fourth Division July 31, 2008

No. 1-06-1196

BENJAMIN HERNANDEZ , Independent Administrator ) Appeal from the of the Estate of Alma Hernandez, Decea sed, ) Circuit Court of ) Cook County Plaintiff -Appella nt, )

) v. ) ) ALEXI AN BROTHERS HEALTH SYSTEM, a ) Corporation, ) No. 03 L 4613 ) Defendant ) ) ) (Naphta li Koga n, M.D., a

nd Cardio vascula

r Associa tes, ) S.C., a Corporation, ) Honorab le ) Diane J. Larsen, Defendants-Appellees). ) Judge Presi ding. PRESID ING

JUSTICE

NEVILL E deliver ed the opi nion of the

court: Plaintiff, Benjamin Hernandez, the independent administrator of the e state of Al ma Hernandez, filed a c omplaint a gainst t he defe ndants, Alexian Br

others He alth Sy stem, 1 Na phtal i Kogan, M.D., and Cardiovascular Associated, S.C., and allege d, inter alia , that t he def endants’ negligent acts wer e the pro ximate cause of Alma Hernandez’s death on June 6, 2002. Dr. Kog an and his employer, Cardiovasc ular Associated, S.C. (Cardiovascular), filed a motion for summary judgment and argued that the provisions in the Good Samaritan Act immunized Dr. Kogan from civil liability for providing emergenc

y medical ca

re to Ms. Hernandez on June 6, 2002. 74 5 IL CS 49/251-06-1196

2 Cardiac arrest i s define d as “the

complete stoppag e of the h eart.”

1 J. Schmidt, Attorneys’ Dictionar

y of Medicine a

nd Word Finder C-69 (Matthew Bender 2007) (he reinafter Attorneys'

Dictionary). - 2 - (West 2002). The trial court granted Dr. Kogan and Cardiovascular’s motion for summary judgment on April 24, 2006. OnApril 28, 2006, Mr. Hernandez filed his notice of appeal, and he presents three issues for review: (1) whether the trial court erred whe n it gran ted summar

y ju dgment b ecause

material issues of fact exist regarding whether Dr. Kogan acted in good faith when he decided not to issue a bill for his medical services; (2) whether section 25 of the G ood Samaritan Act is unconstitutional special legislation

(745 ILCS 4 9/25 (West 2002) ); and (3) wh ether c onferr ing i mm unity upon phy sicians working in hospitals, pursuant to the provisions of section 25 of the Good Samari tan Act, defeat s the purpose of the Illinois Hospital L icensing Act (210 ILCS 85/1 et seq . (West 2002)). BACKGROUND OnJun e 6 , 2002, Ms. Hernan dez was a

n in-patie nt at St. Ale

xius Medica

l Center ( St. Alexius). While undergoing a biopsy in the radiology

department at St. Alexius, Ms. Hernan dez suffered a cardi ac arr

est2 and was t

ransfe rred to the emerg ency

room, whe

re “any availab le cardiologist” was paged ove r the intercom to attend to Ms. Hernandez. Dr. Kogan, a board-certifie d cardiologist, was a member of the St. Alexius physicians' staff

on June 6, 2002. Dr. Kogan also had a contrac twith St. A lexi us to provi de 24- hour o n-call covera ge at St. Alexius on a rotational schedule. On June 6, 2002, Dr. Kogan responded to the eme rgency1-06-1196

3 “Asy stolic” is

defined as “the f ailure o f the hea

rt to contr act.” 1 J. Sc

hmidt, Atto rneys’ Dictionary A- 578 (Matthew Bender 2007).

