{ "id": 4279734, "name": "BENJAMIN HERNANDEZ, Independent Adm'r of the Estate of Alma Hernandez, Deceased, Plaintiff-Appellant, v. ALEXIAN BROTHERS HEALTH SYSTEM, Defendant (Naphtali Kogan et al., Defendants-Appellees)", "name_abbreviation": "Hernandez v. Alexian Bros. Health System", "decision_date": "2008-07-31", "docket_number": "No. 1\u201406\u20141196", "first_page": "510", "last_page": "522", "citations": [ { "type": "official", "cite": "384 Ill. App. 3d 510" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "214 Ill. 2d 476", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451345 ], "year": 2005, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0476-01" ] }, { "cite": "224 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607155 ], "year": 2006, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0172-01" ] }, { "cite": "188 Ill. 2d 17", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536033 ], "year": 1999, "pin_cites": [ { "page": "30-31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0017-01" ] }, { "cite": "17 Ill. 253", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2591318 ], "year": 1855, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill/17/0253-01" ] }, { "cite": "156 Ill. 342", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3023195 ], "year": 1895, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/ill/156/0342-01" ] }, { "cite": "362 Ill. 427", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2594268 ], "weight": 2, "year": 1936, "pin_cites": [ { "page": "432" }, { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/ill/362/0427-01" ] }, { "cite": "155 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810152 ], "year": 1993, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0402-01" ] }, { "cite": "181 Ill. 2d 460", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821410 ], "year": 1998, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0460-01" ] }, { "cite": "129 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567184 ], "year": 1989, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0351-01" ] }, { "cite": "197 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259112 ], "year": 2001, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0028-01" ] }, { "cite": "260 Ill. App. 3d 707", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863752 ], "year": 1994, "pin_cites": [ { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0707-01" ] }, { "cite": "172 Ill. 2d 243", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55980 ], "year": 1996, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0243-01" ] }, { "cite": "322 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126399 ], "year": 2001, "pin_cites": [ { "page": "902" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0900-01" ] }, { "cite": "369 Ill. App. 3d 924", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267118 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "931" }, { "page": "931" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0924-01" ] }, { "cite": "199 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58897 ], "year": 2002, "pin_cites": [ { "page": "284", "parenthetical": "in considering motions for summary judgment, courts review pleadings, depositions, admissions, and any affidavits on file" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0281-01" ] }, { "cite": "211 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451063 ], "year": 2004, "pin_cites": [ { "page": "42-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0032-01" ] }, { "cite": "103 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483786 ], "year": 1981, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0250-01" ] }, { "cite": "365 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264027 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "314" }, { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0303-01" ] }, { "cite": "216 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3827797 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "305" }, { "page": "305" }, { "page": "305" }, { "page": "306" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0294-01" ] }, { "cite": "355 Ill. App. 3d 645", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600095 ], "weight": 8, "year": 2005, "pin_cites": [ { "page": "650-52" }, { "page": "650-52" }, { "page": "650" }, { "page": "650" }, { "page": "650" }, { "page": "650" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0645-01" ] }, { "cite": "32 