Prutton v. Baumgart ( 2021 )

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Appellate Court Date: 2021.03.25
11:10:45 -05'00'
Prutton v. Baumgart, 2020 IL App (2d) 190346Appellate Court SHERRI PRUTTON, Individually and as Mother and Next Friend of
Caption Alexis V., a Minor, Plaintiff-Appellant, v. JOSEPH R. BAUMGART,
PAULA HOBSON, KISHWAUKEE COMMUNITY HOSPITAL,
and NORTHERN ILLINOIS FERTIILITY, S.C., Defendants
(Kishwaukee Community Hospital, Defendant-Appellee).
District & No. Second District
No. 2-19-0346
Rule 23 order filed April 30, 2020
Motion to
publish allowed June 11, 2020
Opinion filed June 11, 2020
Decision Under Appeal from the Circuit Court of De Kalb County, No. 14-L-34; the
Review Hon. William P. Brady, Judge, presiding.
Judgment Affirmed.
Counsel on Terrence M. Quinn, of Phillips Law Offices, of Chicago, for appellant.
Appeal
Aiju C. Thevatheril, Catherine Basque Weiler, and Laura K.
Anderson, of Swanson Martin & Bell, LLP, of Chicago, for appellee.
Panel JUSTICE BRIDGES delivered the judgment of the court, with
opinion.
Justices McLaren and Hutchinson concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, Sherri Prutton, individually and as mother and next friend of Alexis V., a minor,
appeals from the trial court’s grant of summary judgment in favor of Kishwaukee Community
Hospital (Kishwaukee). Plaintiff argues that the trial court erred in ruling that Dr. Paula
Hobson was not acting as Kishwaukee’s apparent agent when Hobson oversaw Prutton’s labor
and performed the delivery of Alexis at Kishwaukee. During the delivery, Alexis had a
shoulder dystocia that resulted in a brachial plexus injury, causing nerve damage that affected
the use of her right arm. We affirm.
¶2 I. BACKGROUND
¶3 On April 25, 2014, plaintiff filed a five-count complaint against Hobson, Kishwaukee,
Northern Illinois Fertility, S.C. (NIF), and Dr. Joseph R. Baumgart. Plaintiff alleged that she
was admitted to Kishwaukee on October 20, 2010, and that its agents and employees provided
care and treatment to her during the labor and delivery of Alexis. She alleged that Kishwaukee
had medical personnel acting as apparent agents of the hospital and that no one informed
plaintiff that they were not Kishwaukee employees.
¶4 In the count directed solely against Kishwaukee, 1 plaintiff alleged, among other things,
that Hobson was an apparent agent of Kishwaukee; that Hobson was negligent in her delivery
techniques, causing Alexis to sustain significant, permanent injuries to her brachial plexus; and
that Kishwaukee was vicariously liable for the injuries.
¶5 On January 26, 2015, the trial court entered an order granting plaintiff’s request to
voluntarily dismiss Baumgart.
¶6 Plaintiff’s discovery deposition was taken on August 5, 2015; we summarize her testimony.
Plaintiff was born in July 1971. In addition to Alexis, plaintiff had two other daughters, born
in 1995 and 1997 at Kishwaukee, when plaintiff was under the care of Dr. Emile Hirsch.
Plaintiff found out that she was pregnant with Alexis in January 2010, but Hirsch had moved
out of state by that time. Plaintiff contacted her insurance carrier about her treatment options,
and she specifically requested a doctor who delivered at Kishwaukee. She wanted to give birth
at Kishwaukee because she had gone there for medical care as a child and for the birth of her
other children and was comfortable there. It was also near her home. Before the pregnancy
with Alexis, plaintiff had seen television and billboard advertising for Kishwaukee.
¶7 Plaintiff was advised that NIF accepted her insurance, so she went there for her prenatal
care. NIF was in a building across the street from Kishwaukee. Plaintiff mostly saw Baumgart,
but she also saw Hobson two or three times because Baumgart had told her that Hobson would
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Plaintiff also included a count against all defendants, under the Family Expense Act (750 ILCS
65/15 (West 2010)), alleging that she had and would continue to incur costs in caring for Alexis.
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deliver the baby if he was unavailable. Hobson did in fact turn out to be the delivering
physician. Plaintiff thought that both doctors worked for Kishwaukee because she “knew that
[they] would be delivering” there. Neither doctor specifically told her that they did not work
for Kishwaukee.
¶8 Plaintiff went into labor on October 20, 2010. She was admitted to Kishwaukee and taken
to the delivery room at about 6 p.m. At about 8:15 p.m., she signed two informed consent
forms, namely, a patient authorization record and a consent for obstetrical services. Alexis was
born on October 21, 2010, at 2:29 a.m.
¶9 The patient authorization record contained eight subsections, one of which was entitled
“PHYSICIAN SERVICES.” (Emphasis in original.) This subsection stated:
“I understand that I am financially responsible for the professional services of
radiologist(s), pathologist(s), cardiologist(s), anesthesiologist(s), and other physician
charges which are not billed by the hospital. Physicians providing care are independent
contractors and are not employees or agents of KCH/VWCH. I hereby authorize my
third party payor to directly pay the above named parties or their service corporation. I
hereby authorize release of information requested by insurance/billing agencies to the
above named parties.” (Emphasis in original.)
