Hammer v. Barth , 2016 IL App (1st) 143066 ( 2016 )

2016 IL App (1st) 143066
FIRST DIVISION
January 25, 2016
No. 1-14-3066
NATALIE HAMMER, Individually and as ) Appeal from the
Administrator of the Estate of Jerry Michael ) Circuit Court of
Hammer, ) Cook County
)
Plaintiff-Appellant, )
)
v. ) No. 2010 L 13668
)
MARY JANE BARTH, M.D.; )
CARDIOVASCULAR SURGEONS, LTD., a )
Corporation; and ADVOCATE CHRIST )
HOSPITAL, ) Honorable
) Kathy M. Flanagan,
Defendants-Appellees. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Liu and Justice Cunningham concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Natalie Hammer, individually and as administrator of her husband Jerry
Michael Hammer's estate, appeals the order of the circuit court granting summary judgment in
favor of defendant Advocate Christ Hospital (Advocate) on plaintiff's wrongful death complaint.
Plaintiff alleged that Advocate was vicariously liable for Dr. Barth's negligence based on
theories of agency. On appeal, plaintiff contends the trial court erred in granting summary
judgment because a genuine issue of material fact exists whether defendant Dr. Barth acted as an
agent of Advocate. For the following reasons, we affirm the trial court's summary judgment on
the issue of actual agency and reverse and remand for a jury trial on Advocate's liability under
the doctrine of apparent authority.
No. 1-14-3066
¶2 JURISDICTION
¶3 The trial court entered its order granting summary judgment on September 15, 2014.
Respondent filed her notice of appeal on October 3, 2014. Accordingly, this court has
jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff.
May 30, 2008) governing appeals from final judgments entered below.
¶4 BACKGROUND
¶5 The following are facts relevant to the issues on appeal. Plaintiff testified in her
deposition that in late 2006 or early 2007, her husband's long-time physician recommended that he
see Dr. Javois for a catheterization procedure. At the time, she had not heard of Advocate. She
and her husband met with Dr. Javois in an office building near the hospital, but not on hospital
grounds. On March 21, 2007, in connection with the catheterization procedure, plaintiff's
husband signed a health care consent form bearing Advocate's logo. The consent form contains
the following:
"INDEPENDENT PHYSICIAN SERVICES. I acknowledge and fully understand
that some or all of the physicians who provide medical services to me at the hospital are
not employees or agents of the hospital, but rather independent practitioners on the
hospital medical staff who are permitted to use the hospital facilities to render medical
care and treatment. Non-employed physicians may include, but are not limited to, those
practicing emergency medicine, trauma, cardiology, obstetrics, surgery, radiology,
anesthesia, pathology and other specialties. My decision to seek medical care at the
hospital is not based upon any understanding, representation, advertisement, media
campaign, inference, implication or reliance that the physicians who are or will be
treating me are employees or agents of the hospital."
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The form also states that "the hospital bill does not include most physician services" and the
patient understands that he "will receive separate physician bills."
¶6 When plaintiff's husband needed another procedure, Dr. Javois referred him to Dr.
Ilbawi. He met with Dr. Ilbawi for the first time at the doctor's office in the basement of Hope
Children's Hospital, which was adjacent to Advocate. Dr. Ilbawi was employed by
Cardiovascular Surgeons, Ltd. (CSL), which entered into a professional service agreement with
Advocate. The agreement provided, in relevant part, that "[t]he services of [CSL] and its
physicians, employees, and contractors are those of an independent contractor practicing the
profession of medicine and specializing in pediatric cardiac surgery."
¶7 In connection with the procedure, plaintiff's husband signed a health care consent form
identical to the one he signed in March. Dr. Ilbawi, assisted by Dr. Barth who was also
employed by CSL, performed the procedure on July 30, 2007, after which plaintiff's husband
was transferred from the pediatric surgical heart unit to a floor in the general hospital. On
August 7, 2007, he experienced shortness of breath and was brought back to the pediatric
surgical heart unit. At that time, Dr. Barth placed right and left sided chest tubes. Plaintiff
had not spoken with Dr. Barth before this procedure.
¶8 On September 6, 2007, plaintiff's husband needed another chest tube placement for
treatment of a left side pleural effusion. Consent for the procedure was obtained by telephone,
and plaintiff testified that she was in the parking lot of Advocate when she received the call.