Ill. Reg. 7932", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 4, "pin_cites": [ { "parenthetical": "eff. May 12, 2008" }, { "parenthetical": "eff. May 12, 2008" }, { "parenthetical": "eff. May 12, 2008" }, { "parenthetical": "eff. May 12, 2008" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 997, "char_count": 29624, "ocr_confidence": 0.845, "pagerank": { "raw": 7.285599905076696e-08, "percentile": 0.4335505660754739 }, "sha256": "bc41ed7f07010d74be44cf5015469f3ad5e6273d45348725b729211986171a24", "simhash": "1:8a9e5df0bb8243fb", "word_count": 4790 }, "last_updated": "2023-07-14T18:18:27.294728+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BENJAMIN HERNANDEZ, Independent Adm\u2019r of the Estate of Alma Hernandez, Deceased, Plaintiff-Appellant, v. ALEXIAN BROTHERS HEALTH SYSTEM, Defendant (Naphtali Kogan et al., Defendants-Appellees)." ], "opinions": [ { "text": "PRESIDING JUSTICE NEVILLE\ndelivered the opinion of the court:\nPlaintiff, Benjamin Hernandez, the independent administrator of the estate of Alma Hernandez, filed a complaint against the defendants, Alexian Brothers Health System, Naphtali Kogan, M.D., and Cardiovascular Associated, S.C., and alleged, inter alia, that the defendants\u2019 negligent acts were the proximate cause of Alma Hernandez\u2019s death on June 6, 2002. Dr. Kogan and his employer, Cardiovascular Associated, S.C. (Cardiovascular), filed a motion for summary judgment and argued that the provisions in the Good Samaritan Act immunized Dr. Kogan from civil liability for providing emergency medical care to Ms. Hernandez on June 6, 2002. 745 ILCS 49/25 (West 2002). The trial court granted Dr. Kogan and Cardiovascular\u2019s motion for summary judgment on April 24, 2006.\nOn April 28, 2006, Mr. Hernandez filed his notice of appeal, and he presents three issues for review: (1) whether the trial court erred when it granted summary judgment because material issues of fact exist regarding whether Dr. Kogan acted in good faith when he decided not to issue a bill for his medical services; (2) whether section 25 of the Good Samaritan Act is unconstitutional special legislation (745 ILCS 49/25 (West 2002)); and (3) whether conferring immunity upon physicians working in hospitals, pursuant to the provisions of section 25 of the Good Samaritan Act, defeats the purpose of the Illinois Hospital Licensing Act (210 ILCS 85/1 et seq. (West 2002)).\nBACKGROUND\nOn June 6, 2002, Ms. Hernandez was an in-patient at St. Alexius Medical Center (St. Alexius). While undergoing a biopsy in the radiology department at St. Alexius, Ms. Hernandez suffered a cardiac arrest and was transferred to the emergency room, where \u201cany available cardiologist\u201d was paged over the intercom to attend to Ms. Hernandez.\nDr. Kogan, a board-certified cardiologist, was a member of the St. Alexius physicians\u2019 staff on June 6, 2002. Dr. Kogan also had a contract with St. Alexius to provide 24-hour on-call coverage at St. Alexius on a rotational schedule. On June 6, 2002, Dr. Kogan responded to the emergency room page and found Ms. Hernandez intubated and asystolic when he began his resuscitation efforts. Dr. Kogan inserted a central line into Ms. Hernandez\u2019s femoral artery and ordered an echo-cardiogram, which he interpreted at her bedside. Dr. Kogan then attempted pericardiocentisis from multiple locations. However, resuscitation efforts failed and Ms. Hernandez died on June 6, 2002. Finally, on April 16, 2003, Mr. Hernandez, the independent administrator of the estate of Alma Hernandez, filed a complaint and named Dr. Kogan and his physicians\u2019 group, Cardiovascular, among others, as defendants.\nDefendants\u2019 Motion for Summary Judgment\nAfter the plaintiff filed his complaint, Dr. Kogan and Cardiovascular filed a motion for summary judgment, pursuant to section 2 \u2014 1005 of the Code of Civil Procedure. 735 ILCS 5/2 \u2014 1005 (West 2002). Plaintiff\u2019s complaint and Dr. Kogan\u2019s affidavit were attached as exhibits to the defendants\u2019 motion for summary judgment.\nIn his affidavit Dr. Kogan averred, in pertinent part:\n\u201c4. Though I was a member of the medical staff of St. Alexius, neither by contract, agreement, nor pursuant to any Hospital policy, rule or regulation was I obligated to respond to the request for assistance. I was not a member of any designated code response team at St. Alexius, nor was Cardiovascular Associates contracted to provide emergency response assistance to Hospital codes. I was not \u2018on call\u2019 in the emergency room to respond to cardiac emergencies on June 6, 2002.