Gilbert v. Frank , 233 Ill. App. 3d 372 ( 1992 )

JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Dimple Gilbert, acting as special administratrix for the estate of her late husband, Jack, filed an action for medical malpractice and wrongful death against defendants, Sycamore Municipal Hospital (hospital), and Irving Frank, M.D. Dr. Frank, who reached a settlement with plaintiff, is not a party to this appeal. The hospital moved for summary judgment on the basis that it was not vicariously liable for Dr. Frank’s alleged negligence because he was not an agent of the hospital. Plaintiff appeals from the order of the circuit court of De Kalb County granting the motion. The issue on appeal is whether summary judgment should have been denied because a material issue of fact existed as to whether the hospital could be held liable under the doctrines of apparent agency or agency by estoppel. We affirm.

The evidence submitted in connection with the hospital’s motion for summary judgment established the following facts. Jack Gilbert arrived by ambulance at the hospital’s emergency room at about 2:30 p.m. on April 8, 1981. He had experienced chest pains and pain in his left arm while lifting weights that morning. When he arrived at the hospital, Jack asked to be treated by Dr. Stromberg, a member of the hospital’s active staff who was not on call that day. Dr. Frank had been asked to cover the emergency room by Dr. Wassner, a surgeon who was on call that day. An emergency room nurse called Dr. Frank at home, and he arrived at the hospital a few minutes later.

After Jack arrived at the emergency room, he signed a form which stated in part as follows:

“The undersigned has been informed of the emergency treatment considered necessary for the patient whose name appears above and that the treatment and procedures will be performed by physicians and employees of the hospital. Authorization is hereby granted for such treatment and procedures.”

The hospital prepared the consent form which contained the above statement.

Dr. Frank had Jack undergo several tests including an electrocardiogram or EKG. The tests did not reveal any signs of heart disease or trouble. Dr. Frank ordered some pain medication for Jack and discharged him at 4:20 p.m. Jack died later that evening as a result of a myocardial infarction. An autopsy revealed that Jack was suffering from heart disease at the time of his death.

Marty Losoff was the hospital’s administrator at the time of the above events. Losoff testified as follows timing his deposition. The hospital was a full-service, acute care facility. Between 14 and 20 physicians, including Dr. Frank, were on the active staff. Active staff physicians were required to be on call in the emergency room when scheduled, although they sometimes arranged for backups to replace them.

Losoff further testified that the emergency room was not operated by an outside contractor; it was considered a function of the hospital. The emergency room nurses were hospital employees, and the hospital owned the equipment in the emergency room. The hospital’s emergency room committee reviewed emergency medical treatment rendered by physicians.

According to Losoff, patients in the emergency room would be treated by the physician who was on call unless a patient requested his or her own doctor and that doctor was available. The emergency room physicians had the authority to admit patients to the hospital. The hospital considered them to be independent contractors, however, because they billed the patients separately for their services. The hospital also billed emergency room patients, but not for the physician’s services. The hospital did not pay any salary to its active staff physicians. If the hospital administration did not approve of a physician’s conduct, a hospital representative would speak to the physician. Losoff acknowledged that the behavior of emergency room physicians could have an impact upon the hospital in a public relations sense. He also stated that he did not believe the hospital ever advised patients that the emergency room physicians were independent contractors.

The hospital submitted an affidavit from Losoff in support of its motion for summary judgment. The affidavit stated that the hospital did not pay Dr. Frank’s withholding taxes or provide him insurance, sick leave or vacations. Additionally, Dr. Frank determined his own work schedule and fee rates. According to the affidavit, Dr. Frank was not an agent or employee of the hospital; he was merely granted staff privileges.

In its motion for summary judgment, the hospital contended that it could not be held liable for the alleged negligence of Dr. Frank because he was not an agent or employee of the hospital. Plaintiff argued in her response that potential liability existed under the doctrines of apparent agency and agency by estoppel, thereby precluding entry of summary judgment. The trial court granted the motion, and plaintiff now appeals.

A motion for summary judgment should be granted only if the pleadings, depositions, admissions, and affidavits on file show that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Summary judgment is a drastic means of resolving litigation, and it should be granted only if the movant’s right to such relief is free from doubt. Purtill, 111 Ill. 2d at 240.

The hospital initially argues that we should not consider the issue raised by plaintiff because count II of her complaint alleges that Dr. Frank was an agent of the hospital rather than an apparent agent or an agent by estoppel. In count II, plaintiff alleged that Dr. Frank treated Jack in the hospital’s emergency room on April 8, 1981, and that Dr. Frank was an agent and employee of the hospital at that time. Plaintiff further alleged in count II that Dr. Frank was guilty of several negligent acts or omissions relating to his treatment of Jack and that the hospital was liable for these acts or omissions of its agent and employee.

Although in their briefs the parties discuss apparent agency and agency by estoppel separately, the doctrine of apparent agency is based upon the doctrine of equitable estoppel. (Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 278; Crittendon v. State Oil Co. (1966), 78 Ill. App. 2d 112, 115.) We therefore agree with the conclusions of the court in Northern Trust Co. that these doctrines are based upon the same elements, and there is no practical difference between them. (Northern Trust Co., 168 Ill. App. 3d at 278.) Accordingly, we consider apparent agency and agency by estoppel to be different labels applied to the same doctrine. We shall refer to this doctrine as apparent agency in the remainder of this opinion.

Pleadings should be construed liberally in order to achieve substantial justice. (Ill. Rev. Stat. 1989, ch. 110, par. 2—603(c); Champaign National Bank v. Illinois Power Co. (1984), 125 Ill. App. 3d 424, 428.) A pleading is not considered to be bad in substance if it reasonably informs the adverse party of the nature of the claim that he or she must meet. (Ill. Rev. Stat. 1989, ch. 110, par. 2—612(b); Champaign National Bank, 125 Ill. App. 3d at 428.) Bearing these principles in mind, we shall consider whether plaintiff’s complaint was sufficient to allege apparent agency.