Plaintiff signed her initials after this subsection and signed the signature line at the bottom of
the document. At her deposition, plaintiff testified that she could understand the paragraph
“now.”
¶ 10 The second consent form stated that it was for “obstetrical delivery” and contained eight
bulleted paragraphs on the first of two pages. The sixth paragraph stated, “I understand that
the physicians who participate in the procedure (for example: surgeon, assistants,
anesthesiologist, obstetrician, pathologist, and the like) are independent practitioners and are
not employees or agents of Kishwaukee Community Hospital.” On the second page, above the
signature line, the form stated:
“My signature below constitutes my acknowledgement that:
1. I have read, understand, and agree to the foregoing items.
2. The proposed operation/procedure has been satisfactorily explained to me and I
have all of the information I desire, and all of my questions have been answered.
3. I hereby give my authorization and consent.” (Emphasis in original.)
Plaintiff signed the signature line below this disclaimer. At her deposition, plaintiff testified
that she could “basically understand” the sixth paragraph from the consent form and the
sentence from the above-quoted paragraph stating that she had read, understood, and agreed to
the foregoing items.
¶ 11 Hobson was deposed on November 17, 2015. As relevant here, she testified that she worked
for NIF from September 2009 to May 2012. NIF was an independent practice that Baumgart
owned and managed. Hobson worked there pursuant to a physician independent-contractor
agreement. During the delivery, Hobson wore hospital scrubs that were marked “Kishwaukee
Hospital” “[i]n the back where the tag” was, but nowhere else.
¶ 12 In its response to requests to admit, Kishwaukee admitted that Hobson was displayed on
the hospital’s website in 2009 and 2010 and that the website did not specifically state that she
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was not a hospital employee. Kishwaukee also admitted the genuineness of five print
advertisements relating to Hobson that it distributed, disseminated, or published to the public.
A press release dated October 14, 2009, had the title “Kish Hospital Welcomes New Doctors”
and listed Hobson, among others. It stated that she had “recently joined the medical staff” and
was practicing with Baumgart at NIF. A second advertisement stated that Kishwaukee was
“pleased to welcome” Hobson, who had “joined the medical staff” and was practicing with
Baumgart of NIF. It listed NIF’s contact information. A third advertisement had similar content
but also contained a large photograph of Hobson.
¶ 13 On November 8, 2018, Kishwaukee filed a motion for summary judgment. We summarize
Kishwaukee’s argument as relevant for this appeal. There was no evidence that Hobson
committed acts creating the appearance of apparent agency or that Kishwaukee acquiesced to
any such acts or representations. In other words, plaintiff failed to demonstrate that
Kishwaukee acted in a manner that would lead a reasonable person to conclude that Hobson
was its agent. Plaintiff, through her insurance company, selected NIF as a practice and
Baumgart and Hobson as her doctors, when she found out that she was pregnant. NIF’s office
was not located within Kishwaukee. During plaintiff’s prenatal care, Baumgart referred her to
the maternal fetal medicine department of Rockford Memorial Hospital, which was also an
entity distinct from Kishwaukee. Furthermore, Hobson and Kishwaukee affirmatively
communicated to plaintiff that Hobson was not an agent of Kishwaukee, through the informed
consent forms.
¶ 14 In plaintiff’s response to Kishwaukee’s motion for summary judgment, she did not oppose
summary judgment as to the allegations of nursing negligence and actual agency. On the
subject of Hobson’s apparent agency, she argued that Kishwaukee’s advertising about Hobson
created a genuine question of material fact about whether Kishwaukee “held out” Hobson as
an employee. Plaintiff argued that the consent forms were not dispositive of the issue because
she signed the forms about two hours after being admitted to the hospital―while she was in
labor―and the forms were ambiguous and confusing. Finally, plaintiff argued that she relied
on Kishwaukee’s services for labor and delivery care rather than on the services of Hobson or
any other particular physician.
¶ 15 Plaintiff attached to her response an affidavit in which she stated, among other things, that
she chose Kishwaukee as the place to deliver Alexis and therefore requested a doctor who
delivered babies there. She believed that both Baumgart and Hobson were Kishwaukee
employees. None of the Kishwaukee advertisements that she had seen before becoming
pregnant with Alexis stated that the doctors there were not employed by the hospital. The
“general theme” of the advertisements “was that Kishwaukee Community Hospital provided
high quality, full service medical care to the community and that the doctors there had great
expertise.” She chose Kishwaukee based on her prior experiences there and its reputation.
¶ 16 Kishwaukee filed a reply to plaintiff’s response, and the parties argued the summary
judgment motion at a hearing on February 27, 2019. On that date, the trial court granted the
motion in favor of Kishwaukee as to actual agency.
¶ 17 The trial court issued its ruling on the question of apparent agency on April 3, 2019, stating
as follows. The seminal case on the issue of whether a hospital was liable under the doctrine
of apparent agency was Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993). That
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case stated that the plaintiff had to show that (1) the hospital or its agent acted in a manner that
would lead a reasonable person to conclude that the allegedly negligent individual was an
employee or agent of the hospital, (2) if the agent’s acts created the appearance of authority,
the hospital had knowledge of the acts or acquiesced in them, and (3) the plaintiff acted in
reliance on the conduct of the hospital or its agent consistent with ordinary care and prudence.
