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Appellate Court Finds No Physician-Client Relationship in Medical Malpractice Case

By Christopher D. Galanos

Since the Illinois Supreme Court’s landmark 1987 decision in Kirk v. Michael Reese Hospital & Medical Center, Illinois Appellate Courts have often been required to determine what types of contact must occur between a patient and a physician before a physician-patient relationship arises that would give rise to a duty of care. In January of 2012, the Illinois Appellate Court released its opinion in Kundert v. Illinois Valley Community Hospital which shed new light on this familiar issue.

The facts of Kundert, although tragic, are relatively straightforward. The plaintiffs brought a medical malpractice action against Illinois Valley Community Hospital on behalf of their deceased child, Kameryn. Their Complaint alleged that on May 31, 2007, Kameryn began to exhibit signs and symptoms of a serious illness. Unable to reach her primary care physician, Kameryn’s mother called Illinois Valley and spoke to an individual in the emergency department. The individual informed Kameryn’s mother that she was overreacting, as a new mother might, and that she should administer Tylenol and give Kameryn tepid baths. The individual informed the mother that she should follow up with her primary care physician, but the baby did not need immediate medical attention. Finally, the individual on the phone advised the mother that Illinois Valley did not have the equipment or medical personnel to provide medical service to infants. Relying on this advice, Kameryn’s mother waited until the next morning to seek further care. The next morning, June 1, 2007, Kameryn’s primary care physician examined him, determine that he was septic, and sent him to the Illinois Valley Emergency Room. Within an hour of arriving to Illinois Valley, Kameryn was transferred to St. Francis Medical Center where he was diagnosed with bacterial meningitis and died on June 15, 2007.

The Appellate Court was called upon to determine whether the conversation that Kameryn’s mother had with the unknown emergency department employee on May 31, 2007 gave rise to a physician-patient relationship such that Illinois Valley could be liable in a medical malpractice claim. The physician-patient relationship is a consensual relationship in which the patient knowingly seeks a physician’s assistance and the physician knowingly accepts the person as a patient. While the decision of whether or not a physician-patient relationship exists must be determined on a case by case basis, the Kundert court was able to point out a number of factors to be considered in the analysis.

First, if a physician refuses to treat a patient or accept a consultation regarding a patient, then no physician-patient relationship can arise. In this regard, the court found Illinois Valley’s employee’s communication that Illinois Valley was not equipped to accept and provide care to infant patients was a clear intent to decline to treat the patient. Second, Plaintiff argued that the advice to administer Tylenol and give Kameryn tepid baths amounted to constructive acceptance of Kameryn as a patient. The court examined past medical malpractice decisions and noted that in cases where the physicians in question merely offered informal advice, did not see the patient, were not asked to provide a service to the patient, did not conduct laboratory tests or review test results and did not charge a fee, the reviewing court’s held that no physician-patient relationship arose. The Court found Kameryn’s case analogous; specifically they noted that Illinois Valley was not asked to perform any tests, interpret any results or examine Kameryn. Rather the individual merely provided an informal opinion based upon Kameryn’s “rather common” symptoms. Accordingly, they upheld dismissal of the Complaint on the grounds that Plaintiff failed to establish that Illinois Valley owed a duty to Kameryn.

As already noted, the determination of whether a physician-client relationship exists must be determined based on the facts of each case. But Kundert continues the development of a line of cases that seeks, appropriately, to limit medical malpractice exposure to those providers who actually intend to, and do, treat the plaintiff.

Originally published in the Spring 2012 edition of Quinn Quarterly.