Reynolds v. Decatur Memorial Hosp.

• Decision Date: 04 January 1996
• Docket Number: No. 4-95-0562,4-95-0562
• Citation: 214 Ill.Dec. 44,660 N.E.2d 235,277 Ill.App.3d 80
• Parties: , 214 Ill.Dec. 44 Kevin Thomas REYNOLDS, a Minor, by Barbara Reynolds, His Mother and Next Friend, et al., Plaintiffs-Appellants, v. DECATUR MEMORIAL HOSPITAL, et al., Defendants (Thomas Fulbright, M.D., Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 235

660 N.E.2d 235

277 Ill.App.3d 80, 214 Ill.Dec. 44

Kevin Thomas REYNOLDS, a Minor, by Barbara Reynolds, His Mother and Next Friend, et al., Plaintiffs-Appellants, v. DECATUR MEMORIAL HOSPITAL, et al., Defendants (Thomas Fulbright, M.D., Defendant-Appellee).

No. 4-95-0562.

Appellate Court of Illinois Fourth District.

Argued Dec. 12, 1995.

Decided Jan. 4, 1996.

John J. Lowrey (argued), Lowrey & Smertz, Ltd., Chicago, for Plaintiffs-Appellants.

Garry E. Davis (argued), Erickson, Davis, Murphy, Johnson, Griffith & Walsh, Decatur, Robert Marc Chemers, Anne Scheitlin Johnson, Pretzel & Stouffer, Chartered, Chicago, for Defendant-Appellee.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiffs Kevin Thomas Reynolds, a minor (born July 14, 1988), by Barbara Reynolds, his mother and next friend, and Charles W. and Barbara Reynolds, individually, appeal from a summary judgment entered by the circuit court of Macon County in favor of defendant Dr. Thomas Fulbright in this medical malpractice action based on a negligence theory. Although this case remains pending as to other defendants, the trial court made a finding pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) and this appeal ensued.

The only issue is whether, as a matter of law, a telephone conference between treating pediatrician Dr. Sharon Bonds and Fulbright concerning Kevin's condition created a physician-patient relationship between Kevin and Fulbright so as to raise a duty which is enforceable in a medical malpractice action in light of the standards of protocol of the hospital at which Kevin was being treated and in which both physicians were allowed to practice. The trial court found there was no physician-patient relationship and, therefore, no duty was owed by Fulbright to plaintiffs. We affirm.

Taken with the case was defendant's motion to strike the statement of facts in plaintiffs' brief. The plaintiffs have filed an objection to the motion.

The statement of facts in the plaintiffs' brief appears to be an attempt to appeal to the sympathy of the members of this court in favor of plaintiffs. The respondent's objection to this has merit. The statement of facts is not presented fairly without argument or comment, a violation of Supreme Court Rule 341(e)(6) (155 Ill.2d R. 341(e)(6)). Nevertheless, the motion to strike the entire statement of facts is denied. The parties are assured that this court has considered only those relevant facts which appear of record in rendering a decision in this case.

Plaintiffs claim Kevin's quadriplegia resulted from the medical malpractice of defendants. The facts relevant to this appeal appear undisputed, although the legal consequences of those facts are in dispute.

At about 10:45 p.m. on November 29, 1990, Kevin was seen in the emergency room of Decatur Memorial Hospital by Dr. Terry Balagna. The history given indicated he was injured at 8:30 or 9 p.m. by falling while jumping on the couch in the family living room. Upon examination, an abnormal breathing pattern was observed. Tests were conducted to discover the possibility of an infection or an electrolyte or metabolic problem. Cervical spine X rays were taken at about 1:05 a.m. which appeared normal. Nevertheless, Kevin was admitted to the hospital. Balagna called Bonds, a pediatrician, to examine him.

Bonds arrived at the hospital at about 1:45 a.m. on November 30, 1990. At that time, Kevin's temperature was 102 degrees fahrenheit. Bonds made a quick assessment of plaintiff and took a history from Barbara, which indicated Kevin had jumped off the couch, landed on his arm, walked to his mother, and gradually became limp after that. Bond noticed the child's breathing difficulties and that he was flaccid. She reviewed the emergency room records and X-ray reports, conducted reflex tests, and noticed he was moving his head. His neck was not tender. Among the possible reasons for his condition which Bonds considered were neurologic, traumatic, metabolic, infectious, or post-infectious problem. Because of the fever, she was leaning toward the infectious process diagnosis, and she did not consider a spinal cord injury. A history of a two-foot fall with a normal 2 1/2-year-old child did not indicate to her the existence of a cervical cord injury from trauma.

