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FIRST DIVISION
June 3, 2002

JUSTICE McNULTY delivered the opinion of the court:

After surgery left Richard McCorry paralyzed, he and hiswife, Barbara McCorry, sued the surgeon, Dr. Thomas Hurley, andChrist Hospital, where Hurley performed the surgery. Plaintiffs asserted that the hospital had respondeat superior liability forHurley's alleged medical malpractice. The court held that noevidence showed that Hurley acted as the hospital's actual orapparent agent, and therefore the court granted the hospital'smotion for summary judgment. Plaintiffs now appeal.

Barbara McCorry worked for Christ Hospital, and her healthplan provided insurance coverage for Richard. In 1993 Richardwent to see Dr. Andrew Kazaniwskyj for a heart problem.Kazaniwskyj and a specialist at Christ Hospital successfullytreated the problem.

Richard also had back pain that prevented him from sittingfor prolonged periods. The pain steadily worsened through 1993and early 1994, to the point that Richard could no longer drive. In June 1994 Kazaniwskyj admitted Richard to Christ Hospital fora neurosurgery consultation. CNS Neurological Surgery providedneurosurgery services at Christ Hospital. Hurley, a neurosurgeonwith CNS Neurological Surgery, examined Richard and ordered amagnetic resonance imaging (MRI) test of the upper part ofRichard's spine, the part in his neck.

Although Hurley recommended surgery, Richard preferred totry physical therapy and epidural injections to control the pain. Richard's condition steadily worsened over the following months. Richard finally agreed that he needed the surgery. For his lastpresurgery physical, on October 20, 1994, Richard came toKazaniwskyj's office in a wheelchair.

Hurley performed the surgery on October 27, 1994. WhenRichard awoke after surgery Hurley tested his condition and foundRichard unable to move his legs. Hurley ordered a new MRI. Although he discussed the possibility of further surgery with plaintiffs, he did not recommend surgery, as he had little hopeof restoring any function to the legs. Richard remainsparalyzed.

In their complaint plaintiffs alleged that Richard'sparalysis resulted from Hurley's negligence, and plaintiffssought to hold the hospital liable for Hurley's acts. Thehospital, in a motion for summary judgment, claimed that Hurleywas neither its actual nor its apparent agent. The hospital'sdirector of risk management swore that Christ Hospital did notemploy Hurley and paid him no wages or salary. Instead, Hurleymaintained an independent medical practice, and the hospitalgranted him limited medical staff privileges allowing him topractice at Christ Hospital.

The hospital also attached to its summary judgment motiontranscripts of the depositions of Richard McCorry and Dr.Kazaniwskyj. Richard said he first came in contact with Hurleythrough Kazaniwskyj's recommendation. Richard thought Hurley wason the hospital's staff. Kazaniwskyj testified that he did notremember exactly what he said when he referred Richard for theneurosurgery consultation, but he referred him either to Dr.Stavros Maltezos or to CNS Neurological Surgery. Maltezos workedfor CNS Neurological Surgery. CNS Neurological Surgery had apolicy of asking new patients if they would accept the nextavailable neurosurgeon.

Plaintiffs submitted their affidavits and several hospitalpublications in response to the summary judgment motion. In theliterature Christ Hospital claimed that it provided a hospitalstaff including hundreds of highly qualified physicians, and itreferred to the doctors as "our physicians." The hospital'sconsent form for the operation included no indication that ChristHospital did not employ the surgeons or other physicians workingin the hospital. Richard swore that he saw Hurley only in thehospital and the office building at the hospital. He acceptedKazaniwskyj's referral to other doctors on Christ Hospital'sstaff, including Hurley, because of his confidence in ChristHospital and the doctors on its staff. Barbara swore in anaffidavit that she and Richard chose Christ Hospital fortreatment both because of her insurance and because they had beensatisfied with the care they received at the hospital.

The trial court granted Christ Hospital summary judgment andfound no reason to delay enforcement or appeal of the judgment. The lawsuit remains viable against Hurley. Plaintiffs filed atimely notice of appeal, so that we have jurisdiction underSupreme Court Rule 304(a). 155 Ill. 2d R. 304(a). We review the summary judgmentde novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995).

Plaintiffs contend that they presented sufficient evidenceto support a finding that Hurley acted as the hospital's apparentagent. Our supreme court, in Gilbert v. Sycamore MunicipalHospital, 156 Ill. 2d 511, 622 N.E.2d 788 (1993), adopted theWisconsin Supreme Court's standards for finding that an allegedlynegligent doctor acted as a hospital's apparent agent.

