York v. Rush-Presbyterian-St. Luke's Medical Center

Docket No. 99507.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
JAMES M. YORK, M.D., et al., Appellees, v. RUSH-
PRESBYTERIAN-ST. LUKE=S MEDICAL CENTER et al.
(Rush- Presbyterian-St. Luke=s Medical Center,
Appellant).
Opinion filed June 22, 2006.
JUSTICE McMORROW delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald,
Kilbride, and Karmeier concurred in the judgment and opinion.
Justice Garman dissented, with opinion.
OPINION
Dr. James M. York suffered a spinal injury during knee
replacement surgery performed at defendant Rush-
Presbyterian-St. Luke=s Medical Center (Rush). As a result, Dr.
York (hereinafter, plaintiff) and his wife filed a medical
malpractice action in the circuit court of Cook County against
the attending anesthesiologist, Dr. Abdel Raouf El-Ganzouri,
and Dr. El-Ganzouri=s employer, University Anesthesiologists,
S.C. Plaintiff alleged that his injuries resulted from the improper
administration of a combined spinal epidural anesthesia by Dr.
El-Ganzouri prior to the surgery. Specifically, plaintiff alleged
that Dr. El-Ganzouri deviated from the standard of care by
inserting a needle used to administer anesthesia too high on
plaintiff=s spine, causing the needle to pierce plaintiff=s spinal
cord and to result in irreversible spinal injury. Subsequent to
the filing of his initial complaint, plaintiff amended his complaint
to add Rush as a defendant on the theory that Dr. El-Ganzouri
was Rush=s apparent agent. After a jury trial, all three
defendants were found liable. The jury awarded plaintiff and his
wife damages in the amount of $12,598,591.31. The appellate
court affirmed the verdict against all defendants. 353 Ill. App.
3d 1.
Thereafter, all three defendants filed petitions for leave to
appeal with this court. We granted Rush=s petition for leave to
appeal, but denied the petition for leave to appeal filed by Dr.
El-Ganzouri and University Anesthesiologists. Accordingly, this
appeal solely addresses plaintiff=s apparent agency claim
against Rush. For the reasons that follow, we affirm the
judgment of the appellate court.
BACKGROUND
As an initial matter, we note that the record in this cause is
voluminous, and that we have carefully reviewed the record in
its entirety. The appellate court, in its opinion below, set forth
with great detail all of the evidence adduced at trial. However,
since the instant appeal is limited to reviewing plaintiff=s claim
that Rush is liable because Dr. El-Ganzouri was Rush=s
apparent agent, we do not find it necessary to set forth in detail
the evidence presented at trial with respect to the underlying
medical malpractice claim against Dr. El-Ganzouri and
University Anesthesiologists. Accordingly, we provide only a
brief overview of the facts of the medical malpractice action in
order to set the context for plaintiff=s claim of apparent agency
against Rush.
Plaintiff is a retired orthopedic surgeon. On February 9,
1998, plaintiff underwent a cemented total left knee
arthroplasty at Rush. This was the third knee surgery plaintiff
had at Rush since 1997, and all three surgeries were
performed by Dr. Aaron Rosenberg, an orthopedic surgeon.
Upon his admission to Rush for the February 9, 1998, surgery,
plaintiff signed a treatment consent form which stated, in
pertinent part:
AI hereby authorize Dr. Rosenberg and such assistants
and associates as may be selected by him/her and the
Rush-Presbyterian-St. Luke=s Medical Center to perform
the following procedure(s) upon myself/the patient ***.@
During the February 9, 1998, procedure, Dr. El-Ganzouri
was plaintiff=s attending anesthesiologist, and Dr. Rodney Miller
was the anesthesiology resident. Shortly before plaintiff=s
surgery, Dr. El-Ganzouri administered a combined spinal
epidural anesthesia to plaintiff. In this procedure, the
anesthesiologist first inserts a large epidural needleBknown as
a ATouhy@ needleBthrough the skin and between bones in the
spine, but short of the spinal column itself. It is generally
accepted that the proper location for the insertion of this needle
is below the spinal cord, in the lumbar area of the spine, which
is at or below the L2-L3 vertebral interspace. By injecting the
patient through the lumbar area, the anesthesiologist greatly
reduces the risk of the needle making contact with the spinal
cord. Once the Touhy needle is properly placed, the
anesthesiologist then inserts a much finer needleBknown as a
AWhittaker@ needleBinto the center of the larger Touhy needle.
The Whittaker needle is advanced through the Touhy needle
until the Whittaker needle pierces the dura, which is a thick
skin protecting an area known as the subarachnoid space. The
subarachnoid space contains cerebral spinal fluid, as well as
the spinal cord itself. Once the anesthesiologist pierces the
dura, he or she can confirm access to the subarachnoid space
by aspirating cerebral spinal fluid back through the inserted
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needles. Once the presence of cerebral spinal fluid is
confirmed, the anesthesiologist knows that the needles are
properly placed and then may inject the anesthesia through the
already-inserted needles.
In preparing to insert the Touhy needle into plaintiff=s back,
Dr. El-Ganzouri located the position on plaintiff=s spine where
he intended to insert the needle. However, when Dr. El-
Ganzouri inserted the first needle into plaintiff=s back, plaintiff
expressed that he felt excruciating pain in his right hip, knee
and leg, and that his right thigh cramped and his right calf
swelled. Plaintiff experienced additional severe painBdescribed
as pain radiating down his right leg, resulting in his right leg
losing all sensationBwhen Dr. El-Ganzouri inserted the second
needle. Plaintiff then underwent the knee replacement surgery
on his left knee.
After the knee surgery, it was discovered that plaintiff had
suffered a spinal injury. Plaintiff could neither feel nor move his
right leg. In addition, plaintiff had lost bladder and bowel control
and also experienced sexual dysfunction. Although plaintiff
underwent extensive rehabilitation, he had only partial success
in his recovery.
As a result of these events, plaintiff filed a four-count
complaint in the circuit court of Cook County on November 17,
1998. Count I of the complaint alleged professional negligence
against Dr. El-Ganzouri and University Anesthesiologists, Inc.,
stating that Dr. El-Ganzouri deviated from the standard of care
in administering the combined spinal epidural anesthesia to
plaintiff by improperly inserting the needles into plaintiff=s spinal
cord. Count II of the complaint was filed on behalf of plaintiff=s
wife, Elizabeth York, and sounded in loss of consortium due to
the professional negligence of Dr. El-Ganzouri and his
employer, University Anesthesiologists. The remaining two
counts of the complaint alleged claims of res ipsa loquitur
against Dr. El-Ganzouri and University Anesthesiologists. The
two counts sounding in res ipsa loquitur were subsequently
dismissed with prejudice by the circuit court at the conclusion
of the trial and are not at issue in this appeal.
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On February 7, 2000, plaintiff filed an amended complaint.
This amended complaint added Rush as a defendant and
alleged:
A[Dr. El-Ganzouri was] the actual or apparent agent of
Defendant, Rush, was mentoring, directing, instructing
and teaching various medical students and/or residents
and was acting in said capacity, and upon whom plaintiff
justifiably and reasonably relied to properly administer
anesthesia to the detriment of plaintiff.@
The amended complaint pled in the alternative that Adefendant
Rush failed to inform plaintiff that defendant, Dr. El-Ganzouri,
was an independent contractor.@ The claim of apparent agency
was repeated in count II of the complaint, which alleged loss of
consortium on behalf of plaintiff=s wife.
The jury trial in this case commenced on May 30, 2002.
With respect to the underlying medical malpractice action,
plaintiff presented medical experts who opined that Dr. El-
Ganzouri deviated from the standard of care for
anesthesiologists by inserting the spinal needles too high on
plaintiff=s spine during the combined spinal epidural procedure.
Plaintiff introduced evidence that Dr. El-Ganzouri inserted the
anesthesia needles at the T12-L1 spinal interspace rather than
at the generally recommended L2-L3 spinal interspace.
Plaintiff=s experts opined that such improper placement of the
needles would allow the spinal cord to be pierced, and that the
injection of anesthesia directly into the spinal cord would kill
nerves and cause the injuries that plaintiff experienced. In
contrast, defendants presented medical experts who opined
that Dr. El-Ganzouri satisfied the relevant standard of care in
performing the combined spinal epidural anesthesia and that
plaintiff=s injuries were caused by a Aspinal infarction@ 1 that
resulted from a drop in plaintiff=s blood pressure during surgery.
With respect to the apparent agency claim brought by
plaintiff against Rush, plaintiff argued at trial that Rush was
liable for the negligence of Dr. El-Ganzouri. Plaintiff contended
1
Plaintiff=s experts defined this term as meaning that the spine was
deprived of blood.
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that he had not been informed that Dr. El-Ganzouri was an
independent contractor and not an employee of Rush. In
addition, plaintiff asserted that Dr. El-Ganzouri appeared to be
a Rush employee not only based upon the language in the
Rush treatment consent form signed by plaintiff, but also by
virtue of the fact that Dr. El-Ganzouri wore scrubs and a lab
coat that bore Rush insignia. Plaintiff also maintained that he
had relied on Rush to provide the anesthesiologist for his
surgery.
Rush countered plaintiff=s apparent agency claim by
asserting that, as a doctor himself, plaintiff could not have
reasonably believed that Dr. El-Ganzouri was a Rush
employee. Rush argued that, based upon plaintiff=s own
experience as an independent contractor in the medical
profession, he had to have known that Dr. El-Ganzouri was an
independent contractor. In addition, Rush denied that plaintiff
relied upon Rush to provide an anesthesiologist. Rather, Rush
asserted, plaintiff relied upon his son, Dr. Jeff York, to choose
the anesthesiologist for his surgery. According to Rush, Jeff,
who was an anesthesiology resident at Rush at the time of
plaintiff=s surgery, was aware that Rush=s attending
anesthesiologists were independent contractors employed by
University Anesthesiologists. Therefore, Rush concluded, it
was logical to assume that plaintiff was also aware of the
independent-contractor employment status of Dr. El-Ganzouri.
As stated, this appeal revolves around the question of
whether plaintiff satisfied his burden of proof at trial to support
the jury=s verdict that Dr. El-Ganzouri was the apparent agent
of Rush. Accordingly, we will set forth in detail the evidence
adduced at trial relevant to the apparent agency issue.
Plaintiff testified that he is a retired orthopedic surgeon and
that he was 72 years old at the time of trial. Plaintiff stated that
he spent 27 years of his career in Somerville, New Jersey,
practicing orthopedic surgery at the Somerset Medical Center.
Plaintiff testified that during his time at Somerset, he was a
self-employed physician and was not employed by the hospital.
According to plaintiff, many of the doctors at SomersetBlike
himselfBwere solo practitioners, while some other doctors who
were on staff there formed practice groups. Plaintiff testified
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that he Areally didn=t know@ about the employment relationship
between Somerset Medical Center and the anesthesiologists
who practiced there. Plaintiff explained: AI had no knowledge. It
was none of my business. I was primarily practicing orthopedic
surgery. I was not very good with numbers, figures. I let other
people do that.@
Plaintiff testified that, prior to coming to Rush, he had
undergone several knee surgeries, beginning in the 1970s.
Plaintiff stated that he handpicked each and every doctor that
performed surgery on his knees. In plaintiff=s words, he Asought
[the doctors] out,@ and, as a result, he traveled to wherever the
chosen surgeon was practicing, whether it was in another city,
state, or country. By 1994, however, plaintiff=s arthritic knees
were getting more and more painful and swollen. At that time,
plaintiff initially consulted a doctor in Boca Raton, Florida, near
plaintiff=s Florida home. Plaintiff, however, did not agree with
this doctor=s suggested plan of treatment. According to plaintiff,
it was then that he asked his son Jeff Ato look into Rush.@ In the
following exchange between plaintiff and his counsel, plaintiff
explained this process:
AQ. When did you first seek out medical care of any
kind at Rush?
A. My son had an orthopedicBI mean, anesthesia
residency and he knew I was looking around for
somebody to do total knees. And I said, Jeff, can you
find out if there=s a good man in Chicago, and that=s
what he did.
Q. And had you known of Rush Pres before that
discussion with your son?
A. Yes.
Q. And how did that come about?
A. I played tennis with another doctor *** and he and
I were great friends *** [a]nd he was a graduate of Rush
Medical School and he was an internist who trained at
Rush Medical School, residency.
Q. What was your understanding about Rush then
when you spoke with Jeff?
A. I knew there were good docs at Rush.
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Q. Did you then eventually hook up with a doctor at
Rush to consult with on your knee?
A. Dr. Aaron Rosenberg.@
On cross-examination, defense counsel revisited plaintiff=s
testimony that he had his son Jeff Alook into Rush.@ The
following exchange ensued between defense counsel and
plaintiff:
AQ. And as I think you mentioned earlier this
morning, [Jeff] did that for you?
A. Yes. He said a couple of the orthopedic residents
recommended Aaron Rosenberg. I asked a few of my
friends about Dr Rosenberg. *** I felt very comfortable
going to him.
Q. So you had Jeff check out the orthopedic
surgeons at Rush, and then you asked your colleague
friend *** about Dr. Rosenberg andB
A. And I asked people in Boca.
Q. You were used to making medical decisions
yourself in terms of your own medical care. True?
A. I was used to choosing the surgeon.
Q. Particularly being an orthopedic surgeon, you
wanted who you wanted for orthopedic surgery. True?
A. I only knew orthopedic surgery. I had the same
trouble the jury has in choosing doctors and other
people.@
Plaintiff testified that he became a patient of Dr. Rosenberg
at Rush in 1994. Plaintiff would make an appointment to see
Dr. Rosenberg when plaintiff traveled from his Florida home to
Chicago to visit with his son Jeff. According to plaintiff, at the
start Dr. Rosenberg had conservatively treated plaintiff=s knee
problems. However, because of the worsening condition of his
knees, plaintiff had to eventually have a replacement of his
right knee in August 1997. Plaintiff then underwent a
subsequent operation a few days later in September 1997.
During this procedure, Dr. Rosenberg removed two plates and
screws from plaintiff=s left knee that were from a previous
operation.
