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No. 2--02--1263

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Plaintiff, Thomas Robers, appeals the trial court's granting of summary judgment in favor ofdefendant Condell Medical Center (Condell Hospital or Condell). We affirm.

The following facts are taken from the record. Condell is a hospital located in Libertyville,Illinois. Plaintiff filed a complaint against podiatrist Donald Burdick, M.D., alleging that, throughBurdick's negligent treatment of his toe, plaintiff suffered injuries. Plaintiff later amended hiscomplaint naming Condell as an additional defendant. Plaintiff alleged that Condell was liable underthe theory of apparent authority. A default judgment was entered against Dr. Burdick in the amountof $350,000.

The documents on record establish that plaintiff saw Dr. Burdick at Burdick's office locatedin the Condell Medical Building in Round Lake, Illinois. The Condell Medical Building is owned byMedical Center Property. Both Condell Hospital and Medical Center Property are wholly ownedsubsidiaries of the Condell Health Network, sharing the same board of directors. The CondellMedical Building houses both professional offices and an acute care center, each with a separateentrance. Dr. Burdick sublet the office space from a doctor who was on staff at Condell Hospital. The president of Condell Hospital stated in an affidavit that Condell Hospital did not know of Dr.Burdick's presence in the Condell Medical Building when plaintiff visited Dr. Burdick. When plaintiffsaw Dr. Burdick, plaintiff entered through the professional offices entrance and did not go into theacute care center. Dr. Burdick was not a staff physician or employee at Condell Hospital, andCondell Hospital did not know Dr. Burdick.

Plaintiff stated in a discovery deposition that he chose Dr. Burdick after seeing a flyeradvertising Condell Acute Care Centers. The flyer listed the four locations of the Acute Care Centersand the location of Condell Hospital, but the flyer made no reference to the Condell Medical Buildingin Round Lake Beach or the doctors' offices located in that building. The flyer did state that X raystaken at Condell Acute Care Centers would be read by radiologists at Condell Hospital. Plaintiff alsostated that he chose Dr. Burdick after seeing a yellow pages listing for Dr. Burdick that stated thathis office was in the Condell Medical Building and because Dr. Burdick's office was located nearplaintiff's chiropractor.

Condell Hospital filed a motion to dismiss, which was denied. Condell Hospital then filed amotion for summary judgment. The trial court granted the motion, stating that no issue of factexisted as to whether Condell held out Dr. Burdick as its agent or whether Condell had knowledgeof any act by Dr. Burdick that created an appearance of authority. On appeal, plaintiff argues that thetrial court erred by granting defendant's motion for summary judgment.

The purpose of summary judgment is not to try a question of fact, but to determine whetherone exists. Summary judgment is proper where pleadings, depositions, admissions, and affidavits onfile, when viewed in the light most favorable to the nonmoving party, reveal that there is no genuineissue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS5/2--1005(c) (West 2000); Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414, 421(2002). In an appeal from the grant of summary judgment, review is de novo. Happel v. Wal-MartStores, Inc., 199 Ill. 2d 179, 185 (2002).

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 thatthe allegedly negligent individual was an employee or agent of the hospital; (2) where acts of theagent created the appearance of authority, the plaintiff must also prove that the hospital hadknowledge of and acquiesced in the acts; and (3) the plaintiff acted in reliance upon the conduct ofthe hospital or its agent, consistent with ordinary care and prudence. McCorry v. EvangelicalHospitals Corp., 331 Ill. App. 3d 668, 671-72 (2002). Failure to establish any one of these elementswill support summary judgment in favor of the hospital. See Churkey v. Rustia, 329 Ill. App. 3d 239,245 (2002).

Construing the evidence strictly against Condell and liberally in favor of plaintiff, we concludethat a genuine issue of material fact does not exist as to whether Dr. Burdick was an apparent agentof Condell. Plaintiff failed to present facts that would support the first element, that Condell actedin a manner that would lead a reasonable person to conclude that Dr. Burdick was an employee oragent of Condell. See Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 525 (1993). Thefollowing facts are uncontroverted. The flyer that plaintiff states he relied on did not mention Dr.Burdick, the Condell Medical Building, or the professional offices where Dr. Burdick had his office. Rather, the flyer referenced only Condell Hospital and Condell Acute Care Centers. The yellowpages advertisement listed Dr. Burdick and stated that his office was in the Condell Medical Building. Further, the Condell Medical Building had two entrances, one for the Acute Care Center and one forthe professional building where Dr. Burdick's office was located. Plaintiff entered through theprofessional offices doorway and not the doorway for the Acute Care Center. Plaintiff did not seeDr. Burdick at Condell Hospital and Dr. Burdick was not on staff there. Dr. Burdick's office waslocated miles away from Condell Hospital. In light of these facts, there is no genuine issue of materialfact regarding the first element of apparent authority. Reasonable minds could not differ regardingwhether Condell Hospital held Dr. Burdick out as its employee or agent. Thus, the trial courtproperly ruled that Condell is entitled to judgment as a matter of law.

Plaintiff argues that the question of whether Dr. Burdick was Condell Hospital's apparentagent remains a question of fact because Dr. Burdick's office was located in a building with the name"Condell" on it. However, this is not enough to create a genuine issue of material fact where onlyone conclusion may be drawn after considering all of the undisputed facts. The professional officepart of the Condell Medical Building was held out as a separate entity from the Acute Care Center. We do not believe that a reasonable person would have believed that Dr. Burdick was an employeeor agent of Condell Hospital simply because he leased space in a building that bore the name"Condell."

Plaintiff cites McCorry, 331 Ill. App. 3d at 668, to support his argument. McCorry isfactually distinguishable from the case at bar. The plaintiff in McCorry was treated by the allegedlynegligent doctor at the defendant hospital and the advertisements for the hospital stated that it hadhighly qualified physicians. McCorry, 331 Ill. App. 3d at 671. In this case, plaintiff was not treatedat Condell Hospital, but at an office building, and the advertisements did not mention the officebuilding where Dr. Burdick leased office space. Thus, McCorry is not controlling.

Because we have determined that plaintiff failed to establish the first element of apparentagency, we need not address plaintiff's argument regarding the remaining two elements. Thejudgment of the circuit court of Lake County is affirmed.

Affirmed.

BOWMAN and GILLERAN JOHNSON, JJ., concur.