\n5.1 provided care to Ms. Alma Hernandez to the best of my abilities; she was in full cardiac arrest when I arrived and she was never resuscitated.\n6. Neither Cardiovascular Associates nor I billed Ms. Hernandez, or her family or her insurer for my medical efforts to revive her on June 6, 2002.\u201d\nBecause Dr. Kogan (a) rendered emergency care, and (b) did not bill Ms. Hernandez, the defendants claimed that Dr. Kogan\u2019s actions on June 6, 2002, were immunized from civil liability by the provisions of section 25 of the Good Samaritan Act. 745 ILCS 49/25 (West 2002). Therefore, the defendants maintained that they were entitled to summary judgment.\nPlaintiffs Response to Defendants\u2019 Motion for Summary Judgment\nMr. Hernandez responded to the defendants\u2019 motion for summary judgment first by arguing that the Good Samaritan Act does not apply to Dr. Kogan or his physician\u2019s group, Cardiovascular, because (a) the defendants were paid to provide emergency care at St. Alexius in June 2002; and (b) the decision not to bill Ms. Hernandez was not made in good faith. In support of his argument, Mr. Hernandez attached 11 exhibits, including the contract between Dr. Kogan and St. Alexius for on-call cardiac coverage services, St. Alexius\u2019 bylaws and the general rules and regulations of the medical/dental staff, and the transcript from Dr. Kogan\u2019s December 22, 2003, deposition.\nPhysician On-Call Coverage Agreement\nMr. Hernandez relied on the terms of the contract between St. Alexius and Dr. Kogan and the \u201cPhysicians On-Call Coverage Agreement\u201d (On-Call Agreement) and argued that the documents established that Dr. Kogan was paid to provide on-call cardiac coverage services at St. Alexius. Specifically, Mr. Hernandez cited the following provisions of the On-Call Agreement, which he maintains set forth Dr. Kogan\u2019s duties as an on-call physician:\n\u201c2.2(a) when called by the Hospital or a Hospital Emergency Room physician, [on-call] Physician shall respond in accordance with the Emergency Medical Services and Trauma Center Code (77 Ill. Adm. Code 515).\n(b) When called to provide On-Call coverage pursuant to this Agreement, Physician agrees to treat each patient as Physician\u2019s private patient, billing the patient and not the Hospital for services rendered.\n(c) Physician shall accept each patient treated as a result of this Agreement as Physician\u2019s private patient until the patient has been transferred to the care of another physician.\n(e) Physician shall be responsible to provide On-Call Coverage in accordance with the schedule established by the Director of Medical Staff Services.\u201d\nArticle III of the On-Call Agreement provided that St. Alexius would pay Dr. Kogan, during each year, $100 for 60, 24-hour call periods of on-call coverage and $200 for on-call coverage provided thereafter by the doctor. The On-Call Agreement further provided that if called by St. Alexius or a St. Alexius emergency room physician, Dr. Kogan was to directly bill patients for his professional services. Based upon the aforementioned terms in the On-Call Agreement, Mr. Hernandez maintained that section 25 of the Good Samaritan Act is inapplicable because Dr. Kogan\u2019s medical services on June 6, 2002, were not those of a \u201cvolunteer\u201d physician because he was a physician acting as an independent contractor who was paid by St. Alexius for rendering on-call cardiac coverage at the hospital on June 6, 2002.\nSt. Alexius\u2019 Medical/Dental Staff Rules\nMr. Hernandez also pointed out that Dr. Kogan testified at his deposition that he was \u201cmaking rounds\u201d at St. Alexius on June 6, 2002, and that he was not \u201con-call\u201d that day. Mr. Hernandez argues that, as a staff physician, Dr. Kogan was required to strictly comply with St. Alexius\u2019 Medical Staff bylaws, and with the general rules and regulations of the medical/dental staff (Medical/Dental Staff Rules). According to Mr. Hernandez, Dr. Kogan was contractually obligated by his reappointment application, the On-Call Agreement, the bylaws and the rules and regulations of St. Alexius to respond to Ms. Hernandez\u2019s emergency. Mr. Hernandez maintained that section 25 of the Good Samaritan Act did not immunize Dr. Kogan from civil liability for the