"'For a hospital to be liable under the doctrine ofapparent authority, a plaintiff must show that: (1) thehospital, or its agent, acted in a manner that wouldlead a reasonable person to conclude that theindividual who was alleged to be negligent was anemployee or agent of the hospital; (2) where the actsof the agent create the appearance of authority, theplaintiff must also prove that the hospital hadknowledge of and acquiesced in them; and (3) theplaintiff acted in reliance upon the conduct of thehospital or its agent, consistent with ordinary careand prudence.'" Gilbert, 156 Ill. 2d at 525, quoting Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188,207-08, 423 N.W.2d 848, 855-56 (1988).

Here, the hospital published literature referring tophysicians who work at the hospital as its physicians andclaiming that the expertise of those physicians made the hospitala desirable place for medical care. CNS Neurological Surgerymaintained an office on hospital grounds, in a building connectedto the hospital. Nothing in Hurley's appearance or the forms thehospital presented to plaintiffs showed that Hurley did not actas the hospital's agent. The hospital advertised itself as afull-care facility supplying quality health care. The evidencecould support a finding that the hospital held itself out as theprincipal for its agents, including the highly qualifiedphysicians, who directly provided the advertised health care. See Gilbert, 156 Ill. 2d at 520; Sztorc v. Northwest Hospital,146 Ill. App. 3d 275, 278, 496 N.E.2d 1200 (1986).

Christ Hospital argued principally that plaintiffs could notestablish the third element of Gilbert's requirements forapparent agency. The trial court agreed, holding that no trierof fact could find on this record that plaintiffs relied on theappearance of agency.

The court in Gilbert also adopted the Wisconsin SupremeCourt's analysis of the reliance element of apparent agency. Thecourt said:

"'[T]he critical distinction is whether theplaintiff is seeking care from the hospital itself orwhether the plaintiff is looking to the hospital merelyas a place for his or her personal physician to providemedical care. Except for one who seeks care from aspecific physician, if a person voluntarily enters ahospital without objecting to his or her admission tothe hospital, then that person is seeking care from thehospital itself. An individual who seeks care from ahospital itself, as opposed to care from his or herpersonal physician, accepts care from the hospital inreliance upon the fact that complete emergency roomcare--from blood testing to radiological readings tothe endless medical support services--will be providedby 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.

The Wisconsin Supreme Court explained Pamperin in Kashishianv. Port, 167 Wis. 2d 24, 481 N.W.2d 277 (1992), which our supremecourt quoted as further authority in Gilbert, 156 Ill. 2d at 520,522. In Kashishian the decedent's personal physician admittedher into the defendant hospital for a consultation with the defendant cardiologist. The personal physician requested theconsultation. The cardiologist's negligence allegedly caused thedecedent's death, and the plaintiff sought to hold the hospitalliable for the acts of the cardiologist. The trial court grantedthe hospital summary judgment.

On appeal the Wisconsin Supreme Court first held that thedoctrine of apparent agency applied to hospitals especially inthe context of emergency care, but the doctrine could also applyfor nonemergency situations. Kashishian, 167 Wis. 2d at 42-43,481 N.W.2d at 284. The court continued:

"Furthermore, we are not persuaded by [defendants']argument that, although perhaps not limited to theemergency room, the doctrine of apparent authority doesnot apply when a patient is admitted to the hospital byhis/her personal attending physician and then receivesthe services of the hospital. As one court discussingthis issue has noted:

The relevant relationship in this case isbetween the hospital and Temply, [thesurgical independent contractor resident] notbetween it and any private physician withwhom the plaintiff contracted. The fact thatplaintiff contracted with a private physicianas her primary surgeon is not, as a matter oflaw, inconsistent with hospital's havingclothed Temply [the independent contractorphysician] with ostensible authority to actas its agent in assisting the privatedoctors. Shephard v. Sisters of Providence,[89 Or. App. 579, 588], 750 P.2d 500, 505(Or. App. 1988).

We agree. Nor is the plaintiff's contact with a privatepersonal physician necessarily inconsistent with thehospital having held out specialists and/or consultantsas its apparent agents." Kashishian, 167 Wis. 2d at42-43, 481 N.W.2d at 284.

The court explained the statement in Pamperin about thepatient who seeks care from a personal physician with hospitaladmitting privileges: if the plaintiff claims that her personalphysician acted negligently, and she chose the physician prior to the choice of the hospital, then the plaintiff could not hold thehospital liable for that physician's negligence. Kashishian, 167Wis. 2d at 44, 481 N.W.2d at 285. But the hospital might remainresponsible for the alleged negligence of doctors the personal physician consulted, if the hospital held out the consultedspecialists as its apparent agents. Under the facts of Kashishian, the court found a dispute of material fact concerningthe question of apparent agency.