The form indicating the consent made no reference to the agency of the physicians and had
Advocate's name and logo on it. On the form, someone wrote that plaintiff gives her consent
with the condition that an adult pulmonologist see her husband. Plaintiff stated that she asked
for the condition because her husband "was in the children's hospital and they were all
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pediatricians and pediatric doctors and he was *** having trouble with pulmonary issues."
When asked if she knew of a specific adult pulmonologist at Advocate she wanted her husband
to see, plaintiff answered, "No."
¶9 Several hours after the procedure, bleeding was found in his abdomen and a splenectomy
was performed. Plaintiff's husband remained hospitalized for eight more months. He died of
a cardiac arrhythmia on August 27, 2010. Plaintiff filed a complaint seeking damages for
medical negligence. In her third-amended complaint, plaintiff contended that Dr. Barth was an
agent of Advocate thus rendering Advocate vicariously liable for her negligence. She alleged
that her husband did not choose Dr. Barth to provide surgical services and that he relied on
Advocate to provide complete surgical care.
¶ 10 Plaintiff never discussed whether the physicians caring for her husband were employed
by Advocate. However, it was her understanding that Dr. Ilbawi and Dr. Barth "worked in the
same group" and were "part of the hospital." Plaintiff did not recall whether Dr. Barth or Dr.
Ilbawi ever wore lab coats with the Advocate symbol on them, or had identification badges with
the Advocate symbol. In her answer to plaintiff's interrogatories, Dr. Barth stated that at all
relevant times she was an employee of CSL. She also stated that Advocate provided her with a
lab coat but she did not know if she was wearing it when she treated plaintiff's husband. Dr.
Barth had other lab coats that did not feature Advocate's logo. While working at Advocate, Dr.
Barth always wore a name tag which identified her as an Advocate employee so she could have
access to the hospital unit. She stated that "[t]here is no question I would have worn my I.D.
when caring for [plaintiff's husband]." Dr. Barth also served, unpaid, as cochairman of the
quality assurance committee at Advocate from 2006 to 2009. Dr. Ilbawi testified that the
professional service agreement related to administrative duties pertaining to pediatric cardiac
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surgery, and not to the provision of private fee-for-service patient care. Dr. Ilbawi was the
director of pediatric cardiac surgery at Advocate and Hope Children's Hospital, but the position
did not involve clinical activities. A printout of charges for physician services sent to plaintiff's
husband showed that CSL prepared the billing.
¶ 11 Advocate's website advertises itself as a medical center which "has earned clinical
leadership in more than 60 fields of medicine. Our team of 1,000+ doctors includes specialists
in cardiology, neurosciences, oncology, orthopedics, pediatrics, surgical services, women's
health, and emergency medicine. Our Level I trauma center stands among the most
experienced emergency centers in Illinois." As a medical staff member, Dr. Barth was required
to provide cardiac surgical services to patients of the medical center, even if they were not her
patients. She was also required to accept committee assignments from Advocate and to
participate in the emergency department's on-call list. Dr. Barth was subject to periodic
reappraisals by Advocate and under its bylaws, Advocate could revoke Dr. Barth's clinical
privileges or terminate her appointment for cause.
¶ 12 Advocate filed a motion for summary judgment, which the trial court granted. 1 The
trial court found no evidence that Dr. Barth was an employee of Advocate, since the agreement
states that physicians associated with CSL are independent, and any services provided through
the professional service agreement are administrative in nature. The trial court also found that
no implied agency existed because Dr. Barth retained the right to control her work as a physician
and to guide the treatment and care of her patients, regardless of the procedures and bylaws
applicable to the medical staff. Finally, the trial court determined that no apparent agency
1
The cause remains pending against the other defendants.
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No. 1-14-3066
existed because the consent form signed by plaintiff's husband contained a clear disclaimer
regarding Dr. Barth's hospital employee status. Plaintiff filed this timely appeal.
¶ 13 ANALYSIS
¶ 14 Plaintiff contends that the trial court erred in granting summary judgment in favor of
Advocate. Summary judgment is proper where "the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c)
(West 2010). In reviewing a motion for summary judgment, we construe the record in the light
most favorable to the nonmoving party and strictly against the moving party. Williams v.
Manchester, 228 Ill. 2d 404, 417 (2008). Although plaintiff need not prove her entire case at
the summary judgment stage, she must present facts showing she is entitled to judgment.
Wallace v. Alexian Brothers Medical Center, 389 Ill. App. 3d 1081, 1086 (2009). We review
the trial court's ruling on a summary judgment motion de novo. Williams, 228 Ill. 2d at 417.