4 Pericardiocentisis is “the surgical opening or puncture of the sac which surrounds the heart ( the peri cardium

) for the purpose o f drawin

g off a bnormal f luid.” 4 J. Sc

hmidt, Atto rneys’ Dictionary P-160 (Ma

tthew Bender 2007). - 3 - roompage and found Ms. Hernandez intu bated an d asy stolic 3 when he began his resuscitation efforts

. Dr . K og an in se rt ed a c en tr al li ne in to Ms . H er na nd ez ’s fe mo ra l a rt er y and o rdered an echoca rdiogr am, which he

interpre ted at he r bedside . Dr. Kog an then a ttempted p ericar

diocenti sis 4 frommultiple lo cations. Howeve r, resus citation e fforts failed and Ms. Hernandez died on June 6, 2002. Finally

, on April 1 6, 2003, Mr . Herna ndez, the i

ndepend ent admin

istrato r of the e st ate of Alma Hernandez, filed a co mplai nt and named Dr. Kogan and his phy sicians’ group, Cardiovascular, among others, as defendants. Defendants’ Motion for Summary Judgment After th e plaintiff filed his complaint, Dr. Kogan and Cardiovascula r filed a motion f

o r summary judgmen t, pursuant to section

2-1005 of the Code of Civil Procedure. 735 IL CS 5/2-1005 (West 2002). Plaintiff’s complaint and Dr . Kogan ’s affidavit were attached as exhibits to the defenda nts’ motion

for summa

ry judgmen t. In his affida vit Dr. Ko gan av erred, in pertine nt part: “4. Though I was a

member of the medical staff

of St. Alexius, neith er b y contract, agreement, nor pursuant to any Hospital policy , ruleor reg ulation wa s I ob ligate d to respond to the req uest for assistance. I wa s not a member of any1-06-1196

- 4 - d esignated

code response team at St. Alexius, nor was Cardiovascular

Associates contracted

to provide emergency response assistanc e to Hospital codes. I was not ' on call' in the emergency

roomto respond to cardiac emerge ncies on June 6, 2002. 5. I provided care to Ms. Alma Hernandez to the b es t of my a bilities; she was in

full cardiac arrest when I

arrived and she was never resuscitated. 6. Neither Cardiovascular Associates nor I billed M s. Hernande z, or her f

amily or her insur er for my medical e fforts to revive her on June 6, 2002." Becau se Dr. Kogan

(a) re ndered e merge ncy care, a nd (b) did not bill Ms. Hernandez, the

defenda nts claimed that Dr. Kogan’s actions on June 6, 20 0 2, were immunized from civil liability by the provisions of section 25 of the Good Samarita n Act. 745 IL CS 49/25 (West 2002). Therefore, the defenda nts mainta

ined that they were e ntitled to s

ummary judgmen t. Plaintiff’s Response to Defendants' Motion for Summary Judgment Mr. Hernan

dez responded to the defendants' motion for summary judg

ment first by arg

uing that the Good Samaritan Act does not apply to Dr. Kogan or his phy sician’s group, Cardiovascular, because (a) the defendants were

paid to pr ovide eme

rgenc y c are at St . Alexius in

June 2002; and (b) the decision not to bill Ms. Hernandez was not mad e in goo d fa it h. In support of his argument, Mr. Hernandez attached 11 exhibits, including, the contract between Dr. Kogan and St. Alexius for on-1-06-1196

- 5 -

call cardi ac coverage ser vices, St. Alexius’ bylaws and the g eneral rules and regulations of t h e medical/dental staff, and the transcript from Dr. Kog an’s December 22, 2003, deposition. Phys ician On- Call Cover age Ag reemen t Mr. Hernandez relied on the terms of the contract be tween St. Alexius and Dr. Kogan and the “PhysiciansOn-Call Co verag e Agre ement" (On-Cal l Agre ement) a nd arg ued that t he docume

nts established

that Dr. Kogan

was p aid to pro vide on-c all card iac cove rage s ervice s at St. Alexius. Sp ec if ic al ly, Mr. Hernandez cited the following provisions of the On-C all Agree ment, which he maintains set forth Dr. Kogan’s duties as an on-ca ll physician: “2.2(a) when called by

the Hospital or a Hospital Emergency Room physician, [o n- call] Physician shall respond in accor dance with the Emergency

Medical Services and Trauma Center Code (77 Ill. Adm. Code 515). (b) When called to pro vid e On-Cal l covera ge pur suant to th

is Agree ment, Phys ician ag

rees to tr eat eac h patient as Phy sician’s

p r ivate patient, billing the patient and not the Hospital for services render ed. (c) Physician shall ac cep t each pa tient tre ated as a

result of this Agreement

as Physician’s private pa tient until the patien t has been transferred to the care of a nother physician.