medical services he provided to Ms. Hernandez on June 6, 2002, because Dr. Kogan was on the medical staff of St. Alexius, and he was not rendering emergency care to Ms. Hernandez \u201cwithout fee\u201d because he was compensated by St. Alexius for providing medical care to the hospital\u2019s patients. Therefore, Mr. Hernandez argued, because Dr. Kogan had a contractual duty as a staff physician at St. Alexius to render emergency medical care to Ms. Hernandez and because he did not act \u201cwithout fee,\u201d as required by the Good Samaritan Act, he should not be immunized from civil liability by the Good Samaritan Act for the medical services he provided on June 6, 2002.\nMr. Hernandez also argued that the Good Samaritan Act when applied to doctors in hospitals conflicts with the purposes of the Illinois Hospital Licensing Act (Hospital Licensing Act). 210 ILCS 85/2 (West 2002); see also 210 ILCS 85/10 (West 2002); 77 Ill. Adm. Code pt. 250 (Hospital Licensing Requirements). The Illinois Hospital Licensing Act is implemented by provisions of the Illinois Administrative Code and mandates that hospitals offering basic and comprehensive emergency treatment services provide the minimum physician coverages specified therein. 77 Ill. Adm. Code \u00a7250.710, amended at 32 Ill. Reg. 7932 (eff. May 12, 2008). Mr. Hernandez argued that the appellate court\u2019s decisions construing the Good Samaritan Act interfere with the purposes of the Hospital Licensing Act when they immunize physicians in hospitals who treat emergencies and choose not to bill for their services. Therefore, Mr. Hernandez concluded that, in accordance with state regulatory mandates, St. Alexius\u2019 Medical/Dental Staff Rules imposed a legal duty upon Dr. Kogan, a staff physician physically present and working at St. Alexius on June 6, 2002, to respond \u201cto a life and limb threatening situation.\u201d\nConstitutional Claims\nIn further response to the defendants\u2019 motion for summary judgment, Mr. Hernandez argued that the Good Samaritan Act is facially unconstitutional special legislation because, when applied in a hospital setting, it arbitrarily and unreasonably distinguishes between hospital patients in need of emergency care who are treated by their own physiclans, who can be held liable for their negligent acts, and hospital patients who are treated by doctors who \u201cvolunteer\u201d to treat them in a hospital and cannot be held liable.\nMr. Hernandez also argued that the Good Samaritan Act was unconstitutional as applied in this case. In this regard, Mr. Hernandez contends, assuming arguendo, that there is a rational basis for providing civil immunity to physicians who, in the legislature\u2019s words, \u201cvolunteer to render assistance on the streets of Illinois,\u201d that rationale does not apply here because (1) Dr. Kogan is a paid agent providing on-call coverage, and (2) Dr. Kogan is a staff physician at St. Alexius who has a duty imposed on him by the rules and regulations of medical/dental staff when he is in the hospital to respond to life-threatening emergencies at St. Alexius.\nDefendants\u2019 Reply in Support of Motion for Summary Judgment\nIn reply to Mr. Hernandez\u2019s response, Dr. Kogan and Cardiovascular contend that the terms of the On-Call Agreement only obligated Dr. Kogan to respond \u201cwhen called by Hospital or a Hospital Emergency Room physician\u201d but that he had no duty to respond to \u201ccode blues.\u201d The defendants also argue that any compensation received for on-call coverage was paid by St. Alexius for services rendered to the hospital, not to the patient, as the On-Call Agreement allows Dr. Kogan to bill patients separately. Because he did not issue a bill to Ms. Hernandez, Dr. Kogan argues that the Good Samaritan Act immunized him from civil liability for the emergency medical care he provided to Ms. Hernandez on June 6, 2002. The defendants also argue that the Hospital Licensing Act applies to hospitals, not physicians; that the Good Samaritan Act is \u201ccompletely independent\u201d of the Hospital Licensing Act; and that there is no conflict between the two statutes. Finally, the defendants argue that the Good Samaritan Act, originally enacted in 1965 as the Illinois Medical Practice Act, is entitled to a presumption that it is rationally related to a legitimate state interest and is, therefore, constitutional.