The Illinois Supreme Court has issued its decision in the matter of York v. El-Ganzori. It is very fact intensive, and I have attached it below for your reading enjoyment.
The plaintiff sued, among others, Dr. El-Ganzouri (an anesthesiologist) for malpractice. Rush Presbyterian-St. Luke's was sued based on the doctrine of apparent agency for Dr. El-Ganzouri's conduct. The jury entered a verdict against the defendants, and Rush appealed. Rush argued the plaintiff failed to prove that it held out Dr. El-Ganzouri as its agent and failed to prove that he relied on Rush for his care. The Appellate Court upheld the jury's verdict in favor of the plaintiff.
Initially, the Appellate Court was asked to decide between two lines of Illinois cases on apparent agency. In Butkiewicz v. Loyola University and James v. Ingalls, the courts focused on why the patient went to a particular hospital. In other words, did the patient rely on any representations of the hospital or the alleged apparent agent (i.e., the doctor) in going to the particular hospital or did the patient go to the hospital for some other reason (i.e., the patient's doctor told him to go there, it was the closest hospital, etc.).
In McCorry v. Evangelical Hospitals and Scardina v. Alexian Brothers, the courts focused on why the patient accepted treatment from the allegedly negligent doctor and not why the patient chose the particular hospital. In other words, did the patient rely on the hospital to select a particular physician to provide treatment to the patient or did the patient select the particular physician.
The Illinois Supreme Court reviewed the Appellate Court's decision and agreed with the Appellate Court that McCorry and Scardina applied. The Court also evaluated whether O'Banner v. McDonald's Corp. (a prior Illinois Supreme Court decision on apparent agency which dealt with a slip and fall at McDonalds) applied in the medical malpractice setting. In O'Banner, the Court held that to establish the reliance element of apparent agency, the plaintiff must show that he or she actually relied on the "holding out" of McDonalds in going to the restaurant. The York Court held that the O'Banner decision does not apply to medical malpractice cases. Rather, the apparent agency elements outlined in Gilbert apply. The York Court rejected the reasoning/application of Butkiewicz, James and O'Banner and followed the reasoning/precedent of McCorry, Scardina and Gilbert.
The Supreme Court again affirmed Gilbert and stated: "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."
Citing Gilbert, the Supreme Court further stated, 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. 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 care-including support services such as radiology, pathology, and anesthesiology-through 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.
Bottom Line:
If there is no consent form with the appropriate agency language, the court will determine whether the patient chose the allegedly negligent doctor before coming to the hospital or whether the hospital assigned a particular physician to the patient. If the hospital assigned a particular physician to the patient, then the hospital will likely be on the hook based on any agency allegations for that physician's conduct. If the patient chose a particular doctor before coming to the hospital (or perhaps asked for a particular physician while at the hospital), then the hospital has a better chance of prevailing on a motion for summary judgment as to that particular physician. However, even if a patient goes to a hospital to see a specific physician, the hospital is still responsible for the conduct of the other medical providers (i.e., nurses, radiologists, etc.) even if they are not employees unless there is a consent form.
As before, for the best chance of defeating an apparent agency claim, use a detailed consent form!!!
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