¶ 15 In her amended complaint, plaintiff alleges that Advocate is liable for the negligence of
Dr. Barth based on an agency theory. If a principal-agent relationship exists between the
hospital and physician accused of malpractice, the hospital may be vicariously liable for the
physician's alleged negligence. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518
(1993). To prevail on a claim of actual agency, plaintiff must show that (1) a principal-agent
relationship existed between the hospital and physician; (2) the hospital controlled or had the
right to control the conduct of the physician; and (3) the alleged conduct fell within the scope of
the agency. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 18. Traditionally, the relationship
between a hospital and the physicians on its staff who are not employees is an independent one.
Hundt v. Proctor Community Hospital, 5 Ill. App. 3d 987, 990 (1972). A principal is not
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generally liable for the acts of an independent contractor. Petrovich v. Share Health Plan of
Illinois, Inc., 188 Ill. 2d 17, 31 (1999).
¶ 16 However, if the principal retains sufficient control over the independent contractor's
work, his independent status is negated and the principal is vicariously liable for the contractor's
tortious conduct. Id. at 42. This type of authority, termed implied authority, is actual
authority proved by circumstantial evidence. Id. The primary consideration in determining
the existence of implied authority is not the intent of the parties, or whether the physician is an
employee or independent contractor, but rather the degree of control the principal retains over
performance of the contractor's work. Id. In a hospital-physician relationship, the key issue is
whether the hospital has the right to control the physician's exercise of medical judgment in
delivering medical care to patients. Id. at 45-46.
¶ 17 In the case at bar, Dr. Barth's employer, CSL, executed a professional service agreement
with Advocate which states that "[t]he services of [CSL] and its physicians, employees, and
contractors are those of an independent contractor practicing the profession of medicine and
specializing in pediatric cardiac surgery." Plaintiff contends, however, that Advocate retained
control over the physicians' work through the service agreement and its bylaws, and whether this
circumstantial evidence shows an agency relationship between the parties is a question of fact.
As support, she cites to Barbour v. South Chicago Community Hospital, 156 Ill. App. 3d 324
(1987).
¶ 18 In Barbour, the defendant hospital argued that one of the physicians alleged to have
injured plaintiff was not a paid employee of the hospital, and therefore no agency relationship
existed. Id. at 327. The plaintiff alleged, however, that one of the physicians responsible for
her injury was appointed department chief by defendant hospital's board of directors and that as
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department chief he monitored, controlled, and assisted in patient care and quality within the
department. Id. at 327-28. The complaint also alleged that the hospital could remove the
physician from his position as department chief "if he failed to perform his duties properly" and
"that any decision by the board to change policy or practice in the [department] would have to be
implemented by the board through [the physician]." Id. at 329. According to the complaint, the
physician was "not an independent contractor but was rather the board's representative within the
[department]" and "acting within the purview, and under the authority, of" the hospital's Board.
Id. This court concluded that the facts sufficiently alleged the existence of a dispute as to the
extent of the parties' relationship, and therefore "the existence and scope of an agency relationship
are questions of fact for the jury to decide." Id.
¶ 19 Likewise in Petrovich, the plaintiff alleged that the defendant HMO's capitation method of
compensation punished physicians for ordering certain medical treatments, its quality assurance
review monitored patient care to discourage physicians from giving " 'inappropriate' " medical
care, and its physicians served as "gatekeepers" to control which patients were accepted for care by
following criteria on the defendant's referral forms, all of which indicate control over the
physician's work. The supreme court agreed, finding that the plaintiff presented adequate
evidence to survive the defendant's motion for summary judgment. Petrovich, 188 Ill. 2d at
49-51.
¶ 20 Plaintiff here argues that the service agreement and bylaws enable Advocate to control Dr.
Barth's work sufficiently to establish a principal-agent relationship. She contends that Advocate
had the right to terminate the service agreement with CSL for reasons including poor clinical
patient care or case management and retained the right to revoke clinical privileges or terminate
Dr. Barth's appointment for cause. She further contends that Advocate reviewed Dr. Barth's
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participation in medical staff meetings, clinical work, and her adherence to bylaws, rules,
regulations and policies, retained exclusive control over all patient medical records, and required
Dr. Barth to provide an operative report for certain procedures. Advocate also required Dr. Barth
to participate in committees, treat all patients admitted to Advocate, consult with other physicians,
and participate in its emergency on-call list.