\nMr. Hernandez\u2019s Surresponse to Defendants\u2019 Motion for Summary Judgment\nMr. Hernandez elaborated upon his arguments that Dr. Kogan was compensated as a staff physician and was acting pursuant to his On-Call Agreement. Mr. Hernandez attached Dr. Kogan\u2019s deposition testimony and argued that whether Dr. Kogan\u2019s decision not to bill Ms. Hernandez was made in good faith was an issue for the trier of fact. Finally, Mr. Hernandez argued that Dr. Kogan\u2019s testimony and the averments in his affidavit were not entitled to an inference of good faith because a jury could reasonably infer from Dr. Kogan\u2019s knowledge of Ms. Hernandez\u2019s condition that he decided not to follow his normal billing procedure on June 6, 2002, because he was aware that medical malpractice had occurred.\nGood-Faith Discovery\nThe trial court granted Mr. Hernandez\u2019s motion for supplemental discovery after the decision in Estate of Heanue v. Edgcomb, 355 Ill. App. 3d 645 (2005). In Estate of Heanue, this court held that physicians seeking immunity under the provisions of the Good Samaritan Act would not only be required to show that they had rendered emergency care without fee but, for the first time, they also were required to show that they had done so in good faith. Estate of Heanue, 355 Ill. App. 3d at 650-52.\nDr. Kogan\u2019s Answers to the Supplemental Interrogatories\nThe plaintiff filed a supplemental set of good-faith interrogatories. Dr. Kogan responded to interrogatory 3 in plaintiffs second \u201cSupplemental Set of Answers To Plaintiffs Supplemental \u2018Good Faith\u2019 Interrogatories\u201d as follows:\n\u201c3. Identify the patients that you, your medical corporation and/or billing service have not billed in the last five years.\nANSWER: See my deposition testimony and my previous answers to written discovery. Further answering, in the past five years, when I did not enter into a doctor patient relationship at the request of a physician, patient, or family member, I have not turned in a bill for services rendered in such circumstances unless I considered myself to have a prior relationship with the patient, or entered into such a relationship following such care. I cannot recall any specific instances in which this has occurred, however, as in Ms. Hernandez\u2019s case, there have been situations over the years, either in the cath lab or on the hospital floors, where I assisted in providing care on an emergency basis, in desperate situations similar to Ms. Hernandez\u2019s. In those cases I have provided CPR and placed central line as needed while caring for patients. As stated, if I had no relationship with the patient or did not subsequently enter into a doctor patient relationship with those patients, I did not turn in charges.\u201d (Emphasis added.)\nCathleen Biga\u2019s Deposition Testimony\nCathleen Biga, president and chief financial officer (CFO) of Cardiac Management of Illinois (CMI), testified at her deposition that CMI had handled Cardiovascular\u2019s billing exclusively since 1999. Ms. Biga also testified that before and after 2002, CMI routinely issued bills to Dr. Kogan\u2019s patients for professional services rendered, including interpreting echocardiograms, inserting central lines, and performing pericardiocentisis. According to Ms. Biga, putting aside Ms. Hernandez\u2019s case, she was unaware of any other time that Dr. Kogan had not submitted the patient\u2019s information that CMI needed to bill for professional services he provided to a patient.\nTrial Court\u2019s Findings and Order\nOn April 24, 2006, the trial court made the following findings:\n\u201cThe Court finds that based on this record, there\u2019s no genuine issue of material fact. That it was an emergency situation, no fee was received, no bill was sent, and the Court finds that the decision to do that was in good faith. That it is not controverted by any testimony in the record.\u201d\nThe trial court considered but did not express an opinion on the plaintiff\u2019s constitutional arguments. Finally, the trial court granted the defendants\u2019 motion for summary judgment.\nAnalysis\nStandard of Review\nIn this case, we are reviewing the trial court\u2019s order that granted the defendants\u2019 motion for summary judgment. Appeals from trial court summary judgment orders are governed by well-established rules. Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005). A trial court\u2019s decision to grant summary judgment should only be made where there is no genuine issue of material fact. Gaston v. Founders Insurance Co., 365 Ill. App. 3d 303, 314 (2006), quoting State Farm Fire & Casualty Co. v. Moore, 103 Ill. App. 3d 250, 257 (1981). The summary judgment procedure allows trial courts to determine whether a genuine issue of material fact exists but is not designed for the trial court to try a question of fact. Northern Illinois, 216 Ill. 2d at 305, citing Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). \u201cSummary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\u201d Northern Illinois, 216 Ill. 2d at 305, citing General Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284 (2002) (in considering motions for summary judgment, courts review pleadings, depositions, admissions, and any affidavits on file). In order to survive a motion for summary judgment, the nonmoving party must present a factual basis that would arguably entitle him, her or it to a judgment. Hussung v. Patel, 369 Ill. App. 3d 924, 931 (2007), citing Sunderman v. Agarwal, 322 Ill. App. 3d 900, 902 (2001).\nWe note, however, that although it is not necessary that a plaintiff prove his or her case at the summary judgment stage (Northern Illinois, 216 Ill. 2d at 306, citing Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996)), the plaintiff must present sufficient evidence to create a genuine issue of fact. Hussung, 369 Ill. App. 3d at 931, citing Gyllin v. College Craft Enterprises, Ltd., 260 Ill. App. 3d 707, 711 (1994). \u201cAlthough summary judgment is appropriate if a plaintiff cannot establish an element of his claim (Morris v. Margulis, 197 Ill. 2d 28, 35 (2001), citing Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989)), it should only be granted when the right of the moving party is clear and free from doubt.\u201d Northern Illinois, 216 Ill. 2d at 306, citing Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483 (1998). Accordingly, we apply a de novo standard of review to the trial court\u2019s grant or denial of a summary judgment motion. Gaston, 365 Ill. App. 3d at 314, citing In re Estate of Hoover, 155 Ill. 2d 402, 411 (1993).\nMaterial Issues of Fact\nMr. Hernandez maintains that material issues of fact exist which preclude summary judgment because Dr. Kogan\u2019s decision not to bill Ms. Hernandez was not made in good faith. We note that the purpose of the Good Samaritan Act is to encourage persons to \u201cvolunteer\u201d their time and talents. 745 ILCS 49/2 (West 2002). Section 25 of the Good Samaritan Act immunizes volunteer physicians from civil liability only if they: (1) \u201cin good faith,\u201d (2) provide emergency care, (3) \u201cwithout fee.\u201d 745 ILCS 49/25 (West 2002); Estate of Heanue, 355 Ill. App. 3d at 650-52. Therefore, we must determine whether there are any genuine issues of material fact in dispute in this case regarding Dr. Kogan\u2019s \u201cgood faith\u201d in providing emergency care to Ms. Hernandez without fee because summary judgment is only proper when the right of the moving party is free of doubt. 735 ILCS 5/2 \u2014 1005 (West 2006); Jones, 191 Ill. 2d at 291.\nGood Faith\nThere is no definition for good faith in the Good Samaritan Act. 745 ILCS 49/1 et seq. (West 2002). We note, however, that our supreme court has held that \u201cgood faith\u201d is an unambiguous phrase that means \u201c \u2018honest, lawful intent,\u2019 \u201d or \u201c \u2018is the opposite of fraud and bad faith.\u2019 \u201d People v. Guagliata, 362 Ill. 427, 432 (1936), quoting Crouch v. First National Bank of Chicago, 156 Ill. 342, 357 (1895), and McConnel v. Street, 17 Ill. 253, 254 (1855). In the Estate of Heanue, the court points out that the Good Samaritan Act provides that a physician \u201cwho, in good faith, provides emergency care without fee to a person\u201d is immune. Estate of Heanue, 355 Ill. App. 3d at 650. The Estate of Heanue court also points out that the term \u201cgood faith\u201d modifies the terms \u201cprovides emergency care\u201d and \u201cwithout fee\u201d in the Good Samaritan Act. Estate of Heanue, 355 Ill. App. 3d at 650. Finally, the Estate of Heanue court stated, \u201c[rjefraining from charging a fee simply to invoke the protection of section 25 [of the Good Samaritan Act] would seem to violate the requirement that the doctor\u2019s actions were in good faith, particularly if the decision not to charge a fee was made following treatment that could potentially expose a doctor to liability.\u201d Estate of Heanue, 355 Ill. App. 3d at 650.