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SIXTH DIVISION

September 30, 1998

No. 1-97-2422

KAYLA JAMES, a Minor, by Her Mother )

and Next Friend Lasonia James, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County

)

v. ) No. 95 L 1267

)

INGALLS MEMORIAL HOSPITAL, )

)

Defendant-Appellee )

)

(Sun Kim, M.D.; South Suburban ) Honorable

Hospital, and Olympia Fields ) Philip L. Bronstein,

Osteopathic Medical Center Service, ) Judge Presiding.

)

Defendants). )

JUSTICE QUINN delivered the opinion of the court:

This appeal arises from a grant of summary judgment in favorof appellee, Ingalls Memorial Hospital (Ingalls), under section2-1005 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1005 (West 1994). Appellant urges this court to reverse thegrant of summary judgment and find that a question of fact existsas to whether appellant's treating physician was the apparentagent of appellee. For the following reasons, the grant ofsummary judgment is affirmed.

This medical malpractice action was brought on behalf of theminor plaintiff, Kayla James, who was born prematurely on August13, 1992. Two counts in the complaint alleged vicariousliability of Ingalls based on the negligence of the physician whotreated Lasonia James (James), Dr. Kim. The grant of summaryjudgment in Ingalls' favor was based on the following evidenceadduced from the pleadings, depositions, and affidavits.

On August 4, 1992, James went to Ingalls' emergency roombecause she was 22 weeks pregnant and had not eaten in five orsix days. James complained of abdominal pain and vomiting forseveral days.

James first saw a triage nurse, then a Doctor G. Doctor G.contacted James' physician, Dr. Egglesfield, to see if he wantedher transferred to the hospital where he had staff privileges,Olympia Fields Osteopathic Medical Center, or whether she shouldstay at Ingalls. Dr. Egglesfield gave approval for James toremain at Ingalls.

James was then admitted under the care of Dr. Kim, anobstetrician and gynecologist with staff privileges at Ingalls. The emergency room physician had called Dr. Kim, informing himthat James had signs of urinary tract infection, nausea, vomitingand right lower quadrant pain.

Shortly after her admission, James signed an "EmergencyCare/Hospitalization Consent, Authorization For Release ofInformation and Assignment of Benefits" form (consent form). This consent form stated the following:

"The physicians associated with SEA and thephysicians on staff at this hospital are not employeesor agents of the hospital, but independent medicalpractitioners who have been permitted to use itsfacilities for the care and treatment of theirpatients. *** I have had the opportunity to discuss[sic] this form, and I am satisfied I understand itscontents and significance. I may withdraw my consentat any time."

James saw Dr. Kim at approximately 6:35 a.m. Dr. Kim waschosen to handle James' admission because he was on call on the"on call roster" of department members who are scheduled to carefor patients admitted at Ingalls.

Dr. Kim attempted to transfer James to the University ofChicago, as she was leaking amniotic fluid, but the transfer wasrefused because the 22-week-old fetus was deemed not viable. James' medical history revealed two prior miscarriages. Dr. Kimhospitalized James for two days to provide intravenous (IV)therapy until she was able to eat.

Dr. Kim next saw James on August 6, 1992. He asked her ifshe was able to keep food down, and she replied, "yes." Dr. Kimthen discharged James, telling her to get complete bedrest andfollow up immediately with her own physician, Dr. Egglesfield. Dr. Kim told her that her leaking amniotic fluid meant that shewould probably go into labor within the next 7 to 10 days. Dr.Kim advised James that if anything happened, to come immediatelyto the emergency room. James was given discharge instructions.

James saw Dr. Egglesfield the following day, on August 7,1992. On August 13, 1992, James gave birth to appellant, KaylaJames (Kayla), at the University of Illinois Hospital. Kaylaweighed 1 pound 7 ounces, but survived. Kayla purportedlysuffers from retinopathy of prematurity (resulting in blindness),and neurological impairment.

On January 26, 1995, appellant filed this cause of actionagainst Dr. Kim and three suburban hospitals, including Ingalls,where James received care prior to Kayla's birth, for failure totransfer James to an appropriate care facility.

On April 28, 1997, the trial court entered summary judgmentfor Ingalls, finding as a matter of law that appellant could notestablish vicarious liability based on the actual or apparentagency of Dr. Kim.

