Marion Hospital Corporation v. Sterling Emergency Services of Illinois, Inc.

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State: Illinois

Court: 5th District Appellate

Docket No: 5-07-0703 Rel

Case Date: 07/23/2009

Preview:NO. 5-07-0703
N O T IC E Decision filed 07/23/09. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ MARION HOSPITAL CORPORATION, d/b/a ) Appeal from the Heartland Regional Medical Center, ) Circuit Court of ) Madison County. Plaintiff-Appellant, ) ) v. ) No. 07-L-101 ) STERLING EMERGENCY SERVICES OF ) ILLINOIS, INC., d/b/a Sterling Healthcare, ) Honorable ) Nicholas G. Byron, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________ JUSTICE GOLDENHERSH delivered the opinion of the court: The plaintiff filed a complaint against the defendant in the circuit court of Madison County requesting reimbursement for sums paid in the settlement of a separate suit filed in the circuit court of W illiamson County. On the motion of the defendant, the circuit court dismissed the complaint. On appeal, the issue is whether the plaintiff's claim is barred by the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2006)). We reverse and remand. FACTS On March 1, 1999, Marion Memorial Hospital and ECS of Illinois, Inc. (ECS), entered into an "Emergency Services Agreement" (Agreement). Under the Agreement, ECS became the sole and exclusive provider of emergency medical services through independent contractor physicians at Marion Memorial Hospital. The Agreement contained the following relevant provisions:

disposition of the same.

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"SECTION 9. INDEPENDENT CONTRACTOR Contractor and its Physician Associates, contractors, or agents perform the services and duties required hereunder as independent contractors and not as employees, agents, [or] partners of or joint venturers with Hospital. ECS shall provide each of its Physician Associates with a name badge identifying their affiliation with ECS. SECTION 10. INSURANCE AND INDEMNIFICATION Contractor and Physician Associates will maintain medical malpractice insurance in the minimum amount of $1,000,000 for each medical claim and $3,000,000 annually for the aggregate of all claims. Upon request, Contractor will provide the Hospital with a Certificate(s) of Insurance as evidence that this coverage has been obtained. In addition, such policy will provide for at least fifteen (15) days' written notice to Hospital before any material alteration, cancellation[,] or nonrenewal is to take effect. In the event Contractor fails to obtain or maintain the insurance required hereunder, Hospital[,] at its option, may immediately terminate this Agreement. The ninety (90) day written notice will be waived in such an event. Contractor hereby indemnifies and hold [sic ] Hospital harmless from and against any and all liability, losses, damages, claims[,] or causes or [ sic ] action and expenses connected therewith (including reasonable attorneys' fees) caused, or asserted to have been caused, directly or indirectly, by or as a result of negligent acts during the performance of Contractor's duties hereunder or those of its agents, employees, servants, officers[,] or assigns. Nothing in this Section shall relieve the Hospital from liability proximately caused by the employees of the Hospital in the normal course of their duties. Upon

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termination of this Agreement for any reason whatsoever, Contractor agrees that it will purchase an extended reporting endorsement ('tail') coverage for a period of not less than three (3) years from the final dates of service hereunder." On July 26, 2002, the parties amended the contractual terms for termination with cause. Marion Memorial Hospital later became known as Marion Hospital Corp., doing business as Heartland Regional Medical Center. Marion Hospital Corp. alleges that Sterling Emergency Services of Illinois, Inc., doing business as Sterling Healthcare (Sterling), purchased the assets of ECS pursuant to bankruptcy proceedings in February 2004. In June 2003, Tony Maze filed suit in the circuit court of Williamson County. Maze named as defendants Jenice Clark, a licensed physician assistant, and Heartland Regional Medical Center, a subsidiary of Marion Hospital Corp. of Brentwood, Tennessee (Marion Hospital). Counts IV and V were directed against Marion Hospital. In count IV, Maze alleged that on February 13, 2003, the decedent went to Marion Hospital's emergency room complaining of shortness of breath. In the emergency room, the decedent was treated by Clark. After his discharge, the decedent collapsed at home and died. Maze alleged that Clark negligently failed to properly test or diagnose the decedent or consult with the attending emergency room physician. Count IV alleged that Clark was an apparent employee or agent of Marion Hospital and that the decedent acted in a manner of trust and reliance on Clark's apparent status as an agent of Marion Hospital. Count V alleged direct negligence on the part of Marion Hospital, stating that Marion Hospital failed to note vital signs, failed to communicate accurate discharge vital signs, and failed to orient Clark to proper protocol. On April 18, 2006, Maze and Marion Hospital submitted a "Full and Final Release of Marion Hospital Corporation d/b/a Heartland Regional Medical Center." The release

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addressed Marion Hospital's "liability as a result of its own direct negligence and as a result of vicarious liability as principal of the apparent agent, Jenice Clark, PA-C." The release stated that $180,000 had been offered to Maze in full and final settlement of any and all claims against Marion Hospital for alleged direct negligence and alleged vicarious liability, but it specifically acknowledged that the release did not operate as a settlement of Maze's direct negligence claim against Clark. The release stated as follows: "The undersigned and Releasees specifically agree and acknowledge that onehalf (

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