*** (e) Physician shall be respon sible to provide On-Call Cov erage in accordancewith the schedule established by the Director of Medical Staff1-06-1196

5 After Dr. Kogan had provided 60 c all periods in any one-year c ontract term, St. Alexius agreed to pay

him at the rate of $200 for each 24 - hour per iod of coverage.

6 §2 of the G ood Sa

maritan A ct pr

ovide s that

the purpo se of

the A ct is t

o immu nize citizens w

ho volunte er to hel

p others: "Sec. 2. Legislative purpose. The General Assembly has established numerous protections for the generous and c ompassionate acts of its citizens who volunteer their time and talents to help others. These protections or g ood samaritan provisions have been codified in many Acts of the Illinois Compiled Statutes. This Act recodifies existing good samaritan provisions. Further, without limi tati on th e prov isio ns of t his Ac t shal l be li berall y constru ed to e ncour age persons t o voluntee

r their ti me and ta lents ." (Emphasis adde d.) 745 I LCS 49/ 2 (West 2002).
- 6 - Services.” Article II I of t he On-Ca ll Agreement provided

that St. Alexius would pay Dr. Kogan, dur ing each year, $100 f

or 60, 24-hour ca ll peri ods of on-cal l cove rage and $200 f or on- call c overage provided thereafter by

the doctor. 5 The On-C all Agr eement f urther provided t

hat if ca lled by St. Alexius or a St. Ale

xius emerg ency

room phy

sician, D r. Koga

n was to dir

ectly bill patie nts for his professional service s. Based upon the aforementioned terms in the On-Call Agree ment, Mr. Hernandez maintained that section 25 of the Good Samaritan Act is inapplicab le becau se Dr. Kogan’s medical s ervice s on June 6, 2 002, wer e not t hose of a“volunteer” 6 physician beca use he

was a phy sician a

cting a s an indep endent c ontract or who wa s paid

by St. Alexius for renderingoncall cardiac coverag e at the hospital on June 6, 2002. St. Alexius’ Medical

/Dental St

aff Rule s Mr. Hernan

dez also pointed outthat Dr. Kogan testified at his deposition that he was “making rounds” at St. Alexius on June 6, 2002, and that he was not “on-call” that day . Mr. Hernan dez arg ues,1-06-1196

7 Hospital licensing requirements include a mandate:

“ a) The medical staff shall be org anized in accordance with written byl aws, rule s and reg

ulations, approve d by

the Gove rning B oard.” 7 7 Ill. Adm. Code §250.310, amended at 32 Ill. Reg . 7932 (eff. May 12, 2008). - 7 - that as a staff phy sician, Dr. Kogan was requi red to str ictly comply with St. Alexius’ Medical Staff byl aws, 7 and

with the general

rules and regulations of the medical/dental staff (Medical/Dental Staff Rules). According

to Mr. Her

nandez, D r. Hoga

n was con tractua lly obligated by

his reappointment application, the On-Ca

ll Agre ement, th e by

laws and the rule s and reg

ulations o f St . Alexiu s to respond to Ms . Herna ndez 's emergency . Mr. Hernandez maintained that section 25 of the Good Samaritan Act d id not immun ize Dr. Kogan from civil liability f or the medical services he provided to Ms. Hernandez on June 6, 2002, be cause D r. Koga n was on th e medica

l staff of St. Alexius, and he was not

render ing eme rgenc y c are to Ms. Hernandez "without fee" beca use he was compensated by St. Al exi us for providing medical care to the hospital’s patients. Ther efore, Mr. Hernandez argu ed, because Dr. Kogan had a contractual duty a s a staff physicia n at St. Alexius to rende r emergency

