Appellate Court Affirms Summary Judgment Finding of No Apparent Agency Between Hospital and It’s Chief of Staff

Facts:  Plaintiff’s decedent died from complications related to her lung cancer.  Prior to her death, she had been treated by Defendant, Dr. Burke, at the physicians clinic, Burke Medical Group, on several occasions prior to being admitted to Defendant St. James Hospital, where Dr. Burke had hospital privileges.  Dr. Burke was not an employee of St. James Hospital but did hold an “administrative” position as Chief of Staff at the facility.  Over the course of her treatments at St. James Hospital, plaintiff’s decedent signed a consent form on nine separate occasions containing language above the signature line in BOLD PRINT and ALL CAPS that the physicians were not employees and were independent contractors of the hospital.  The lawsuit brought by her Estate included counts against St. James Hospital under an agency theory for the acts of Dr. Burke.  There were no independent allegations against the hospital for institutional negligence, and the sole theory of liability was based upon the doctrine of apparent agency.  The Defendant, St. James Hospital, moved for summary judgment on the issue of apparent agency, which was granted by the trial court and subsequently appealed by the Plaintiff.

Holding:   The Plaintiff failed to present sufficient factual basis to satisfy the elements of “holding out” and reliance necessary to subject St. James to vicarious liability and the trial court was correct in finding the defendant was entitled to summary judgment as a matter of law.

Filed in Trial Book Under:  Apparent Agency

Analysis:  The black letter law for liability under the doctrine of apparent agency requires that the plaintiff establish “(1) the hospital, or it’s 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 v. Sycamore Municipal Hospital, 156 Ill.2d 511, 525 (1993)  Put simply, there must be some holding out that the hospital and physician are linked and that the plaintiff relied upon the reasonable perception that the physician was an agent of the hospital.

Based upon these facts, at least as they were presented in the appellate court opinion, there really was nowhere for the plaintiff to go in order to keep the hospital in this case under an apparent agency theory.  It is clear that the Appellate Court was more than a bit irritated with Plaintiff’s counsel for not including pertinent facts in the record on appeal, which apparently excluded the Plaintiff’s complete deposition transcript as well as Plaintiff’s written response to the motion for summary judgment!  It’s difficult to imagine appealing a case on the basis that the trial court improperly ruled against you on a summary judgment motion and then not provide the appellate court with your written response to that very motion, but I guess that’s what happened here.  The result was a very one-sided factual recitation that hit all the notes for the defendant’s position and none for the plaintiff.  The most critical facts in the appellate court’s analysis were (a) the nine separate consent forms that explicitly stated that the physicians were independent of the hospital and (b) that the plaintiff’s decedent was a patient of Dr. Burke at her clinic long before she was ever treated by Dr. Burke in the hospital.  Indeed, one of the relatives testified at her deposition that her mom would have likely gone to any hospital that Dr. Burke chose, so long as the drive wasn’t too inconvenient.  Although speculative and likely inadmissible at trial, this is testimony that significantly undermines the type of reliance by the patient and holding out by the hospital that is required to sustain an apparent agency theory.  The more interesting issue for me, and potentially troublesome for future cases, was the court’s analysis of the chief of staff position held by Dr. Burke as merely being “administrative” and, therefore, of no significance to the outcome.  There’s something about the term “administrative” here that seems like spin to me, and I suspect that in future cases this opinion will be cited by counsel for hospitals anytime the treating physician has this type of title.  If the facts had supported that the plaintiff’s decedent chose the doctor specifically because of her high ranking position at the hospital, I would hope to see a different result, particularly within a summary judgment analysis.  In this case, however, the plaintiff’s daughter could not establish whether her mother was even aware of the doctor’s title at St. James while receiving the allegedly negligent treatment.  In short, not all cases are meant for an apparent agency theory and this certainly wasn’t one of them.