¶ 18 The trial court concluded that plaintiff met her burden for the first factor, in that
Kishwaukee’s advertising using Hobson’s biographical data and her likeness could lead a
reasonable person to believe that there was an employment relationship between Kishwaukee
and Hobson. However, the third factor was “complicated” because it raised the question of
how plaintiff could rely on the advertising when the consent form specifically said that the
doctors were not employees. The trial court considered other factors to determine whether they
supported or rebutted reliance on Kishwaukee’s “other conduct,” namely, that (1) plaintiff was
directed to Hobson by her insurer rather than by Kishwaukee; (2) her physician appointments
were away from the hospital, though in close proximity; (3) the allegedly negligent physician
was someone plaintiff had met with throughout her pregnancy and not just at the hospital;
(4) the consent forms were written in plain language and were signed by plaintiff, and the
patient authorization record further stated in bold-face print that physicians were independent
practitioners and not employees, and it required her initials after the paragraph; (5) plaintiff’s
desire to deliver at Kishwaukee was based on her prior positive experiences there rather than
any overt action by the hospital to draw her there; (6) there was no evidence that plaintiff saw
the ads relating to Hobson; (7) the ads plaintiff did see represented Kishwaukee as a full-
service facility; (8) plaintiff’s statement in her affidavit that she believed that Baumgart and
Hobson were Kishwaukee employees was based on her request to her insurer to deliver at
Kishwaukee, not on any conduct by the hospital; and (9) the fact that the consent forms were
signed two hours after plaintiff was admitted to the hospital, and while she was in labor, might
affect the knowing and voluntary nature of the consent.
¶ 19 The trial court concluded:
“A cursory or in-depth exam of these factors coupled with the important factor of
a signed consent can only lead to the legal conclusion that the plaintiff has not met her
burden as to actual reliance on the hospital’s conduct and, therefore, the motion for
summary judgment by Kishwaukee is granted.
I should add one other factor that I considered. Cases where consent was not found
to bar a finding of apparent agency dealt with doctors first met at the hospital and not
chosen by the patient.
At the end of the day that’s the key element. This is not somebody that she only
saw at the hospital. She saw away from the hospital. The other cases that were all cited
even though some of the doctors were their private physicians, their private physicians
were referring them to doctors at the hospital for treatment, and that’s not the case here.
The person she saw outside the hospital is the same person she saw at the hospital.
Therefore, I think that the consent form does bar her action for apparent agency.”
¶ 20 The trial court included in its order a finding under Illinois Supreme Court Rule 304(a)
(eff. Mar. 8, 2016) that there was no just reason to delay the appeal or enforcement of the order.
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Plaintiff timely appealed. The claims against Hobson and NIF remain pending in the trial court.
¶ 21 II. ANALYSIS
¶ 22 On appeal, plaintiff challenges the trial court’s grant of summary judgment for Kishwaukee
on the issue of Hobson’s apparent agency. Summary judgment is appropriate only where the
pleadings, depositions, admissions, and affidavits on file, when viewed in the light most
favorable to the nonmoving party, show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018).
Summary judgment is a drastic means to dispose of litigation and should be granted only where
the movant’s right is clear and free from doubt. Yarbrough v. Northwestern Memorial Hospital,
2017 IL 121367, ¶ 79. We review de novo a trial court’s ruling on a motion for summary
judgment. Nichols v. Fahrenkamp, 2019 IL 123990, ¶ 13.
¶ 23 As the trial court discussed, Gilbert is the primary authority on the issue before us. There,
our supreme court noted that, in an effort to compete for health care dollars, modern hospitals
use expensive advertising campaigns to hold themselves out to the public as offering quality
health services. Gilbert, 156 Ill. 2d at 520. The court stated that many patients rely on the
hospital’s reputation and naturally assume that the professionals there are employees, unless
the patients are otherwise put on notice. Id. at 521. It concluded that a hospital therefore should
not always escape liability simply because the physician rendering the care was an independent
contractor. Id. at 522; see also Yarbrough, 2017 IL 121367, ¶ 40 (“The realities of modern
hospital care that informed our decision [in Gilbert] are even more true today.”).
¶ 24 The supreme court held that, “under the doctrine of apparent authority, a hospital can be
held vicariously liable for the negligent acts of a physician providing care at the hospital,
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. As the trial court pointed out, a plaintiff must show that:
“ ‘(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; (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.’ ” Id. at 525 (quoting
Pamperin v. Trinity Memorial Hospital, 423 N.W.2d 848, 856 (Wis. 1988)).
¶ 25 The first two elements are often grouped together and called the “holding out” factor.
Mizyed v. Palos Community Hospital, 2016 IL App (1st) 142790, ¶ 39; see also Yarbrough,
2017 IL 121367, ¶ 30. A hospital may be deemed to “hold out” an independent contractor as
an employee if it holds itself out as a provider of emergency room care without informing the
patient that independent contractors are performing the care; the hospital need not make an
express representation that the contractor is an employee. Gilbert, 156 Ill. 2d at 525. The third
element, of justifiable reliance, is satisfied if the plaintiff relies on the hospital, rather than a
specific physician, to provide complete emergency room care. Id.¶ 26 Though Gilbert involved an emergency room setting, its analysis is not limited to such
situations. McIntyre v. Balagani, 2019 IL App (3d) 140543, ¶ 110. Whether an alleged agent
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was authorized to act is a question of fact, as is whether a person had notice of the lack of an
agent’s authority, or was put on notice by the circumstances. Gilbert, 156 Ill. 2d at 524.