-8-
Plaintiff testified he was very pleased with the results from
the first knee replacement surgery performed on plaintiff=s right
knee by Dr. Rosenberg in 1997. As a result, plaintiff went back
to Dr. Rosenberg for a surgical replacement of his left knee in
February 1998. Plaintiff stated that he would have gone to Dr.
Rosenberg for the surgery even if Dr. Rosenberg had moved
his practice to a different hospital.
Plaintiff testified that, prior to the left knee replacement
surgery scheduled for February 9, 1998, he and his son Jeff
discussed the anesthesia care for that procedure. Plaintiff
explained this conversation during the following colloquy with
his counsel:
AQ. Now, relative to that operation *** did you and
Jeff have any discussion at all about the anesthesia
care?
A. We did. I asked him if he couldBI had Tom Krolick
and Dr. Miller on the first operation and I liked both of
them. I had asked Jeff if it was possible to have the
same team.@
Plaintiff, however, testified that he was not aware how Dr.
Krolick was selected to be plaintiff=s anesthesiologist for his
first knee surgery at Rush.
On cross-examination, defense counsel followed up on
plaintiff=s testimony regarding the selection of his
anesthesiologists during these earlier surgeries. Plaintiff
offered additional explanation, as revealed in the following
exchange with defense counsel:
AQ. I think you mentioned that for the first surgery by
Dr.Rosenberg, you had Jeff intervene for you to arrange
the anesthesiologist, Dr. Tom Krolick; is that right?
A. I believe Jeff saidBI said we didn=t discuss
anesthesia, but he said something about I will pick the
anesthesia, I have a friend who owes me a favor,
something like that. And Tom Krolick and I hit it off ***.@
The colloquy continued:
AQ. You had asked Jeff then prior to February of =98
to see if he could get both Tom Krolick and Rodney
Miller for your February 9 procedure?
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A. Yeah. When you come up from Florida to a big
city, its nice to see one person you know in the
operating room. I liked Rodney Miller.@
According to plaintiff, he subsequently found out that Dr.
Krolick was not available for the February 9, 1998, surgery
because he was scheduled to be out of the office that day.
However, as plaintiff requested, Dr. Miller was assigned to his
surgery as the anesthesiology resident. According to plaintiff,
he was unaware prior to his surgery who the attending
anesthesiologist would be. Plaintiff explained this during the
following exchange with his counsel:
AQ. By the way, did you know Dr. El-Ganzouri was
going to be your doctor anesthesiologist that day?
A. No I didn=t.
Q. Who did you think it was going to be?
A. I really didn=t know.
Q. And upon whom did you rely, if anyone, for the
selection of an anesthesiologist?
A. I assumed Rush was going to select them. They
have good docs at Rush. I knew that. I had two
surgeries there.@
On cross-examination, defense counsel further inquired of
plaintiff about the anesthesiology services he received during
the prior operations on his knees. Plaintiff testified that in those
procedures, he relied upon either the Aorthopedic surgeon
and/or the hospital I was going to@ to select the
anesthesiologist for the surgery. According to plaintiff, this
reliance was based upon his Afaith in the institutions.@
Plaintiff=s son, Dr. Jeff York, also testified at trial. Jeff stated
that in February 1998 he was employed by Rush as a resident
in its anesthesiology training program. Jeff testified that he
began his anesthesia residency at Rush in 1994 and
completed it in 1998. As a result of his residency there, Jeff
stated, he Athought highly of Rush.@ According to Jeff, when his
father first asked him in 1994 about the quality of care that he
would receive at Rush, Jeff told his father that he was
Aenthusiastic about the services and nursing staff, doctors and
postoperative care that he could receive.@ Jeff testified that he
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Aspoke highly of Rush and encouraged [his father] to come to
the hospital for medical care.@
Jeff further explained his enthusiasm about his father=s
being treated at Rush in the following colloquy between Jeff
and plaintiff=s counsel:
AQ. I would like you to tell the ladies and gentlemen
of the jury about your initial conversation with your
father about possibly coming to Chicago, Rush-
Presbyterian-St. Luke=s for treatment.
A. I was very enthusiastic about my father to come
to Rush-Presbyterian-St. Luke=s Medical Center for
medical care. I had good knowledge of the surgeons,
the nursing staff, and the postoperative care that could
be given to patients as I was a resident in the
anesthesia training program there.
I encouraged him to come to Rush-Presbyterian-St.
Luke=s Medical Center because I thought that he could
getBthat he could receive good care there.
Q. Dr. York, will you tell us when you first discussed
Dr. Rosenberg with your father in context of his
conversation and contact with you about Rush?
A. I was encouraging my father to come to Rush-
Presbyterian-St. Luke=s Medical Center for surgical
care.
Q. When did you talk to your father about Dr.
Rosenberg?
A. I did some research asking individuals about the
quality of orthopedic surgeons on staff at Rush-
Presbyterian-St. Luke=s Medical Center. And I tried to
find out which surgeon did the most total knees and who
had the best results. And then encouraged my father to
come to Rush for surgical care.@
Jeff testified that his father traveled from Florida to see Dr.
Rosenberg for treatment from 1994 to 1997. In August 1997,
his father underwent the first surgery by Dr. Rosenberg on his
right knee. For that surgery, Dr. KrolickBa member of University
AnesthesiologistsBwas the attending anesthesiologist. Jeff
testified that after the August 1997 surgery, his father was
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pleased with the results. Nine days later, his father had a
surgical revision performed on his left knee by Dr. Rosenberg.
Dr. Sklar was the attending anesthesiologist for that procedure.
According to Jeff, his father was also pleased with the results
of the second surgery. Jeff testified that Jeff=s friend Dr.
Rodney Miller had been the anesthesiology resident assigned
to these first two surgeries.
With respect to the February 1998 surgery at issue in the
instant cause, Jeff stated that he was aware prior to that
surgery that Dr. Miller would be the resident anesthesiologist
assigned to his father=s case. Jeff further testified, however,
that he had no contact with any of his father=s other physicians
or anesthesiologists prior to that surgery. Jeff testified that he
did not know which attending anesthesiologist would be
assigned to his father=s surgery, as revealed by the following
colloquy between Jeff and defense counsel on cross-
examination:
AQ. *** And you were aware before Monday of
February 9th that Dr. Miller would be doing your father=s
case come Monday?
A. Yes.
Q. And you were aware that your father specifically
asked for Dr. Miller to be assigned to his case?
A. He had shown a preference to Rodney Miller
because he gave him good anesthetic care previously.
Q. And when you found out that Dr. El-Ganzouri had
been assigned to your father=s case for that Monday,
February 9th, you voiced no objection to that
assignment, is that right?
A. I wasn=t aware that Dr. El-Ganzouri had been
assigned to my father=s case for Monday.
Q. Is it correct that when you learned that Dr. El-
Ganzouri would be the anesthesiologist for your father=s
case on the 9th of February, that you did not voice any
opposition to that?
A. I wasn=t aware that Dr. El-Ganzouri was going to
be my father=s anesthesiologist for that coming Monday,
that coming operation.@
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Jeff testified that, during the time period in which his father=s
surgery occurred, anesthesiologists at Rush were assigned to
surgical cases based upon their seniority and their specialty
track. For example, an anesthesiology resident who was
undergoing a certain type of training would be assigned to a
certain type of case. The attending anesthesiologists would be
assigned in the same manner.
Jeff testified that the scheduling or assignment of
anesthesiologists at Rush was generally handled by Ray
Narbone. Narbone was a nurse anesthetist and an employee
of Rush. According to Jeff, Narbone would review a daily list of
the available anesthesiology staff and would assign certain
residents and attending anesthesiologists to a particular case
for that day. Jeff testified that patients did not select their
anesthesiologists at Rush.
Jeff stated that the first contact that a patient has with the
Department of Anesthesia prior to surgery is with someone
from the resident staff, who would be responsible for meeting
the patient in the surgical holding area. During this pre-
anesthesia evaluation, Jeff testified, there was no discussion of
the employment relationship between the anesthesia
physicians and the patient. Jeff further testified that at the time
of his father=s February 1998 surgery, all the
anesthesiologistsBboth attending and residentsBwore green
scrubs with the Rush logo printed on them. Outside of the
surgical setting, the attending anesthesiologist would wear a
white lab coat with the Rush logo on the pocket.
Jeff concluded his testimony by stating that the offices of
University Anesthesiologists are located in a Rush building
and, at the time of his father=s February 1998 surgery, all of the
attending anesthesiologists at Rush were members of
University Anesthesiologists. According to Jeff, he had no
conversations with his father about University
Anesthesiologists prior to his father=s surgery. Jeff stated that
for his February 1998 surgery, his father indicated no
preference for any attending anesthesiologist on staff. Jeff
stated that heBand not his fatherBrequested that Dr. Krolik
serve as the attending anesthesiologist for that surgery.
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Dr. Rodney Miller also testified at trial. Dr. Miller stated that
he participated as an anesthesia resident in plaintiff=s 1997
knee surgeries at Rush. Dr. Miller stated that he also served as
the anesthesiology resident during plaintiff=s February 9, 1998,
surgery because plaintiff and his son, Dr. Jeff York,
Arequested@ Dr. Miller to participate. According to Dr. Miller,
plaintiff and his son Jeff had also requested Dr. Krolick to serve
as the attending anesthesiologist for the February 9, 1998,
surgery. However, Dr. Krolick was not available on that day for
surgery. Instead, Dr. El-Ganzouri was assigned to plaintiff=s
case as the attending anestheologist.
With respect to the events occurring on the day of plaintiff=s
surgery, Dr. Miller testified as follows:
AQ. In *** the morning of February 9, 1998, did you
see [plaintiff]?
A. Yes.
Q. Describe for the ladies and gentlemen of the jury
where that would have been.
A. That was in the holding area. I believe it was bed
24 or 25. That=s where I saw him.
Q. Okay. Did you learn that morning who the
attending anesthesiologist would be that you would be
working with?
A. It was scheduled to be with Dr. Krolick; but he
was unavailable at the time, so there was a last
minuteBBasically, Dr. Krolick was unavailable, so Dr.
[El-]Ganzouri was the next available doctor and he
ended up doing the case instead of Dr. Krolick.
***
Q. After you learned that Dr. El Ganzouri was I think
you described the next available anesthesiologist,
whatever you saidB
A. Yeah.
Q. B did you then go to [plaintiff] and discuss
himBdiscuss that with him to seek his approval or
acquiescence?
A. Yes.
-14-
Q. Do you remember what you told him?
A. I just told him that there has been a change. Dr.
Krolick is not available and Dr. [El-]Ganzouri will be
doing the anesthesia.
Q. Okay. Did [plaintiff] participate at all in the
selection of Dr. El-Ganzouri to your knowledge?
A. No.@
Raymond Narbone also testified at trial as an adverse
witness called by plaintiff. Narbone testified that at the time of
plaintiff=s February 9, 1998, surgery, Narbone was Rush=s
director of Operating Services and Chief Anesthetist-
Anesthesiology. Narbone stated that his desk was located in
the offices of University Anesthesiologists, and that the offices
of University Anesthesiologists are located within one of the
Rush=s buildings. According to Narbone, 50% of his salary was
paid by Rush and 50% of his salary was paid by University
Anesthesiologists. Narbone, however, testified that he
considers himself to be an employee of Rush.
According to Narbone, his job was to schedule cases for
attending and resident anesthesiologists and to decide in which
operating room the surgeries would take place. Narbone
testified that he did the preliminary scheduling for plaintiff=s
February 9, 1998, surgery. Narbone explained that this means
that he paired up an attending anesthesiologist with a resident
anesthesiologist and then assigned this pair to an available
operating room. Narbone also stated that in making up the
schedule, he would take into consideration requests for
assignments. Once Narbone completed the preliminary
scheduling, he would then give the schedule to the clinical
coordinator for University Anesthesiologists for final approval.
Narbone testified that the scheduling process for a Monday
surgeryBas plaintiff had in the matter before usBstarts on Friday
afternoon. There is a schedule of surgeries that are to be
performed, and also a schedule of persons available for that
day. Narbone would assign the attending anesthesiologists and
match them, as best he could, with the residents in their proper
rotation. He also would take into consideration any special
requests. Counsel for plaintiff then asked Narbone whether he
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would make any notation on the scheduling sheets to remind
himself about such special requests. The following colloquy
then occurred between the witness and counsel:
AQ. And then finally, the recordsByou have some
kind of records that you keep there, right, a sheet you
make up?
A. I don=t make it up. The scheduling secretary
makes it up.
***
Q. And the sheet does track phone calls and stuff,
though, doesn=t it?
A. No.
Q. Does it track communications about requests?
***
A. It tracks certain notations that I need to take into
consideration when making out the schedule. It varies
from all kinds of communications ***.
Q. And that=s the spot *** you would have expected if
there was a phone call or a meeting for a notation to
have been made about a meeting with Jeff York or a
request by Jeff York and its not there?
A. No, not necessarily. I often get requests. People
come up to me in the operating room or they will call me
or something and say, you know, my sister, my brother,
or what have you is having surgery, can you assign X to
it?
Q. But when you do make a notation, that is where
the notation is made?
A. No. I don=t make that notation.
Q. Who would make that notation?
A. Our scheduling secretary.
Q. So then you never make a notation. Is that what
you are telling us?
A. Well, maybe to myself.@
Narbone further testified that with respect to plaintiff=s
February 9, 1998, surgery, Narbone selected Dr. Miller to serve
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as the anesthesiology resident. Narbone testified that Dr. Miller
was assigned to plaintiff=s orthopedic surgery, even though
Miller was on an advanced general surgery rotation, because
Dr. Miller was Arequested to do the case@ by plaintiff=s son Jeff.
