No. 2--01--0241

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Plaintiffs, Laurie and Elroy Churkey, appeal from an order ofthe circuit court of Kane County granting summary judgment in favorof defendant Sherman Hospital (hospital) on the ground thatplaintiffs failed to establish a genuine issue of material fact asto whether codefendant G.A. Rustia, M.D. (Dr. Rustia), was thehospital's apparent agent. The trial court concluded that therewas no just reason to delay the enforcement of or the appeal fromits order. We agree and determine that we have jurisdiction overthis matter pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)). The sole issue before us on review is whether summaryjudgment in favor of the hospital was proper.

Laurie underwent nasal surgery at the hospital on October 10,1996. Dr. Rustia was the anesthesiologist who attended to herduring the surgery. Plaintiffs' complaint alleges that Dr. Rustiagave Laurie the wrong kind of anesthesia, which caused her to gointo cardiac arrest during the surgery and led to permanent braindamage. The sole basis of plaintiffs' action against the hospitalis that Dr. Rustia was the hospital's apparent agent. Lauriesought damages for the injuries she incurred as a result of Dr.Rustia's alleged medical negligence and Elroy sought damages forloss of consortium.

Laurie admitted that prior to her surgery she signed a consentform that stated in relevant part:

"To provide for specialized services such as DiagnosticImaging and Anesthesia, Sherman Hospital has entered intoagreements with independent groups of physicians. Theindependent groups that contract to provide services to thehospital are:

ELGIN RADIOLOGY ASSOCIATES, S.C.

ELGIN ASSOCIATES IN ANESTHESIA, S.C.

ASSOCIATES IN NEONATOLOGY, S.C.

I understand that Sherman Hospital uses independentlycontracted physicians and physician's [sic] groups to performspecific services such as Anesthesia and Radiological servicesfor the hospital and its patients. The physicians are notemployees of Sherman Hospital but have been granted privilegesto practice at the institution, and if that is the case, I canexpect to receive a separate bill from these physicians orphysician groups."

The final paragraph of the consent stated that the patient readand understood the document, was given an opportunity to askquestions, and that all questions were answered to the patient'ssatisfaction.

Dr. Rustia was a member of Elgin Associates in Anesthesia,S.C., one of the groups identified in the consent form as anindependently contracted physician group.

In her deposition, Laurie testified as follows regarding hermemory of the events leading up to her surgery:

"Q. Do you remember any of the events of the day of thesurgery before the surgery at the hospital?

A. I can kind of remember having somebody do my bloodpressure or something, sitting at a desk with somebody else. And that's all I remember from Sherman Hospital.

Q. So as far as you know the routine, I mean you're inthe business, the routine forms that you signed or discussionsthat you had with nurses or physicians--

A. I don't remember anything. I can kind of picturesitting at a desk with another lady, but that's it.

* * *

Q. So you have-in a nutshell, you have no memory of anyof the events at Sherman Hospital after that time of yourblood pressure or whatever being taken with that other ladywhen you were checking in, from that point on, no memory ofanything at Sherman?

A. Nothing at Sherman at all."

The hospital moved for summary judgment, arguing thatplaintiffs could not show that Dr. Rustia was acting as thehospital's apparent agent. In response, Laurie executed anaffidavit in which she stated the following:

"2. Before surgery I believed the anesthesiologist whodid my surgery was an employee of the hospital.

3. I met with a nurse before surgery to prepare.

4. As I was prepared for surgery, I do not recall beingtold prior to surgery the anesthesiologist was Dr. Rustia.

5. As I was prepared for surgery, I do not recall beingtold prior to surgery that the anesthesiologist was not anemployee of Sherman Hospital.

6. As I was prepared for surgery, I do not recall beingtold prior to surgery that the anesthesiologist was not anagent of Sherman Hospital.

7. I do not recall speaking to anesthesiologist Dr.Rustia regarding the consent form I signed.

8. I recall being told by the nurse that forms wererequired to be signed in order for my surgery to go ahead.

9. I do not recall reading the forms prior to signingthem as I relied on the nurse that they were needed in orderfor me to be allowed to go through surgery.