medical c are to Ms. Hernandez and because he did not a

ct “without fee,” as required by the Good Samaritan

Act, he should not be immunizedfrom civil liability by the Good Samaritan Act for the medical services he provided on June 6, 2002. Mr. Hernandez also argued that the Good Samaritan Act when app lied to doctors in hos pitals conflic ts with the pu

rposes of the I llinois Hos

pital L icensing

Act (Hos pital L icensing Ac t). 210 IL CS 85/2 (West 2002); see also 210 I LCS 85/ 10 (West 20 02); 77 Ill. Adm. Code Part 250 (Hospital Licensing Requirements). The Illinois Hospital L icensing Act is implemented by provisions of the1-06-1196

8 Hospitals providing basic emergency treatment services must insure that at least one phy sician is a

vailable in the eme

rgenc y de partmen t at all time s and that

phy sician sp ecialist s repres enting t

he speci alties of

medicine , surge

ry , pediatr

ics and ma

ternity shall be a

vailable in minutes. 77 Ill. Adm. Code §250.710(b), amended at 32 I ll. Reg. 7932 (eff. May

12, 2008).

9 Hospitals providing comprehensive emerge ncy trea tment services must insure that at least one licensed phy sician is available in the emergency department at all times; physician specialists representing the major specialities and subspec ialities shall be available in minutes. 77 Ill. Adm. Code §250.710(a) , amended at 32 Ill. Reg . 7932 (eff. May 12, 2008). - 8 - Illinois Administra

tive Code a

nd mandat

es that ho spitals of

fering basic 8 and compre hensive 9 emergency

treatment services provide the minimum phy siciancoverages specifie d therei n. 77 I ll. Adm. Code 250.710, amended at 32 Ill. Reg . 7932 (eff. May 12, 2008). Mr. Hernandez argued that the appellate court's decisions construing the G ood Samaritan Act

interfere with the purposes of the Hospital Licensing Act whe n they immunize physicians in hospitals who treat emergencies and choose not to bill for their services. Therefore, Mr. H ernandez concluded that, in a ccorda nce with state re gulator

y ma ndates, St . Alexius’ Medical/Dental Staff Rules imposed a legal duty upon Dr. Kogan, a staff physician phy

sically present a

nd working at St. Alexius on June 6, 2002, to respond “to a life and limb threatening situation.” Constitution

al Claims Infurther response to the defendants’ motion for summary

judgment, Mr. Hernandez argue d that the Good

Samaritan Act is facially unconstitutional special legislation because, when applied ina hosp ital setti ng, it arbitr arily and unreasonably

distinguishes between hospital patients in need of emergency

care who are treated by

their own physicians, who c an be held liable for their neglige nt acts, and hospital patients who are treated by doctors who “volunteer” to treat them in a hospital and1-06-1196

- 9 -

cannot be held liable. Mr. Hernandez also argued that the Good Samaritan Act was u

nconstitu tional as a pplied in this case. In this reg ard, Mr. Hernandez contends, assuming arguendo, that ther e is a rational basis for providing civil immunity to ph ysicians who , in the legislature’s words, “volunteer to rende r assistance on the str

eets of I llinois,” t hat rati onale doe s not apply here be cause ( 1) Dr. Ko gan is a paid agent providing on-call coverage , and (2) Dr. Kogan is a staff phy sician at St. Alexius who has

a duty imposed

on him by the rules and r

egulations of medical/dental staff when he is in the hospital to respond to life-threatening emerg encies at St. Alexius.

