                                        2015 IL App (3d) 130219

                                Opinion filed April 27, 2015
     ____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                               A.D., 2015

     MICHELLE MACKEY and RONALD               )             Appeal from the Circuit Court
     MACKEY,                                  )             of the 12th Judicial Circuit,
                                              )             Will County, Illinois,
             Plaintiffs-Appellants,           )
                                              )
             v.                               )             Appeal No. 3-13-0219
                                              )             Circuit No. 11-L-269
                                              )
                                              )
     MANUEL VILLARROY SARROCA, M.D.;           )
     SILVER CROSS HOSPITAL AND                )
     MEDICAL CENTERS, an Illinois Not-For-    )
     Profit Corporation; EM STRATEGIES, LTD., )             The Honorable
     Defendants, (John DeFranco, M.D.,        )             Michael J. Powers,
     Defendant-Appellee).                     )             Judge, Presiding.

     __________________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Justices Carter and O’Brien concurred in the judgment and opinion.
     ____________________________________________________________________________

                                               OPINION

¶1          The plaintiffs, Michelle Mackey and Ronald Mackey, brought multiple medical

     malpractice counts against Dr. Manual Villarroy Sarroca, M.D., Silver Cross Hospital and

     Medical Centers, EM Strategies, Ltd., and Dr. John DeFranco. Dr. Sarroca was an attending

     physician in the emergency department at Silver Cross, and Dr. DeFranco was an on-call

     urologist under contract with Silver Cross Hospital. The plaintiffs alleged that Michelle Mackey
     (Michelle) suffered significant injuries (urosepsis and resulting severe complications) as the

     result of negligent treatment she allegedly received after she was transported to the emergency

     department at Silver Cross with complaints of persistent and severe abdominal pain. Only the

     counts against John DeFranco, M.D. (Dr. DeFranco), are at issue in this appeal. Dr. DeFranco

     filed a motion to dismiss the complaint against him maintaining both that the claim against him

     was untimely and that he owed no duty of care to the plaintiffs due to the lack of a physician-

     patient relationship. 735 ILCS 5/2-619 (West 2010). The trial court granted the motion to

     dismiss based on a finding that Dr. DeFranco owed the plaintiffs no duty of care. The plaintiffs

     appealed.

¶2                                                I. FACTS

¶3          On Friday, May 14, 2010, Michelle was transported to the emergency department at

     Silver Cross Hospital complaining of persistent and severe abdominal and right kidney area pain.

     She was nauseous and vomiting upon arrival. Dr. Sarroca, the attending physician on site,

     examined her immediately upon her arrival. He ordered various diagnostic tests, including

     urinalysis and a complete blood workup. Dr. Sarroca read the tests to reveal a urinary tract

     infection and a 6mm utero-pelvic obstruction (i.e., a kidney stone). In accordance with

     established Silver Cross Hospital protocol, Dr. Sarroca paged Dr. DeFranco, the urologist on call

     for Silver Cross on that particular day. The page was sent at approximately noon and Dr.

     DeFranco responded to the page within three minutes, using his cell phone to return the call.

     Dr. DeFranco was driving in his car when he received the page from Dr. Sarroca, so he parked

     his car to return the call. Dr. Sarroca gave Dr. DeFranco a detailed description of the patient’s

     condition and reported the results of each of the diagnostic tests. Dr. DeFranco made notes from

     the conversation on a small “sticky” notepad. He wrote that the patient had a 6mm obstructive


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     kidney stone, no fever, a normal white blood count, and reported no pain after receiving pain

     medication. Dr. DeFranco also wrote down that the patient had received analgesics, and

     antibiotics. Dr. DeFranco told Dr. Sarroca that the patient should be given Flomax to help pass

     the stone. He also told Dr. Sarroca to tell the patient that he [Dr. DeFranco] wanted to see her in

     his office on Monday. Dr. DeFranco’s last notation was “office Monday” and the word “sepsis”

     with a line drawn through it. Dr. DeFranco would later state in his deposition that he wrote the

     “sepsis” and drew a line through it to indicate that there were no indications that the patient had

     sepsis at that time.