An apparent agent is an individual who, whether authorized or not, reasonably appears to third parties to be authorized to act as the agent for another person or entity as a result of the actions of that other person or entity. (Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill. App. 3d 226, 232.) An apparent agency is an agency relationship. (See Lang, 222 Ill. App. 3d at 232-33.) Therefore we believe plaintiff’s allegation that Dr. Frank was the hospital’s agent could refer to either an actual or apparent agency.

Furthermore, precision pleading should not be required if knowledge of the pertinent facts is within the control of the defendant rather than the plaintiff. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 658.) In the case at bar, the hospital would have had knowledge about the nature of its relationship with Dr. Frank, but it is highly unlikely that plaintiff would have had access to this information when she filed her complaint. Therefore we do not believe it is unfair to the hospital to construe the allegation that Dr. Frank was its agent to be an allegation that he was either an actual or apparent agent. We conclude that plaintiff adequately alleged in count II that Dr. Frank was an apparent agent of the hospital and reject the hospital’s contrary contention.

On appeal, plaintiff does not challenge the trial court’s apparent conclusion in granting summary judgment that the evidence established conclusively that Dr. Frank was not an actual agent of the hospital. Her sole contention is that a genuine issue of material fact existed as to whether Dr. Frank was an apparent agent of the hospital. The hospital argues that the doctrine of apparent agency does not apply to the relationship between a hospital and a physician.

In general, there are two theories upon which recovery from a hospital may be based in a medical malpractice action. (Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 198.) The first is the existence of a principal-agent relationship between the hospital and a negligent physician; the second is the breach of a hospital’s duty to supervise and review the medical care administered to a patient. (Rohe, 203 Ill. App. 3d at 198.) The second of these theories is not implicated here.

The Appellate Court, Third District, has refused to extend liability to a hospital under the first of the above theories unless the physician was an actual agent of the hospital. (See Johnson v. Sumner (1987), 160 Ill. App. 3d 173, 175; Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1016; see also Heubner v. Galesburg Cottage Hospital (1991), 215 Ill. App. 3d 129, 133-34.) The Appellate Court, First District, has held, however, that hospitals are liable for the negligence of physicians who are apparent agents of the hospital. See Uhr v. Lutheran General Hospital (1992), 226 Ill. App. 3d 236, 251; Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 278-79; Sztorc v. Northwest Hospital (1986), 146 Ill. App. 3d 275, 278-79.

In support of its holding, the court in Uhr stated that, unless the patient has reason to believe that a treating physician in a hospital is an independent contractor, it is natural for the patient in seeking treatment to rely upon the reputation of the hospital. (Uhr, 226 Ill. App. 3d at 250.) The court felt that this was especially true in an emergency room context as a patient seldom knows who his or her treating physician will be. (Uhr, 226 Ill. App. 3d at 250.) A number of other jurisdictions have held that a hospital will be liable for the negligence of a treating physician who is an apparent agent even if the physician’s actual relationship to the hospital is that of an independent contractor. See, e.g., Paintsville Hospital Co. v. Rose (Ky. 1985), 683 S.W.2d 255, 257; Grewe v. Mount Clemens General Hospital (1978), 404 Mich. 240, 252, 273 N.W.2d 429, 432-33; Hardy v. Brantley (Miss. 1985), 471 So. 2d 358, 370-71; Adamski v. Tacoma General Hospital (1978), 20 Wash. App. 98, 111, 579 P.2d 970, 977.

We believe that the cases recognizing apparent agency in this context fail to take into account the unique nature of the relationships between physicians and patients and between physicians and hospitals especially in emergency situations. As the court pointed out in Greene, the treating physician directs and controls the treatment administered to an emergency room patient. (Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1015; see also Johnson v. Sumner (1987), 160 Ill. App. 3d 173, 175.) Although a hospital’s medical staff often engages in a peer-review process, it is not realistic to expect the staff or the hospital administration to direct or control treatment to an individual emergency room patient especially when split-second decisions are required. (See Greene, 147 Ill. App. 3d at 1015.) This factor demands recognition of the independent relationship between a hospital and an emergency room physician and militates strongly against extension of a hospital’s vicarious liability to physicians who are not actual agents or employees of the hospital. 147 Ill. App. 3d at 1015.

Additionally, applying the doctrine of apparent agency in this situation would be contrary to the fundamental public policy of tort law that the tort-feasor be financially responsible to the injured party for damages resulting from his or her conduct. (Johnson, 160 Ill. App. 3d at 175.) For these reasons we conclude that a hospital may be held vicariously liable for the negligence of an emergency room physician only if the physician was an actual agent or employee of the hospital.

As the court pointed out in Greene, a hospital is still guilty of negligence if it knows or should have known that a physician is incompetent but allows the physician to practice in its facility. (Greene, 147 Ill. App. 3d at 1015; see also Pickle v. Curns (1982), 106 Ill. App. 3d 734, 739.) This would constitute a breach of the hospital’s duty to supervise and review patient care. (Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 198-99.) A hospital cannot be reasonably expected to insure that independent physicians practicing within the facility will never be negligent, however. (Pickle, 106 Ill. App. 3d at 739.) In our view, applying the doctrine of apparent agency in a case such as this would be a step toward the recognition of such a duty. We decline to take this step.

For the above reasons, the order of the circuit court of De Kalb County granting summary judgment to the hospital is affirmed.

Affirmed.

WOODWARD, J., concurs.