However, the court may determine whether an agency relationship exists as a matter of law if
only one conclusion can be drawn from the undisputed facts. Churkey v. Rustia, 329 Ill. App.
3d 239, 242-43 (2002).
¶ 27 Applying these principles to the facts in the case before it, the supreme court in Gilbert
reversed the trial court’s grant of summary judgment in the hospital’s favor, stating that there
was a genuine issue of material fact as to whether the emergency room doctor was an apparent
agent of the hospital. Gilbert, 156 Ill. 2d at 526. The decedent had been assigned the doctor,
whom he had never met before, as opposed to asking for him. Id. Further, the hospital did not
inform patients that the emergency room doctors were independent contractors, and its consent
form, which the decedent signed, stated that he would be treated by “ ‘physicians and
employees of the hospital.’ ” Id. The supreme court concluded that, at a minimum, reasonable
people could draw different inferences from the facts as to the elements of apparent agency,
making summary judgment inappropriate. Id.¶ 28 In this case, plaintiff first argues that she met her burden on the “holding out” factor of the
Gilbert analysis. She points to her deposition testimony and the statements in her affidavit that,
before she became pregnant with Alexis, she saw Kishwaukee’s advertisements, the general
theme of which was that Kishwaukee provided high-quality, full-service medical care and that
its doctors had great expertise. Plaintiff highlights that the trial court found that she had met
her burden on this factor, stating that Kishwaukee’s advertisements using Hobson’s
biographical data and likeness could lead a reasonable person to conclude that the two parties
had an employer-employee relationship.
¶ 29 Plaintiff argues that the trial court’s reasoning was correct on this point. She cites McCorry
v. Evangelical Hospitals Corp., 331 Ill. App. 3d 668, 671 (2002), in which the hospital’s
advertising stated that its staff included hundreds of highly qualified physicians, whom it
referred to as “ ‘our physicians.’ ” The appellate court reversed the trial court’s grant of
summary judgment in the hospital’s favor on apparent agency, stating that the “evidence could
support a finding that the hospital held itself out as the principal for its agents, including the
highly qualified physicians, who directly provided the advertised health care.” Id. at 672.
Plaintiff also cites Spiegelman v. Victory Memorial Hospital, 392 Ill. App. 3d 826, 841 (2009),
where the appellate court agreed with the plaintiff’s argument that “ ‘[t]he Hospital cannot
have it both ways. It cannot advertise it has the best doctors in the community and then tell a
jury that there is no evidence that emergency department doctors were its employees.’ ”
Plaintiff argues that her evidence of Kishwaukee holding out Hobson as its agent or employee
is even stronger than that in the cited cases, because Kishwaukee’s advertisements were
specific to Hobson herself. She maintains that Hobson also testified that during the delivery
she wore hospital scrubs that had “Kishwaukee Hospital” identifying marks.
¶ 30 Plaintiff argues that she also met her burden of production on the third, “reliance” element
of the Gilbert analysis in that she relied upon Kishwaukee, rather than a specific physician, to
provide care. Plaintiff argues that it is undisputed that she specifically chose Kishwaukee as
the place to deliver Alexis, because plaintiff had gone there for her childhood medical care and
had chosen to deliver her first two children there. Plaintiff points to her testimony that she
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contacted her medical insurer and requested a prenatal doctor who delivered babies at
Kishwaukee. Plaintiff asserts that the trial court misapplied the law on this element in that it
focused on a standard akin to detrimental reliance by concentrating on whether plaintiff relied
on Kishwaukee’s advertising. Plaintiff argues that such a detrimental-reliance analysis was
rejected in Gilbert and its progeny. According to plaintiff, only partial reliance on the hospital
when accepting treatment is required to satisfy Gilbert. See McCorry, 331 Ill. App. 3d at 675.
¶ 31 Plaintiff argues that, when viewed in the light most favorable to her, the other factors that
the trial court considered do not support the conclusion that she failed to meet her burden of
production on the issue of reliance. She maintains that her medical insurer’s involvement in
her decision to use Kishwaukee for Alexis’s delivery did not preclude her from meeting her
burden, as reliance can be established despite a third party directing the plaintiff to the hospital.
See Monti v. Silver Cross Hospital, 262 Ill. App. 3d 503, 507-08 (1994) (although the patient
was unconscious, the people responsible for her, including the paramedics, relied upon the
hospital to provide complete emergency room care); Scardina v. Alexian Brothers Medical
Center, 308 Ill. App. 3d 359, 367-68 (1999) (reliance could be established even though the
plaintiff was directed to the hospital by his personal physician). Plaintiff argues that she did
not select Hobson or even Baumgart, but, rather, she selected Kishwaukee, which is how she
came to see Baumgart. She relatedly argues that her preexisting relationship with Hobson did
not preclude her from meeting her burden on reliance. See Malanowski v. Jabamoni, 293 Ill.
App. 3d 720 (1997) (mere existence of a regular physician-patient relationship does not
preclude a claim that the patient relied on the hospital).
¶ 32 Plaintiff maintains that, therefore, the trial court erred in stating that “[c]ases where consent
was not found to bar a finding of apparent agency dealt with doctors first met at the hospital
and not chosen by the patient.”