¶4          On May 17, 2010, Dr. DeFranco drafted a second set of notes regarding his conversation

     three days earlier with Dr. Sarroca. He noted that he had been paged by Dr. Sarroca. He noted

     Dr. Sarroca asked him if he was “the urologist” to which Dr. DeFranco replied “yes.” Dr.

     Sarroca reported that he had a 39-year-old female in the emergency department with a 6 mm

     obstructing stone. She had been given Dilaudid and was currently pain free. Dr. DeFranco next

     noted that he asked Dr. Sarroca “is she stable” to which Dr. Sarroca responded “yes.” Dr.

     DeFranco then noted that he asked Dr. Sarroca if the patient was afebrile and was told “yes.” He

     noted asking Dr. Sarroca if the patient had a normal white blood count and being told “yes.” The

     last notation on Dr. DeFranco’s note was a question mark followed by the phrase “may have

     mentioned UA.”

¶5           In a deposition, Dr. DeFranco testified that he was the urologist “on-call” for Silver Cross

     Hospital that day under a contract between his employer, Specialized Urologic Consultants, Ltd.

     and Silver Cross Hospital. As the on-call urologist, his responsibilities included giving the

     emergency room physician advice and recommendations regarding specific patients who

     presented with symptoms or conditions that might require the specialized expertise of an


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     urologist. As an on-call urologist, Dr. DeFranco also had the authority to admit patients to the

     hospital if he believed that admission was warranted. He testified that his conversation with Dr.

     Sarroca was “just routine that most ERs tell us that [we] would [or] should see our patients

     within about 24 to 48 hours given that it’s not going into a weekend after they’ve been seen in an

     emergency room; so we try to get them in as timely as possible.” He also testified that he would

     normally ask the emergency attending physician if urinalysis had been completed, but he did not

     recall asking Dr. Sarroca about any urinalysis results. Dr. DeFranco also testified that he

     believed that it was the emergency attending physician’s prerogative to make the clinical

     decision to prescribe antibiotics if the possibility of infection was present. 1

¶6           Dr. Sarroca’s deposition established that he regularly consulted with a specialist, such as

     Dr. DeFranco, if he believed that the situation required consultation with a particular specialist.

     He also testified that established procedures dictated consultation with a specialist when the facts

     and circumstances warranted. In light of the fact that this patient presented with a rather large

     kidney stone, Dr. Sarroca believed that he needed to “refer to the urologist.” Dr. Sarroca

     testified that he believed the consulting urologist was ultimately responsible for decisions

     regarding the patient’s care because once the on-call specialist has been contacted the specialist

     “takes over decision making whether to do this or that.” Dr. Sarroca explained that when he

     1
         There appears to be a dispute of fact as to whether Dr. Sarroca told Dr. DeFranco that the

     patient had received antibiotics as well as whether Dr. DeFranco instructed Dr. Sarroca to

     administer antibiotics. Because the issue is before this court on a motion to dismiss pursuant to

     section 2-619, we consider all well-pled facts in the complaint as true and consider the facts in

     the light most favorable to the plaintiff. Clemons v. Mechanical Devices Co., 202 Ill. 2d 344,

     352 (2002).


                                                        4
     consults with an on-call specialist, the specialist gives him specific advice and recommendations

     for the patient which he takes “into account in a big way because that’s what they recommend.”

     Dr. Sarroca stated that the on-call specialist’s “decision is what is the final disposition of the

     patient” and he would follow the on-call specialist’s instructions even if he disagreed with those

     instructions.

¶7          Dr. Sarroca also testified that he reviewed all the test results, including urinalysis results,

     with Dr. DeFranco, because he wanted Dr. DeFranco to have all relevant information so that Dr.

     DeFranco would “have the option of giving an impression as to whether to consider [anything]

     as significant or not.” He testified that he would have asked Dr. DeFranco for specific

     instructions based upon the diagnostic test results. He specifically expected Dr. DeFranco to

     decide whether to admit the patient and whether there was an urgent need to begin antibiotic

     therapy. Dr. Sarroca thought that admitting the patient was advisable due to the size of the

     kidney stone, but he would not admit her unless instructed to do so by Dr. DeFranco. He

     testified that he was somewhat surprised when Dr. DeFranco did not order the patient admitted.