\nEmergency Care\nFollowing the Estate of Heanue, we must first determine whether Dr. Kogan provided emergency medical services to Ms. Hernandez in good faith. Estate of Heanue, 355 Ill. App. 3d at 650. We note that there is no dispute between the parties that Dr. Kogan did in fact provide emergency care to Ms. Hernandez on June 6, 2002. We also note that there is no argument in the briefs that Dr. Kogan\u2019s emergency medical care was willful or wanton. Accordingly, we find that there are no facts in dispute concerning Dr. Kogan\u2019s good faith in providing emergency medical care to Ms. Hernandez.\nMedical Services Provided Without Fee\nNext, we must determine whether there are facts in dispute concerning Dr. Kogan\u2019s decision not to bill Ms. Hernandez for his services: (1) was a good-faith decision made because the doctor had an honest, lawful intent to provide emergency medical services to Ms. Hernandez without fee? or (2) was the doctor acting in bad faith when, after providing medical services to Ms. Hernandez, the decision was made not to bill for his medical services to invoke the protection of section 25 of the Good Samaritan Act? Estate of Heanue, 355 Ill. App. 3d at 650. Mr. Hernandez maintains that Dr. Kogan did not act in good faith when he failed to bill Ms. Hernandez for his medical services. Mr. Hernandez points out that the averments in Dr. Kogan\u2019s affidavit and his deposition testimony are inconsistent with the deposition testimony of Ms. Biga, the CFO of his billing service, regarding Dr. Kogan\u2019s routine billing practices. We note that in Dr. Kogan\u2019s affidavit, appended to the motion for summary judgment, the doctor avers that he did not bill Ms. Hernandez for his services. We note that Dr. Kogan\u2019s deposition testimony established: (1) that Dr. Kogan\u2019s routine practice was to submit billing information to his billing service after he had rendered care; (2) that Dr. Kogan routinely billed for interpreting echocardiograms, inserting central lines, and performing pericardiocentisis, the professional services he provided to Ms. Hernandez on June 6, 2002; and (3) that Dr. Kogan did not bill Ms. Hernandez for his medical services on June 6, 2002, because he thought it would have been \u201cinappropriate.\u201d Finally, in his answers to the supplemental good-faith interrogatories, Dr. Kogan stated that during the past five years he did not issue a bill for his professional services (1) if he had no relationship with the patient, or (2) if he did not enter into a doctor-patient relationship.\nThe record reveals, however, that Ms. Biga, the CFO of Dr. Kogan\u2019s billing service since 1999, contradicted Dr. Kogan\u2019s testimony. Ms. Biga testified that she was unaware of any instance, other than Ms. Hernandez\u2019s case, when Dr. Kogan had not submitted patient information needed by the billing service to bill for professional services of the type provided to Ms. Hernandez on June 6, 2002. Mr. Hernandez argues that Dr. Kogan\u2019s deviation from his routine billing practice raised a material question of fact as to whether the doctor\u2019s decision not to bill was made in good faith. We agree.\nWe find that Dr. Kogan\u2019s answer to the supplemental good-faith interrogatory that he did not bill in cases like Ms. Hernandez\u2019s conflicts with Ms. Biga\u2019s testimony that, other than Ms. Hernandez\u2019s case, there were no other cases where Dr. Kogan had not billed patients for the medical services he provided to Ms. Hernandez. We also find that Dr. Kogan\u2019s decision not to bill Ms. Hernandez raises a question of material fact as to whether Dr. Kogan acted in good faith and had an honest, lawful intent to provide medical services without fee, or whether the doctor was acting in bad faith and deviated from his routine billing practices to invoke the protection of section 25 of the Good Samaritan Act. Guagliata, 362 Ill. at 432. Accordingly, given the conflicting testimony concerning Dr. Kogan\u2019s routine billing practices, and given the fact the conflicting testimony created a question of fact as to whether the doctor acted in good faith when he provided medical services to Ms. Hernandez without fee, this case presents questions of fact that must be resolved by a trier of fact. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 30-31 (1999).