¶ 21 Plaintiff's case is factually distinguishable from Barbour and Petrovich. Unlike the
physician in Barbour, Dr. Barth is not the department chief. As the trial court below noted,
Advocate's recertification and reappointment process for staff privileges do not indicate sufficient
control over Dr. Barth's medical judgment in the treatment of her patients to negate her
independent status, and at most show only control over the conduct and activities of its medical
staff. Furthermore, its procedures and regulations required of medical staff are mostly
administrative. Compliance with such review and regulation procedures in itself does not
indicate control by Advocate over its physicians. Id. at 48-49. Unlike the plaintiffs in Barbour
and Petrovich, both of whom alleged facts showing control over the physician's medical judgment
in specific circumstances, plaintiff here generally argues that the substance of Advocate's bylaws
and other requirements show a sufficient right of control, and that the bylaws and service
agreement "go far beyond giving Dr. Barth the right to use the facilities to treat her own patients."
Plaintiff does not provide specific facts supporting these general allegations. Although she need
not prove her entire case at the summary judgment stage, plaintiff must allege facts showing she
is entitled to judgment. Wallace, 389 Ill. App. 3d at 1086. Therefore, the trial court properly
granted summary judgment on the issue of actual agency.
¶ 22 Plaintiff, however, also alleges that Advocate is vicariously liable under the doctrine of
apparent authority. As our supreme court articulated in Gilbert, "[a]pparent authority in an
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agent is the authority which the principal knowingly permits the agent to assume, or the authority
which the principal holds the agent out as possessing. It is the authority which a reasonably
prudent person, exercising diligence and discretion, in view of the principal's conduct, would
naturally suppose the agent to possess." Gilbert, 156 Ill. 2d at 523. To hold a hospital liable
for physician malpractice under the doctrine of apparent authority, plaintiff must show (1) that
the hospital held itself out as the provider of health care without informing the patient that the
care is provided by independent contractors, and (2) the patient justifiably relied upon the
conduct of the hospital to provide care, rather than on a specific physician. Petrovich, 188 Ill.
2d at 33-34. If plaintiff can prove these elements, the hospital will be held vicariously liable for
the negligent acts of a physician "regardless of whether the physician is an independent
contractor, unless the patient knows, or should have known, that the physician is an independent
contractor." Gilbert, 156 Ill. 2d at 524.
¶ 23 As to the holding out element, Advocate argues that since plaintiff's husband signed a
consent form indicating that "some or all" of the physicians providing services at the hospital are
independent contractors, and he is now deceased, the signed consent forms are "the sole legally
cognizable determinant" of whether a hospital holds itself out as the provider of health care,
quoting Steele v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 131, a Third District case.
However, the First District in James v. Ingalls Memorial Hospital, 299 Ill. App. 3d 627, 633
(1998), and the Second District in Churkey v. Rustia, 329 Ill. App. 3d 239, 244-45 (2002),
determined that while a signed consent form is an important factor on the "holding out" issue, it
is not always dispositive as to this element. As the court in Churkey reasoned, "[t]here certainly
could be situations in which a patient signs a consent form containing such a disclaimer but
additional facts exist that would create a triable issue of fact as to whether the hospital held the
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defendant physician out as its agent." Id. at 245. These decisions did not distinguish patients
who are deceased from those who file their own complaints. We choose to follow the
reasoning in Churkey and James on this issue.
¶ 24 Although plaintiff's husband did sign consent forms, the language pertaining to the
employment status of Advocate's physicians did not clearly state that Dr. Barth, a cardiologist,
was an independent contractor. The form states that "some or all of the physicians who provide
medical services" at the hospital "are not employees or agents of the hospital, but rather
independent practitioners**." It further states that "[n]on-employed physicians may include, but
are not limited to, those practicing emergency medicine, trauma, cardiology, obstetrics, surgery,
radiology, anesthesia, pathology and other specialties." (Emphasis added.) Such a disclaimer is
ambiguous in that one could assume that some or all or none of the treating physicians are
independent contractors, and that independent physicians may or may not include cardiologists.
Cases cited by Advocate in support of its position that the consent forms plaintiff's husband signed
preclude application of the apparent authority doctrine are distinguishable because the forms in
those cases contained clear language of the physicians' independent status. See Frezados v.
Ingalls Memorial Hospital, 2013 IL App (1st) 121835, ¶ 5 (physicians providing services " 'are not
employees, agents or apparent agents' "); Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL
App (1st) 101558, ¶ 4 (form stated that none of the attending physicians are employees); Churkey,
329 Ill. App. 3d at 241 (hospital " 'uses independently contracted physicians' " who " 'are not
employees' "); James, 299 Ill. App. 3d at 633 (physicians on hospital staff " 'are not employees or
agents of the hospital' "). Therefore, a question of material fact exists as to whether the consent
form adequately informed plaintiff's husband of Dr. Barth's status as an independent physician.