¶ 33 Plaintiff discusses the consent forms in depth. She argues that they should be considered
in the context of “holding out” rather than reasonable reliance. See Gilbert, 156 Ill. 2d at 525.
She additionally argues that the existence of an employment disclaimer in a consent form is
not dispositive on this issue. See James v. Ingalls Memorial Hospital, 299 Ill. App. 3d 627,
632 (1998) (“While we do not hold that the existence of an independent contractor disclaimer
in a consent form is always dispositive on the issue of ‘holding out,’ it is an important factor
to consider.”). Plaintiff cites Churkey, 329 Ill. App. 3d at 245, where the court stated: “There
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 defendant physician out as its agent.”
¶ 34 Plaintiff asserts that employee-status disclaimers that are given at the last minute or without
meaningful time have been held to bar a hospital from avoiding the application of apparent
authority. She cites Fragogiannis v. Sisters of St. Francis Health Services, Inc., 2015 IL App
(1st) 141788, ¶ 22, where the court stated that “a third party signing a consent form after the
negligence has occurred and after the patient is brain dead would not inform any unsuspecting
patient that the four doctors that treated the individual were independent contractors.” Plaintiff
highlights evidence that, when she signed the consent forms, she had already started receiving
labor and delivery care, including fetal monitoring, evaluation of pain complaints, and
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preparation for an injection of an epidural anesthetic for pain. She argues that presenting the
consent forms at that point transformed them into little more than a contract of adhesion.
¶ 35 Plaintiff further argues that the consent forms were ambiguous and confusing because they
were comprised of multiple parts. Plaintiff cites Schroeder v. Northwest Community Hospital,
371 Ill. App. 3d 584, 587 (2007), where the consent form stated:
“ ‘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. *** Your
physician may also decide to call in consultants who practice in other specialties and
may be involved in your care. Like your physician, those consultants have privileges
to care for patients at this facility, but are not employed by Northwest Community
Hospital or Northwest Community Day Surgery Center.’ ” (Emphases in original.)
The plaintiff argued that the consent form was confusing and ambiguous because it could be
reasonably interpreted to mean that his personal physicians were employed by the hospital but
that other unidentified physicians were not. Id. at 589. The appellate court concluded that there
were genuine questions of material fact on the issue of apparent agency such that summary
judgment was inappropriate. Id. at 593-94.
¶ 36 Plaintiff also cites Spiegelman, 392 Ill. App. 3d at 837, where the consent form used a
multi-part format and contained provisions unrelated to the independent-contractor disclaimer.
The signature line was beneath a separate, unrelated paragraph, and immediately before the
paragraph containing the disclosure was a paragraph stating: “ ‘I am aware that during my visit
to the Emergency Department of VICTORY MEMORIAL HOSPITAL, hospital employees
will attend to my medical needs as may be necessary.’ ” (Emphasis in original.) Id. The court
stated that a jury could infer that the plaintiff was confused as to which doctors were hospital
employees and which were independent contractors. Id.
¶ 37 Plaintiff argues that, similar to the consent form in Spiegelman, the two signature lines
were located immediately below bolded sections that addressed topics wholly unrelated to
employment status. Plaintiff argues that, as in Schroeder and Spiegelman, Kishwaukee’s
disclaimer paragraph was ambiguous because it was buried among multiple paragraphs not
pertaining to agency or employment status. She argues that the disclaimer was also contained
in a paragraph whose title ambiguously referred to “Physician Services,” it was sandwiched
between sentences concerning billing, and it did not have a separate line for her signature or
initials directly adjacent to the statement of disclaimer.
¶ 38 Plaintiff continues that, unlike in cases upholding summary judgment for hospitals on
apparent agency, the consent form here did not identify Hobson or NIF by name and did not
specifically disclaim an agency relationship with either of them. Plaintiff argues that the trial
court therefore erred in relying on Churkey, 329 Ill. App. 3d at 244, and James, 299 Ill. App.
3d at 629. She also argues that the disclaimer’s use of the phrase “for example” “creates
ambiguity as to whether the specialties listed therein are independent practitioners in reality or
simply in theory.” See Hammer v. Barth, 2016 IL App (1st) 143066, ¶ 24 (disclaimer was
ambiguous where it stated 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’ ” and that “ ‘[n]on-employed physicians may include, but are not limited to,
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those practicing emergency medicine, trauma, cardiology, obstetrics, surgery, radiology,
anesthesia, pathology and other specialties.’ ” (Emphases in original.) Plaintiff asserts that
Kishwaukee could have clearly and unambiguously conveyed Hobson’s independent-
contractor status in a consent form but failed to do so.
¶ 39 Plaintiff argues that, based on the deficiencies that she has highlighted, a jury could
reasonably find that Kishwaukee did not effectively disclaim an employer-employee
relationship with Hobson, such that the trial court erred in granting Kishwaukee summary
judgment on the issue of apparent agency.
¶ 40 Kishwaukee responds that plaintiff has failed to establish any of Gilbert’s requirements. It
argues that it did not hold out Hobson as its employee but rather its consent forms affirmatively
advised plaintiff to the contrary. Kishwaukee argues that the patient authorization record
emphasized that physician services would be provided by independent contractors, that
plaintiff was required to initial that paragraph, and that she also signed the bottom of the page.