Defendants’ Reply

in Support of Motion for Summary Judgment Inreply to Mr. Her

nandez's response, Dr. Kogan and Cardiovascular contend that the te

rms of th e O n- Ca ll Ag re em en t o nl y obligated Dr. Kogan to respond “when ca lled by Hospital or a Hospital Emergency

Room physician” but that he had no duty to respond to “code blues.” The defenda nts also argue that any

compensation received for on-call cove rage was paid by

St. Alexius for service s render

ed to the hospital, not to the patient, as the On-Call Agreement allows Dr. Kog an to bill patie

nts separately . Because he did not issue a bill to Ms. Hernandez, Dr. Kog anargues that the Good Samaritan Act immunized him from civil liability for the emerg enc y me dical c are he provided to Ms. Hernandez on June 6, 2002. The defendants also argue that the Hospital L icensing Act applies to

hospitals, not physicians; t hat the Go od Samari

tan Act is “completely

independ ent” of the Hospit

al Lic ensing Act; and th at there is no conflict between the two statutes. Finally, the defenda nts argue that the Good Samaritan Act, originally enacte d i n 1965 as the Illinois Medical Practice Act, is en

titled to a presumpt ion that it i s rationally rela ted to a legitimate state interest and1-06-1196

- 10 -

is, therefore, constitutional.

Mr. Hernandez’s Surresponse to Defendants’ Motion for Summary Judgment Mr. Hernandez elaborated upon his argume nts that Dr. Kogan was compensa te d as a staff physician and was a

cting pu rsuant to his On-Ca

ll Agre ement. Mr. Hernandez attached Dr. Kog an’s deposition testimony

and arg ued that whether Dr. Kogan’s dec ision not to bill Ms

. Hernandez was made in good faith was an issue for the trier of fa ct. Finally, Mr. He

rnandez argued

that Dr. Kogan’s testimony and the averme

nts in his af

fidavit were no t entitled

to an infe rence o f good f

aith bec ause

a jury could rea sonably inf er fromDr. Kogan’s knowledge of Ms. Hernandez’s condition that he decided not to follow his normal billing procedure on June 6, 2002, because h e was aware that medical malpractice had occurre d. Good Faith Discovery The trial court granted Mr. Hernande z’s motion for supplemental discovery af ter the de cisio n in Estate of Heanue v. Edgc omb , 355 Ill. App. 3d 645 (2005). I n Estate of Heanue , this cour t held that physicians seeking

immunity under the provisions of the Good Samaritan Act would not only be required to show that they had rendered emerge

ncy ca re without fee but, for the first time, they also were re quired to

show that t

hey had done so in good faith. Estate of Heanue , 355 Ill. App. 3d at 650-52. Dr. Kogan’s Answers to the Supplemental I nterrogatories The plaintiff filed

a supplemental set of good-faith interrog atories. Dr. Kogan r esponde d to inte rrogatory 3 in plaintiff’s second "Supplemental Set of Answers To Plaintiff’s Supplemental 'Good F aith' I

nterrog atories" as follow s:1-06-1196

- 11 - “3. Identify

the patients that you, your medical c orporation and/or billing se rvice ha ve not bille d in the la st five y ears. ANSWER: See my deposition testimony and my previous answers to written discovery. Further answer ing, in th e past fiv e y ears, when I did notenter into a doctor patient relationship at the re ques t of a physician, patient, or

family member, I

have not turned in a bill for services rendered insuc h circum stances unless I considere d myself to have a prior relationship with the patient, or entered into such a relationship following suchcare. I

cannot r ecall a ny s pecific instances in which this has occurred, however, as in Ms. Hernandez’s case, there have be en situa tio ns over the ye ars, either in the cath lab or on the hospital floors, where I assisted i

n providing care on an emerge ncy basis, in desper

ate situations similar

to Ms. Hernan dez’s. In those cases I

have provided C PR and p laced central line

as needed while caring for pa tients. As stated, if I had no relation ship with the patient o r did

not subseque

ntly enter in to a doctor patien

t relationship with those

patients , I did not turn in charge s.” (Emphasis added.) Cathleen Biga's Deposition Testimony Cathleen Biga, president and c hief fina ncial of ficer ( CFO) of C ardiac

Manag ement of

Illinois (CMI), testifie d at her d

eposition that CMI had handled Cardiovascular’s billing exclusively since 1999. Ms. Big a also te stified th at befor e and af ter 2002, CMI

routinely issued bills to Dr. Koga n’s patients for prof essional services ren dered, including interpreting ec hocardiograms, inserting centr al1-06-1196