See Spiegelman v. Victory Memorial Hospital, 392 Ill. App. 3d 826, 837 (2009).
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¶ 25 Furthermore, the record contains support for plaintiff's allegations that Advocate held out
Dr. Barth as its employee. Plaintiff stated that it was her understanding that Dr. Ilbawi and Dr.
Barth "worked in the same group" and were "part of the hospital." In her answer to plaintiff's
interrogatories, Dr. Barth stated that Advocate provided her with a lab coat labeled with the
hospital's logo, although she did not know if she was wearing it when she treated plaintiff's
husband. However, while working at Advocate Dr. Barth always wore a name tag which
identified her as an Advocate employee so she could have access to the hospital unit. She
stated that "[t]here is no question I would have worn my I.D. when caring for [plaintiff's
husband]."
¶ 26 Also of relevance is the fact that Advocate's website advertises itself as a medical center
which "has earned clinical leadership in more than 60 fields of medicine. Our team of 1,000+
doctors includes specialists in cardiology, neurosciences, oncology, orthopedics, pediatrics,
surgical services, women's health, and emergency medicine. Our Level I trauma center stands
among the most experienced emergency centers in Illinois." See Id. at 841 (such
advertisements are relevant to the holding out element since a hospital cannot advertise it has the
best physicians and then argue there is no evidence those physicians are employees of the
hospital). For these reasons, we find that a genuine issue of material fact exists as to the
holding out element.
¶ 27 Regarding the reliance element, plaintiff contends that she and her husband "knew
nothing of Dr. Barth" and believed Dr. Barth's treatment was arranged by Advocate. Plaintiff
satisfies the justifiable reliance element if plaintiff shows reliance upon the hospital to provide
medical care, rather than upon a specific physician. Gilbert, 156 Ill. 2d at 525. In York v.
Rush – Presbyterian - St. Luke's Medical Center, 222 Ill. 2d 147, 193-94 (2006), our supreme
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court addressed whether a patient's selection of a specific physician necessarily precludes
recovery under the apparent agency doctrine. The supreme court emphasized that Gilbert did
not hold that "regardless of the circumstances, the mere existence of a preexisting physician -
patient relationship automatically precludes any claim by the patient of reliance upon the hospital
for the support staff. Rather, Gilbert recognized that *** 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." Id. at 193.
Therefore, a plaintiff is not precluded from showing justifiable reliance under these
circumstances and the hospital may be found vicariously liable for the negligence of a supporting
physician who is not employed by the hospital. Id. at 195.
¶ 28 In McCorry v. Evangelical Hospitals Corp., 331 Ill. App. 3d 668 (2002), the plaintiff's
treating physician referred him to a neurosurgeon from an independent group providing
neurosurgical care at Christ Hospital. The plaintiff accepted care from Dr. Hurley, the next
available neurosurgeon, and testified that he thought Dr. Hurley was employed by Christ
Hospital. Id. at 674. In his complaint, the plaintiff alleged that Dr. Hurley's negligence
resulted in his paralysis, and sought to hold Christ Hospital vicariously liable for Dr. Hurley's
acts. Id. at 670. This court found that the plaintiff never met Dr. Hurley before arriving at the
hospital, his personal physician did not refer him specifically to Dr. Hurley and he did not select
Dr. Hurley; he simply accepted the referral and did not know of Dr. Hurley's independent
contractor status. Id. We held that the plaintiff "presented sufficient evidence to create a
triable issue of fact regarding his reliance on the appearance that Hurley acted as an agent of
Christ Hospital." Id. at 674.
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¶ 29 In her third-amended complaint, plaintiff contended that Dr. Barth was an agent of
Advocate thus rendering Advocate vicariously liable for her negligence. Her husband's
long-time physician recommended that he see Dr. Javois for a catheterization procedure. When
he needed another procedure, Dr. Javois referred him to Dr. Ilbawi, who was assisted by Dr.
Barth when he performed the procedure on July 30, 2007. Subsequently, plaintiff's husband
experienced shortness of breath and he was brought back to the pediatric surgical heart unit. At
that time, Dr. Barth placed right and left sided chest tubes. Plaintiff had never spoken with Dr.
Barth prior to this procedure. She never discussed whether the physicians caring for her
husband were employed by Advocate; rather, it was her understanding that Dr. Ilbawi and Dr.