Kishwaukee argues that the consent for obstetrical services contained a similar disclosure and
also required plaintiff’s signature. Quoting Frezados v. Ingalls Memorial Hospital, 2013 IL
App (1st) 121835, ¶ 22, Kishwaukee argues that the forms stated “clearly and concisely that
none of the physicians at [Kishwaukee] are its employees, agents, or apparent agents and are
instead independent contractors.” It maintains that, unlike in Schroeder and Spiegelman, there
was no equivocation in the forms, in that there was no suggestion that some treating physicians
might be independent contractors while others might be hospital employees. Kishwaukee
argues that plaintiff acknowledged that she comprehended the forms by initialing the paragraph
about independent contractors, signing both forms, and stating in her deposition that, when she
was deposed, she understood the relevant paragraphs.
¶ 41 Kishwaukee contends that the consent forms here are analogous to consent forms the
appellate court has found sufficient to support summary judgment in favor of a hospital on an
apparent-agency claim. Kishwaukee cites Wallace v. Alexian Brothers Medical Center, 389
Ill. App. 3d 1081, 1083 (2009), where the consent form stated:
“ ‘I understand that physicians who provide professional services to me such as my
attending physician and consulting physicians, are not the employees or agents of
Alexian Brothers Medical Center, but they are independent contractors who will be
providing their specialized services on my behalf and as such will be my employees or
agents. Alexian Brothers Medical Center is not responsible for the services these
physicians provide. These physician’s and their employee’s services will be billed
separately.’ ”
Kishwaukee further cites Churkey, 329 Ill. App. 3d at 241, where the consent form stated:
“ ‘To provide for specialized services such as Diagnostic Imaging and Anesthesia,
Sherman Hospital has entered into agreements with independent groups of physicians.
The independent groups that contract to provide services to the hospital are: *** I
understand that Sherman Hospital uses independently contracted physicians and
physician’s [sic] groups to perform specific services such as Anesthesia and
Radiological services for the hospital and its patients. The physicians are not employees
of Sherman Hospital but have been granted privileges to practice at the institution, and
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if that is the case, I can expect to receive a separate bill from these physicians or
physician groups.’ ”
Last, Kishwaukee cites Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st)
101558, ¶ 4, where the disclaimer stated in part: “ ‘NONE OF THE PHYSICIANS WHO
ATTEND TO ME AT THE HOSPITAL ARE AGENTS OR EMPLOYEES OF THE
HOSPITAL.’ ” Kishwaukee argues that, as in this case, the form in Lamb-Rosenfeldt also
contained multiple parts. Id. ¶ 30.
¶ 42 Kishwaukee asserts that, contrary to plaintiff’s argument, the consent forms did not need
to identify Hobson or NIF by name. Kishwaukee argues that neither Churkey nor James creates
such a requirement and that Frezados, Wallace, and Lamb-Rosenfeldt found sufficient consent
forms that did not identify specific physicians or medical corporations. Kishwaukee argues
that the fact that plaintiff was in labor was not significant, as she was in labor even before
arriving, and that Gilbert speaks only to what the actions of the hospital and physician would
have conveyed to a reasonable person. Kishwaukee also points out that plaintiff signed the
forms over six hours before Alexis was actually born.
¶ 43 Kishwaukee further argues that its advertising did not create a genuine question of material
fact. It contends that the advertising implicates the issue of reasonable reliance and not whether
a hospital has held out a doctor as an employee. Kishwaukee argues that, therefore, there is no
need to engage in this analysis, as plaintiff did not satisfy her burden on the “holding out”
factor. It asserts that McCorry and Spiegelman are distinguishable for this reason, in that the
courts there did not hold that the consent forms informed the patients of the doctors’
independent contractor status. Kishwaukee argues that, in Spiegelman, it was only after the
court concluded that the evidence was unclear that it ruled that the plaintiff could introduce
evidence of hospital advertising to prove the reasonable-reliance element of her claim.
Kishwaukee maintains that, even if the advertisements are relevant to the issue of “holding
out,” they do not create an ambiguity sufficient to defeat summary judgment, because they
communicated that Hobson had staff privileges at Kishwaukee but was a private physician
affiliated with NIF.
¶ 44 Kishwaukee also argues that the trial court properly concluded that plaintiff could not
satisfy Gilbert’s reasonable-reliance element. Kishwaukee cites York v. Rush-Presbyterian-St.
Luke’s Medical Center, 222 Ill. 2d 147, 193-94 (2006), where the supreme court held that,
even if a patient selects a particular primary physician to perform services, the patient may still
reasonably rely on the hospital to provide the remainder of the necessary support services, and
the hospital can be liable if a supporting physician commits malpractice. Kishwaukee also cites
Yarbrough, 2017 IL 121367, ¶ 6, where the plaintiff thought that her clinic was part of
Northwestern Memorial Hospital, because she was told that she would most likely deliver her
baby at that hospital. The supreme court stated that “Gilbert does not suggest that merely
granting a physician employed by another entity hospital staff privileges alone could create an
apparent agency relationship.” Id. ¶ 46. Kishwaukee argues that, read together, Gilbert, York,
and Yarbrough establish two things: (1) when a plaintiff chooses to be treated by her personal
physician at a hospital, she is relying on that physician, and not the hospital, for her care, such
that a hospital is not responsible for the physician’s alleged negligence, and (2) granting a
physician privileges to practice at a hospital does not create an apparent-agency relationship.
