Duty or Not…That Is the Question

The First District Appellate Court’s recent decision in Slanger v. Advanced Urgent Care, et. al.,2022 IL App (1st) (211579) is a reminder that “duty of care” is not as cut and dried as tort law professors teach students in law school.  Generally, whether a “duty of care” exists is a question of law for the court, not for the jury. However, in Slanger, in the context of physician-patient relationship, the court found that under the facts of the case, duty was a question for the trier of fact.

Illinois courts have consistently held that a physician-patient relationship is based on a consensual relationship in which the patient “knowingly seeks the physician’s assistance and in which the physician knowingly accepts the person as a patient.” Bovara v. St. Francis Hospital, 298 Ill. App. 3d 1025, 1030 (1st Dist. 1998). The concept of a physician-patient relationship, however, can be problematic in today’s healthcare structure. Slanger is a case on point.

Plaintiff, Robert Slanger, as the Independent Administrator of Janet Slanger’s estate, brought suit against a physician, a nurse practitioner, a hospital, and other entities for medical malpractice. Plaintiff’s claims stemmed from Janet Slanger’s emergency visit at Silver Cross Hospital on December 11, 2016. Specifically, in the early morning of December 11, 2016, plaintiff’s decedent, Janet Slanger (Janet) arrived at the emergency department complaining of a sore throat and difficulty breathing. Upon arrival, Janet signed a consent form stating, in relevant parts:

“I consent to *** hospital services including nursing care rendered me under general and special instructions of the attending, consulting, or emergency department physicians. I am under control of the attending physicians, their assistants or designated on-call or covering physicians, who are in charge of my care and treatment.

I further acknowledge that my admission and discharge are arranged by the attending physician. The undersigned further acknowledges that physician services for doctor care related to the preceding sentence will be billed separately by the physician or physician group providing the physician’s services and that such charges are separate and in addition to the charges and billing for Silver Cross.”

Slanger, 2022 IL App (1st) 211579, ¶ 6. Terry Kennedy (“Kennedy”), a nurse practitioner, examined Janet. She documented the patient’s complaints, made a diagnosis of pharyngitis, left cervical lymphadenopathy, and stomatitis. Kennedy prescribed her medication and made a recommendation for the patient to be discharged with instructions to follow up with primary care physician. Unfortunately, within two hours from the discharge, Janet called 911 for emergency medical assistance. The paramedics found her unresponsive in the driveway, with no heartbeat. Two days later, Janet died.

Kennedy, as a nurse practitioner practicing in Illinois, did not have the freedom to practice independently and she was required to work under a collaborative agreement with a physician—here, Dr. Collins. Dr. Collins was employed by EM Strategies, an independent physician group retained by Silver Cross Hospital. According to the doctor, his role at the hospital was to provide mid-level practitioners, like Kennedy, with assistance. In his deposition, Dr. Collins expressed:

“I’m there to provide any help if she needs it — he or she—, whoever the mid-level  would be. If they want me to come see the patient, examine the patient, talk to the patient, and help them make a disposition on the patient. I'm there to do that.”

Dr. Collins was the assigned supervising emergency room physician during Janet's visit to the hospital. The doctor never had actual contact with Janet. In other words, he never treated, consulted, or evaluated the patient face-to-face. Nonetheless, he signed off on Janet’s medical chart during that visit. Dr. Collins also went on to add an addendum to the medical chart stating, “I was the supervising physician for this patient and agree w/ plan.” Dr. Collins’ addendum was his adoption of Kennedy’s suggested diagnosis and treatment. Thus creating the physician-patient relationship.

At the end of discovery, Dr. Collins moved for summary judgment arguing that in the absence of a physician-patient relationship, he did not owe a duty of care to Janet.¹ The trial court granted summary judgment in Dr. Collins’ favor finding that, as a matter of law, because there was no special relationship between Dr. Collins and Janet, there was no duty of care. An appeal followed.

On appeal, Plaintiff argued that Dr. Collins and Janet formed a physician-patient relationship, and therefore, there was a genuine issue of material fact regarding Dr. Collins’ duty of care to Janet that precludes a summary judgment finding.  The appellate court agreed. Reversing and remanding the trial court’s decision, the appellate court found that a genuine issue of material fact existed as to whether the doctor owed a duty of care to the decedent.

The cumulative evidence, in this case, justifies the appellate court’s decision. First, Janet specifically signed a consent form which stated that she was “under control of the attending physician”—Dr. Collins. Dr. Collins’ employer, EM Strategies, also charged Janet for the doctor’s services. In fact, for billing purposes, the patient could not have been discharged without the supervising physician’s approval. 

Further, in his deposition, Dr. Collins described his role as being available to respond to the nurse practitioner’s request for assistance. Even though Dr. Collins never personally met the patient, he signed off on Janet’s medical chart. The fact that he signed off on Janet’s medical chart, can be interpreted as him accepting responsibility for patient’s diagnosis and treatment.

In analyzing the fact in this case, the appellate court reasoned that a physician-patient relationship can exist even in the absence of an actual contact between the treating physician and the patient. (emphasis added). Illinois courts have repeatedly found that some affirmative acts on part of a physician to care, treat, diagnose, and evaluate a specific patient are sufficiently indicative of a physician-patient relationship. See, e.g., Bovara v. St. Francis Hospital, 298 Ill. App. 3d 1025, 1030 (1st Dist. 1998); Lenahan v. University of Chicago, 348 Ill. App. 3d 155, 163, (1st Dist. 2004) (the appellate court cited both cases). At trial, the jury may find that Dr. Collins’ assessment and involvement in reviewing Janet’s medical chart, and also approving her plan of care, impacted Janet’s diagnosis and treatment that ultimately resulted in her death. Therefore, for all these reasons, the appellate court found that a genuine issue of material fact existed as to whether the doctor owed a duty of care to the decedent, and reversed the trial court’s decision.

The “physician-patient” relationship is still a developing area in the law. This case may be a helpful tool to deal with defendant physicians who question the formation of a physician-patient relationship. As a reminder, cases with unique facts—as Slanger—require a case-by-case determination and analysis of the contractual agreement signed by the patient, an analysis of the extent of the physician’s involvement in providing care and treatment to a patient, but also on whether the physician billed for his services. Generally, a patient-physician relationship exists when a physician affirmatively acts and participates in a patient’s treatment, care, diagnosis, evaluation, or agreeing to do so, even in the absence of actual contact.  

1. Dr. Collins employer, EM Strategies, also moved for summary judgment. The argument and ruling of that particular motion is not discussed in this article.