Blagden v. McMillin

225 N.E.3d 701

Judy BLAGDEN, Individually and as Independent Administrator of the Estate of Dennis Blagden, Deceased, Plaintiff-Appellant,

v.Matthew MCMILLIN, M.D.; Graham Hospital Association; Kenneth Krock, M.D.; and Coleman Medical Associates, Ltd., Defendants,

(Kenneth Krock, M.D., and Coleman Medical Associates, Ltd., Defendants-Appellees).

NO. 4-22-0238

Appellate Court of Illinois, Fourth District.

Filed January 26, 2023

Rehearing denied March 7, 2023

Appeal from the Circuit Court of Fulton County, No. 20L13, Honorable Thomas B. Ewing, Judge Presiding.

Matthew D. Ports and Alexander J. Marsh, of Pfaff, Gill & Ports, Ltd., of Chicago, for appellant.

Adrian E. Harless, of Heyl, Royster, Voelker & Allen, P.C., of Springfield, and Karen Kies DeGrand and Jeffrey E. Eippart, of Donohue Brown Mathewson & Smyth LLC, of Chicago, for appellees.

OPINION

JUSTICE DOHERTY delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Judy Blagden, individually and as independent administrator of the estate of Dennis Blagden, deceased, appeals from a March 2022 summary judgment order entered by the circuit court of Fulton County in favor of defendants Dr. Kenneth Krock and Coleman Medical Associates, Ltd. (Coleman), in this medical negligence action. The trial court found there was no physician-patient relationship between Dr. Krock and decedent Dennis Blagden and, therefore, no duty was owed.

¶ 2 This case remains pending in the circuit court as to other defendants but is currently before this court pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

¶ 3 The only issue presented on appeal is whether, as a matter of law, a telephone consultation between the emergency department physician, Dr. McMillin, and on-call physician, Dr. Krock, concerning decedent’s medical condition and his possible admission into Graham Hospital created a physician-patient relationship between Dr. Krock and decedent such that a duty of care arose.

¶ 4 For the reasons set forth below, we reverse and remand.

¶ 5 I. BACKGROUND

¶ 6 A. The Pleadings

¶ 7 In January 2019, plaintiff filed a single count complaint in Peoria County against defendants Matthew McMillin, M.D., Graham Hospital Association, Graham Hospital Foundation, Inc., and Graham Health System d/b/a Graham Hospital, alleging medical negligence associated with the death of decedent. Plaintiff filed an amended complaint in July of that year; count II of the amended complaint was a medical negligence action directed against defendants Dr. Krock, Coleman, and Graham Hospital Association.

¶ 8 Count II alleged that decedent had presented to Graham Hospital’s emergency department with "certain symptoms" and was seen by Dr, McMillin, an agent of Coleman, who "ordered certain laboratory tests." It further alleged that Dr. McMillin consulted with Dr. Krock, who had admitting privileges at Graham Hospital, "to discuss [decedent’s] presentation and whether [he] should be admitted to the hospital." It was also alleged that Dr. McMillin "relayed all [decedent’s] medical information in his possession and in the records to Dr. Krock." The amended complaint alleged that, at the conclusion of that conversation, "it was decided that [decedent] would not be admitted to Graham Hospital and he was discharged from the emergency department." It further stated that, at the time of discharge, "infection was still on Dr. Krock’s differential diagnosis."

¶ 9 Count II alleged that, on July 29, 2017, decedent again presented to the Graham Hospital emergency department; his condition at that time "required LifeFlight transport from Graham Hospital to Methodist Medical Center, where [magnetic resonance imaging (MRI)] revealed a spinal epidural abscess." Decedent passed away on August 7, 2017.

¶ 10 Plaintiff contends that Dr. Krock stood in a physician-patient relationship with decedent that gave rise to a duty of care and that defendants were negligent in one or more of the following ways: (1) failed to rule out an infectious process, (2) failed to admit and monitor decedent, or (3) discharged decedent home when it was not safe to do so.

¶ 11 B. Transfer to Fulton County

¶ 12 In 2020, the case was transferred from Peoria County to Fulton County on forum non conveniens grounds.

¶ 13 C. Summary Judgment

¶ 14 In July 2021, defendants Dr. Krock and Coleman filed a motion for summary judgment directed against count II of the amended complaint, asserting that there was no physician-patient relationship between Dr. Krock and decedent and that, as a result, Dr. Krock owed no duty of care to decedent.

¶ 15 The following facts were established from the depositions and exhibits filed in connection with the motion for summary judgment papers.