\nCONCLUSION\nIn conclusion, a genuine issue of material fact exists in this case as to whether Dr. Kogan\u2019s decision to provide medical services to Ms. Hernandez without fee was made in good faith. In light of the fact we have found that there are genuine issues of material fact in dispute in this case, we need not reach the other issues raised in the briefs. Moreover, reviewing courts only reach constitutional issues as a last resort. In re E.H., 224 Ill. 2d 172, 178 (2006), citing People v. Lee, 214 Ill. 2d 476, 482 (2005). Accordingly, this case is reversed and remanded for proceedings consistent with this opinion.\nReversed and remanded.\nO\u2019BRIEN and MURPHY, JJ., concur.\nAlexian Brothers Health System was voluntarily dismissed on June 2, 2004.\nCardiac arrest is defined as \u201cthe complete stoppage of the heart.\u201d 1 J. Schmidt, Attorneys\u2019 Dictionary of Medicine and Word Finder C \u2014 69 (Matthew Bender 2007) (hereinafter Attorneys\u2019 Dictionary).\n\u201cAsystolic\u201d is defined as \u201cthe failure of the heart to contract.\u201d 1 J. Schmidt, Attorneys\u2019 Dictionary A \u2014 578 (Matthew Bender 2007).\nPerieardiocentisis is \u201cthe surgical opening or puncture of the sac which surrounds the heart (the pericardium) for the purpose of drawing off abnormal fluid.\u201d 4 J. Schmidt, Attorneys\u2019 Dictionary P \u2014 160 (Matthew Bender 2007).\nAfter Dr. Kogan had provided 60 call periods in any one-year contract term, St. Alexius agreed to pay him at the rate of $200 for each 24-hour period of coverage.\nSection 2 of the Good Samaritan Act provides that the purpose of the Act is to immunize citizens who volunteer to help others:\n\u201cLegislative purpose. The General Assembly has established numerous protections for the generous and compassionate acts of its citizens who volunteer their time and talents to help others. These protections or good Samaritan provisions have been codified in many Acts of the Illinois Compiled Statutes. This Act recodifies existing good Samaritan provisions. Further, without limitation the provisions of this Act shall be liberally construed to encourage persons to volunteer their time and talents.\u201d (Emphasis added.) 745 ILCS 49/2 (West 2002).\nHospital licensing requirements include a mandate:\n\u201ca) The medical staff shall be organized in accordance with written bylaws, rules and regulations, approved by the Governing Board.\u201d 77 Ill. Adm. Code \u00a7250.310, amended at 32 Ill. Reg. 7932 (eff. May 12, 2008).\nHospitals providing basic emergency treatment services must insure that at least one physician is available in the emergency department at all times and that physician specialists representing the specialties of medicine, surgery, pediatrics and maternity shall be available in minutes. 77 Ill. Adm. Code \u00a7250.710(b), amended at 32 Ill. Reg. 7932 (eff. May 12, 2008).\nHospitals providing comprehensive emergency treatment services must insure that at least one licensed physician is available in the emergency department at all times; physician specialists representing the major specialties and subspecialties shall be available in minutes. 77 Ill. Adm. Code \u00a7250.710(a), amended at 32 Ill. Reg. 7932 (eff. May 12, 2008).\n\u201cPhysicians; exemption from civil liability for emergency care. Any person licensed under the Medical Practice Act of 1987 [(225 ILCS 60/1 et seq.)] or any person licensed to practice the treatment of human ailments in any other state or territory of the United States who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages.\u201d (Emphasis added.) 745 ILCS 49/25 (West 2002).", "type": "majority", "author": "PRESIDING JUSTICE NEVILLE" } ], "attorneys": [ "Clifford Law Offices, of Chicago (Robert E Sheridan, David A. Novoselsky, and Leslie J. Rosen, of counsel), for appellant.", "Fretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers and Thomas A. Lang II, of counsel), for appellees." ], "corrections": "", "head_matter": "BENJAMIN HERNANDEZ, Independent Adm\u2019r of the Estate of Alma Hernandez, Deceased, Plaintiff-Appellant, v. ALEXIAN BROTHERS HEALTH SYSTEM, Defendant (Naphtali Kogan et al., Defendants-Appellees).\nFirst District (4th Division)\nNo. 1\u201406\u20141196\nOpinion filed July 31, 2008.\nClifford Law Offices, of Chicago (Robert E Sheridan, David A. Novoselsky, and Leslie J. Rosen, of counsel), for appellant.\nFretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers and Thomas A. Lang II, of counsel), for appellees." }, "file_name": "0510-01", "first_page_order": 526, "last_page_order": 538 }