Barth "worked in the same group" and were "part of the hospital." She alleged that her husband
did not choose Dr. Barth to provide surgical services and that he relied on Advocate to provide
complete surgical care.
¶ 30 Plaintiff's testimony regarding the circumstances of her husband's second chest tube
placement provides further support for her contention that they relied on Advocate, and not on a
specific physician, to provide medical care. Advocate obtained consent for the procedure from
plaintiff by telephone. The form indicating the consent made no reference to the employment
of the treating physicians and bore Advocate's name and logo. On the form, someone wrote
that plaintiff gives her consent with the condition that an adult pulmonologist see her husband.
Plaintiff asked for the condition because her husband "was in the children's hospital and they
were all pediatricians and pediatric doctors and he was *** having trouble with pulmonary
issues." When asked if she knew of a specific adult pulmonologist at Advocate she wanted her
husband to see, plaintiff answered, "No." We find that a genuine issue of material fact exists
regarding the reliance element. Since questions of material fact exist as to the holding out and
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reliance elements of plaintiff's claim based on the doctrine of apparent authority, the trial court
erred in granting summary judgment on this issue. Therefore, we reverse and remand the cause
for proceedings consistent with this opinion.
¶ 31 The cases cited by Advocate in support of its contrary position, Butkiewicz v. Loyola
University Medical Center, 311 Ill. App. 3d 508 (2000), and Lamb-Rosenfeldt, 2012 IL App (1st)
101558, are distinguishable. In Butkiewicz, uncontradicted evidence showed that the plaintiff
sought treatment from the hospital because his personal physician instructed him to do so, and he
had "such high regard" for the physician that he followed his recommendations "religiously."
Butkiewicz, 311 Ill. App. 3d at 509. The evidence also showed that the plaintiff did not like
Christ Hospital, but chose to go there for treatment based on the recommendation of his trusted
physician. Id. at 514. The plaintiff in Butkiewicz clearly did not rely on the hospital in
seeking treatment. Likewise, in Lamb-Rosenfeldt evidence indicated that the patient would
have gone to any facility recommended by her personal physician in order to receive treatment
from her. Lamb-Rosenfeldt, 2012 IL App (1st) 101558, ¶ 33. Here, plaintiff presented
evidence that she and her husband did not know Dr. Barth, nor did they select Dr. Barth for
treatment at Advocate.
¶ 32 Advocate also argues that since there is no evidence plaintiff's husband saw Dr. Barth's
lab coat or Advocate badge, and plaintiff testified that she could not recall what Dr. Barth wore
when she spoke with her, there is no evidence that they detrimentally relied on these items as
indicators of Dr. Barth's relationship with the hospital. In York, our supreme court noted the
traditional detrimental reliance element of apparent agency in other contexts, but reiterated its
holding in Gilbert that in the medical malpractice context, "the reliance element of a plaintiff's
apparent agency claim is satisfied if the plaintiff reasonably relies upon a hospital to provide
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medical care, rather than upon a specific physician. [Citation.]" York, 222 Ill. 2d at 194. See
also Spiegelman, 392 Ill. App. 3d at 840 (hospital misapplied the detrimental reliance element
which has a limited application in the medical malpractice context). Therefore, the fact that
plaintiff did not testify that she or her husband actually saw Dr. Barth wearing her Advocate lab
coat or badge does not preclude plaintiff from establishing the holding out or reliance elements
of her apparent agency claim.
¶ 33 Finally, Advocate contends that plaintiff cannot show reliance on the hospital to provide
medical care because the consent form her husband signed states that his "decision to seek
medical care at the hospital is not based upon any understanding, representation, advertisement,
media campaign, inference, implication or reliance that the physicians who are or will be treating
me are employees or agents of the hospital." However, as this court found in Churkey and
James regarding disclaimers on the employment status of physicians, although such language is
an important factor to consider, it is not always dispositive of the issue. As Churkey reasoned,
there can be situations in which a patient signs a consent form containing a disclaimer "but
additional facts exist that would create a triable issue of fact." Churkey, 329 Ill. App. 3d at 245.
Although Churkey addressed disclaimers regarding the independent status of physicians, we find
that the same reasoning applies to disclaimers regarding reliance on the hospital's representation
of itself as a medical provider.
¶ 34 CONCLUSION
¶ 35 For the foregoing reasons, the judgment of the circuit court is affirmed in part and
reversed in part, and remanded for further proceedings.
¶ 36 Affirmed in part and reversed in part; cause remanded.
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