¶ 16 1. July 26 Emergency Department Visit

¶ 17 Decedent presented at Graham Hospital’s emergency department at 7:08 p.m. on July 26 with complaints of severe pain to his right posterior neck and trapezius area, a bug bite to his right elbow, and right elbow swelling. According to hospital records, his symptoms began the night before with a bad headache that involved his neck when he awoke. He was unable to move his head side-to-side or up-and-down, and he reported that movement caused increased pain. His records stated he had a "fever last night—none today" and reported no difficulty breathing. They further indicated he had experienced "some nausea without vomiting—feels this is related to pain." He had no report of injury. The records stated, "[no] current headache—no fever—no light sensitivity—no generalized symptoms."

¶ 18 Dr, McMillin, decedent’s attending physician at Graham Hospital, reviewed the nursing records, performed his own physical examination of decedent, and ordered a complete blood count and comprehensive metabolic panel to "help isolate what [he] thought was going on with his care." He later ordered a sedimentation rate test, which is "a very generalized measure of inflammation" which "relates the likelihood of general inflammation in the body." One of Dr. McMillin’s early concerns was a possible infection. Dr. McMillin prescribed Toradol (an anti-inflammatory pain medication) and Norflex (a muscle relaxer), which helped somewhat, but decedent continued to have "pain in the area and some muscular spasm that was not relieved by what I had given, him to that point."

¶ 19 The test results showed an elevated white blood count, a normal distribution of neutrophils, and a slightly elevated sedimentation rate. When asked to explain his differential diagnosis after reviewing the various test results, Dr. McMillin testified that, as of 8:39 p.m., "the things [he] would worry about would be primarily muscular and to a lesser extent infectious." Dr. McMillin’s notes showed he diagnosed decedent with torticollis, a muscular condition of the shoulders and neck.

¶ 20 When asked why he did not, at that point, release decedent to go home, Dr. McMillin said, "I think at that time, given the fact that he was still having some symptoms, I wanted to make sure I consulted with the primary care provider on call to determine what the next appropriate steps would be." He added, "I wanted [him] either admitted to the hospital or arranged for appropriate follow-up," which he clarified would consist of seeing his primary care provider the next day. At that point, Dr. McMillin called the on-call physician, Dr. Krock.

¶ 21 Because Dr. McMillin did not have admitting authority at Graham Hospital, admission orders were required to come from either the patient’s primary care provider or the on-call physician. According to Dr. McMillin, "The whole point of calling a physician on call is to discuss hospitalization." Dr. McMillin agreed that, if decedent was going to be hospitalized that evening, it would have been pursuant to the order of Dr. Krock, who had admitting authority at Graham Hospital. However, had Dr. McMillin intended to release a patient, he did not need to consult with any other physician.

¶ 22 2. The Call to Dr. Krock

¶ 23 Dr. Krock was the on-call internal medicine physician on the evening of July 26 pursuant to a contractual agreement between Coleman (his employer) and Graham Hospital, whereby Coleman physicians provided on-call services as a part of their employment. At approximately 8:57 p.m., he took a call from emergency department physician Dr. McMillin relating to decedent’s condition. Dr. Krock had no memory of the interaction with Dr. McMillin that evening.

¶ 24 Dr. McMillin testified that he discussed all available medical information concerning decedent with Dr. Krock, including the various test results, complaints, and history. He did not recall whether Dr. Krock contributed to the diagnosis of torticollis, but the emergency department medical records show torticollis as a possible condition prior to Dr. McMillin’s call to Dr. Krock.

¶ 25 Dr. McMillin agreed that the topic of decedent’s hospitalization came up during his call with Dr. Krock and said that his call "went like every conversation I would have" where "we would go through the entire case and come to a consensus of whether based on all the information available if hospitalization was warranted at the time." Concerning decedent’s possible admission, Dr. McMillin was asked the following series of questions:

"Q. And based on your notes, your records and all this, did you ever consider asking Dr. Krock whether or not he needed to be admitted as a patient?

A. Yes.

Q. And do you believe that you would have discussed with Dr. Krock whether Dr. Krock believed he should be admitted as a patient?

A. Yes.

Q. And is it your belief that Dr. Krock was of the mind that he should not be admitted that evening?

A. Yes."

¶ 26 Dr. Krock could not comment on whether that happened on this occasion but testified that such questions, "happen[ ] pretty regularly." Dr. Krock was asked, if a physician "has a question about whether a patient is to be admitted or not, he has someone to call who is on-call to discuss that with?"...