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06/01/2007 RECENT RULINGS MAKE SUMMARY JUDGMENT MORE DIFFICULT IN VICARIOUS LIABILITY CASES By: Cheri Stuart, R.N., J.D. In Gilbert v. Sycamore Municipal Hosp., the Supreme Court of Illinois set out the elements a plaintiff must show to establish a hospital’s liability under the doctrine of apparent agency: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital (the “holding out” element); (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence (the “justifiable reliance” element). 156 Ill. 2d 511, 525 (1993). The court also held that a hospital cannot be held liable if the patient knew or should have known that the physician was an independent contractor. Id. at 524. Two recent apparent agency cases, York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147 (2006), and Schroeder v. Northwest Community Hosp., 371 Ill.App.3d 584 (1st Dist. 2006), reiterate the elements set forth in Gilbert. However, because of these two decisions, defending against apparent agency allegations may be more difficult. At the very least, it is easier under these cases for a plaintiff to create a question of fact for a jury to resolve and avoid summary judgment. In York, the hospital’s alleged apparent agent was Dr. El-Ganzouri, an independent anesthesiologist with staff privileges. The plaintiff (himself an orthopedic surgeon) had no prior relationship with Dr. El-Ganzouri, although the plaintiff’s son, an anesthesiology resident, knew Dr. El-Ganzouri well and knew of his independent status. Dr. El-Ganzouri provided anesthesia during the plaintiff’s total knee replacement surgery, which was performed by Dr. Rosenberg, the orthopedic surgeon that plaintiff specifically chose to do the procedure. Dr. Rosenberg was not alleged to be the hospital’s apparent agent. A jury returned a substantial verdict for the plaintiff and found that Dr. El-Ganzouri was Rush’s apparent agent. One issue on appeal was whether the “justifiable reliance” element can be satisfied when the patient chooses a hospital, not because of its reputation, but because that is the only place where he can receive care from his chosen physician. The Supreme Court held that even when a physician specifically selected for a procedure (here Dr. Rosenberg) directs the patient to a particular hospital for treatment (here Rush), there may still be sufficient “reliance” on the hospital for liability to attach with respect to a supporting or consulting physician (here Dr. El-Ganzouri) who participates in the care. In essence, under the York Court’s view it is irrelevant why the patient goes to a particular hospital for treatment; what counts is whether, once there, the patient relies on the hospital to provide ancillary or consulting staff and does not know or have reason to know that the ancillary or consulting staff are not hospital employees. The Court acknowledged that the rule is different in non-medical cases, for example O’Banner v. McDonald’s Corp., 173 Ill.2d 208 (1996), wherein summary judgment in favor of McDonald’s was affirmed because the plaintiff failed to present any evidence that he went to an independently owned McDonald’s franchise restaurant because he believed that it was owned by the corporation. The York Court held that O’Banner’s discussion of the traditional, detrimental reliance element of apparent agency (the plaintiff would not have patronized the establishment or individual but for the belief that an agency relationship existed) was irrelevant in a medical malpractice case governed by Gilbert, “which has specific and limited application to the medical malpractice context.” 222 Ill.2d at 194. According to the York Court: Gilbert recognized that when a patient relies on a hospital for the provision of support services, even when a physician specifically selected for the performance of a procedure directs the patient to that particular hospital, there may be sufficient reliance under the theory of apparent agency for liability to attach to the hospital in the event one of the supporting physicians commits malpractice. 222 Ill.2d at 193.Even though the York plaintiff did not sign a consent form that notified him that the physicians on staff were independent contractors and not employees or agents of the hospital, the York court specifically pointed out that its decision did not alter its pronouncement in Gilbert that if a patient knows or should have known that the allegedly negligent physician is an independent contractor, that patient may not seek to hold the hospital vicariously liable under the doctrine of apparent agency for any malpractice on the part of that physician. Thus, if a patient is placed on notice of the independent status of the physicians with whom he or she might come into contact, it would be unreasonable for a patient to assume that those physicians were employed by the hospital and therefore, a patient would generally be foreclosed from arguing that there was an appearance of agency between the physician and the hospital. Care must be taken in the wording of those consent forms, however. In Schroeder v. Northwest Community Hosp., 371 Ill.App.3d 584 (1st Dist. 2006), the issue was whether the decedent knew or should have known that his personal physician and any consulting physicians who treated him during a hospital stay were independent contractors. The hospital moved for summary judgment on this issue based on consent forms, signed by both the plaintiff administrator of the estate and the decedent, which stated in pertinent part: “Your care will be managed by your personal physician or other physicians who are not employed by Northwest Community Hospital or Northwest Community Day Surgery Center but have privileges to care for patients at this facility.” The plaintiff argued that the consent form which she and the decedent signed was “confusing and ambiguous” because it did not state in a clear fashion that the doctors who would be caring for the decedent were not hospital employees or agents, and it could reasonably be interpreted to mean that his personal physicians were employed by the hospital, but the other unidentified physicians who might be involved in his care were not. The court agreed that the form was confusing because the phrase “who are not employed” could have modified both “personal physician” and “other physicians,” or it could have referred solely to “other physicians,” leading the plaintiff to believe that his personal physician might be a hospital employee. The court therefore reversed summary judgment for the hospital, holding that it was for the jury to determine whether the decedent knew or reasonably should have known that none of the doctors were hospital employees. The Illinois Supreme Court recently declined to review this decision. In conclusion, defending against apparent agency allegations may be more difficult and costly after York and Schroeder. If the issue is reliance, the likelihood of success will largely depend on what role the alleged apparent agent plays, whether personal physician, consultant or ancillary provider such as a radiologist or anesthesiologist. If the issue is “holding out,” i.e., whether the plaintiff should have known that the alleged apparent agent was an independent contractor, the courts are likely to more carefully scrutinize the wording of particular consent forms before ruling as a matter of law that the hospital gave sufficient notice of the independent status o -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
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