Brown v. Mercy Hospital and Medical Center , 2021 IL App (1st) 200834-U ( 2021 )

2021 IL App (1st) 200834-USECOND DIVISION
December 14, 2021
No. 1-20-0834
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
TRACEY W. BROWN, Special Administrator of ) Appeal from the Circuit Court
the Estate of Theresa T. Jeffries, Deceased,
) of Cook County.
)
Plaintiff-Appellant, )
)
v. ) No. 2018 L 4660
)
MERCY HOSPITAL AND MEDICAL CENTER, )
an Illinois Corporation, )
)
Defendant-Appellee )
)
(Amit Kumar, M.D., and Paul Jones, M.D., ) The Honorable
) Kathy M. Flanagan,
Defendants). ) Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the
court.
Justices Howse and Cobbs concurred in the judgment.
ORDER
HELD: Trial court’s grant of summary judgment in favor of defendant hospital
with respect to claim of apparent agency was proper where, based on the signed consent
No. 1-20-0834
form and accompanying considerations, plaintiff was unable to meet the legal elements of
such a claim.
¶1 Plaintiff-appellant Tracey W. Brown, special administrator of the estate of Theresa T.
Jeffries, deceased (plaintiff) brought suit against defendant-appellee Mercy Hospital and
Medical Center, an Illinois corporation (defendant), and Drs. Amit Kumar and Paul Jones (as
named) 1 sounding in medical malpractice based on the theories of actual and apparent
agency. Following discovery, defendant moved for summary judgment and the trial court
granted its motion. Plaintiff appeals, contending that the trial court erred in granting
summary judgment in defendant’s favor because a genuine issue of material fact remains
with respect to the issue of apparent agency. She asks that we reverse the trial court’s
decision and remand with directions that the matter proceed to trial on that issue. For the
following reasons, we affirm.
¶2 BACKGROUND
¶3 The following facts are taken from the record and are undisputed by the parties.
¶4 On August 21, 2017, decedent went to defendant’s cardiac unit where she underwent a
catheterization procedure in the unit’s lab. Dr. Jones ordered a cardiac catheterization and
Dr. Kumar performed it. Decedent died during the procedure.
¶5 Plaintiff, decedent’s daughter, filed suit alleging medical malpractice in connection with
the care provided to decedent by defendant and Drs. Jones and Kumar. She asserted that Drs.
1
Drs. Kumar and Jones are not parties to this appeal.
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No. 1-20-0834
Jones and Kumar negligently recommended and performed the procedure, and she sought to
hold defendant vicariously liable for their conduct based on both actual and apparent agency.
¶6 In his deposition, Dr. Kumar, a board-certified cardiologist, testified that he was not, nor
had ever been, an employee of defendant. He stated that, instead, he was employed by
Chicago Heart and Vascular Consultants (CHVC), a practice group separate and distinct
from defendant that merely provided cardiology services at the hospital. CHVC maintains an
office on defendant’s twelfth floor. Dr. Kumar noted that, on the day in question, he wore a
lab coat and badge with his name as well as defendant’s name, and that these did not bear
CHVC’s name. He also testified that he met decedent for the first time in defendant’s lab on
the day of the procedure and that he did not discuss his employment status with her.
¶7 In his deposition, Dr. Jones, a board-certified cardiologist, testified that he was not an
employee of defendant but, rather, he was employed by, and was president of, the CHVC
practice group. 2 He ordered the cardiac catheterization procedure for decedent, as he was
operating as the lab’s medical director that day. Dr. Jones may have worn a lab coat and
name badge with defendant’s name on it, similar to what Dr. Kumar was wearing that day.
¶8 Decedent signed defendant’s consent form on August 16, 2017, at the outset of her
hospital admission that led to the procedure at issue. 3 She also signed four consent forms in
the months leading up to this admission, when she had visited defendant hospital on April 12,
2
Plaintiff notes in the fact section of her brief on appeal that in his deposition, Dr. Jones stated he, at some point,
held administrative positions at defendant hospital, which included medical director of cardiovascular services. To
the extent that this might go to actual agency, as we note below herein, the trial court granted summary judgment in
favor of defendant on that issue and plaintiff has chosen not to appeal that portion of its decision.
3
The cardiac catheterization procedure took place five days later, as noted, on August 21.
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No. 1-20-0834
May 23, July 26, and August 10, 2017.4 All five of the consent forms, signed by decedent,
are identical. On the first page, they state, in relevant part:
“2. PHYSICIAN SERVICES: I understand and agree that [defendant] does not
control or direct my physicians’ independent medical judgement regarding the care
and treatment of me. I understand that my physicians who provide services to me at
[defendant] may not be employed or paid by [defendant]. Non-employed,
independent medical contractors include, emergency department physicians,
anesthesiologists, radiologists, pathologists, hospitalists, on-call and consulting
physicians, surgeons, specialists, obstetricians/nurse midwifes, gynecologists,
pediatricians, neonatologists, cardiologists, other specialists and allied health
providers working with these physicians. They have been permitted to use the
hospital’s facilities and have chosen our facilities as the place they wish to treat and
care for their private patients.
My decision to seek care from [defendant] is not based upon any
understanding or representation or advertisement that the physicians who will
be treating me are employees or agents of the hospital. If I wish to know if my
physician is employed by the hospital, I will ask the physician. I have a right to
select my own physician and the right to change any of my physicians at any
time.” (Emphasis in original.)