Narbone stated that A[Dr. Miller] and Dr. [Jeff] York were pretty
close friends as residents and Dr. Miller had done the previous
surgeries that I recall.@
It was also Narbone=s recollection that on the Friday prior to
plaintiff=s Monday surgery, Narbone was aware that Dr. Krolick
would not be available to serve as plaintiff=s attending
anesthesiologist because Dr. Krolick was scheduled to be out
of the office on that Monday. It was at that time that Narbone
made a preliminary assignment of Dr. El-Ganzouri to be the
attending anesthesiologist on plaintiff=s case. Narbone testified
that he did not make the decision to assign Dr. El-Ganzouri to
plaintiff=s case on his own. Rather, Narbone believed that
plaintiff=s son Jeff had requested that Dr. El-Ganzouri be
assigned to plaintiff=s case as the attending anesthesiologist.
The following exchange occurred between plaintiff=s
counsel and Narbone with respect to Narbone=s recollection of
the assignment of anesthesiologists to plaintiff=s February 1998
surgery:
AQ. You believe that in this particular circumstance,
that you did pick Rodney Miller to be the resident?
True?
A. Correct.
Q. Correct?
A. Correct.
Q. And you also believe based upon a phone
conversation, that you cannot give us any detail about,
that Jeff York requested Dr. El-Ganzouri for his dad.
Isn=t that what you believe?
A. I believe that it was requested. Whether it was by
phone or not, I can=t be certain.
Q. Just so we are clear and have in context your
memory, you have absolutely no memory of any kind
whatsoever about a conversation over the phone or in
person with Jeff York?
-17-
A. Not specifically.
Q. And you base your entire belief that he made the
request for Dr. El-Ganzouri on the fact that that=s what
happens virtually all the time when a family member is
being operated on?
A. Yes.@
However, Narbone also testified that Ahe [knew] for certain@
that plaintiff himself had not made the request for a specific
attending anesthesiologist directly to Narbone or anyone that
Narbone knew of. Plaintiff also introduced the videotape
deposition testimony of Dr. Catherine Wilson, who was
plaintiff=s treating psychologist during his stay from February to
March 1998 in the spinal cord injury unit at the Rehabilitation
Institute of Chicago. Dr. Wilson testified that, initially upon his
arrival at the Rehabilitation Institute, she wrote a progress note
wherein she recorded that plaintiff was extremely angry and
cried a lot. Dr. Wilson explained that plaintiff was very angry at
the medical profession and with his son, Jeff, as a result of the
occurrences during his February 9, 1998, surgery. According to
Dr. Wilson, plaintiff had a feeling of being let down by the
medical profession, and no longer trusted that profession. In
addition, Dr. Wilson stated that plaintiff was upset with his son
because he felt his son did not do the things he said he was
going to do, particularly that Jeff did not call him back about the
anestheologist.
Defendant, Dr. El-Ganzouri, also testified at trial. Dr. El-
Ganzouri was first called by plaintiff as an adverse witness,
and then testified on his own behalf in defendants= case in
chief.
Dr. El-Ganzouri testified that he was the clinical director of
the Rush Department of Anesthesiology from June 1980 until
2000. At that time, he decided to leave administrative work and
to concentrate on clinical work and teaching. At the time of trial,
Dr. El-Ganzouri was an associate professor of anesthesiology
at Rush and a senior attending anesthesiologist.
Dr. El-Ganzouri testified that, prior to 1980, the
anesthesiologists practicing at Rush were employees of Rush
hospital. However, when University Anesthesiologists was
-18-
formed in 1980, the doctors affiliated with that practice group
became independent contractors. Dr. El-Ganzouri stated that
the offices of University Anesthesiologists were located within
one of Rush=s buildings. Dr. El-Ganzouri stated that Ray
Narbone, an employee of Rush, assisted University
Anesthesiologists= clinical coordinators in making preliminary
scheduling assignments. According to Dr. El-Ganzouri, once
Ray Narbone had made up the initial clinical schedule, that
schedule was then approved by a clinical coordinator working
for University Anesthesiologists.
Dr. El-Ganzouri testified that during the times he was in the
operating room, he would wear scrubs covered with the Rush
logo. Dr. El-Ganzouri explained that everyone who works in the
operating room wears these types of scrubs. Dr. El-Ganzouri
also stated that, when he was not in the operating room, he
would wear a white lab coat with a Rush logo. Dr. El-Ganzouri
testified that it was common at Rush for doctors not employed
by the hospital to wear such lab coats with the Rush insignia.
Dr. El-Ganzouri stated that he did not know what, if anything,
plaintiff knew about whether he worked for Rush or whether he
was an independent contractor employed by University
Anesthesiologists. According to Dr. El-Ganzouri, he would not,
in the normal course of events, tell a patient that he worked for
University Anesthesiologists as an independent contractor and
was not an employee of Rush.
Dr. El-Ganzouri further testified that on the day of plaintiff=s
February 1998 surgery, he was the attending anesthesiologist
and Dr. Rodney Miller was the resident anesthesiologist
assigned to the case. Dr. El-Ganzouri stated that he met
plaintiff for the first time in the surgical holding area around 7
a.m. on the morning of the surgery. According to Dr. El-
Ganzouri, when he received the assignment, it was the first
time he knew plaintiff was going to be his patient.
Dr. El-Ganzouri testified that, although he had never before
met plaintiff, plaintiff knew him. When Dr. El-Ganzouri
introduced himself to plaintiff shortly before the surgery on
February 9, plaintiff said, AI know you. You are the one who
teaches myBJeff my son, fiberoptic and you are famous for
this.@
-19-
Defendant also submitted for consideration by the jury the
videotape evidence deposition of Dr. John Glesmann. Dr.
Glesmann, who lived in New Jersey at the time of trial, was the
retired department director of anesthesia at Somerset Hospital
in Somerville, New Jersey. Dr. Glesmann knew plaintiff from
1965 until 1991, during the time plaintiff practiced at Somerset
Hospital as an orthopedic surgeon. Dr. Glesmann was an
anesthesiologist who worked with plaintiff once or twice per
week in the operating room and who also saw plaintiff at social
occasions.
The witness testified that during the 47 years he practiced
at Somerset, he was self-employed. In fact, according to Dr.
Glesmann, all of the anesthesiologists at Somerset Hospital
were self-employed, performed their services on a fee-for-
service basis, and billed the patients directly for their services.
On cross-examination, Dr. Glesmann testified that typically,
during his time as head of the anesthesiology department at
Somerset, the assignment of anesthesiologists to cases was
made by someone from the hospital, although he tried to honor
specific requests from patients. It was his experience that the
majority of cases were randomly assigned. Dr. Glesmann
acknowledged that every hospital has a different way of
handling assignment of cases and compensation for
physicians. Dr. Glesmann noted that Somerset Hospital was a
small institution and admitted that at some of the larger
teaching institutions he was aware that some anesthesiologists
were paid by the hospital itself.
At the close of evidence, Rush moved for a directed verdict
on the issue of apparent agency in its favor and against
plaintiff. Rush argued that plaintiff failed to prove both the
holding out and reliance elements required to succeed on an
apparent agency claim. Rush argued that the evidence
presented at trial, taken in the light most favorable to plaintiff,
so overwhelmingly favored Rush that no contrary verdict based
upon that evidence could stand.
The circuit court denied Rush=s motion for a directed
verdict. In the course of its ruling, the circuit court noted that
there was no evidence presented that plaintiff signed a consent
form advising him that the anesthesiologists at Rush were
-20-
independent contractors and not employed by the hospital. The
circuit court held that, based upon the evidence presented, a
jury could reach a decision that plaintiff relied upon Rush. The
circuit court did, however, comment that the case law on the
apparent agency issue was Aconfusing@ and unsettled.
Thereafter, the parties tendered to the circuit court jury
instructions. Relevant to this appeal, the trial court adopted
plaintiff=s tendered jury instruction on apparent agency, which
was based upon Illinois Pattern Jury Instructions, Civil, No.
105.10 (Supp. 2003) (hereinafter IPI Civil (Supp. 2003).
AUnder certain circumstances, the liability of a party
may arise from an act or omission of that party=s
apparent agent. In the present case, James York, M.D.
and Elizabeth York have sued Rush Presbyterian St.
Luke=s Medical Center as the principal and Abdel Raouf
El-Ganzouri, M.D. as its apparent agent. Rush
Presbyterian St. Luke=s Medical Center denies that any
apparent agency relationship existed.
In order for an apparent relationship to have existed,
James York, M.D. and Elizabeth York must prove the
following:
First, that Rush Presbyterian St. Luke=s Medical
Center held itself out as a provider of anesthesia
services and that James York, M.D., neither knew nor
should have known that Abdel Raouf El-Ganzouri, M.D.
was not an employee of Rush Presbyterian St. Luke=s
Medical Center.
Second, that James York, M.D. did not choose
Abdel Raouf El-Ganzouri M.D. but relied upon Rush
Presbyterian St. Luke=s Medical Center to provide
anesthesia services.@
The circuit court refused to tender to the jury an alternative
instruction submitted by Rush. Rush=s proffered instruction was
identical to that given to the jury, except for providing that
plaintiff was to prove that Rush held itself out as a provider of
Acomplete@ anesthesia services and that plaintiff Aor others@ did
not choose Dr. El-Ganzouri.
-21-
On June 13, 2002, the jury returned a verdict in favor of
plaintiff, and against all three defendantsBincluding Rush. The
jury awarded damages in the amount of $11,598,591.31 to
plaintiff, and awarded plaintiff=s wife $1 million for loss of
consortium.
On August 14, 2002, Rush filed a posttrial motion
requesting that the circuit court vacate the jury=s verdict in favor
of plaintiff, and enter judgment notwithstanding the verdict
(judgment n.o.v.) in favor of Rush. Rush asserted that it was
entitled to judgment n.o.v. on the basis that the evidence at trial
failed to establish that plaintiff selected Rush and accepted the
services of the anesthesiology group because plaintiff believed
that attending anesthesiologists were employed by Rush and
because that fact was important to him. In addition, Rush
requested that the circuit court grant it a new trial on the basis
that the apparent agency instruction tendered to the jury was
faulty for two reasons: the instruction not only failed to clarify
that the jury was required to find that plaintiff relied on Rush to
provide Acomplete@ anesthesia care, but also failed to inform
the jury that if it believed that plaintiff=s son Jeff selected Dr. El-
Ganzouri as plaintiff=s attending anesthesiologist, then the jury
could have returned a verdict for the hospital.
The circuit court held a hearing on Rush=s posttrial motion
on November 19, 2002. On December 19, 2002, the trial court
entered an order denying the posttrial motion. Rush filed its
notice of appeal on January 17, 2003.
The appellate court affirmed the judgment of the circuit
court. 353 Ill. App. 3d 1. Because of the limited nature of this
appeal, we focus only upon those portions of the appellate
court opinion relevant to the specific issue of Rush=s liability on
the basis of apparent agency.
In the appellate court, Rush argued that the circuit court
erred by refusing to grant Rush judgment n.o.v. or, in the
alternative, a new trial. According to Rush, the evidence
adduced at trial led to the conclusion that plaintiff could not
have reasonably believed that Dr. El-Ganzouri was a hospital
employee and, therefore, that plaintiff did not rely on Rush to
provide the attending anesthesiologist for his February 9, 1998,
knee surgery.
-22-
The appellate court observed that this court, in Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), set forth a
three-part test for determining whether a hospital may be held
liable under an apparent agency theory for the actions of an
independent doctor working in its facility. Rush, however,
argued that this court=s subsequent decision in O=Banner v.
McDonald=s Corp., 173 Ill. 2d 208 (1996), which addressed the
issue of apparent agency in the context of a slip-and-fall
accident at a restaurant, was intended by this court to alter the
Gilbert analysis. Rush asserted that, after O=Banner, in order
for liability to attach to a hospital in a medical malpractice case
involving an independent doctor, the plaintiff must prove that a
representation of the hospital induced him to come to that
hospital in the first instance. The appellate court disagreed.
The appellate panel noted that there has been a split in
decisions rendered by our appellate court with respect to
claims based upon the theory of apparent agency in medical
malpractice actions. In support of its position, Rush relied on
the decisions in Butkiewicz v. Loyola University Medical
Center, 311 Ill. App. 3d 508 (2000), and James v. Ingalls
Memorial Hospital, 299 Ill. App. 3d 627 (1998), wherein the
courts held that the plaintiffs failed to satisfy the reliance
element of their apparent agency claims. In opposition to
Rush=s argument, plaintiff relied upon the rulings in McCorry v.
Evangelical Hospitals Corp., 331 Ill. App. 3d 668 (2002), and
Scardina v. Alexian Brothers Medical Center, 308 Ill. App. 3d
359 (1999), wherein the courts held that the plaintiffs
sufficiently established reliance. The appellate court below
determined, however, that it did not have to choose between
these cases, as Aour supreme court has already made the
decision for us, in favor the of the reasoning of Scardina and
McCorry in Gilbert.@ 353 Ill. App. 3d at 27.
The appellate court held that Athose cases that have sought
to incorporate the holding of O=Banner into the medical
malpractice context have analyzed their cases with the wrong
focus.@ 353 Ill. App. 3d at 29. The appellate court reasoned
that, under Gilbert, when a patient relies on a hospital for the
provision of support services, even when a physician
specifically selected for the performance of a procedure directs
-23-
the patient to that particular hospital, there may be sufficient
reliance under the theory of apparent agency for liability to
attach to the hospital should the supporting physician commit
malpractice.
The appellate court held that there was no inconsistency
between this approach and the holding in O=Banner. In support
of this conclusion, the appellate court noted that the Illinois
Supreme Court Committee on Pattern Jury Instructions in Civil
Cases highlighted the unique dynamic between doctor and
patient in the hospital setting when it explained that its
instruction for apparent agency in medical malpractice cases
Ashould not be used without modification where apparent
agency is alleged in contexts other than medical negligence,@
and then cited to O=Banner. IPI Civil (Supp. 2003) No. 105.10,
Notes on Use, at 27. 353 Ill. App. 3d at 30. The appellate court
noted that that same committee also observed that [a] pre-
existing physician-patient relationship will not preclude a claim
by the patient of reliance upon the hospital.@ IPI Civil (Supp.