10. I do not know if I learned before surgery that Dr.Rustia was not an employee of Sherman Hospital whether thatwould have changed my decision to have surgery there.

11. I still believe the anesthesiologist who did mysurgery was an employee of the hospital, as I have neverreceived any information to change my belief."

The trial court ruled that (1) plaintiffs made an insufficientshowing of a "holding out" by the hospital and (2) Laurie knew orshould have known that there was no agency relationship between thehospital and Dr. Rustia. Plaintiffs filed a timely notice ofappeal from the trial court's order.

Summary judgment is appropriate when the pleadings,depositions, and admissions on file, together with any affidavits,show that there is no genuine issue of material fact and that themoving party is entitled to judgment as a matter of law. 725 ILCS5/2-1005 (West 2000). When determining whether a genuine issue ofmaterial fact exists, a court must construe the pleadings,depositions, admissions, and affidavits strictly against the movingparty and liberally in favor of the nonmoving party. Gilbert v.Sycamore Municipal Hospital, 156 Ill. 2d 511, 518 (1993). Atriable issue exists when the material facts are disputed or, whenthe material facts are not in dispute, reasonable persons mightdraw different inferences from the undisputed facts. Gilbert, 156Ill. 2d at 518. Because summary judgment is a drastic means ofdisposing of litigation, courts should grant summary judgment onlywhen the moving party's right is clear and free from doubt. Gilbert, 156 Ill. 2d at 518. Generally, the question of whether anagency relationship exists is a question of fact. Stewart v.Jones, 318 Ill. App. 3d 552, 561 (2001). However, a court maydecide this issue as a matter of law if only one conclusion may bedrawn from the undisputed facts. James v. Ingalls MemorialHospital, 299 Ill. App. 3d 627, 632 (1998)

In Gilbert our supreme court set out three elements that aplaintiff must show to establish a hospital's liability under anapparent agency theory:

" '(1) the hospital, or its agent, acted in a manner thatwould lead a reasonable person to conclude that the individualwho was alleged to be negligent was an employee or agent ofthe hospital; (2) where the acts of the agent create theappearance of authority, the plaintiff must also prove thatthe hospital had knowledge of and acquiesced in them; and (3)the plaintiff acted in reliance upon the conduct of thehospital or its agent, consistent with ordinary care andprudence.' " Gilbert, 156 Ill. 2d at 525, quoting Pamperin v.Trinity Memorial Hospital, 144 Wis. 2d 188, 207-08, 423 N.W.2d848, 855-56 (1988).

If a patient knew or should have known that the defendant physicianwas an independent contractor, then the hospital is not liable. Gilbert, 156 Ill. 2d at 522.

Plaintiffs urge us to rely upon Scardina v. Alexian BrothersMedical Center, 308 Ill. App. 3d 359 (1999), and reverse the trialcourt's summary judgment order. In Scardina, the plaintiff allegedthat his treating radiologist, Dr. Nam, was an apparent agent ofAlexian Brothers Hospital (Alexian Brothers). Alexian Brothersmoved for summary judgment, arguing that the plaintiff could notprove the third element of apparent agency. Scardina, 308 Ill.App. 3d at 364. Alexian Brothers contended that it could not beheld liable under an apparent agency theory when the plaintiff wentto its facility for treatment on the advice of his personalphysician and not because of any representations made by AlexianBrothers. Scardina, 308 Ill. App. 3d at 365. The court disagreedwith Alexian Brothers, holding that the third element of theapparent agency analysis required the plaintiff to show that herelied on Alexian Brothers' "holding out" of Dr. Nam as its agentor employee when he accepted treatment from Dr. Nam. Scardina, 308Ill. App. 3d at 364.

Plaintiffs' reliance upon Scardina is misplaced becauseScardina addresses only the third element of the apparent agencytest. Alexian Brothers never contested Scardina's ability to provethe first two elements. The issue before us, on the other hand, iswhether plaintiffs have raised a genuine issue of material fact asto the first element--whether the hospital "held out" Dr. Rustia asits agent. If we determine that plaintiffs cannot, as a matter oflaw, make a sufficient showing as to this element, then ouranalysis ends. Consequently, Scardina is not relevant to ouranalysis of plaintiffs' ability to prove the first element ofapparent agency.