     Dr. DeFranco instead recommended pain medication, Flomax to help pass the stone, and told Dr.

     Sarroca to instruct the patient to follow-up with an appointment at his office on Monday. Dr.

     Sarroca testified that Dr. DeFranco did not tell him to prescribe any antibiotic treatment, even

     though the urinalysis results seemed to him to indicate that a course of antibiotic treatment might

     be helpful. Dr. Sarroca testified he did not give the patient antibiotics, but, if Dr. DeFranco had

     told him to prescribe antibiotics, he would have done so. Dr. Sarroca followed Dr. DeFranco’s

     recommendations and discharged the patient with instructions to follow up with Dr. DeFranco

     “next week.” The instructions included the telephone number for Dr. DeFranco’s office.

     Michelle Mackey was discharged from the emergency department at that time.


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¶8            Ronald Mackey made and appointment for Michelle with Dr. DeFranco on Monday, May

       17, 2010. She subsequently developed a severe case of septic shock secondary to urosepsis,

       disseminated intravascular coagulopathy, adult respiratory distress syndrome, respiratory failure,

       renal failure, multisystem organ failure, severe deconditioning, and metabolic encephalopathy.

       The plaintiffs’ medical malpractice complaint alleged that these conditions were the direct and

       proximate result of Dr. DeFranco’s failure to engage in a course of treatment to prevent septic

       infection.

¶9            Dr. DeFranco filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of

       Civil Procedure (735 ILCS 5/2-619 (West 2010)) maintaining that the complaint against him was

       untimely and deficient as a matter of law because he owned no duty of care to the plaintiffs

       based upon the lack of a physician-patient relationship. The circuit court granted Dr. DeFranco’s

       motion, finding that he owed no professional duty of care to the plaintiffs. This appeal followed.

¶ 10                                            II. ANALYSIS

¶ 11                                    A. Timeliness of the Complaint

¶ 12          As a preliminary matter, we will address the appellee’s argument that the complaint

       against Dr. DeFranco was untimely. The defendant raised this issue before the circuit court, but

       no ruling was made on that specific claim in the motion to dismiss. The appellee maintains that

       we may sustain a judgment on appeal on any basis that is supported by the record. American

       Zurich Insurance Co. v. Wilcox & Christopoulos L.L.C., 2013 IL App (1st) 120402, ¶ 33.

       Whether a complaint is filed in a timely manner is a question of fact. Knox College v. Celotex

       Corp., 88 Ill. 2d 407, 416 (1981). Motions alleging that the complaint is untimely are filed in the

       circuit court under section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West

       2010); Myers v. Rockford Systems, Inc., 254 Ill. App. 3d 56, 61 (1993). A reviewing court will


                                                       6
       take all well-pled facts in the complaint as true (Nikolic v. Seidenburg, 242 Ill. App. 3d 96, 99

       (1993)) and will not weigh the evidence or decide controverted material issues of fact. Draper v.

       Frontier Insurance Co., 265 Ill. App. 3d 739, 742 (1994). Our review of a timeliness ruling is de

       novo. Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583 (1993).

¶ 13          Medical malpractice claims must be filed within the time period mandated by section 13-

       212(a) of the Code of Civil Procedure, which provides that a claim cannot be brought “more than

       2 years after the date on which the claimant knew, or through the use of reasonable diligence

       should have known *** of the existence of the injury or death for which damages are sought in

       the action.” 735 ILCS 5/13-212(a) (West 2010).

¶ 14          In the instant matter, the plaintiffs allege negligent treatment on or about May 15, 2010.

       The plaintiffs filed suit against all the named defendants except Dr. DeFranco on April 7, 2011.

       Dr. DeFranco was named as a respondent in discovery after Dr. Sarroco’s discovery deposition

       was taken in August 2012. Shortly thereafter an amended complaint was filed alleging counts

       against Dr. DeFranco. It was during the Sarroco deposition that the plaintiffs first discovered

       that Dr. DeFranco engaged in conduct which, allegedly, lead to Michelle’s sepsis and gave rise

       to a complaint of professional negligence against the Dr. DeFranco. The plaintiffs maintain,

       therefore, that they filed their complaint against Dr. DeFranco within two years of discovering

       his alleged breach of professional duty.