2003) 105.10, Comment, at 27, citing Malanowski v. Jabamoni,
293 Ill. App. 3d 720, 727 (1997). 353 Ill. App. 3d at 30.
The appellate court explained that, unlike the scenario in
O=Banner, where the plaintiff=s contact with the injury-causing
instrumentality at the defendant=s place of business could have
come about through nothing more than mere happenstance, in
cases such as that at bar, a plaintiff comes into contact with the
injury-causing instrumentalityBa negligent doctorBbecause he
relies on the hospital to provide a physician. The appellate
court further stressed that there is no injustice in this imposition
of vicarious liability. As the Gilbert court pointed out, hospitals
advertise themselves as centers for complete medical care and
reap profits when competent service is provided by the
independent doctors in their facilities. Additionally, the
appellate court reasoned that its holding would encourage
hospitals to provide better supervision and quality control over
the independent physicians working in their facilities. In sum,
the appellate court held that there was sufficient supporting
evidence to sustain the verdict in favor of plaintiff.
Rush further argued on appeal that the circuit court
erroneously instructed the jury on the apparent agency issue.
-24-
The appellate court observed that whether to provide a
particular jury instruction is within the sound discretion of the
trial court, and the court=s decision will be reversed only in the
event of an abuse of that discretion. In this case, the circuit
court admonished the jury using IPI Civil (Supp. 2003) No.
105.10. The appellate court rejected Rush=s argument that the
instruction, as given, did not accurately reflect the law.
Rush argued, inter alia, that the instruction tendered by the
circuit court to the jury was erroneous because the court
refused to allow Rush to add the phrase Aor others@ to the
relevant portion of the pattern instruction: A[T]hat [plaintiff] or
others did not choose Abdul Raoul El-Ganzouri M.D. but relied
upon Rush Presbyterian St. Luke=s Medical Center to provide
anesthesia services.@ (Emphasis added.) The appellate court
observed that Rush=s proposed addition of the Aor others@
language derived from the notes to the pattern instruction,
which explain that the phrase should be used Awhere there is
evidence that a person or persons other than the plaintiff or the
decedent relied upon the principal to provide the medical care
under consideration.@ IPI Civil (Supp. 2003) No.105.10, Notes
on Use, at 27. The appellate court rejected Rush=s argument
that the omission of the Aor others@ language was an abuse of
discretion. The appellate court acknowledged that Rush did
present evidence, direct and circumstantial, that plaintiff relied
on his son, Dr. Jeff York, to procure his anesthesiologist, and
this would have justified the inclusion of the Aor others@
language in the instruction. However, contrary to Rush=s
assertion, the jury=s consideration of Dr. Jeff York=s potential
involvement in the choice of anesthesiologists was not
precluded under the given instruction. The appellate court held
that, under the given instruction, plaintiff had to prove not only
that he did not choose Dr. El-Ganzouri to be his
anesthesiologist, but also that he, instead, had relied on Rush.
Under the given instruction, had the jury believed that plaintiff
had relied on Dr. Jeff York, and not Rush, it still could have
returned a finding of no liability. Thus, the appellate court
determined that the jury was fairly apprised of the law under
the instruction it received.
-25-
We granted Rush=s petition for leave to appeal. 177 Ill. 2d
R. 315(a). The Illinois Hospital Association and the
Metropolitan Healthcare Council were granted leave to file an
amicus curiae brief in support of Rush. In addition, Advocate
Health Care was also granted leave to file an amicus brief on
behalf of Rush. Finally, we granted the Illinois Trial Lawyers
Association (ITLA) leave to submit an amicus curiae brief in
support of plaintiff.
ANALYSIS
In its appeal to this court, Rush asserts that plaintiff
adduced insufficient evidence at trial to establish Rush=s
vicarious liability under the doctrine of apparent agency for the
negligent actions of Dr. El-Ganzouri. Accordingly, Rush
contends, the circuit court was required to enter judgment
n.o.v. in favor of Rush or, in the alternative, grant Rush a new
trial. Rush further asserts that the appellate court erred in
affirming the circuit court=s denial of Rush=s posttrial motions.
We begin our review of Rush=s claims by setting forth the
standards for granting each of these two forms of relief.
A judgment n.o.v. should be granted only when Aall of the
evidence, when viewed in its aspect most favorable to the
opponent, so overwhelmingly favors [a] movant that no
contrary verdict based on that evidence could ever stand.@
Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510
(1967). In other words, a motion for judgment n.o.v. presents
Aa question of law as to whether, when all of the evidence is
considered, together with all reasonable inferences from it in its
aspect most favorable to the plaintiffs, there is a total failure or
lack of evidence to prove any necessary element of the
[plaintiff=s] case.@ Merlo v. Public Service Co. of Northern
Illinois, 381 Ill. 300, 311 (1942). Because the standard for entry
of judgment n.o.v. Ais a high one@ (Razor v. Hyundai Motor
America, No. 98813, slip op. at 21 (February 2, 2006)),
judgment n.o.v. is inappropriate if Areasonable minds might
differ as to inferences or conclusions to be drawn from the
facts presented.@ Pasquale v. Speed Products Engineering,
166 Ill. 2d 337, 351 (1995). A court of review Ashould not usurp
the function of the jury and substitute its judgment on questions
-26-
of fact fairly submitted, tried, and determined from the evidence
which did not greatly preponderate either way. [Citations].@
Maple v. Gustafson, 151 Ill. 2d 445, 452-53 (1992). We review
de novo the circuit court=s decision denying defendant=s motion
for judgment n.o.v. McClure v. Owens Corning Fiberglas Corp.,
188 Ill. 2d 102, 132 (1999).
A new trial should be granted only when the verdict is
contrary to the manifest weight of the evidence. Mizowek v.
De Franco, 64 Ill. 2d 303, 310 (1976). A verdict is contrary to
the manifest weight of the evidence when the opposite
conclusion is clearly evident or when the jury=s findings prove
to be unreasonable, arbitrary and not based upon any of the
evidence. McClure, 188 Ill. 2d at 132, quoting Maple, 151 Ill. 2d
at 454, quoting Villa v. Cown Cork & Seal Co., 202 Ill. App. 3d
1082, 1089 (1990). A reviewing court will not reverse a circuit
court=s decision with respect to a motion for a new trial unless it
finds that the circuit court abused its discretion. Maple, 151 Ill.
2d at 455. We are mindful that credibility determinations and
the resolution of inconsistencies and conflicts in testimony are
for the jury. See People v. Rodriguez, 291 Ill. App. 3d 55, 66
(1997).
With the above-described procedural framework in mind,
we turn to the merits of the instant appeal. This court first
applied the apparent agency doctrine in a medical malpractice
context in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d
511 (1993). In Gilbert, we addressed the question of whether a
hospital may be held vicariously liable for the negligence of a
physician who is not an employee of the hospital but who,
rather, is an independent contractor. We held that a hospital
may be vicariously liable under such circumstances pursuant to
the doctrine of apparent agency. Although the parties in the
instant cause do not dispute that Gilbert applies to the facts
before us, the parties do, however, vigorously disagree as to
how the Gilbert decision should be interpreted and whether this
court=s subsequent opinion in O=Banner v. McDonald=s Corp.,
173 Ill. 2d 208 (1996), altered our holding in Gilbert.
In Gilbert, plaintiff=s decedent suffered chest pains and was
taken by ambulance to the defendant hospital and admitted to
the emergency room. In the hospital=s emergency room,
-27-
decedent signed a consent form prepared by the hospital
which stated, in pertinent part:
A >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.= @
Gilbert, 156 Ill. 2d at 516.
The defendant hospital was a full-service, acute-care
facility, having an active staff of 14 to 20 physicians. Many of
these physicians, however, practiced through professional
organizations, and the hospital considered them to be
independent contractors, including those who practiced in the
emergency room. Gilbert, 156 Ill. 2d at 514-15. The hospital
emergency room, however, in all other respects was
considered to be a Ahospital function,@ wherein the hospital
employed the emergency room nurses and owned the
emergency room equipment. Gilbert, 156 Ill. 2d at 515-16. The
physicians billed emergency room patients separately for their
services, while the hospital billed the emergency room patients
for the remainder of the expenses. Gilbert, 156 Ill. 2d at 516.
The evidence showed that the hospital did not advise
emergency room patients that emergency room physicians
were independent contractors rather than hospital employees.
Gilbert, 156 Ill. 2d at 516.
Decedent was examined in the emergency room by Dr.
Frank, a physician affiliated with Kishwaukee Medical
Associates, Ltd. (KMA). Gilbert, 156 Ill. 2d at 516-17. Decedent
had requested to be examined by Dr. Stromberg, another KMA
physician. However, Dr. Stromberg=s call that day was covered
by Dr. Frank, who had never before met decedent. Dr. Frank
administered several tests to decedent, none of which revealed
any sign of heart disease or a heart problem. Accordingly, Dr.
Frank released decedent to return home. Later that evening,
decedent died as a result of a heart attack. An autopsy
revealed the presence of heart disease at the time of his death.
Thereafter, plaintiff, as special administrator of decedent=s
estate, brought a medical malpractice and wrongful-death
-28-
action against Dr. Frank and the hospital. The claim against the
hospital alleged that the hospital, through its agents and
employeesBincluding Dr. FrankBnegligently failed to perform
various acts in relation to the diagnosis and treatment of
decedent. The hospital moved for summary judgment,
contending that Dr. Frank was neither the agent nor the
employee of the hospital. The circuit court granted summary
judgment in favor of the hospital, holding that the hospital could
not be held vicariously liable because Dr. Frank was an
independent contractor. On appeal, a majority of the appellate
court affirmed. This court reversed and remanded for further
proceedings. We held a genuine issue of material fact existed
as to whether the physician was acting as the hospital=s
apparent agent.
In Gilbert, the hospital asserted that it could not be
vicariously liable for the alleged negligent conduct of Dr. Frank
because he was neither an employee nor an agent of the
hospital. We rejected this argument, noting that it had already
been established under prior case law that a hospital could be
liable in a medical malpractice action based upon a principal-
agent relationship between the hospital and the physician.
Gilbert, 156 Ill. 2d at 518. However, at the time Gilbert was
decided, there was a split in the appellate court with respect to
the extent of agency required to impose liability: in some
decisions, the appellate court held that a hospital could be
vicariously liable for the negligence of a physician who was the
apparent agent of the hospital. In other decisions, the appellate
court had refused to impose vicarious liability upon a hospital
based upon an agency relationship unless the physician was
an actual agent of the hospital. Gilbert, 156 Ill. 2d at 519.
Gilbert held that those decisions which refused to find a
hospital liable on the basis of apparent agency Aoverlook[ed]
two realities of modern hospital care.@ Gilbert, 156 Ill. 2d at
520. The first Areality@ involves the Abusiness of a modern
hospital.@ Gilbert, 156 Ill. 2d at 520. The Gilbert court
explained:
A >[H]ospitals increasingly hold themselves out to the
public in expensive advertising campaigns as offering
and rendering quality health services. One need only
-29-
pick up a daily newspaper to see full and half page
advertisements extolling the medical virtues of an
individual hospital and the quality health care that the
hospital is prepared to deliver in any number of medical
areas. Modern hospitals have spent billions of dollars
marketing themselves, nurturing the image with the
consuming public that they are full-care modern health
facilities. All of these expenditures have but one
purpose: to persuade those in need of medical services
to obtain those services at a specific hospital. In
essence, hospitals have become big business,
competing with each other for health care dollars.= @
Gilbert, 156 Ill. 2d at 520, quoting Kashishian v. Port,
167 Wis. 2d 24, 38, 481 N.W.2d 277, 282 (1992).
The second Areality@of modern hospital care discussed by
the Gilbert court involves the reasonable expectations of the
public:
A >Generally people who seek medical help through the
emergency room facilities of modern-day hospitals are
unaware of the status of the various professionals
working there. Absent a situation where the patient is
directed by his own physician or where the patient
makes an independent selection as to which physicians
he will use while there, it is the reputation of the hospital
itself upon which he would rely. Also, unless the patient
is in some manner put on notice of the independent
status of the professionals with whom he might be
expected to come into contact, it would be natural for
him to assume that these people are employees of the
hospital.= @ Gilbert, 156 Ill. 2d at 521, quoting Arthur v.
St. Peters Hospital, 169 N.J. Super. 575, 583, 405 A.2d
443, 447 (1979).
Indeed, the Gilbert court observed, the appearance to a patient
that a physician is an employee of the hospital A >speak[s]
much louder than the words of whatever private contractual
arrangements the physicians and the hospital may have
entered into, unbeknownst to the public, in an attempt to
insulate the hospital from liability for the negligence, if any, of
the physicians.= @ Gilbert, 156 Ill. 2d at 521, quoting Brown v.
-30-
Coastal Emergency Services, Inc., 181 Ga. App. 893, 898, 354
S.E.2d 632, 637 (1987), aff=d, 257 Ga. 507, 361 S.E.2d 164
(1987).
Based upon these realities of modern hospital care, the
Gilbert court found that a serious question was raised
regarding the liability of a hospital when a physician who is an
independent contractor renders negligent health care: ACan a
hospital always escape liability for the rendering of negligent
health care because the person rendering the care was an
independent contractor, regardless of how the hospital holds
itself out to the public, regardless of how the treating physician
held himself or herself out to the public with the knowledge of
the hospital, and regardless of the perception created in the
mind of the public?@ Gilbert, 156 Ill. 2d at 522. The Gilbert court
answered this query in the negative, holding that A >a patient
who is unaware that the person providing treatment is not the
employee or agent of the hospital= @ has the right to look to the
hospital in seeking compensation for any negligence in
providing care. Gilbert, 156 Ill. 2d at 522, quoting Pamperin v.
Trinity Memorial Hospital, 144 Wis. 2d 188, 207, 423 N.W.2d
848, 855 (1988).
In order to find a hospital vicariously liable for the
negligence of independent-contractor physicians, the Gilbert
court held that a plaintiff must plead and prove the doctrine of
apparent agency, which provides that a principal will be bound
not only by authority the principal actually gives to another, but
also by the authority which the principal appears to give to
another. Gilbert, 156 Ill. 2d at 523. This court explained:
AApparent authority in an 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. [Citations.] Where the principal
creates the appearance of authority, the principal >will
not be heard to deny the agency to the prejudice of an
innocent party, who has been led to rely upon the
appearance of authority in the agent.= @ Gilbert, 156 Ill.
