A Return to the General Assembly’s Good Faith

In law school, we are taught that normally a person has no legal duty to come to the aid of another in an emergency (remember Kitty Genovese who was attacked by the same assailant on three separate occasions outside her apartment over the course of an hour – while 38 neighbors looked on but did nothing).  But if she does and the aid she renders negligently causes further harm or she keeps others more able than her from helping, she can be held responsible.  Lacey v. United States, 98 F.Supp. 219 (D. Miss. 1951).  As a result, so the theory goes, people may choose not to help others because of the fear of a lawsuit from the ungrateful rescue or his family.  The classic example is a doctor at some party who refuses to respond to a call of “Is there a doctor in the house?” because of the potential liability if her help is negligently provided.

In order to avoid this possibility and to protect and encourage doctors to “volunteer their time and talents” to those in need, many states, including Illinois, have enacted statutes, normally termed Good Samaritan Acts, that protect those who render care in emergency situations.  See 745 ILCS 49/2 (West 2002).  In Illinois, our act states that a doctor who, “in good faith, provides emergency care without fee to a person, shall not, as a result of his or her act or omissions, except willful misconduct on the part of the person, in providing the care, be liable for civil damages.”  745 ILCS 49/25 (West 2002). 

When it was originally enacted in 1965, the act’s protection extended only to physicians who rendered care “at the scene of a motor vehicle accident or in case of nuclear attack.”  Ill.Rev.Stat. 1965. ch.91, par 2(a).  in 1969 and 1973, the legislature broadened the scope of the act, first to any “victim of an accident” (as opposed to just car crash victims) and then to any “person” regardless of where they are injured.  See Henslee v. Provena Hospitals, 373 F.Supp.2d 802, 807-08 (2005) (detailing legislative changes to the act).

During the 1973 legislative debates, supporters of the bill explained that the newly broadened scope of the act was nevertheless limited to “on the spot” treatment during emergency situations.  78th Ill.Gen.Assem., Senate Proceedings, May 22, 1973 at 47, 49.  The act’s protection was not intended to reach a doctor in his “office or in the hospital on the operating table.”

An opponent of the bill, discussing the act’s requirement that the emergency care be provided in good faith without fee, predicted that doctors could manufacture immunity under the act by simply not sending out a bill:  “As long as he doesn’t send out a bill, he is not responsible for his negligence.  Now obviously any malpractice insurance company can then simply advise a doctor that if you think you really butchered up the job and did a very poor job in a given situation, don’t send out a bill.”

A funny thing happened, however, on the way to the courthouse.  Both in the judicial interpretation and application of the act, instead of protecting doctors who render emergency care on the streets of Illinois the act has been primarily used “to immunize doctors in the context of an emergency situation arising within a hospital” (an unpleasant surprise to the 1973 legislative supporters of the bill  noted above).  See Henslee, 373 F.Supp.2d at 808 (citing cases).  In fact, there has not been a reported case in Illinois of a doctor being sued for malpractice after stopping to render aid in an emergency situation arising outside the hospital setting.  See Henslee, 373 F.Supp.2d at 808 n.7, citing Blanchard v. Murray, 331 Ill.App.3d 961, 969 (2002).

Moreover, doctors have “routinely escaped liability under the Act when there was an emergency for which they never charged a “fee.’”  Henslee, 373 F.Supp.2d at 809.  Though the act does not define “fee,” various panels and districts of the Illinois Appellate Court have found that “plain and ordinary meaning” of the word “means only a situation where a patient is billed for the specific services the doctor provides.”  Thus, a doctor has been able to obtain the protection of the act by simply not issuing a bill regardless of whether he received an economic benefit from treating the patient (for instance, if he was being aid directly by the hospital to render that emergency care and did not bill the patient himself) (see Heanue v. Edgcomb, 355 Ill.App.3d 645 (2005) (finding that doctor was protected even though he likely received an economic benefit related to his care of the patient)) or whether he intended to do so and only after he provided that treatment chose not to do so (see Rivera v. Arana, 332 Ill.App.3d 641 (2001) (“[W]hatever [the doctor’s] intentions were with respect to possible billing in the future for his services, they are irrelevant.  ]The doctor] states that he was never paid and that fact is controlling”)).  Apparently, that is, until now.

