Appellate Court Issues Adverse Opinion on Statute of Limitations and Physician-Patient Relationship
On April 27, 2015, the Third District Appellate Court filed its opinion in Mackey v. Sarroca, which considered whether the plaintiff filed her medical malpractice suit against an on-call urologist within the time allowed by law and whether a physician-patient relationship existed such that the on-call urologist owed a duty to the plaintiff.
In Mackey, the hospital had a contract with a urology group to cover call, and the on-call urologist took a phone call from the ED physician regarding the plaintiff's signs and symptoms. The urologist recommended medication to help pass a kidney stone and a follow-up visit in his office the following Monday. In the meantime, however, the plaintiff became septic, which led to a host of problems. Despite the fact that the urologist was sued more than two years and three months after the subject call, and more than one year and four months after the ED physician was sued, the court determined the complaint was timely. It found that a plaintiff may file a timely complaint within two years of discovering the existence of a cause of action against a particular defendant. This finding is contrary to a long line of Illinois case law that holds a plaintiff is required to file a medical malpractice claim within two years of the time she knows of her injury and that it may have been wrongfully caused by anyone, i.e. a plaintiff does not have to be aware that a specific physician may have been negligent or that she has a cause of action, only that her injury may have been wrongfully caused by someone.
The court further found that the plaintiff sufficiently pled the existence of a physician-patient relationship between the plaintiff and urologist despite the urologist never seeing the patient. It held that a physician-patient relationship exists with a consulting physician: where the consulting physician is assigned the task of consulting as part of an established protocol or contractual obligation, is compensated for his services, orders tests or reviews test results, gives specific medical advice regarding patient care, and makes decisions regarding the patient's current medical care. On the other hand, it held no physician-patient relationship exists: where a physician is consulted on an informal basis, is not compensated, does not order tests or review test results, and has no input in the treatment of the patient. The court did not elaborate on how a case might be decided where some, but not all, of these factors are satisfied.