Thus, under Kashishian and Pamperin as adopted in Gilbert,the court must determine whether the appearance of agency led tothe relationship between plaintiffs and Hurley, the allegedlynegligent doctor. The fact that Richard's personal physicianreferred Richard for the neurosurgery consultation is not, initself, sufficient to require judgment in favor of the hospital. See Scardina v. Alexian Brothers Medical Center, 308 Ill. App. 3d359, 366, 719 N.E.2d 1150 (1999).

Here, Dr. Kazaniwskyj referred Richard for a consultationwith Dr. Maltezos or CNS Neurological Surgery, the group thatprovided neurosurgical care as staff members of Christ Hospital. Richard accepted care from Dr. Hurley, the next availableneurosurgeon. Richard swore that he thought Hurley was aneurosurgeon on the staff of Christ Hospital. Richard acceptedHurley's treatment because of his confidence in Christ Hospitaland the doctors on staff there. Christ Hospital presented noevidence that it informed plaintiffs that Hurley was anindependent contractor and not the hospital's agent. ChristHospital did not inform plaintiffs that the hospital accepted noresponsibility for the choice of Hurley as the neurosurgeonperforming Richard's operation.

We find this case effectively indistinguishable from Scardina. In that case theplaintiff's personal physician toldhim to see a surgeon at the defendant hospital. The surgeonconsulted a radiologist, an independent contractor on thehospital's staff. The plaintiff alleged that the radiologistacted negligently and sought to hold the hospital liable for theinjuries the radiologist caused. The trial court granted thehospital summary judgment because the plaintiff went to thehospital based on his personal physician's instructions.

The appellate court reversed, holding that the plaintiffpresented sufficient evidence to create a genuine issue ofmaterial fact as to whether the plaintiff looked to the hospitalto provide radiological services. The court emphasized evidencethat the plaintiff never met the radiologist before arriving atthe hospital, the personal physician did not refer to thespecific radiologist, and the plaintiff did not select theradiologist. The plaintiff claimed he thought the hospitalemployed the radiologist, who never said he was an independentcontractor or discussed his employment status with the plaintiff.

Here, plaintiffs never met Hurley before Richard arrived atChrist Hospital. Richard's personal physician did not refer himspecifically to Hurley. Richard did not select the neurosurgeon;he simply accepted the referral to the next availableneurosurgeon on the hospital staff. He did not know of Hurley'semployment status, and Hurley never discussed the status withRichard. Under Scardina, Richard has presented sufficientevidence to create a triable issue of fact regarding his relianceon the appearance that Hurley acted as an agent of ChristHospital. See also Kane v. Doctors Hospital, 302 Ill. App. 3d755, 762, 706 N.E.2d 71 (1999).

Christ Hospital points out that the court in Butkiewicz v.Loyola University Medical Center, 311 Ill. App. 3d 508, 724N.E.2d 1037 (2000), affirmed summary judgment for the defendanthospital charged with responsibility for its radiologist'snegligence because the plaintiff's personal physician referredhim to the hospital for treatment. Butkiewicz appearsdistinguishable because in that case the plaintiff explicitlytestified that he did not trust the hospital and he trusted onlyhis personal physician. But the court also focused improperly onthe plaintiff's reasons for choosing the hospital, rather thanthe plaintiff's reasons for accepting treatment from theallegedly negligent physician. As we find that the court in Butkiewicz misappliedGilbert, and used reasoning inconsistentwith the reasoning of Pamperin and Kashishian as adopted in Gilbert, we will not apply the reasoning ofButkiewicz here.

If a plaintiff shows that he relied in part on the hospitalwhen he accepted treatment from an allegedly negligent doctor, hehas met the reliance element of the proof needed to hold thehospital liable under the theory of apparent agency. Plaintiffshere presented such evidence. Plaintiffs also presented evidencethat the hospital, in its literature, advertised itself in amanner that might lead a reasonable person to conclude that thehospital accepted responsibility for its choice of doctors togive the advertised health care, and thus that the doctors actedas the hospital's agents. Accordingly, we reverse the summaryjudgment entered in favor of Christ Hospital on the countcharging the hospital with liability for Hurley's allegednegligence.

Reversed and remanded.

COHEN, P.J. and COUSINS, J., concur.