¶ 15          Plaintiffs may file a timely complaint within two years of discovering the existence of a

       cause of action against a particular defendant. Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161

       (1981). The “discovery rule” provides that the cause of action accrues when the plaintiff knows

       or reasonably should know of the injury and also knows or reasonably should have known that

       the injury was caused by the wrongful acts of the defendant. Id. at 169. The question of when a


                                                        7
       party knew or should have known of both an injury and its wrongful cause is one of fact. Id.

       The time begins to run, not when the plaintiff has knowledge of the injury, but only when the

       plaintiff reasonably discovers that the defendant’s negligence may have contributed to the injury.

       Arndt v. Resurrection Hospital, 163 Ill. App. 3d 209, 213 (1987).

¶ 16           In the instant matter, the well-pled facts support a finding that the plaintiffs only

       discovered the role of Dr. DeFranco in Michelle’s care, and that his actions or inactions allegedly

       caused her injuries, by way of Dr. Sarroca’s discovery deposition. There are no facts alleged in

       the complaint from which it could be found that the plaintiffs knew or reasonably should have

       known of Dr. DeFranco’s alleged breach of a professional duty of care at any time prior to the

       Sarroca deposition. In fact, it would appear from the record that certain medical treatment

       records may have erroneously recorded that Dr. DeFranco had ordered Dr. Sarroca to administer

       antibiotics, and it was only after Dr. Sarroca’s deposition that it was discovered that Dr.

       DeFranco had not addressed antibiotic treatment when he allegedly determined that Michelle

       was not in danger of sepsis. See supra ¶ 5 n.1. Taking the well-pled facts as true, and finding no

       contrary facts in the record, we find that the complaint against Dr. DeFranco was timely filed.

¶ 17                                       B. Professional Duty of Care

¶ 18           The substantive issue in this matter is whether the circuit court properly granted Dr.

       DeFranco’s motion to dismiss the complaint based upon its finding that the defendant owed no

       duty of professional care to the plaintiffs. A motion to dismiss pursuant to section 2-619 of the

       Code of Civil Procedure (735 ILSC 5/2-619 (West 2010)) will be granted only where the

       plaintiff can prove no set of facts that would support the cause of action. Feltmeier v. Feltmeier,

       207 Ill. 2d 263, 277-78 (2003). There are no factual or credibility determinations to be made

       since all well-pled facts are taken as true and all that is left is to determine whether the plaintiff


                                                          8
       can state a cause of action as a matter of law. Id. If there is a dispute of facts, those facts

       advanced in the complaint are taken as true for purposes of ruling on the motion to dismiss.

       Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). A motion to

       dismiss under this section “admits the legal sufficiency of the plaintiff’s claim but asserts certain

       defects or defenses outside the pleadings which defeat the claim.” Sandholm v. Kuecker, 2012

       IL 111443, ¶ 55. A reviewing court will review the question of law independent of the trial

       court’s ruling, using a de novo standard of review. Clemons v. Mechanical Devices Co., 202 Ill.

       2d 344, 452 (2002).

¶ 19          A legally sufficient complaint alleging medical malpractice must set out facts

       establishing the existence of a duty owed by the defendant to the plaintiffs, a breach of that duty,

       and an injury proximately caused by that breach. Kirk v. Michael Reese Hospital & Medical

       Center, 117 Ill. 2d 507, 525 (1987). A physician’s duty arises only when a physician-patient

       relationship has been expressly established or there is a special relationship such as when one

       physician is asked by another physician to provide a service to the patient, conduct laboratory

       tests, or review test results. Siwa v. Koch, 388 Ill. App. 3d 444, 447 (2009); Weiss v. Rush North

       Shore Medical Center, 372 Ill. App. 3d 186, 188 (2007); Reynolds v. Decatur Memorial

       Hospital, 277 Ill. App. 3d 80, 84 (1996). The matter at hand tests whether a special relationship

       existed between Dr. DeFranco and Michelle which gave rise to a physician-patient relationship

       and imposed a professional duty of care upon Dr. DeFranco.