At 2:05 a.m., Bonds telephoned Fulbright at his home. She advised Fulbright that Kevin walked following the fall, he had an elevated temperature and was flaccid and responsive, and the cervical spine X rays were negative. She probably told him the child was flaccid from the neck down, including all four extremities. Fulbright inquired if the child had a stiff neck. Bonds said she did not know, went to check Kevin's neck, and returned to inform Fulbright that his neck was stiff. At the end of the conversation, Fulbright suggested a spinal tap to determine whether meningitis, encephalitis, or something similar was involved. Bonds did not ask Fulbright to treat Kevin, nor did Fulbright commit himself to further involvement with Kevin. Bonds was under the impression that Fulbright would see Kevin if she contacted him and requested that he treat Kevin.

Fulbright's recollection of his telephone conversation was as follows:

"Dr. Bonds called me regarding Kevin Reynolds. She related to me that the patient had presented with a history of a fall, I believe from a couch. The height estimated to be less than two feet. She related that the child was listless, and that the child was febrile with a fever of--on the order of 102 degrees Fahrenheit.

I questioned Dr. Bonds regarding the history. My first concern was the veracity of the history. My major concern here was the question of child abuse. There was some report on her part that the history had been somewhat inconsistent. That in itself is a hallmark of abuse. I questioned her specifically as to whether or not she felt abuse was operative in this case. She stated relatively emphatically that she did not think that it was.

She did not think that the fall was overly significant because of it's [sic ] apparently benign nature, that is, a fall from a low height of a young child as happens to every young child.

The question of the cause of the fever and the possible neurological causes of the fever was raised. The question of meningitis was discussed. The question of an ascending neuritis was discussed. The performance of a lumbar puncture was discussed. The conclusion was that Dr. Bonds would perform the lumbar puncture and let me know if she wanted me to see the child thereafter. I offered to make myself physically available if she wished. We elected to proceed with the plan of her performing the lumbar puncture and letting me know if she needed me there."

He often received informal inquiries from other doctors asking questions and seeking suggestions. These inquiries do not include a request to see a patient, review a patient, or render an opinion, but only to discuss the case. He considered this a courtesy service for which he did not bill. He offered to make himself available because the other physician may be inhibited about asking him to see the patient due to the late hour or the marginal neurosurgical nature of the case.

At 3:30 a.m. on November 30, 1990, Bonds performed the spinal tap. Before leaving the hospital, she told a nurse to write an order in Kevin's chart "to consult with Fulbright to see in early a.m." That note was posted to the chart, and the message was taken off the chart at 4:05 a.m. The usual practice was for the ward clerk or nurse to notify the operator who would place the message in the appropriate area. The message was never received by Fulbright. At 8 a.m., Bonds realized Fulbright had not received the message, attempted to locate him, and was told he was in surgery performing a very long procedure. Fulbright stated he did not receive another call from Bonds or anyone else at the hospital with regard to Kevin's condition or treatment. Kevin's family never asked Fulbright to treat Kevin, and he never saw, examined, or came to a diagnosis as to Kevin's condition. Fulbright did not bill for any services to Kevin.

When Kevin was transferred to St. John's Hospital (St. John's) at 12 p.m. on November 30, 1990, Bonds' diagnosis was an infectious process called Guillain-Barre syndrome. At St. John's, a spinal cord injury was diagnosed.

According to the affidavit of Dr. John Oldershaw, a neurosurgeon, the medical staff rules of Decatur Memorial Hospital relating to consultations state:

"4.1 Appropriate consultation shall be obtained by practitioners in cases in which the patient is not a good medical or surgical risk and in cases in which the diagnosis is obscure, where there is doubt as to the best therapeutic measure to be utilized, or where the treatment is difficult and especially in cases with probable disorders or complications lying within a field other than the one in which the attending physician is primarily qualified.

4.2 A consultant must be well qualified to give an opinion in the field where his opinion is sought. A satisfactory consultation must include the examination of the patient and the record. A written opinion signed by the consultant must be included in the medical record. When operations are involved, the consultation note, except in emergency, shall be recorded prior to the operation."

According to Oldershaw, the failure of Fulbright to examine Kevin and the records before making a recommendation and failing to follow through after being consulted violated the hospital rules and generally accepted standards of practice in the medical community.

"Summary judgment is appropriate when the pleadings, depositions and affidavits, construed most strongly against the movant and most liberally in favor of the opponent, present no genuine issue of material fact and show that judgment should be granted as a matter of law. (Wojdyla v. City of Park Ridge (1992), 148 Ill.2d 417 [...