-31-
2d at 523-24, quoting Union Stock Yards & Transit Co.
v. Malloy, Son & Zimmerman Co., 157 Ill. 554, 565, 41
N.E. 888, 891 (1895).
The Gilbert court noted that the apparent agency doctrine had
Amore commonly [been] applied in contract cases@ and, in that
context, a standard of detrimental reliance had been imposed:
vicarious liability attached Awhere the injury would not have
occurred but for the injured party=s justifiable reliance on the
apparent agency.@ Gilbert, 156 Ill. 2d at 524.
Having recognized the apparent agency doctrine in other
contexts, the Gilbert court held that the doctrine of apparent
agency was also available in the unique context of a medical
malpractice action. Gilbert established a specific framework for
analyzing such claims. This court held in Gilbert that a hospital
may be found vicariously liable under the doctrine of apparent
agency for the negligent acts of a physician providing care at a
hospital, Aregardless 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. Gilbert then set forth the three
elements a plaintiff must plead and prove to hold a hospital
vicariously liable under the apparent agency doctrine:
A >For a hospital to be liable under the doctrine of
apparent authority, 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.= @ Gilbert, 156 Ill. 2d at 525,
quoting Pamperin, 144 Wis. 2d at 207-08, 423 N.W.2d
at 855-56.
With respect to the first element of an apparent agency
claim against a hospital, Gilbert explained that in order to find
Aholding out@ on the part of the hospital, it is not necessary that
there be an express representation by the hospital that the
-32-
person alleged to be negligent is an employee. Rather, this
element is satisfied if the hospital holds itself out as a provider
of care without informing the patient that the care is provided
by independent contractors. Gilbert, 156 Ill. 2d at 525.
With respect to the third element of an apparent agency
claim against a hospital, Gilbert established that the element of
a plaintiff=s reliance is satisfied if the plaintiff relies upon the
hospital to provide medical care, rather than upon a specific
physician. Gilbert, 156 Ill. 2d at 525. Gilbert held that the
Acritical distinction@ is whether the plaintiff sought care from the
hospital itself or looked to the hospital merely as a place for his
or her personal physician to provide medical care:
A >Except for one who seeks care from a specific
physician, if a person voluntarily enters a hospital
without objecting to his or her admission to the hospital,
then that person is seeking care from the hospital itself.
An individual who seeks care from the hospital itself, as
opposed to care from his or her personal physician,
accepts care from the hospital in reliance upon the fact
that complete emergency room careBfrom blood testing
to radiological readings to the endless medical support
servicesBwill be provided by the hospital through its
staff.= @ Gilbert, 156 Ill. 2d at 525-26, quoting Pamperin,
144 Wis. 2d at 211-12, 423 N.W.2d at 857.
Applying these principles to the case before it, the
Gilbert court held that the circuit court improperly granted
summary judgment to the defendant hospital, as a genuine
issue of material fact existed with respect to whether Dr. Frank
was an apparent agent of the hospital. This court noted that, at
the time decedent arrived at the emergency room, he asked for
Dr. Stromberg, not Dr. Frank. Although both physicians
practiced through KMA, Dr. Frank had never before met
decedent; he merely happened to be covering the emergency
room the day that decedent was brought there. We also noted
that the hospital did not inform patients that the emergency
room physicians were independent contractors, and that the
hospital=s treatment consent form, which was signed by
decedent, stated that he would be treated by Aphysicians and
employees of the hospital.@ Gilbert, 156 Ill. 2d at 526. This
-33-
court concluded that there was conflicting evidence as to both
the hospital=s Aholding out@ of emergency room care and
decedent=s justifiable reliance that the emergency room care
was provided by the hospital rather than by Dr. Frank or KMA.
At the very least, reasonable persons could draw different
inferences from the facts of record. Accordingly, this court
reversed the trial court=s grant of summary judgment to the
hospital and remanded the cause for further proceedings.
Gilbert, 156 Ill. 2d at 526.
Three years after this court decided Gilbert, we revisited the
concept of apparent agencyBalbeit in a different factual
contextBin O=Banner v. McDonald=s Corp., 173 Ill. 2d 208
(1996). In O=Banner, plaintiff brought an action to recover
damages for personal injuries he allegedly sustained when he
slipped and fell in the bathroom of a McDonald=s restaurant.
McDonald=s filed a motion for summary judgment in the circuit
court, contending that the restaurant in which plaintiff was
injured was actually owned by one of its franchisees and that
McDonald=s neither owned, operated, maintained nor
controlled the facility. The circuit court granted the summary
judgment motion. A majority of the appellate court, however,
reversed and remanded. This court reversed the appellate
court and remanded the cause to the circuit court.
In O=Banner, this court noted that the circuit court entered
summary judgment in favor of McDonald=s on the basis that it
was merely the franchisor of the restaurant and that,
accordingly, it had no responsibility for the conditions that
caused the accident. Plaintiff contended that McDonald=s could
be vicariously liable for the acts and omissions of the
franchisee based on the doctrine of apparent agency. This
court held that summary judgment on the apparent agency
question was proper.
The O=Banner court noted that the apparent agency
doctrine had long been recognized in this state and, at that
time, had been recently discussed by this court in Gilbert.
O=Banner, 173 Ill. 2d at 213. We explained in O=Banner that the
doctrine of apparent agency is based upon principles of
estoppel: AThe idea is that if a principal creates the appearance
that someone is his agent, he should not then be permitted to
-34-
deny the agency if an innocent third party reasonably relies on
the apparent agency and is harmed as a result.@ O=Banner, 173
Ill. 2d at 213. The O=Banner court observed that, under the
traditional formulation of the apparent agency doctrine, a
showing of detrimental reliance on the part of the plaintiff was
required: Aa principle can be held vicariously liable in tort for
injury caused by the negligent acts of his apparent agent if the
injury would not have occurred but for the injured party=s
justifiable reliance on the apparent agency.@ O=Banner, 173 Ill.
2d at 213.
Applying these principles of analysis to the case before it,
the O=Banner court held that the plaintiff failed to present any
evidence that the necessary element of reliance was present:
AEven if one concedes that McDonald=s advertising and
other conduct could entice a person to enter a
McDonald=s restaurant in the belief it was dealing with
an agent of the corporation itself, that is not sufficient. In
order to recover on an apparent agency theory,
O=Banner would have to show that he actually did rely
on the apparent agency in going to the restaurant where
he was allegedly injured.@ O=Banner, 173 Ill. 2d at 213.
This court noted that the pleadings and affidavit submitted by
plaintiff stated only that he slipped and fell in the restroom of a
McDonald=s restaurant and there was Ano indication as to why
[plaintiff] went to the restaurant in the first place.@ O=Banner,
173 Ill. 2d at 214. Based upon the evidence presented by
plaintiff, we concluded that A[t]he fact that this was a
McDonald=s may have been completely irrelevant to [plaintiff=s]
decision. For all we know, O=Banner went there simply
because it provided the closest bathroom when he needed one
or because some friend asked to meet him there.@ O=Banner,
173 Ill. 2d at 214. Accordingly, this court reversed the judgment
of the appellate court and affirmed the circuit court=s grant of
summary judgment in favor of McDonald=s.
In the instant appeal, Rush does not dispute the sufficiency
of the evidence presented by plaintiff at trial with respect to the
Aholding out@ element of plaintiff=s apparent agency claim. Rush
does assert, however, that pursuant to this court=s decisions in
Gilbert and O=Banner, plaintiff presented insufficient evidence
-35-
at trial to establish the reliance element of his apparent agency
claim. Rush asserts that O=Banner and Gilbert require proof
that representations made by Rush induced plaintiff to use the
hospital for his surgery and that he believed that his attending
anesthesiologist was an agent of the hospital. According to
Rush, under this court=s decisions in Gilbert and O=Banner,
plaintiff at bar cannot recover because he failed to establish at
trial that his injury would not have occurred but for his reliance
on the services of Dr. El-Ganzouri as Rush=s agent. Rush
vigorously argues that this court=s decision in
O=Banner Atempered@ our previous ruling in Gilbert and
requires that a plaintiff seeking to hold a hospital vicariously
liable for the malpractice of an independent contractor
physician under the doctrine of apparent agency must establish
detrimental reliance: the person asserting apparent agency
must show that he or she relied on the Aholding out@ of the
hospital or agent to his or her detriment in accepting treatment.
Rush contends that the appellate court below erred when it
held that in order to satisfy the reliance element of his apparent
agency claim, plaintiff need not have shown that he would have
refused treatment from Dr. El-Ganzouri had he known that the
doctor was an independent contractor. Rush argues that a
plaintiff who does not know the employment status of a
physician, but who would have acted in exactly the same
manner had he or she known of that status, should not be
allowed to recover under the theory of apparent agency.
Rush underscores the split within our appellate court with
respect to whether medical malpractice plaintiffs must establish
a Abut for@ causal connection between the holding out by the
hospital and the injury suffered by a plaintiff. According to
Rush, Butkiewicz v. Loyola University Medical Center, 311 Ill.
App. 3d 508 (2000), and James v. Ingalls Memorial Hospital,
299 Ill. App. 3d 627 (1998), properly analyzed the element of
reliance in an apparent agency claim arising in the context of a
medical malpractice action. Rush observes that, in both
Butkiewicz and James, the plaintiffs were unable to establish
reliance upon representations of the defendant hospitals with
respect to the initial decision to select the hospitals for
providing treatment: in Butkiewicz the plaintiff=s decedent was
-36-
referred to the hospital by his primary physician, and in James
the plaintiff selected the hospital based upon her belief that her
insurance carrier required her to go there. Rush emphasizes
that these appellate court panels ruled that under such facts
any subsequent reliance by the patients on the hospitals in
choosing a particular physician was insufficient to establish
vicarious liability against the hospitals under the doctrine of
apparent agency when the doctor was negligent. Rush
contends that, in the instant cause, the appellate court erred by
rejecting the reasoning in Butkiewicz and James and holding
that the reliance element is applied differently in medical
malpractice actions than in other cases.
Rush asserts that this court=s rulings in Gilbert and
O=Banner establish that there is a but a single rule for proving
the element of reliance in an apparent agency context, whether
or not the case involves an action alleging medical malpractice.
Rush contends that there is no rational reason for applying a
different standard of reliance to apparent agency claims arising
in a medical malpractice context.
In their briefs to this court, amici Illinois Hospital
Association, Metropolitan Chicago Healthcare Council, and
Advocate Health Care support the position taken by Rush.
Amici argue that in order to satisfy the reliance element of an
apparent agency claim against a hospital, a plaintiff must
establish that a supposed agency relationship between the
hospital and its doctors was determinative to the plaintiff=s
selection of the hospital. According to the amici, the appellate
court decision below is in error because it holds that the
element of reliance is satisfied as long as the plaintiff did not
choose the negligent physician. Furthermore, the amici assert,
the instant cause is clearly a matter wherein the apparent
agency doctrine does not apply, as plaintiff looked to Rush
merely as a place for his selected orthopedic surgeon, Dr.
Rosenberg, to provide medical care.
In response, plaintiff counters that the appellate court
correctly affirmed the jury verdict holding Rush vicariously
liable for the negligent actions of Dr. El-Ganzouri under the
doctrine of apparent agency. Plaintiff contends that sufficient
evidence was presented at trial that he relied upon Rush,
-37-
rather than upon a specific physician, to provide
anesthesiology care during his surgery. Plaintiff asserts that
the appellate court correctly determined that this court=s
decision in O=Banner does not apply to medical malpractice
cases and, therefore, does not alter the analysis of the
apparent agency doctrine as set forth by this court in Gilbert.
Plaintiff underscores that the O=Banner case, which deals with
a slip-and-fall action at a restaurant, does not address the
everyday realities of doctors who have hospital-based
practices, who wear clothing displaying a hospital logo, who
share administrative employees with a hospital, and who have
their offices in the hospital.
Plaintiff contends that the element of reliance in an
apparent agency action against a hospital involves unique
circumstances that require unique rules. Therefore, plaintiff
asserts, the appellate court below correctly chose to follow the
rulings in McCorry v. Evangelical Hospitals Corp., 331 Ill. App.
3d 668 (2002), and Scardina v. Alexian Brothers Medical
Center, 308 Ill. App. 3d 359 (1999). Plaintiff underscores that
both of these decisions follow Gilbert, rather than O=Banner,
and hold that the relevant inquiry with respect to the reliance
element is not whether the plaintiff reported to the hospital at
the direction of another person but, rather, whether the plaintiff
looked to the hospital to furnish all that is essential for
treatment, including supporting medical personnel. Accordingly,
plaintiff contends that the cases of Butkiewicz and James were
wrongly decided.
In its amicus brief, the Illinois Trial Lawyers Association
(ITLA) supports the position advocated by plaintiff. ITLA
contends that, in the matter before us, the appellate court
correctly applied the reliance requirement. In its argument,
ITLA stresses that medical institutions such as Rush market
themselves based upon the quality of their medical staffs.
Therefore, ITLA asserts, such institutions cannot reasonably
dispute that they hold themselves out as providers of care for
the incidentalBbut nevertheless essentialBphysician services
such as anesthesia, radiology and pathology. It follows then,
according to ITLA, that even if the jury in the cause before us
believed that plaintiff initially entered Rush only because his
-38-
chosen orthopedic surgeon practiced there, plaintiff could still
establish that the other treating doctors, whose services were
performed during the course of his stay, were apparent agents
of Rush.
We agree with the arguments advanced by plaintiff and
reject the position taken by Rush and its amici. In Gilbert, this
court recognized that the relationship between a patient and
health-care providers, both physicians and hospitals, presents
a matrix of unique interactions that finds no ready parallel to
other relationships. To underscore this point, we set forth in
great detail what we termed the Arealities of modern hospital
care@ and concluded that the fervent competition between
hospitals to attract patients, combined with the reasonable
expectations of the public that the care providers they
encounter in a hospital are also hospital employees, raised
serious public policy issues with respect to a hospital=s liability
for the negligent actions of an independent-contractor
physician. It is against this specific factual backdrop that we
extended the doctrine of apparent agency to instances wherein
a plaintiff seeks to hold a hospital vicariously liable for the
malpractice of an independent contractor physician.