- 12 -

lines, and perf

orming pe ricardiocentisis. According to Ms. Big a, putting aside Ms. Hernandez’s case, she was unaware of any other time that

Dr. Kogan

had not submitted the patient's information that CMI needed to bill for professional ser vices he provided to a patient. Trial Court’s Findings and Order On April 2 4, 2006, th e trial c ourt made the follow

ing find ings: “The Courtfinds tha

t based on this record, there’s no genuine issue of material fact. That

it was an emergency

situation, no fee was received, no bill was sen t , and the Court finds that the decision to do that was in good faith. That it is not controverted by a ny testimony

in the record.” The trial court

considered but did not

express a n opinion on

the plain tiff’s c onstitutional arg

uments. Finally, the trial cour

t granted the defendants' motion for summar y judgment. Analysis Standard of Review In this case, we

are rev iewin g the tr ial co urt's order that granted the defe ndants' motion for

summar y judgment

. Appeals

from tria

l court su mmary judgmen t orders are governed b

y w ellestablished

rules. Northern Illinois Emerge ncy Phy sicians v. Landau, Omahana & Kopka, Ltd. , 216 Ill. 2d 294, 305 (2005). A tr ial cou rt’s decision to grant summary judgment should only be made where there is n

o genui ne issue o f materi al fact. Gaston v. Founders Insura nce Co. , 365 I ll. App. 3d 303, 314 (2 006), quot ing State Farm Fire & Casualty Co. v. Moore , 103 Ill. App. 3d 250, 257 (1981). The summary

judgmen t proced ure allo ws trial c ourts to de termine w

hether a genuin e is s ue of material fact

exists but isnot designed for the trial court to try a question of fact. Norther n Illi nois ,1-06-1196

- 13 -

216 Ill. 2d a t 305 , citi ng Adams v. Northern Illinois Gas Co. , 211 Ill. 2d 32, 42-43 (2004). "Summary

judgment is proper where, when viewe d in the lig ht most favorable to the nonmoving pa rt y, the plea

dings, d eposition s, admissions, and a ffidavit s on file r eveal th at t here is no genuine issue as to any mater

ial fact and that

the movi ng party

is entitled to judgment as a matter of law." Northern Illinois , 216 Ill. 2d at 305, citing General Casualty Insurance Co. v. Lacey , 199 Ill. 2d 281, 284 (2002) (in considering motions for summary judgment, courts review pleadings, de positions , admissions , and any a

ffidavits on file). In order to survive a motion fo r s um ma ry judgment, the nonmoving party

must prese

nt a fac tual basis

that would

argua bly entitle hi m, her or it t

o a judg ment. Hussung v. Patel , 369 Ill . App. 3d 924 , 931 ( 2007) , citi ng Sunderman v. Agarwal , 322 Ill. App. 3d 900, 902 (2001). We note, however, that although it is not necessary that a plaintiff prove his or he r case at the summary judgme

nt stage ( Norther n Illi nois , 216 Ill. 2d at

30 6, citing Allegro Services, L td. v. MetropolitanPier & Exposition Au thority, 172 Ill. 2d 243, 256 (1996)), the plaintiff must present sufficient evidence to create a g enuine issue of fact. Hussung , 369 Ill . App. 3d at 9 31, ci ting Gy llin , 260 Ill. App. 3d at

711. “Although summary judgment is appropriate if a plaintiff cannot e stablish an eleme nt of his c laim

( Morris v. Margul is , 197 I ll. 2d 28, 35 (20 01), c itin g Pyne v. Witmer , 129 Ill. 2d 351, 358(1989)), it should only be g ranted when the right of the moving party is clear and

free fromdoubt.” Norther

n Illi nois , 216 Ill. 2d at

30 6, cit ing Dowd & Dowd, Ltd. v. Glea son , 181 I ll. 2d 46 0, 48 3 ( 19 98 ). Ac co rd in gl y, we apply a de novo standard of review to the trial court’s gr ant

or denial of a summary

judgment motion. Gaston , 365 Ill. App. 3d at 314, citing In re Estate of Hoover , 155 Ill. 2d 402, 411 (1993).1-06-1196