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¶ 45 Kishwaukee argues that these two considerations show why plaintiff could not have
reasonably relied on the hospital to provide her with obstetrical care. Kishwaukee argues that
plaintiff selected her personal physicians, Baumgart and Hobson, because she wanted to
deliver at Kishwaukee, because the doctors had privileges to practice there, and because her
insurance would cover the services. Kishwaukee maintains that, although plaintiff assumed
that her personal physicians were Kishwaukee employees, Yarbrough shows that a subjective
belief cannot satisfy Gilbert’s reasonable-reliance element. Kishwaukee notes that plaintiff did
not arrive at the hospital for emergency room care or have a physician randomly assigned to
her. It argues that, instead, plaintiff seeks to hold it liable for the alleged negligence of her
personally selected private physician. It argues that plaintiff’s reliance on her physicians is
shown by her going to NIF upon learning of her pregnancy, rather than the hospital; her
following her doctor’s instructions, including testing at Rockford Memorial Hospital; and her
understanding and intention that Baumgart or Hobson would perform the delivery.
Kishwaukee argues that the trial court correctly applied precedent in stating that all cases where
consent was found not to be a bar involved doctors whom the patients first met at the hospital
and who were not chosen by them.
¶ 46 In her reply brief, plaintiff argues that, inter alia, in her deposition, she was asked if she
understood the pertinent language at the time of her deposition, as opposed to when she signed
the consent forms. She maintains that there was also a question of fact as to the extent of her
understanding of Hobson’s employment status. Plaintiff further argues that a preexisting
relationship between a doctor and a patient does not bar the patient from proving reliance, as
York and Malanowski show, as well as Williams v. Tissier, 2019 IL App (5th) 180046, a case
published after plaintiff filed her appellant’s brief.
¶ 47 We conclude that the trial court correctly granted summary judgment in Kishwaukee’s
favor. We first address the parties’ disagreement over whether a hospital’s advertisements go
to the “holding out” factor or to justifiable reliance. In Gilbert, our supreme court stated that
the modern realities of hospital care include that “[h]ospitals increasingly hold themselves out
to the public in expensive advertising campaigns as offering and rendering quality health
services.” (Emphases added.) Gilbert, 156 Ill. 2d at 520 (quoting Kashishian v. Port, 481
N.W.2d 277, 282 (Wis. 1992)). Thus, the supreme court directly stated that a hospital’s
advertising is relevant to the question of “holding out.” See also Hammer, 2016 IL App (1st)
143066, ¶ 26 (advertisements pertain to the “holding out” factor). Kishwaukee attempts to rely
on Spiegelman for the opposite result, but even that case stated, “In the case sub judice, the
advertisements were relevant to the element of holding out—whether the hospital held itself
out as a provider of complete medical care.” Spiegelman, 392 Ill. App. 3d at 841. That being
said, the issue of advertising is not exclusive to the “holding out” factor, but rather the
“advertising materials would go to [both] the elements of ‘holding out’ and justifiable
reliance.” Petrovich v. Shared Health Plan of Illinois, Inc., 296 Ill. App. 3d 849, 860 (1998);
see also Williams, 2019 IL App (5th) 180046, ¶¶ 51, 55 (considering the advertisements in the
contexts of both “holding out” and justifiable reliance).
¶ 48 Looking at the advertisements in this case, we agree with the trial court that Kishwaukee’s
advertising, which specifically mentioned Hobson by name and in some cases included her
photograph, could, if viewed in isolation, create a question of material fact as to whether there
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was an employer-employee relationship between the hospital and Hobson. Though
Kishwaukee argues that the advertisements communicated that Hobson was a private physician
affiliated with NIF, the advertisements “welcome” Hobson to the hospital staff, mention her
background, and contain Kishwaukee’s name and, in some cases, its logo, all without directly
stating that Hobson was an independent contractor.
¶ 49 While the advertisements contained Kishwaukee’s name and/or logo, plaintiff’s assertion
that the scrubs that Hobson wore during delivery were similarly marked is without merit.
Hobson testified that the scrubs were labeled “Kishwaukee Hospital” “[i]n the back where the
tag” was, but nowhere else. Accordingly, the scrubs do not lend support to plaintiff’s assertion
that Kishwaukee held Hobson out as an employee.
¶ 50 The “holding out” factor also includes consideration of whether the hospital informed the
patient of the physician’s independent-contractor status. Gilbert, 156 Ill. 2d at 525. As plaintiff
recognizes, “the existence of an independent contractor disclaimer in a consent form is [not]
always dispositive on the issue of ‘holding out,’ [but] it is an important factor to consider.”
James, 299 Ill. App. 3d at 632.
¶ 51 We reject plaintiff’s argument that the consent forms are meaningless because she signed
them while she was in labor. Indeed, Gilbert and many of its citing cases involved a situation
in which a patient was admitted to an emergency room, which generally means that the patient
has a medical condition requiring emergency treatment. However, the cases still examined the
consent form’s language to determine whether the patient was adequately informed of the
physician’s employment status. See Frezados, 2013 IL App (1st) 121835, ¶ 24 (“Nearly
everyone who seeks emergency treatment is in some physical or emotional distress, and were
we to hold that such distress could operate to nullify provisions in an otherwise duly signed
treatment consent form, hospitals would always be required to proceed to trial on claims of
vicarious liability.”). In Frezados, the appellate court specifically stated that pain did not
excuse the plaintiff from reading the consent form or having someone else sign the consent
form if he could not, due to his condition. Id.; see also Mizyed, 2016 IL App (1st) 142790,
¶¶ 53-54 (one who signs a document is charged with knowing its contents, even if the person
is illiterate or does not speak English). Further, as Kishwaukee points out, plaintiff was
admitted around 6 p.m. and signed the forms at about 8 p.m., but Alexis was not born until
2:29 a.m. the following day, meaning that plaintiff was far from the final stage of labor when
she signed the forms. This case is readily distinguishable from Fragogiannis, 2015 IL App
(1st) 141788, ¶ 22, which plaintiff relies on, because there a third party signed the consent form
after the negligence had already occurred and the patient was brain dead.