¶ 20          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. Weiss, 372 Ill. App. 3d at 189; Bovara v. St. Francis Hospital, 298 Ill.

       App. 3d 1025, 1026-27 (1998). A physician-patient relationship is established where the


                                                          9
       physician takes some affirmative action to participate in the care, evaluation, diagnosis or

       treatment of a specific patient. Lenahan v. University of Chicago, 348 Ill. App. 3d 155, 164

       (2004). The central inquiry is whether the physician has been asked to provide a specific service

       for the benefit of a specific patient. Bovara, 298 Ill. App. 3d at 1030.

¶ 21          In Bovara, the plaintiff was examined by a cardiologist at the hospital where he was

       being treated for symptoms of heart disease. His treating cardiologist did not review the

       plaintiff’s angiogram results, but as part of the routine hospital procedure, sent the test results to

       two “cardiac interventionists” for their review. According to the cardiologist, the cardiac

       interventionists were employed by the hospital and were responsible for reviewing cardiac test

       results and making the decision regarding surgical intervention or noninterventionist care. The

       cardiac interventionists, after reviewing the plaintiff’s test results and discussing the case with

       the treating physician informed the treating cardiologist that the plaintiff was a candidate for

       surgical intervention. The plaintiff underwent an angioplasty procedure and during the

       procedure went into cardiac arrest and was unable to be revived. The court held on appeal that

       there was a physician-patient relationship between the cardiac interventionists and the plaintiff

       because they were assigned by the hospital with the task of consulting with the treating

       physician, they reviewed the plaintiff’s angiogram, were compensated for their services, and

       rendered a medical opinion as to whether the plaintiff was a candidate for surgery. Bovara, 298

       Ill. App. 3d at 1031. The court specifically found that the interventionists were more involved

       with the plaintiff’s treatment than merely reviewing test results. Id. at 1032.

¶ 22          In Lenahan, a special relationship establishing a duty of care was also found to exist even

       though the defendant physician had never met the plaintiff’s decedent. Lenahan, 348 Ill. App.

       3d at 166. In that case, the decedent was admitted to a hospital where the defendant physician


                                                         10
       had responsibility for determining which patients were eligible for inclusion in an experimental

       high-dose chemotherapy program. The defendant physician never personally examined the

       decedent and made the decision to admit the decedent in the experimental program based entirely

       upon reviewing test results and consulting with treating physicians. The appellate court held that

       a physician-patient relationship existed because the defendant had an active role in the

       decedent’s care, was compensated for his services rendered for the plaintiff, reviewed test

       results, and made treatment determinations. Id. at 164-65.

¶ 23          By contrast, no special relationship establishing a duty of care was found to exist in

       Reynolds, where a physician who was informally consulted by the plaintiff’s treating physician

       was held not to have a professional duty of care to the plaintiff. Reynolds, 277 Ill. App. 3d at 85.

       In Reynolds, the plaintiff’s minor child was taken to the local hospital emergency department

       after falling off a sofa. The attending physician admitted the child for observation and called in

       the on-call pediatrician who examined the child. The pediatrician called the defendant, a

       neurosurgeon, seeking advice on possible spinal cord damage. The call was to the defendant at

       his home and was not made pursuant to protocol or procedures. The defendant neurosurgeon did

       not have any specific on-call relationship with the hospital, but often accepted calls from local

       physicians seeking informal advice. He was never compensated for the advice he gave. The

       pediatrician gave the neurosurgeon a brief synopsis of the patient’s condition, but did not review

       specific test results. The neurosurgeon suggested a spinal tap as a possible avenue to rule out

       meningitis. Ultimately the child was diagnosed with Gullian-Barre syndrome which resulted in

       quadriplegia. The child’s mother brought a professional negligence suit against the

       neurosurgeon alleging that he should have examined the child and his medical records before

       rendering treatment advice. Id.