A motion for summary judgment should be granted only wherethe pleadings, depositions, admissions and affidavits show thatthere is no genuine issue as to any material fact and that themoving party is entitled to judgment as a matter of law 735 ILCS5/2-1005(c) (West 1994). In determining whether there is agenuine issue as to any material fact, courts must construe thepleadings, depositions, admissions, and affidavits strictly infavor of the movant and liberally in favor of the non-movant. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518, 622N.E.2d 788 (1993). A triable issue exists where there is adispute as to material facts or where, although the facts are notin dispute, reasonable minds might differ in drawing inferencesfrom those facts. Raglin v. HMO Illinois, Inc., 230 Ill. App. 3d642, 645, 595 N.E.2d 153 (1992). The reviewing court's functionis to determine de novo whether the judgment entered was correctas a matter of law. Cates v. Cates, 156 Ill. 2d 76, 78 (1993).

Appellant urges this court to find that appellee wasvicariously liable for Dr. Kim's negligence and to reverse thegrant of summary judgment in appellee's favor. In Gilbert, oursupreme court held that a hospital can be held vicariously liablebased on an agency relationship between the hospital (principal)and a physician (agent). Gilbert, 156 Ill. 2d at 518. In orderfor a hospital to be vicariously liable for the negligence of itsphysician under a doctrine of apparent authority, a plaintiffmust show: (1) the hospital or its agent acted in a manner thatwould lead a reasonable person to conclude that the physicianalleged to be negligent was an employee or agent of the hospital;(2) that the hospital had knowledge of acts of the agent whichcreated the appearance of authority, where there were such acts,and acquiesced in them; and (3) the plaintiff acted in relianceon the conduct of the hospital or its agent, "consistent withordinary care and prudence." Gilbert, 156 Ill. 2d at 525. Thesupreme court stated the following:

"[L]iability attaches to the hospital only wherethe treating physician is the apparent or ostensibleagent of the hospital. If a patient knows, or shouldhave known, that the treating physician is anindependent contractor, then the hospital will not beliable." (Emphasis added.) Gilbert, 156 Ill. 2d at522.

The relevant inquiry under Gilbert is whether the plaintiffknew that the physician was an independent contractor. See Dahanv. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 692 N.E.2d 1303,1308 (1998). A recent case decided by this court, Dahan, held ahospital vicariously liable for the negligence of a physician,even though the contract between the hospital and the physicianspecifically provided that the physician was an independentcontractor. Dahan, 295 Ill. App. 3d at 776-77, 692 N.E.2d at1308. Evidence in the case showed that the plaintiff did notknow the physician was an independent contractor. The physicianhad a contract with Mount Sinai Hospital (Mount Sinai) whichobligated him to see employees of the hospital free of charge,and the plaintiff was an employee of Mount Sinai. Dahan, 295Ill. App. 3d at 776-77, 692 N.E.2d at 1308. The physician wasnot allowed to use his office in Mount Sinai's diabetic clinic toprovide service to his private patients. Also, the plaintiffregistered at the admitting desk on the first floor of MountSinai before seeing the physician on the fifth floor. Based onthis evidence, this court held that both the physician and MountSinai acted in a manner that would lead a reasonable person toconclude that the physician was an agent of Mount Sinai. Dahan,295 Ill. App. 3d at 776-77, 692 N.E.2d at 1308. Because theplaintiff did not know the physician was an independentcontractor, this court held Mount Sinai vicariously liable. Dahan, 295 Ill. App. 3d at 776-77, 692 N.E.2d at 1308.

Appellant argues that the question of whether Dr. Kim wasappellee's apparent agent remains a question of fact, even thoughappellant signed appellee's consent to treatment form, whichstated that the physicians were independent medicalpractitioners. Even if the question presented would ordinarilybe a question of fact, if only one conclusion may be drawn fromthe undisputed facts, then a question of law is presented whichmay be appropriately dispensed with by summary judgment. Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80, 84(1996).

Appellant first urges this court to disregard the consentform she signed because the trial court did not rely on the formin granting summary judgment to appellee. However, in fact, thetrial court did say that the consent form was one of severalfactors it considered in granting summary judgment to appellee. The trial court also held that appellant failed to prove that shehad acted in reliance upon the conduct of the hospital or itsagent. We address this issue later in this opinion. In anyevent, we may affirm the trial court's decision on any basis inthe record. Becker v. Zellner, 292 Ill. App. 3d 116, 130, 684N.E.2d 1378 (1997).

In Gilbert, the consent form signed by the patient read inpertinent part:

"The undersigned has been informed of the emergencytreatment considered necessary for the patient whosename appears above and that the treatment andprocedures will be performed by physicians andemployees of the hospital. Authorization is herebygranted for such treatment and procedures." Gilbert,156 Ill. 2d at 516.