More similar, and thus more instructive, is James v. IngallsMemorial Hospital, 299 Ill. App. 3d 627 (1998), upon which thehospital relies. In James, the mother of the minor plaintiff wentto the emergency room at Ingalls Memorial Hospital (Ingalls)because of problems associated with her pregnancy. She wasadmitted to Ingalls under the care of the defendant, Dr. Kim, anobstetrician and gynecologist with staff privileges at Ingalls. Shortly after her admission, she signed a consent form that statedthat the physicians on staff at Ingalls were not employees oragents of the hospital but independent medical practitioners withprivileges to use Ingalls' facilities to treat their patients. Theconsent form further stated that the signatory party had anopportunity to discuss the form and understood it. James, 299 Ill.App. 3d at 629.

The court in James considered the effect of the consent formon the plaintiff's mother's knowledge regarding whether Dr. Kim wasan independent contractor. While the court did not hold that anindependent contractor disclaimer in a consent form is alwaysdispositive on the issue of "holding out," it stated that such adisclaimer is an important factor to consider. James, 299 Ill.App. 3d at 633. The court went on to note that "[c]ertainly havingthe patient sign a consent for treatment form which expresslystates that 'the physicians on staff at this hospital are notemployees or agents of the hospital' may make the proving of thiselement extremely difficult." James, 299 Ill. App. 3d at 633. Because Dr. Kim's independent contractor status was clearly set outin the consent form and because the minor plaintiff's mother signedthe form, the court held that she knew or should have known thatDr. Kim was an independent contractor. James, 299 Ill. App. 3d at633.

We are presented with a factual situation very similar to thatof James. Here, Laurie signed a consent form that indicated thatthe hospital contracted with independent groups of physicians toprovide certain services, including anesthesia. The form specifiedDr. Rustia's practice group by name and further stated that theindependent physicians or physician groups were not hospitalemployees. Laurie does not dispute that she signed this form, butargues that her affidavit creates a genuine issue of material factas to whether she knew or should have known of Dr. Rustia'sindependent contractor status. We disagree.

Laurie averred in her affidavit that she believed prior to hersurgery that "the anesthesiologist who did her surgery" was anemployee of the hospital. However, plaintiffs present no specificfacts to support this assertion. Even though a plaintiff is notrequired to prove her case at the summary judgment stage, she mustpresent a factual basis that would arguably entitle her to judgmentin her favor. Hindo v. University of Health Sciences/ChicagoMedical School, 237 Ill. App. 3d 453, 459 (1992). Viewing thepleadings, depositions, admissions, and affidavits liberally inplaintiffs' favor, we can conclude only that plaintiffs have notpresented any factual basis for their claim that the hospital actedin such a manner as to lead a reasonable person to believe that Dr.Rustia was the hospital's agent. On the contrary, the lack of anyfacts showing that the hospital "held out" Dr. Rustia as its agent,coupled with the signed consent form clearly indicating thatanesthesiologists were not hospital employees, leads us toconclude, as a matter of law, that Laurie knew or should have knownthat Dr. Rustia was not the hospital's agent.

Like the court in James, we emphasize that our holding shouldnot be construed to mean that a signed consent form with adisclaimer like the one at issue here will always be dispositive asto the first element of apparent agency. We agree with James thatthe existence of a signed consent form that disclaims anyemployment or agency relationship between the hospital and thedefendant physician is an important factor to consider. Therecertainly could be situations in which a patient signs a consentform containing such a disclaimer but additional facts exist thatwould create a triable issue of fact as to whether the hospitalheld the defendant physician out as its agent. This, however, isnot such a case.

Accordingly, for the reasons stated, we affirm the judgment ofthe circuit court of Kane County.

Affirmed.

McLAREN and BYRNE, JJ., concur.