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¶ 24          The Reynolds court upheld the dismissal of the complaint against the neurosurgeon. The

       court noted that a physician-patient relationship is normally a consensual relationship in which

       the patient or his guardian knowingly seeks the physician’s assistance and the physician

       knowingly accepts the person as a patient. Id. at 85. The court also noted, however, that a

       physician-patient relationship can arise “where other persons contact a physician on behalf of a

       patient.” Id. The court then discussed the facts surrounding the defendant’s involvement in the

       case and noted that he was contacted “informally” rather than as part of an established protocol,

       he did not order, conduct, or review test results, and he was paid no fee. Id. The court held that

       “[a] doctor who gives an informal opinion at the request of a treating physician does not owe a

       duty of care to the patient whose case was discussed.” Id.

¶ 25          In Weiss, the plaintiff was treated in the emergency department by a treating physician

       for a mental condition. The treating physician contacted the on-call psychiatrist only to arrange

       for follow-up care for the plaintiff. The physician discussed the plaintiff’s condition and the

       need for follow-up care with the psychiatrist. The discussion was limited to the need for future

       care and the treating physician did not seek any advice regarding any actions or treatment

       currently needed by the plaintiff. The appellate court held that there was no physician-patient

       relationship established between the plaintiff and the psychiatrist because the psychiatrist did not

       perform any services for the plaintiff, did not perform any tests, did not analyze any test results,

       did not direct the physician in treating the plaintiff, did not form any clinical impressions of the

       plaintiff, and did not render a medical opinion regarding the plaintiff. Weiss, 372 Ill. App. 3d at

       189.

¶ 26          Our review of the case law leads a conclusion that a special relationship establishing a

       physician-patient relationship exists where, as in Bovara, and Lenahan, the consulting physician


                                                        12
       is assigned the task of consulting as part of established procedures, protocols or contractual

       obligation with the hospital, is compensated for those consulting services, orders tests or reviews

       test results, gives specific medical advice regarding contemporaneous patient care, and makes

       decisions regarding the patient’s current medical care. Bovara, 298 Ill. App. 3d at 1032;

       Lenahan, 346 Ill. App. 3d at 164-65. However, where a physician is consulted or advice is

       sought on an informal basis, where no compensation is received by the consulting physician, the

       consulting physician does not order tests or review test results, and has no input in the actual

       treatment of the patient, no special relationship creating a physician-patient relationship has been

       established. Reynolds, 277 Ill. App. 3d at 85; Weiss, 372 Ill. App. 3d at 189. To determine

       whether there was a physician-patient relationship between Dr. DeFranco and Michelle Mackey,

       we must consider whether the facts presented in this case are more similar to the facts presented

       in Bovara and Lenahan, or Reynolds and Weiss. See Gillespie v. University of Chicago

       Hospitals, 387 Ill. App. 3d 540, 545 (2008).

¶ 27          Viewing the evidence in light most favorable to the plaintiff, we find that it was error for

       the trial court to dismiss the complaint. The well-pled facts, taken as true for purposes of ruling

       on the motion to dismiss, establish that Dr. DeFranco’s relationship with Michelle was more akin

       to those physicians found to have a special relationship giving rise to a professional duty of care.

       Specifically, the complaint established that Dr. DeFranco: (1) was the on-call urologist assigned

       to consult with treating physicians at Silver Cross Hospital pursuant to a contract between the

       hospital and his employer; (2) was compensated for his consulting services; (3) was consulted by

       the emergency room physician for Michelle’s benefit for the specific purpose of rendering

       diagnostic and medical advice regarding her treatment; (4) received specific information

       regarding her history, symptoms, and diagnostic test results; (5) evaluated those tests results and


                                                        13
       formed a medical opinion that she was not in danger of sepsis; (6) was actually responsible for

       making decision regarding her care and whether she was to be admitted or released; and (7)

       decided that Michelle did not need to be admitted but could be discharged with an instruction to

       seek an out-patient follow-up appointment on Monday. Taking these facts as true, it is clear that

       Dr. Franco’s relationship with Michelle was a physician-patient relationship which gave rise to a

       professional duty of care. We find that the trial court erred in granting the motion to dismiss and

       that the matter should be remanded for further proceedings.

¶ 28                                          III. CONCLUSION

¶ 29          For the foregoing reasons, the judgment of the circuit court of Will County dismissing the

       complaint against Dr. DeFranco is reversed and the cause is remanded for further proceedings

       consistent with this disposition.

¶ 30          Reversed; cause remanded.




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