In this case, the consent to treatment form stated that "thephysicians on staff at this hospital are not employees or agentsof the hospital, but independent medical practitioners who havebeen permitted to use its facilities for the care and treatmentof their patients." There is no case law directly on point inIllinois dealing with the issue of the legal effect of anindependent contractor disclaimer on a consent to treatment form.

Appellant has cited Sampson v. Baptist Memorial HospitalSystem, 940 S.W.2d 128 (Tex. Ct. App. 1996), for the propositionthat a question of fact remains regardless of a hospital'sdisclaimer that its physicians are independent contractors. After appellant's brief was filed, a unanimous Texas SupremeCourt overruled Sampson and reinstated summary judgment for thehospital and held that, as a matter of law, no conduct by thehospital in that case could have lead a reasonable patient tobelieve that the treating emergency room physicians wereemployees of the hospital. Baptist Memorial Hospital System v.Sampson, 969 S.W.2d 945 (Tex. 1998).

Our supreme court in Gilbert held that the element of"holding out" by a hospital is satisfied if the hospital holdsitself out as a provider of emergency room care without informingthe patient that the care is provided by independent contractors. Gilbert, 156 Ill. 2d at 526. Here, the hospital informed Jamesof Dr. Kim's independent contractor status in the consent form. The holding in Gilbert is applicable to claims based on thenegligent conduct of physicians wherever it occurs and not onlyto emergency rooms. Malanowski v. Jabamoni, 293 Ill. App. 3d720, 727 (1997). While we do not hold that the existence of anindependent contractor disclaimer in a consent form is alwaysdispositive on the issue of "holding out," it is an importantfactor to consider.

The first element a plaintiff must show in an action underthe doctrine of apparent authority is that "the hospital, or itsagent, acted in a manner that would lead a reasonable person toconclude that the individual who was alleged to be negligent wasan employee or agent of the hospital." Gilbert, 156 Ill. 2d at525. Certainly having the patient sign a consent for treatmentform which expressly states that "the physicians on staff at thishospital are not employees or agents of the hospital" may makethe proving of this element extremely difficult. Under the factsof this case, appellant has failed to meet her burden as to thiselement.

The instant case is easily distinguishable from Gilbert andDahan. In those cases, the reason the patient-plaintiff did notknow of the physician's independent contractor status was becauseit was either set out in a contract between the physician and thehospital, or understood by virtue of the compensationarrangements between the hospital and physicians. See Gilbert,156 Ill. 2d at 515 (where the hospital considered its activestaff physicians to be independent contractors where it did notpay them any salary or business expenses); Dahan, 295 Ill. App.3d at 776-77, 692 N.E.2d at 1308 (where the contract between thehospital and the physician specified that the physician was anindependent contractor).

Here, in contrast, Dr. Kim's independent contractor statuswas clearly set out in the consent to treatment form, whichappellant signed. Under Gilbert, appellant here either knew Dr.Kim was an independent contractor or should have known.

Appellant also argues that appellee should be vicariouslyliable because she relied on appellee to provide her care. Appellant correctly cites Sztorc v. Northwest Hospital, 146 Ill.App. 3d 275, 496 N.E.2d 1200 (1986), as the seminal case onreliance in an apparent agency case. The plaintiff in Sztorctestified that she was unaware of the independent contractorrelationship between the physician and the hospital. Theplaintiff in Sztorc further testified in the following manner asto her reliance on the hospital to provide her care:

"Q: *** [W]ould it have made any difference toyou, one way or the other, whether or not Dr. Greenbergand Dr. Bluhm were in private practice or whether theywere employed by Northwest Hospital?

A: I don't know.

Q: You don't know whether it would have made anydifference?

A: I don't know."

Q: So you don't know now, and you didn't knowthen, is that right?

A: I don't know." Sztorc, 146 Ill. App. 3d at278-79.

This court held that the plaintiff's testimony left a factualquestion as to whether she would have acted differently had sheknown of the contractual relationship between the hospital andthe treating physicians, and thus reversed a grant of summaryjudgment in the hospital's favor. Sztorc, 146 Ill. App. 3d at279.

Here, conversely, it would have made no difference toappellant whether Dr. Kim was an employee of Ingalls. Shetestified in a deposition as follows:

"Q: Did you have any understanding of therelationship that the doctors in the emergency roomhad with Ingalls whether they were employees versusindependent doctors?

A: No, I didn't.

Q: If you had known that the emergency roomphysicians at Ingalls were not employees of Ingalls,would you still have gone there on August 4th?

A: Yes, I would have.

Q: Do you know who Dr. Kim is?

A: The physician who saw me when I was admittedinto Ingalls Hospital before I had my daughter.