Because of the unique context in which such actions are
brought, Gilbert established an analytical framework tailored to
this precise factual situation. We recognized that in the context
of an apparent agency claim arising out of a medical
malpractice action, the critical distinction is whether the patient
relied upon the hospital for the provision of care or, rather,
upon the services of a particular physician. Gilbert, 156 Ill. 2d
at 525. We emphasize, however, 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 when a
patient relies on a hospital for the provision of support services,
even when a physician specifically selected for the
performance of a procedure directs the patient to that particular
hospital, there may be sufficient reliance under the theory of
apparent agency for liability to attach to the hospital in the
event one of the supporting physicians commits malpractice.
-39-
Accordingly, Gilbert held that a hospital may be found
vicariously liable under the doctrine of apparent authority for
the negligent acts of a physician providing care at a hospital,
Aregardless 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. Gilbert required that, in order to prevail on such a
claim, a plaintiff must, inter alia, establish that he or she
A >acted in reliance upon the conduct of the hospital or its
agent, consistent with ordinary care and prudence.= @ Gilbert,
156 Ill. 2d at 525, quoting Pamperin, 144 Wis. 2d at 207-08,
423 N.W.2d at 855-56. Gilbert formulated this analytical
framework for specific application to actions wherein a plaintiff
seeks to hold a hospital vicariously liable for the malpractice of
an independent contractor physician under the doctrine of
apparent agency.
Accordingly, the appellate court below correctly determined
that Athose cases that have sought to incorporate the holding of
O=Banner into the medical malpractice context have analyzed
their cases with the wrong focus.@ 353 Ill. App. 3d at 29. Our
decision in O=Banner is factually distinguishable from Gilbert
and, therefore, inapposite to a resolution of the issues
presented in this appeal. O=Banner=s discussion of the
traditional detrimental reliance element of the apparent agency
doctrine in the context of a slip-and-fall accident on commercial
premises does not alter the analytical framework established in
Gilbert, which has specific and limited application to the
medical malpractice context.
As stated, Gilbert stands for the proposition that the
reliance element of a plaintiff=s apparent agency claim is
satisfied if the plaintiff reasonably relies upon a hospital to
provide medical care, rather than upon a specific physician.
Gilbert, 156 Ill. 2d at 525. Upon admission to a hospital, a
patient seeks care from the hospital itself, except for that
portion of medical treatment provided by physicians specifically
selected by the patient. If a patient has not selected a specific
physician to provide certain treatment, it follows that the patient
relies upon the hospital to provide complete careBincluding
support services such as radiology, pathology, and
-40-
anesthesiologyBthrough the hospital=s staff. If, however, a
patient does select a particular physician to perform certain
procedures within the hospital setting, this does not alter the
fact that a patient may nevertheless still reasonably rely upon
the hospital to provide the remainder of the support services
necessary to complete the patient=s treatment. Generally, it is
the hospital, and not the patient, which exercises control not
only over the provision of necessary support services, but also
over the personnel assigned to provide those services to the
patient during the patient=s hospital stay. To the extent the
patient reasonably relies upon the hospital to provide such
services, a patient may seek to hold the hospital vicariously
liable under the apparent agency doctrine for the negligence of
personnel performing such services even if they are not
employed by the hospital.
It is this reasoning that animated our decision in Gilbert. In
Gilbert, we held that the plaintiff had presented sufficient
evidence with respect to the decedent=s reliance on the
hospital to withstand the hospital=s summary judgment motion.
We observed that even though decedent had specifically
requested that Dr. Stromberg attend to him upon his admission
to the emergency room, he was instead treated by Dr. Frank,
who had never before met decedent. In addition, we noted that
the hospital did not inform patients that the emergency room
physicians were independent contractors. Finally, we observed
that the language employed in the hospital=s treatment consent
form could have led plaintiff to reasonably believe that he
would be treated by physicians and employees of the hospital.
We concluded that, upon the record before us, the plaintiff
adduced sufficient evidence to create a genuine issue of
material fact with respect to the reliance element of the
plaintiff=s apparent agency claim against the hospital.
Similarly, we hold that, in the instant cause, plaintiff
presented sufficient evidence at trial to support the jury=s
verdict finding Rush vicariously liable under the doctrine of
apparent agency for the malpractice of Dr. El-Ganzouri.
Reviewing the jury=s verdict in the light most favorable to
plaintiff, as we must, we determine that under the legal
framework set forth in Gilbert, the appellate court properly
-41-
affirmed the circuit court=s denial of Rush=s posttrial motion for
judgment n.o.v. In addition, we hold that the circuit court did not
abuse its discretion in denying Rush=s posttrial motion for a
new trial.
Plaintiff testified at trial that, prior to his coming to Rush, he
had personally selected each and every orthopedic surgeon
who had treated his knees. However, in 1994, plaintiff=s son
Jeff was an anesthesiology resident at Rush, and plaintiff
asked Jeff to Alook into Rush@ as an option for his knee
replacement surgery. Plaintiff stated that he recognized that
successful knee replacement surgery requires the services of
numerous medical and nursing professionals, in addition to the
skills of a trained orthopedic surgeon, and that he had
previously heard of Rush through his colleagues and by virtue
of the fact that his son was a resident there. Plaintiff testified
that he knew there were Agood docs at Rush,@ and he
eventually selected Dr. Rosenberg to perform the surgery.
Plaintiff=s testimony was supported by that of his son Jeff, who
testified that he recommended Rush to his father because he
thought highly of Rush and was enthusiastic about its health-
care services. According to Jeff, he knew that his father could
get good surgical care at Rush, and he encouraged plaintiff to
select Rush for his knee replacement operation. This
uncontroverted evidence revealed that it was only after plaintiff
developed an interest in Rush, based upon his knowledge of
the hospital and its staff, that he sought out a particular
orthopedic surgeon at that institution.
The evidence presented at trial further revealed that Rush
failed to place plaintiff on notice that Dr. El-Ganzouri was an
independent contractor, and not an employee, of Rush. Plaintiff
testified that during his interactions with Dr. El-Ganzouri, Dr. El-
Ganzouri wore either scrubs covered with the Rush logo or a
lab coat that displayed the Rush emblem. Plaintiff=s testimony
on this point was echoed by plaintiff=s son Jeff and Dr. El-
Ganzouri during their own testimony. As such, this evidence
stood uncontroverted.
Furthermore, the evidence adduced at trial showed that
nothing in the treatment consent form drafted by Rush and
signed by plaintiff alerted plaintiff that Dr. El-Ganzouri was an
-42-
independent contractor. The treatment consent form nowhere
stated that plaintiff would be treated by independent-contractor
physicians; rather, the form stated that plaintiff authorized: ADr.
Rosenberg and such assistants and associates as may be
selected by him *** and the Rush-Presbyterian-St. Luke=s
Medical Center to perform the following procedures ***.@ We
agree with the appellate court below that Athe language of the
consent providing that Rush could select physicians to assist in
the knee surgery could reasonably be interpreted as allowing
Rush to select anesthesiologists.@ 353 Ill. App. 3d at 30-31.
In addition to the fact that Dr. El-Ganzouri wore scrubs and
a lab coat with Rush insignia, as well as the lack of notice of
Dr. El-Ganzouri=s independent-contractor status in the
treatment consent form signed by plaintiff, further evidence
was presented at trial to support the conclusion that plaintiff did
not know, and had no reason to know, the true employment
status of Dr. El-Ganzouri. Plaintiff=s son, Dr. Jeff York, stated
that it was not the policy of the anesthesiologists who practiced
at Rush to discuss their employment relationships with their
patients. Dr. El-Ganzouri confirmed Jeff=s statement by his own
testimony that he would not tell a patient about his employment
status as an independent contractor. Jeff further testified that
he never spoke with his father about University
Anesthesiologists and the employment status of its physicians
prior to plaintiff=s surgery.
Rush attempted to counter this evidence by emphasizing
that because plaintiff was himself self-employed as an
independent contractor when he practiced as an orthopedic
surgeon at Somerset Hospital, plaintiff had to have been aware
that anesthesiologists also work as independent contractors.
Plaintiff, however, testified at trial that he was unaware of the
employment status of the anesthesiologists he had worked with
in the past because he was very focused upon his own medical
practice. In an attempt to question plaintiff=s testimony on this
point, Rush called Dr. Glesmann, an anesthesiologist who
worked with plaintiff at Somerset Hospital. Although Dr.
Glesmann testified that he had been an independent contractor
at Somerset, no evidence was presented that he explicitly
informed plaintiff of this fact. In addition, Dr. Glesmann
-43-
acknowledged that sometimes larger teaching hospitals directly
employ their anesthesiologists. Based upon all of the above
evidence, we conclude that a jury could infer that plaintiff
reasonably believed that Dr. El-Ganzouri was an employee of
Rush, rather than an independent contractor.
We also hold that, based upon the evidence presented at
trial, there were sufficient grounds for the jury to find that
plaintiff did not know who would serve as his attending
anesthesiologist and that plaintiff relied upon Rush to provide
that individual. With respect to the February 9, 1998, surgery at
issue in this appeal, plaintiff testified that he had originally
asked his son Jeff to see if plaintiff could have the same
anesthesia team for that surgery as he had for one of his prior
knee surgeries at Rush. According to plaintiff, he was unaware
as to how this team was first assigned to his case, but he very
much liked Dr. Krolick and Dr. Miller and had hoped that they
could again be assigned to the February surgery. Plaintiff
stated that prior to the surgery he discovered that Dr. Miller
would be the resident anesthesiologist, but that Dr. Krolick was
unavailable to serve as the attending anesthesiologist. Plaintiff
testified that prior to his February surgery, he was unaware
whom the attending anesthesiologist would be. Plaintiff stated
that he assumed Rush would select the attending
anesthesiologist and that he knew that Rush had good doctors
based upon the results of his prior two surgeries. With respect
to his prior surgeries, plaintiff testified that he relied upon the
surgeon and/or the hospital to select the attending
anesthesiologist because he had Afaith in the institutions.@
Plaintiff=s son Jeff testified that he had requested Dr. Krolick
to serve as his father=s attending anesthesiologist for the
February 1998 surgery because his father had been
comfortable with him during his prior knee operation. Prior to
plaintiff=s February 1998 surgery, Jeff stated, he knew that Dr.
Miller would be the resident anesthesiologist, but he did not
know who the attending anesthesiologist would be, as Dr.
Krolick was not available. According to Jeff, Ray Narbone, an
employee of Rush, handled the scheduling and assignment of
anesthesiologists to surgical cases. Jeff testified that he was
-44-
unaware that Dr. El-Ganzouri had been assigned by Narbone
as the attending anesthesiologist for his father=s case.
This evidence was supported by the testimony of Dr. Miller,
who served as the resident anesthesiologist during plaintiff=s
February 1998 surgery. Dr. Miller testified that he was
requested to participate in plaintiff=s surgery, along with Dr.
Krolick. However, because Dr. Krolick was unavailable to serve
as the attending anesthesiologist, Dr. Miller stated, Dr. El-
Ganzouri was substituted on the basis that he was the next
available attending anesthesiologist. According to Dr. Miller,
plaintiff did not select Dr. El-Ganzouri to serve as his attending
anesthesiologist, and he believed plaintiff first met Dr. El-
Ganzouri on the morning of his surgery. This belief was
confirmed by Dr. El-Ganzouri=s own testimony, wherein he
stated that his first contact with plaintiff was immediately prior
to the commencement of plaintiff=s operation.
Conflicting evidence with respect to the scheduling of Dr.
El-Ganzouri as plaintiff=s attending anesthesiologist was
offered through the testimony of Dr. Catherine WilsonBplaintiff=s
treating psychologist at the Rehabilitation Institute of
ChicagoBand Ray Narbone. Dr. Wilson stated that upon
plaintiff=s arrival at the Rehabilitation Institute, she recorded in
her progress notes that he was very angry at the medical
profession in general and with his son Jeff in particular. Dr.
Wilson testified that plaintiff was upset with Jeff because he felt
that his son let him down with respect to the selection of his
attending anesthesiologist. However, Dr. Wilson explained in
further testimony that her note demonstrated something other
than plaintiff=s knowledge that Jeff chose Dr. El-Ganzouri as his
attending anesthesiologist.
Narbone=s testimony confirmed that he was a Rush
employee and that he scheduled Dr. El-Ganzouri as plaintiff=s
attending anesthesiologist. However, Narbone testified that, as
a general matter, he would often consider Aspecial requests@
from hospital personnel to schedule particular
anesthesiologists for specific cases. Narbone stated that it was
his belief that plaintiff=s son Jeff requested that Dr. Miller and
Dr. El-Ganzouri be assigned as the anesthesiologists for
plaintiff=s February 1998 surgery. Narbone, however, stated
-45-
that he could not recall any details about Jeff=s alleged request
for Dr. El-Ganzouri, and that there were no notations on the
scheduling charts to support his recollection. Narbone testified
that he believed that Jeff made the request for Dr. El-Ganzouri
because Athat is what always happens.@ Narbone did state,
however, that plaintiff himself did not make any request for the
assignment of physicians.
We conclude that the contradictory evidence presented
through the testimony of Dr. Wilson and Ray Narbone, when
viewed in the light most favorable to plaintiff, does not so
overwhelmingly favor Rush that no contrary verdict based on
the evidence adduced at trial could ever stand. See Pedrick v.
Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). We hold
that, based upon the entirety of the evidence presented at trial,
the jury had a sufficient basis upon which to find that plaintiff
was justified in believing that Dr. El-Ganzouri was employed by
Rush and that plaintiff relied upon Rush to make the
assignment of Dr. El-Ganzouri as the attending
anesthesiologist.
We agree with the appellate court below that there is
sufficient evidence to support the conclusion that plaintiff came
into contact with the injury-causing instrumentalityBa negligent
doctorBbecause he relied upon Rush to provide his attending
anesthesiologist. Rush emphasizes the fact that plaintiff always
selected his orthopedic surgeon, which, in Rush=s view, leads
to the inescapable conclusion that plaintiff must also have
selected his anesthesiologist and, therefore did not rely on
Rush. We disagree with Rush that such a conclusion is
inescapable based upon the evidence presented at trial.
