A state appeals panel has reversed a lower court’s ruling and asserted a phone call between two physicians can expose both to malpractice liability, even though only one doctor actually saw the patient.
In January 2019, Judy Blagden filed a Peoria County medical negligence lawsuit on behalf of her late husband, Dennis, against Dr. Matthew McMillin and Graham Hospital. She later amended the complaint to add as defendants Dr. Kenneth Krock and Coleman Medical Associates.
According to Blagden’s complaint, McMillin saw Dennis Blagden at the Graham Hospital emergency room on July 26, 2017, and ordered laboratory tests. Blagden arrived at the hospital with neck pain and elbow swelling from an insect bite. In addition to tests, McMillin prescribed anti-inflammatory pain medication and a muscle relaxer.
The complaint alleged McMillin, who worked for Coleman Medical, consulted with Krock, who also worked for Coleman, had admitting privileges at the hospital and was on call. That discussion led to Blagden’s discharge, though “infection was still on Dr. Krock’s diagnosis.” Court records show the doctors agree the decision against admission was collaborative, but that Krock had authority.
On July 29, according to the complaint, Blagden again went to the Graham ER, this time with “hypercapnic respiratory failure, sepsis and an altered mental state,” according to court records. McMillin intubated Blagden and had him flown to Methodist Medical Center in Peoria. At Methodist, an MRI revealed a spinal epidural abscess; Blagden died Aug. 7.
The malpractice lawsuit alleged Krock had established a physician-patient relationship, that he failed to rule out an infectious process and to admit and monitor Blagden and that the discharge was unsafe. The complaint was transferred to Fulton County, and in July 2021 Krock and Coleman moved for summary judgment, arguing there was no doctor-patient relationship establishing a legal duty of care.
Fulton County Judge Thomas Ewing granted that motion in March 2022, promoting Judy Blagden’s appeal to the Springfield-based Fourth District Illinois Appellate Court. Justice Eugene Doherty wrote the panel’s opinion, issued Jan. 26; Justices Craig DeArmond and Peter Cavanagh concurred.
“Illinois law is well settled that the special relationship giving rise to a duty of care may exist even in the absence of any meeting between the physician and the patient where the physician performs specific services for the benefit of the patient,” Doherty wrote.
“Merely dispensing medical advice or offering a professional opinion in response to an inquiry from the patient’s treating physicians is not sufficient to create a duty.”
The panel said other litigation has addressed phone calls with on-call doctors, including multiple instances wherein an appeals panel overruled a circuit court finding no established relationship and duty of care. It also examined instances wherein a phone call was found to be no more than one doctor answering a colleague’s question, or where doctors reviewed test results after diagnosis and discharge, and were therefore not liable for alleged malpractice.
“The undisputed facts establish that Dr. Krock was the on-call physician assigned to consult with emergency department physicians at Graham Hospital pursuant to a contract between the hospital and his employer,” Doherty wrote, “was compensated for his on-call consulting services; was consulted by the emergency department physician for decedent’s benefit for the specific purpose of rendering medical advice regarding his possible hospital admission; received specific information from the emergency department physician regarding decedent’s history, symptoms and diagnostic test results; considered those tests results and collaborated on a medical opinion that decedent was not in immediate danger of infection; was ultimately responsible for making decision regarding whether decedent was to be admitted; and decided that decedent did not need to be admitted but could be discharged with an instruction to seek an outpatient follow-up appointment with his personal physician.”
The panel highlighted Krock’s admitting privileges and the agreement that while McMillin alone could have decided to discharge a patient, he could only raise the question of admission with Krock and only Krock could give final approval for such a decision.
The phone call between doctors, Doherty wrote, wasn’t an informal conference but a discussion “contemplated by hospital bylaws.” He added that “while public policy should encourage informal consultations between physicians, it must not ignore actual physician involvement in decisions that directly affect a patient’s care.”
The panel reversed Judge Ewing’s summary judgment and remanded the complaint for further proceedings.
Krock and Coleman Medical are represented by Heyl, Royster, Voelker & Allen, of Springfield; and Donohue Brown Mathewson & Smyth, of Chicago.
Representing Blagden is Pfaff, Gill & Ports, of Chicago.