¶ 52 We also do not agree with plaintiff that the consent forms were ambiguous and confusing.
The patient authorization record was a single page; the statement that physicians were
independent contractors and not employees or agents of Kishwaukee was in bold type; the form
required plaintiff’s initials after the paragraph that contained this bolded sentence; and plaintiff
additionally signed the bottom of the form. See supra ¶ 10. The consent for obstetrical services
was two pages long and contained bulleted paragraphs, one of which contained the single
sentence: “I understand that the physicians who participate in the procedure (for example:
surgeon, assistants, anesthesiologist, obstetrician, pathologist, and the like) are independent
practitioners and are not employees or agents of Kishwaukee Community Hospital.” Plaintiff
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signed the signature line of the second page of the form, below the bolded statement that her
signature constituted an acknowledgement that she had read, understood, and agreed to the
foregoing items. See supra ¶ 10.
¶ 53 Schroeder and Spiegelman are readily distinguishable because the consent forms there
were ambiguous and could reasonably be interpreted to mean that the patients might be
attended by physicians who were hospital employees. See supra ¶¶ 36-37. We agree with
Kishwaukee that, unlike in the aforementioned cases, the consent forms here clearly and
concisely communicated that all of the physicians were independent contractors, similar to the
forms in Frezados, Wallace, and Lamb-Rosenfeldt. See Gore v. Provena Hospital, 2015 IL
App (3d) 130446, ¶¶ 9, 28. Contrary to plaintiff’s argument, the use of the phrase “for
example” in the consent for obstetrical services does not alter this result, as the form
unambiguously stated that the physicians who participated in the procedure were independent
contractors, unlike the equivocal language in Hammer, 2016 IL App (1st) 143066, ¶ 24. See
supra ¶ 38.
¶ 54 Finally, we also disagree with plaintiff’s argument that the consent forms were insufficient
because they did not identify Hobson or NIF by name. Notably, in James, 299 Ill. App. 3d at
629, one of the cases plaintiff relies on for this proposition, the form stated that the
“ ‘physicians associated with SEA and the physicians on staff at this hospital are not employees
or agents of the hospital, but independent medical practitioners.’ ” However, the case never
stated that the allegedly negligent physician was part of the named practice. More significantly,
as Kishwaukee highlights, many cases have found consent forms to be sufficient, despite their
failure to specifically identify particular physicians or medical corporations. See supra ¶ 42.
That plaintiff might not have subjectively understood the consent forms does not create a
genuine question of material fact, as we view the issue from the perspective of a reasonable
person. See Gilbert, 156 Ill. 2d at 524.
¶ 55 Thus, although Kishwaukee’s advertisements initially could have been seen to create a
genuine question of material fact on the issue of whether Kishwaukee held Hobson out as an
employee or agent, this question is resolved by the signed consent forms, which clearly and
unambiguously informed plaintiff that the physicians at the hospital, which would include
Hobson, were independent contractors. Again, we recognize that the existence of an
independent-contractor disclaimer in a consent form is not always dispositive on the issue of
“holding out,” but it remains an important consideration (James, 299 Ill. App. 3d at 632), which
has also been described as “ ‘almost conclusive’ in determining whether a hospital should be
held liable for the medical negligence of an independent contractor” (Steele v. Provena
Hospitals, 2013 IL App (3d) 110374, ¶ 131 (quoting Thede v. Kapsas, 386 Ill. App. 3d 396,
401 (2008))). Considering the clarity of the disclaimers here, Kishwaukee’s advertising would
not create a genuine question of material fact on this issue. Plaintiff also does not identify any
other circumstance that would. Plaintiff therefore could not satisfy the “holding out” factor of
the Gilbert test, meaning that she could not have been successful in her efforts to hold
Kishwaukee liable for Hobson’s actions, based on apparent agency.
¶ 56 Given our resolution, we need not discuss the third element of the Gilbert test, i.e.,
justifiable reliance. See Gore, 2015 IL App (3d) 130446, ¶ 34 (where the plaintiff failed to
establish the “holding out” factor, analysis of the third element of apparent agency was
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unnecessary); Frezados, 2013 IL App (1st) 121835, ¶ 25 (“Because we conclude that plaintiff
has failed to raise a factual question as to the ‘holding out’ element of his cause of action, we
need not determine whether there is evidence going to show plaintiff’s justifiable reliance.”).
We therefore affirm the trial court’s grant of summary judgment for Kishwaukee on the issue
of Hobson’s apparent agency.
¶ 57 III. CONCLUSION
¶ 58 For the reasons stated, we affirm the judgment of the De Kalb County circuit court.
¶ 59 Affirmed.
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