Similarly, Rush argues that Dr. Jeff York=s original request for
Dr. Krolick to serve as his father=s attending anesthesiologist
for the February 1998 surgery also leads to the conclusion that
Dr. El-Ganzouri was subsequently similarly selected to be the
attending anesthesiologist. Again, we disagree with Rush.
These are questions of fact to be determined by the jury
(Gilbert, 156 Ill. 2d at 524), and, we believe, the jury had
sufficient evidence to resolve these questions in favor of
plaintiff.
-46-
Accordingly, we hold that the circuit court did not err in
denying Rush=s posttrial motion for judgment n.o.v. Similarly,
based upon the evidence adduced at trial, we cannot say that
the jury=s verdict in favor of plaintiff and against Rush was
contrary to the manifest weight of the evidence: the opposite
conclusion was not clearly evident, the jury=s findings were
neither unreasonable nor arbitrary, and the findings of the jury
were based upon the evidence. See McClure, 188 Ill. 2d at
132. Accordingly, the circuit court did not abuse its discretion in
denying Rush=s motion for a new trial.
We agree with the appellate court below that Athere is no
injustice in this imposition of vicarious liability.@ 353 Ill. App. 3d
at 30. As we extensively discussed in Gilbert, hospitals today
actively promote themselves as centers for complete medical
care and reap profits when competent service is provided by
the independent doctors in their facilities. As the appellate
court below noted, the imposition of vicariously liability in the
matter at bar may Aencourage hospitals to provide better
supervision and quality control over the independent physicians
working in their facilities.@ 353 Ill. App. 3d at 30.
Our decision today, however, does not alter our
pronouncement in Gilbert that if a patient knows, or should
have known, that the allegedly negligent physician is an
independent contractor, that patient may not seek to hold the
hospital vicariously liable under the apparent agency doctrine
for any malpractice on the part of that physician. In other
words, if a patient is placed on notice of the independent status
of the medical professionals with whom he or she might be
expected to come into contact, it would be unreasonable for a
patient to assume that these individuals are employed by the
hospital. It follows, then, that under such circumstances a
patient would generally be foreclosed from arguing that there
was an appearance of agency between the independent
contractor and the hospital.
We next briefly address the additional argument raised by
Rush that a new trial is required because the circuit court
refused to tender to the jury an instruction encompassing
Rush=s defense to apparent agency liability. As stated earlier in
this opinion, the circuit court admonished the jury using IPI Civil
-47-
(Supp. 2003) No. 105.10. According to Rush, the circuit court
violated the rule that A >[a] litigant has the right to have the jury
clearly and fairly instructed upon each theory which [is]
supported by the evidence= @ (LaFever v. Kemlite Co., 185 Ill.
2d 380, 406 (1998), quoting Leonardi v. Loyola University of
Chicago, 168 Ill. 2d 83, 100 (1995)), because the court refused
to provide the jury with Rush=s proffered instruction, which
added the following italicized phrase to the relevant portion of
the pattern instruction: ASecond, that [plaintiff] or others did not
choose Abdul Raoul El-Ganzouri, M.D. but relied upon Rush
Presbyterian St.Lukes Medical Center to provide anesthesia
services.@ (Emphasis added.) Rush observes that the notes to
IPI No. 105.10 suggest that the phrase Aor others@ should be
used Awhere there is evidence that a person or persons other
than the plaintiff or the decedent relied upon the principal to
provide the medical care under consideration.@ IPI Civil (Supp.
2003) No. 105.10, Notes on Use, at 27.
Rush asserts that without the Aor others@ language, the
instruction implied that so long as plaintiff did not select Dr. El-
GanzouriBand even if his son Jeff didBthe jury could still find
that plaintiff relied upon Rush. According to Rush, the omission
of the phrase Aor others@ practically compelled the jury to find
that if plaintiff did not select Dr. El-Ganzouri, then Rush would
be liable under an apparent agency theory. Rush concludes
that the tendering of this instruction crippled its primary
defenseBthat Jeff selected Dr. El-Ganzouri for the surgeryB
and, therefore, its right to a fair trial was seriously prejudiced.
We disagree. Whether to provide a particular jury
instruction is within the sound discretion of the trial court, and
the court=s decision will be reversed only where the trial court
abused its discretion. Schultz v. Northeast Illinois Regional
Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002). A trial court
does not abuse its discretion so long as, Ataken as a whole, the
instructions fairly, fully, and comprehensively apprised the jury
of the relevant legal principles.@ Schultz, 201 Ill. 2d at 273-74. A
trial court is required to use an Illinois pattern jury instruction
when it is applicable in a civil case after giving due
consideration to the facts and prevailing law, unless the court
determines that the instruction does not accurately state the
-48-
law. 177 Ill. 2d R. 239(a); Hobart v. Shin, 185 Ill. 2d 283, 294
(1998). We hold that the trial court did not abuse its discretion
in tendering to the jury the challenged instruction absent the Aor
others@ language advocated by Rush. Under the given
instruction, the jury=s consideration of Jeff=s potential
involvement in the selection of his father=s attending
anesthesiologist was not foreclosed. We agree with the
appellate court below:
AUnder [the given instruction] [plaintiff] had to prove not
only that he did not choose Dr. El-Ganzouri to be his
anesthesiologist, but also that he, instead, relied on
Rush. Under the given instruction, had the jury believed
that [plaintiff] relied on Dr. Jeff York, and not Rush, it still
could have returned a finding of no liability. Thus, we
find the jury to still have been fairly apprised of the law
under the instruction it received.@ 353 Ill. App. 3d at 34.
CONCLUSION
For the foregoing reasons, the judgment of the appellate
court is affirmed.
Affirmed.
JUSTICE GARMAN, dissenting:
The majority interprets this court=s decision in Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), far too
broadly and, in doing so, dilutes the Areliance@ element of
apparent authority claims against hospitals. Under the position
adopted by the majority, the fact a plaintiff sought care from a
specific physician is now virtually inconsequential in
determining whether a hospital is vicariously liable for the
negligence of an independent contractor physician. In effect, as
long as the plaintiff can satisfy the Aholding out@ element of his
apparent authority claim, he may recover from the hospital.
This approach conflicts with the rationale this court originally
set forth for allowing apparent authority claims against
hospitals in Gilbert and promises to significantly expand the
scope of apparent authority liability.
-49-
As a preliminary matter, I would clarify that while this case
requires us to review the sufficiency of the evidence supporting
the jury=s verdict against Rush-Presbyterian-St. Luke=s Medical
Center (Rush), deciding whether the evidence is sufficient is
not simply a matter of evaluating it in light of clearly established
law. On the contrary, this case calls on us to examine the
requirements of the apparent authority theory of liability itself,
which this court recognized in Gilbert as a basis for holding
hospitals vicariously liable for the negligence of independent-
contractor physicians. Gilbert, 156 Ill. 2d at 524-25. Thus,
although we are reviewing a jury verdict, the deference we
must accord to that verdict extends only to factual inferences or
conclusions drawn from the evidence presented to the jury and
should have no bearing on our purely legal determination
regarding the principles under which that evidence must be
evaluated. See Maple v. Gustafson, 151 Ill. 2d 445, 452-53
(1992) (noting Ait is the province of the jury to resolve conflicts
in the evidence, to pass upon the credibility of the witnesses,
and to decide what weight should be given to the witnesses=
testimony,@ and a court of review Ashould not usurp the function
of the jury and substitute its judgment on questions of fact fairly
submitted, tried, and determined from the evidence which did
not greatly preponderate either way@).
Gilbert is the correct point of departure for analyzing this
case, but it does not, as the majority suggests, resolve all of
the issues presented here. Gilbert established that a hospital
may be vicariously liable for the negligent acts of a physician
who is an independent contractor. Gilbert, 156 Ill. 2d at 518-23.
It also set forth the means by which a plaintiff may prove a
hospital=s vicarious liability. Gilbert, 156 Ill. 2d at 523-26. The
rationale expressed in Gilbert for allowing hospitals to be held
vicariously liable for the acts of independent contractors has to
do with what Gilbert termed the Arealities of modern hospital
care,@ particularly the Abusiness of a modern hospital@ and Athe
reasonable expectations of the public.@ Gilbert, 156 Ill. 2d at
520-21. According to Gilbert, the business of modern hospitals
is characterized by advertising campaigns intended to promote
hospitals= good reputations by holding hospitals out to the
public as providers of quality health care. See Gilbert, 156 Ill.
-50-
2d at 520, quoting Kashishian v. Port, 167 Wis. 2d 24, 38, 481
N.W.2d 277, 282 (1992). Further, it is typically reasonable for
members of the public who seek health care from hospitals to
assume that the physicians who care for them are hospital
employees, since patients are generally unaware of the nature
of the employment relationships between hospitals and the
physicians who work there. See Gilbert, 156 Ill. 2d at 521,
quoting Arthur v. St. Peters Hospital, 169 N.J. Super. 575, 583,
405 A.2d 443, 447 (1979). Given these justifications for holding
hospitals vicariously liable, Gilbert concluded that a plaintiff
may prove a hospital=s vicarious liability through a claim based
on the doctrine of apparent authority. Gilbert, 156 Ill. 2d at 523-
24. The elements of an apparent authority claim include a
Aholding out@ by the hospital that the individual alleged to be
negligent is a hospital employee and Ajustifiable reliance@ by
the plaintiff on that Aholding out.@ See Gilbert, 156 Ill. 2d at 525.
As Gilbert acknowledged, the doctrine of apparent authority
is normally applied in contract cases. Gilbert, 156 Ill. 2d at 524.
In that context, the doctrine binds a principal to a contract that
an apparent agent makes while acting within the scope of the
apparent authority with which the principal has clothed him.
Lynch v. Board of Education of Collinsville Community Unit
District No. 10, 82 Ill. 2d 415, 439 (Ryan, J., dissenting, joined
by Underwood and Ward, JJ.); see also Gilbert, 156 Ill. 2d at
524, citing Lynch, 82 Ill. 2d at 439 (Ryan, J., dissenting, joined
by Underwood and Ward, JJ.). The doctrine functions like
estoppel: where a principal creates the appearance of
authority, a court will not hear the principal=s denial of agency
to the prejudice of an innocent third party who has been led to
reasonably rely upon the agency and is harmed as a result.
Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31
(1999). Gilbert recognized that the doctrine of apparent
authority can also serve as a basis for imposing tort liability
(Gilbert, 156 Ill. 2d at 524) and set forth some specific
guidelines as to how a claim based on the doctrine plays out in
the context of emergency room medical malpractice (Gilbert,
156 Ill. 2d at 524-26). Gilbert established that a hospital cannot
be held liable under the doctrine of apparent authority if a
plaintiff knew, or should have known, that the physician who
-51-
committed malpractice was an independent contractor. Gilbert,
156 Ill. 2d at 524. It further explained that the Aholding out@
element of an apparent authority claim Ais satisfied if the
hospital holds itself out as a provider of emergency room care
without informing the patient that the care is provided by
independent contractors.@ Gilbert, 156 Ill. 2d at 525. In addition,
Gilbert stated that the Areliance@ element of an apparent
authority claim Ais satisfied if the plaintiff relies upon the
hospital to provide complete emergency room care, rather than
upon a specific physician.@ Gilbert, 156 Ill. 2d at 525. The
A >critical distinction= @ is whether the plaintiff seeks care from
the hospital itself or merely looks to the hospital as a place for
a personal physician to provide care. Gilbert, 156 Ill. 2d at 525,
quoting Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d
188, 211-12, 423 N.W.2d 848, 857 (1988).
Gilbert represents a divergence from the general rule that
no vicarious liability exists for the actions of independent
contractors. Petrovich, 188 Ill. 2d at 31. This divergence is
justified in the medical malpractice context by the policy
rationale set forth in Gilbert. See Gilbert, 156 Ill. 2d at 520-22.
Gilbert also represents an attempt to explain the conditions
under which vicarious liability will attach to a hospital in a given
case. See Gilbert, 156 Ill. 2d at 523-26. The elements of an
apparent authority claim that Gilbert recognizes broadly reflect
these conditions, and Gilbert takes the additional step of
expressing them in more specific terms by explaining what a
plaintiff must prove to satisfy the Aholding out@ and Areliance@
elements in the context of emergency care malpractice. Here,
we are faced with a situation where we must further clarify how
an apparent authority claim against a hospital should proceed.
As I shall explain, unlike in Gilbert, the record in this case
clearly demonstrates that plaintiff sought care from a particular
physician, rather than from the hospital itself, when he made
his initial decision to undergo knee surgery at Rush. Contrary
to what the majority=s analysis suggests, this fact should have
significant bearing on determining whether plaintiff satisfied the
Areliance@ element of his apparent authority claim.