10 "Physicians; exemption from civil liability for emergency

care. Any

person licensed under the Medical Practice Act of 1987 [(225 I LCS 60/1 et seq .)] or any person li censed t

o practice the treatment of human ailments in any other state or territory

of the United States who, in good f aith , 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 damage s." (Emphasis added.) 745 ILCS 49/25 (West 2002). - 14 - Material Issues of Fa

ct Mr. Hernandez maintains that material issues of fact exist which preclude summary judgement

because Dr. Kog an’s dec ision not to bill Ms. Hernandez was not ma de in good fait h. We note that the purpose of the Good Samaritan Act is to encourag e persons to "volun teer" their time and talents. 7 45 IL

CS 49/2 (West

2002). Se ction 25 of

the Good Sa

maritan Act im

muni zes volunteer phy sicians f

rom civil liability only if they: (1) “in good faith,” (2) provide emergenc y care , (3) “w ithou t fee.” 745 ILCS 49/25 (West 2002) 10 ; Estate of Heanue , 355 Ill. App. 3d at 650-52. Therefore, we must de

termine w hether t here ar e any genuin e issues o f materi al fact i n dispute i

n this

caseregarding Dr. Kogan's "g ood faith" in providing emergenc y care to Ms. Hernandez without fee because summary judgme

nt is only proper when the r ight of the moving party is fr ee of doubt. 735 IL CS 5/2-1005 (West 2006 ); Jones , 191 Ill. 2d at 291

. Good Fa ith There is no defi

nition for good fa ith in the G ood Samar

itan Act. 745 I LCS 49/1 et seq . (West 2002). We note, however, that our supreme court has held that “good faith” is an unambiguo u s phrase that means “honest, lawful intent,” or "is the opposite of fraud a nd bad fai th." People v. Guagli ata , 362 I ll. 427, 4 32 (19 36), q uoti ng Crouch v. First National Banks , 156 Ill. 342, 357 (1895) and McConnel v. Street , 17 Ill. 253 , 25 4 (1 855 ). In the Estate of Heanue , the court points out that1-06-1196

- 15 -

the Good Samaritan Act provides that a phy sician "who, in good faith, provides emergenc y care withoutfee to a person" is immune. Estate of Heanue , 355 Ill. App. 3d at 650. The Estate of Heanue court al so points out that the term "g ood faith " modifie s the term s "provides emergency care" and

" withoutfee" in the Good Samaritan Act. Estate of Heanue , 355 Ill. App. 3d at 650. Finally , th e Estate of Heanue court stated, "[r]efraining from charg ing a fee simply to invoke the protection of section25 [of the G ood Samar itan Act] w ould seem

to violate

the requ irement t hat th e docto r's action s were in go od faith, particularly if the decision not to charge a fee was made following treatment that

could poten tially expose a d octor to li ability." Estate of Heanue , 355 Ill. App. 3d at 650. Emergency Care Following the Estate of Heanue , we must first de termine whether Dr. Kogan provide d emergency

medical s ervice s to Ms. Her nandez in good faith. Estate

of Heanue , 355 Ill. App. 3d at 650. We note that there is no dispute between the parties that Dr. Kogan did in fact provide

emer gency

care to Ms. Hernandez on June 6, 2002. We also note that there is no argument in t h e brie fs that Dr. K

ogan' s emerg ency

medical c are wa s willful or wanton. A ccordin

gly , we fin d tha t there are no f

acts in dis pute conc erning

Dr. Kog an’s go od faith

inproviding emergency

medical care to Ms. Hernande z. Medical Services Provided Without Fee Next, we must

determine whether there are f acts in dispute concerning Dr. Kog an's decision notto bi ll Ms. Hernandez for his services: (1) was a g ood-faith decision made because the doctor had anhonest, lawful intent

to provide emergency

medical services to Ms. Hernandez without fee?1-06-1196

- 16 -

or (2) was the doctor acting in bad faith whe n, after providing medical services to Ms. He