Several recent cases have begun to question whether the word “fee” is as clear and unambiguous as prior courts have found it to be.  See Henslee, 373 F.Supp.2d at 812-15; see also Muno v. Condell Medical Center, 2008 WL 2531429 (1st Dist. June 20) (recognizing Henslee’s criticism of prior interpretations of the act).  For instance, in Henslee, U.S. Magistrate Judge Morton Denlow noted that the prior courts’ interpretation of “fee” seem[ed] to capture only one side of a typical fee situation – the client being billed.”  The “typical fee transaction,” he noted, “implicitly includes two steps:  first, a party is billed; second, a professional is paid.”  Because the act did not define “fee,” Denlow found that a “fee” exists for purposes of the act in either case, i.e., when a doctor is paid for the emergency services he renders.

He found further support for this interpretation in the act’s explicit purpose “to establish numerous protections for the generous and compassionate acts of its citizens who volunteer their time and talents to help others.”  745 ILCS 49/2 (West 2002).  A doctor who is being paid to work and render care at an emergency facility, he noted, could hardly be characterized as a “volunteer” in the true (or plain and ordinary) sense of the word.

Other courts have taken a different route.  Rather than attempting to divine what the legislature meant by the word “fee,” these courts have looked to an additional requirement in the statute, one that had been “left largely unaddressed” in prior cases:  that the doctor’s decision to provide emergency medical care without a fee must be made in good faith.

In Heanue, the court found that a doctor who obtained an economic benefit for rendering emergency care is still protected by the act so long as he does not bill the patient himself.  The plaintiff contended that under that interpretation, a doctor could avoid liability by simply opting not to bill a patient, a decision which could be made after providing treatment that could expose that doctor to liability.  The court alleviated that concern by noting that the act requires that the decision not to bill must be made in good faith and such a decision “would seem to violate” that requirement.

Two recent decisions of the 1st District have followed suit.  In Muno, a doctor, who had not directly billed the plaintiffs for the treatment he provided to their son, contended that the evidence of his good faith was “entirely one-sided” because the only evidence was the doctor’s testimony that he “was not aware of the Act at the time he made his decision and that he decided to forgo the fee because he felt that doing so was appropriate under the circumstances.”

Affirming the jury’s verdict in favor of the plaintiffs, the court noted that they had offered testimony that the doctor had met with his superior for an extended period of time after their son’s operation and that there was a dispute as to whether the doctor had met with them prior to the surgery.  The court found that the jury could have reasonably inferred from that evidence that the doctor had decided not to bill the plaintiffs in an effort to avoid liability and, thus, had not acted in good faith as required under the act.

Similarly, in Hernandez v. Alexian Brothers Health Systems, Inc., 2008 WL 3000816 (2st Dist. July 31), the court found that a genuine issue existed as to whether the doctor acted in good faith where he decided not to issue a bill after providing medical treatment to a patient who died during his care because he thought it was inappropriate.  The doctor’s routine billing practice was to submit billing information to his billing service after rendering care and he had routinely billed other patients for the type of care he had provided to the plaintiff’s decedent.  He stated in an interrogatory that ‘during the past five years he did not issue a bill for his professional services” in cases where he had no relationship with the patient or did not enter into a doctor-patient relationship.

The CFO of the doctor’s billing service testified, however, that she was unaware of any instance – other than this case – where the doctor had not submitted the patient information needed by the billing service to bill for the type of services he had provided.  The court found that this “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 faith.”

So the recent trend seems to be more in the tune with the legislature’s intent: to encourage and protect volunteers where ever they may come to the rescue, but only true volunteers.  Though the act’s protection continues to potentially reached into hospitals and doctor’s offices (much to the chagrin of some supporting members of the 78th General Assembly), a beefed up “good faith” requirement has been employed to thwart any attempt by a doctor to manufacture immunity under the act.