The majority characterizes Gilbert as recognizing that
Awhen a patient relies on a hospital for the provision of support
-52-
services, even when a physician specifically selected for the
performance of a procedure directs the patient to that particular
hospital, there may be sufficient reliance under the theory of
apparent agency for liability to attach to the hospital in the
event one of the supporting physicians commits malpractice.@
(Emphasis added.) Slip op. at 37. I find no support in Gilbert for
this proposition. In fact, Gilbert contains language to the
contrary. For instance, quoting Arthur v. St. Peters Hospital,
Gilbert states, A >Absent a situation where the patient is
directed by his own physician or where the patient makes an
independent selection as to which physicians he will use while
[at the hospital], it is the reputation of the hospital itself upon
which [the patient] would rely.= @ (Emphasis added.) Gilbert,
156 Ill. 2d at 521, quoting Arthur, 169 N.J. Super. at 583, 405
A.2d at 447. Likewise, quoting Pamperin v. Trinity Memorial
Hospital, Gilbert states, A >Except for one who seeks care from
a specific physician, if a person voluntarily enters a hospital
without objecting to his or her admission to the hospital, then
that person is seeking care from the hospital itself.= @
(Emphasis added.) Gilbert, 156 Ill. 2d at 525-26, quoting
Pamperin, 144 Wis. 2d at 211-12, 423 N.W.2d at 857. This
language does not suggest that Gilbert recognized the
possibility of allowing recovery under the doctrine of apparent
authority Awhen a patient relies on a hospital for the provision
of support services, even when a physician specifically
selected for the performance of a procedure directs the patient
to that particular hospital.@ Slip op. at 37. If anything, it
suggests reservation over holding a hospital vicariously liable
where a patient seeks care from a particular physician. Yet, the
majority makes no effort to explain this language. Instead, the
majority simply uses its initial misreading of Gilbert as a basis
for further misattributions, concluding that the Areasoning which
animated our decision in Gilbert@ was that:
A[T]he reliance element of a plaintiff=s apparent
agency claim is satisfied if the plaintiff reasonably relies
upon a hospital to provide medical care, rather than
upon a specific physician. [Citation.] Upon admission to
a hospital, a patient seeks care from the hospital itself,
except for that portion of medical treatment provided by
-53-
physicians specifically selected by the patient. If a
patient has not selected a specific physician to provide
certain treatment, it follows that the patient relies upon
the hospital to provide complete careBincluding support
services such as radiology, pathology, and
anesthesiologyBthrough the hospital=s staff. If, however,
a patient does select a particular physician to perform
certain procedures within the hospital setting, this does
not alter the fact that a patient may nevertheless still
reasonably rely upon the hospital to provide the
remainder of the support services necessary to
complete the patient=s treatment. Generally, it is the
hospital, and not the patient, which exercises control not
only over the provision of necessary support services,
but also over the personnel assigned to provide those
services to the patient during the patient=s hospital stay.
To the extent the patient reasonably relies upon the
hospital to provide such services, a patient may seek to
hold the hospital vicariously liable under the apparent
agency doctrine for the negligence of personnel
performing such services even if they are not employed
by the hospital.@ Slip op. at 38.
Gilbert does acknowledge that the Areliance@ element of a
plaintiff=s apparent authority claim hinges on whether the
plaintiff sought care from the hospital itself or from a particular
physician. See Gilbert, 156 Ill. 2d at 525-26, quoting Pamperin,
144 Wis. 2d at 211-12, 423 N.W.2d at 857. It is inaccurate,
however, for the majority to assert that the other propositions
quoted above Aanimated our decision in Gilbert.@ Slip op. at 38.
The fact of the matter is that only a small portion of the
discussion in Gilbert was devoted to the Areliance@ element of
an apparent authority claim. See Gilbert, 156 Ill. 2d at 525-26.
More importantly, to the extent Gilbert did address reliance, it
did so in relation to a different factual scenario from the one at
issue here. As mentioned, Gilbert dealt with medical
malpractice committed in the course of emergency care.
Gilbert, 156 Ill. 2d at 516. This case involves malpractice
committed during a scheduled surgical procedure at Rush.
Furthermore, the doctor who committed malpractice in Gilbert,
-54-
a general practitioner on call in the emergency room, was
primarily responsible for treating the plaintiff upon the plaintiff=s
admission to the defendant hospital. Gilbert, 156 Ill. 2d at 515-
17. Here, an anesthesiologist providing a service ancillary to
plaintiff=s knee surgery caused plaintiff=s injuries. Finally, in
Gilbert, it was unclear whether the plaintiff chose to use the
defendant hospital for the sole purpose of seeing a particular
physician. The evidence disclosed only that the plaintiff asked
for a particular physician after he arrived at the hospital, and
the physician was not on call. Gilbert, 156 Ill. 2d at 516, 526.
As a result, Gilbert did not directly address the consequences
of a patient=s decision to use a hospital as a means of
obtaining care from a particular physician. In this case, plaintiff
testified at trial that he would have gone to the surgeon who
performed his knee surgery even if the surgeon had moved his
practice to a hospital other than Rush.
In short, this case presents a situation where a patient
arranged a procedure in advance with a particular physician
and was injured by the malpractice of another physician
providing a support service related to the scheduled procedure.
Gilbert did not involve these circumstances. In addition, Gilbert
was not primarily concerned with establishing standards to
govern the application of the Areliance@ element of the apparent
authority claim. The majority=s reading of Gilbert erroneously
suggests that Gilbert resolved the reliance issues before us in
this case.
As mentioned, Gilbert recognized, as a general matter, that
the Areliance@ element of a plaintiff=s apparent authority claim
hinges on whether the plaintiff sought care from the hospital
itself or from a particular physician. Gilbert, 156 Ill. 2d at 525-
26. To summarily conclude, as the majority does, that A[i]f *** a
patient does select a particular physician to perform certain
procedures,@ the patient Amay nevertheless still reasonably rely
upon the hospital to provide the remainder of the support
services necessary to complete the patient=s treatment@ (slip
op. at 38) ignores two of the main questions posed by Rush.
First, may a patient recover based on the doctrine of apparent
authority at all where he chooses a hospital for his treatment
because he handpicked a particular physician to perform the
-55-
treatment, and the physician practices only at that hospital?
Second, to satisfy the Areliance@ element of an apparent
authority claim, should a patient who schedules a procedure
with a particular physician, and who is injured by another
physician providing a support service, have to prove that his
belief regarding the employment status of the physician who
committed malpractice actually mattered in his decision to
proceed with treatment?
While the majority does not squarely address either of
these questions, its analysis implicitly answers Ayes@ to the first
and Ano@ to the second. The majority provides no reasoned
justification for this approach. Instead, it makes vague
references to the uniqueness of situations involving medical
malpractice by independent contractors, and to the specificity
of the apparent authority theory of liability outlined in Gilbert.
Initially, the majority states that Athe relationship between a
patient and health-care providers, both physicians and
hospitals, presents a matrix of unique interactions that finds no
ready parallel to other relationships.@ Slip op. at 36. This strikes
me as an overstatement, but to the extent the relationship
between patients and health-care providers does have unique
characteristics, those characteristics, broadly described in
Gilbert as the Arealities of modern hospital care@ (Gilbert, 156
Ill. 2d at 520), merely justify recognizing an exception to the
general rule that no vicarious liability exists for the actions of
independent contractors. They do not justify allowing a patient
to proceed with an apparent authority claim under any and all
circumstances involving the medical malpractice of an
independent contractor working in a hospital. The majority
further states that because of the Aunique context@ in which
actions seeking to hold a hospital vicariously liable for the
malpractice of an independent contractor physician are
brought, AGilbert established an analytical framework tailored to
this precise factual situation.@ Slip op. at 37. Reiterating this
point, the majority notes, AGilbert formulated [its] analytical
framework for specific application to actions wherein a plaintiff
seeks to hold a hospital vicariously liable for the malpractice of
an independent contractor physician under the doctrine of
apparent agency.@ Slip op. at 37. I agree that Gilbert
-56-
established a framework to address the situation in which an
independent contractor commits medical malpractice while
working in a hospital. The fact Gilbert established a framework,
however, does not mean it is not subject to further refinement.
There are multiple scenarios in which an independent
contractor can commit medical malpractice in a hospital
setting, and Gilbert dealt only with malpractice committed
during the course of emergency care by a general practitioner
who was primarily responsible for treating the plaintiff (Gilbert,
156 Ill. 2d at 515-16).
Turning to the questions posed by Rush, I would note that
where, as here, a patient chooses to undergo a procedure at a
given hospital for the sole purpose of receiving treatment from
a particular physician, and the patient is injured by the
malpractice of another physician providing a support service,
allowing the patient to proceed with an apparent authority claim
against the hospital creates tension with the underlying
rationale expressed in Gilbert for allowing hospitals to be held
vicariously liable for the malpractice of independent-contractor
physicians. Part of that rationale is that hospitals hold
themselves out to the public through marketing campaigns as
providers of quality health care in hopes of persuading the
public to utilize their services. See Gilbert, 156 Ill. 2d at 520. If
a hospital that has been sued comes forward with proof that
the plaintiff patient sought care from a particular physician, and
would have obtained treatment from that physician regardless
of where the physician was practicing, the assumption is no
longer valid that the patient relied on the reputation the hospital
held out to the public in deciding to undergo treatment there. I
do not believe that, under these circumstances, a patient
should be altogether precluded from recovering pursuant to the
doctrine of apparent authority. After all, it is true that a patient
who schedules a procedure with a particular physician may still
look to the hospital where the procedure will be performed to
provide support services necessary to complete the procedure.
Yet, Arelying,@ in the general sense of the term, on the hospital
to provide support services is not the same as Areliance,@ in the
context of an apparent authority claim, on the hospital=s act of
Aholding out@ a support service physician as an employee.
-57-
Moreover, where allowing recovery against a hospital on the
basis of an apparent authority claim is somewhat at odds with
the underlying rationale for subjecting hospitals to vicarious
liability in the first place, it seems appropriate to require more
rigorous proof of Areliance.@ Accordingly, in cases where a
patient chooses to undergo a procedure at a given hospital for
the sole purpose of receiving treatment from a particular
physician, and the patient is injured by the malpractice of
another physician providing a support service, I find it
reasonable to require the patient to prove that his belief
regarding the employment status of the physician who
committed malpractice actually mattered in his decision to
proceed with his treatment. As Rush suggests, to prove
reliance, the patient should have to demonstrate he accepted
treatment from the physician whose conduct is at issue
because he assumed the physician was not an independent
contractor. A patient who would have acted in exactly the same
manner if he had known the employment status of the
physician should not be allowed to recover from the hospital.
Applying these principles to the case at bar, I would hold
that plaintiff failed to produce sufficient evidence to establish
the Areliance@ element of his apparent authority claim against
Rush.
Briefly, Rush does not dispute the sufficiency of the
evidence presented at trial with respect to the Aholding out@
element of plaintiff=s apparent authority claim. Indeed, the
evidence revealed that plaintiff=s anesthesiologist, Dr. Abdel
Raouf El-Ganzouri, wore either scrubs or a lab coat displaying
the Rush logo during his interactions with plaintiff, and that
nothing in the treatment consent form signed by plaintiff
indicated Dr. El-Ganzouri was an independent contractor.
With respect to the Areliance@ element of plaintiff=s apparent
authority claim, the majority interprets the testimony presented
at trial as providing a sufficient basis for the jury to reasonably
conclude that plaintiff did not know, and had no reason to
know, that Dr. El-Ganzouri was an independent contractor, not
an employee of Rush. Slip op. at 39-41. In addition, the
majority interprets the testimony presented at trial as providing
a sufficient basis for the jury to reasonably conclude that
-58-
plaintiff did not know who would serve as his attending
anesthesiologist, and that he depended on Rush, not his son,
to select that individual. Slip op. at 41-43. I cannot help but
view with some suspicion the conclusion that plaintiff, who was
himself an independent contractor physician for many years,
and whose son was an anesthesiology resident at Rush at the
time of plaintiff=s surgery, did not know that Dr. El-Ganzouri
was an independent contractor. I also cannot accept without
some hesitation the conclusions that plaintiff did not know Dr.
El-Ganzouri would be his attending anesthesiologist and that
plaintiff did not depend on his son to select Dr. El-Ganzouri,
given the conflicting evidence on these points. See slip op. at
42-43. Nevertheless, whether plaintiff knew or should have
known that Dr. El-Ganzouri was an independent contractor is a
factual question, and concluding on review that plaintiff knew or
should have known that Dr. El-Ganzouri was an independent
contractor would require ignoring the jury=s credibility
determinations. Likewise, whether plaintiff knew Dr. El-
Ganzouri would be his attending anesthesiologist and whether
plaintiff depended on his son to select Dr. El-Ganzouri are also
factual questions. To conclude on review that plaintiff knew Dr.
El-Ganzouri was going to be his attending anesthesiologist and
that plaintiff depended on his son=s selection of Dr. El-Ganzouri
would require impermissibly second-guessing the jury=s
resolution of conflicting testimony.
Yet, even conceding that the jury could reasonably have
concluded that plaintiff neither knew nor should have known
that Dr. El-Ganzouri was an independent contractor, that
plaintiff did not know Dr. El-Ganzouri would be his attending
anesthesiologist, and relatedly, that plaintiff depended on
Rush, rather than on his son, to select an attending
anesthesiologist, the evidence presented at trial was not
sufficient to satisfy the Areliance@ element of plaintiff=s apparent
authority claim. Plaintiff personally selected Dr. Aaron
Rosenberg as his orthopedic surgeon for his February 1998
knee surgery. This selection came in the wake of plaintiff=s
positive experience with Dr. Rosenberg during previous knee
surgeries in August 1997 and September 1997, which
themselves came after approximately three years of
-59-
conservative knee treatment that plaintiff received after
becoming Dr. Rosenberg=s patient in 1994. It is abundantly
clear in this case that plaintiff sought care from Dr. Rosenberg,
not from Rush, in scheduling his February 1998 knee surgery.
Plaintiff testified that he would have gone to Dr. Rosenberg for
his February 1998 surgery even if Dr. Rosenberg moved his
practice to a hospital other than Rush. The majority=s assertion
that Ait was only after plaintiff developed an interest in Rush,
based upon his knowledge of the hospital and its staff, that he
sought out a particular orthopedic surgeon at that institution@ is
inapposite. Slip op. at 39. The testimony the majority relies on
to draw this conclusion pertains to plaintiff=s initial decision to
seek treatment from Dr. Rosenberg in 1994, not to plaintiff=s
decision to undergo his February 1998 knee surgery.
The fact plaintiff sought care from Dr. Rosenberg, not Rush,
does not alone preclude plaintiff from recovering from Rush on
the basis of Dr. El-Ganzouri=s negligence. However, there is no
indication in the record that plaintiff accepted treatment from
Dr. El-Ganzouri because he assumed Dr. El-Ganzouri was not
an independent contractor. Therefore, there is no basis for
concluding that plaintiff=s belief regarding Dr. El-Ganzouri=s
employment status had any effect on his decision to proceed
with his treatment.
For the reasons expressed above, I would reverse the
judgment of the appellate court, which affirmed the trial court=s
denial of Rush=s motion for judgment notwithstanding the
verdict.
-60-