rnandez, the decision

was made

not to bill

for his medical services to invoke the protection of section 25 of the Go od S am ar

ita n A ct ? Estate of Heanue , 355 Ill. App. 3d at 650. Mr. Hernandez maintains that Dr. Kogan did not act

in good f aith when he faile d to bill Ms. H ernandez for his medical s ervice s. Mr. Hernan

dez points o

ut that the averme nts in Dr. Kog an’s af

fidavit a nd his deposition testimony

are inconsistent with the deposition testimony of Ms. Biga, th e CFO of his billing service, regarding Dr. Kogan’s routine billing practice s. Wenote that in Dr. Kogan’s affidavit, appende d to the motion for summary judgme

nt, the doctor avers that

he did not bill Ms. Hernandez for his servic es. We note that Dr. Kog an’s depositio n testimony established: (1) that D r. K ogan’ s routine practic e was to submit bil ling info rmation to his billing service after he had render ed care; (2) that Dr. Koga n routinely billed for interpret ing echo cardiograms, inserting centr al lines, and performing perica rdiocen tisis, the professional services he provided to Ms. Hernande z on June 6, 2002; and (3) that Dr. Kogan did not bill Ms. Hernandez fo r his m edical services on June 6, 2002, because he thought it would have been “inappropr iate.” F inally , in his answers to th e supplemental g ood-fai th interrogatories, Dr. Kogan stated that during the past five years he did not issue abil l for his professional service s (1 ) if he had no relationship with the patient, or (2) if he did not enter into a doctor-patient relationship. The record

reveal s, however, that Ms. Biga, the CFO of Dr. Kogan’s billing service since 1999, contradicted Dr. Kogan' s testimony. Ms. Biga te stified that she was unawareof any instance, other than Ms. Hernandez’s case, when Dr. Kog anhad not submittedpatient information needed by the billing se

rvice to bill for professional services of the ty pe provided to Ms. Hernandez on June1-06-1196

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6, 2002. Mr. Hernandez arguesthat Dr. Kogan’s deviation from his routine billing practice raised a material question of fact as to whether the doctor's decision not to bill was made in good fa ith. We agree. We find that Dr. Kogan's answer to the supplemental good-faith interrogatory that he did not bill in cases like Ms. Her nandez’s con flicts wit

h Ms. Big a's tes timony

that, othe

r than Ms. Hernandez’s case, there were noother cases where Dr. Koga

n had not billed patients for the medical services he pr

ovide d to Ms . Her

nandez. We also find that Dr. Koga n's dec ision not to b ill Ms. Hernandez raises a question of material fact as to whether Dr. Kogan acte d in good faith and had an honest, lawful intent to provide medical services without fee, or whether the doctor

was acting

in bad faith a nd deviated from his routine billing practices to invoke the protection of sec tion 2 5 of th e Good Samaritan Act. Guagli ata , 362 Ill. a t 432. Accordingly , given the conflicting testimony concerning

Dr. Kogan's routine billing practice s, and given the fact the conflicting testimony created

a question of fact as to whether the doctor acted in g ood faith when he provided medical service s to Ms. Hernan

dez without

fee, thi s case pr

esents questions of fact that must be resolved by a trier of fact. Petrovich , 188 Ill. 2d at 30-31. CONCLUSIO N Inconclusi on, a ge

nuine issue of mate

rial fac t exists in this

caseas to whether

Dr. Kogan’s decisionto provide medical services to Ms. Hernandez without fee wa s made in good faith. In light of the fact we have found that there ar e genuine issues of material fact in di spute in th is case, we need not reach the other issues raised in the briefs. Moreover, reviewing c ourts only reac h constitutional issues as a last resort. In re E.H. , 224 Ill. 2d 172, 1 78 (20 06), c itin g People v. Lee , 2141-06-1196

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Ill. 2d 476, 482 (2005 ). Accordingly , this case is reversed and remande d for proceedings consistent with this opinion. Reversed and remanded. O'BRIEN , J., and MURPHY, J., concur.