Immediately following these paragraphs, a line for initials appears next to this statement:
4
None of these instances are relevant to the events herein, other than, for purposes of this cause, to demonstrate that
decedent had previously and recently signed the same consent form.
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No. 1-20-0834
“__________ (Initial) I acknowledge and understand that the hospital uses
independent medical contractors to provide various services as described above.”
Decedent’s initials appear in the space cited on the first page of each of the five consent
forms, along with her full signature, date and time signed on the last page of each of the five
forms. 5
¶9 Following discovery, defendant moved for summary judgment on both plaintiff’s actual
agency claim and her apparent agency claim. First, with respect to the actual agency claim,
defendant argued that it did not employ either Dr. Kumar or Dr. Jones. Second, with respect
to the apparent agency claim, defendant argued that it had not “held out” either doctor as its
agent and there was no evidence that decedent relied on an appearance of agency between it
and the doctors. Defendant also cited the five consent forms signed by decedent, which it
argued showed her understanding that Drs. Kumar and Jones were only consulting physicians
and, pursuant to the consent forms’ language, that consulting physicians are not its agents.
¶ 10 In response to defendant’s motion, plaintiff conceded that neither Dr. Kumar nor Dr.
Jones were actual agents or employees of defendant. However, with respect to apparent
agency, plaintiff insisted that the facts did not show decedent had reason to know the doctors
were not employees or agents of defendant. She also argued that decedent did not read or
understand the consent forms and that the forms were ambiguous, as they contained language
in section 2 stating that doctors simply “may not be employed” by defendant.
5
At her deposition, plaintiff confirmed that her mother initialed and signed all five consent forms; there is no
dispute that what appears in the record are decedent’s initials and signatures.
5
No. 1-20-0834
¶ 11 In a Memorandum Opinion and Order, the trial court granted defendant’s motion for
summary judgment. First, the court made clear that plaintiff conceded there was no actual
agency, so that portion of her claim was terminated.
¶ 12 The court next turned to the elements required to prove apparent agency. After
discussing these, it noted that a signed consent form which contains clear and unambiguous
language is an important factor in determining vicarious liability related to hospitals. With
respect to the instant cause, the court found that the consent form decedent here signed at the
outset of her hospitalization leading to the procedure at issue, along with the four identical
ones she signed only months before, were unambiguous. It acknowledged plaintiff’s claim
that the forms contain language which states that physicians who provide services at the
hospital “may not be employed” by defendant, but the court made clear that the remainder of
the section states that “non-employed, independent contractors include consulting physicians
and cardiologists,” and that Drs. Jones and Kumar were, indeed, both consulting physicians
and cardiologists. Additionally, the court noted the second paragraph of section 2 of the
consent forms which states that the patient’s “decision to seek care” from defendant “is not
based upon any understanding or representation or advertisement that the physicians
who will be treating [her] are employees or agents of the hospital.” (Emphasis in
original.) Together, the court found that these statements in the consent form, along with the
bold-face type, the fact that the portion about seeking care is set apart from the other text, and
that decedent’s initials abutted the acknowledgement that defendant uses independent
physicians, all made the form clear and unambiguous, thereby defeating plaintiff’s claim of
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No. 1-20-0834
holding out. The court explicitly concluded that there is “nothing confusing or
contradictory” about the disclaimers set out in the consent form.
¶ 13 The court then went on to address plaintiff’s claims that decedent may not have read or
understood the form. The court found that, first, plaintiff did not dispute that decedent signed
it and, second, regardless of this, there was no evidence to show that defendant acted in a
manner which would lead a reasonable person to conclude that Drs. Jones and Kumar were
its employees or agents, or that defendant knew or acquiesced in any of their actions. The
court further found that, even if a question of fact could be raised as to reliance on the part of
decedent, there was no evidence of such in the record and, with a clear showing that there
was no holding out, such a claim could not stand. Accordingly, with the concession of no
actual agency, the court found for defendant with respect to plaintiff’s claim of apparent
authority and granted summary judgment it its favor.
¶ 14 ANALYSIS
¶ 15 Plaintiff’s sole contention on appeal is that the trial court erred in granting summary
judgment in favor of defendant. She insists that the facts in the record, and particularly, the
consent form at issue, create a triable issue of fact with respect to apparent agency.
Principally, she claims that the phrase “may not be” employees or agents of the hospital as
found in the second sentence of the first paragraph of section 2 of the consent form, as
opposed to more restrictive language such as “are not,” makes that section unclear and
ambiguous as to whether defendant held out Drs. Kumar and Jones as its agents. She further
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No. 1-20-0834
claims that, because the consent form does not leave “zero doubt as to this issue,” reversal is
required. We disagree.
¶ 16 The law with respect to summary judgment and the doctrine of apparent authority when it
comes to the question of a hospital’s liability for the alleged negligent acts of a physician
providing care at that hospital are well established.
¶ 17 First, summary judgment is proper when the pleadings, affidavits, depositions and
admissions of record, construed strictly against the moving party, show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter
of law. See Morris v. Margulis, 197 Ill. 2d 28, 35 (2001); accord Purtill v. Hess, 111 Ill. 2d
229 (1986); Zakoff v. Chicago Transit Authority, 336 Ill. App. 3d 415, 20 (2002). While this
relief has been called a “drastic measure,” it is an appropriate tool to employ in the
expeditious disposition of a lawsuit in which “ ‘the right of the moving party is clear and free
from doubt.’ ” Morris, 197 Ill. 2d at 35, quoting Purtill, 111 Ill. 2d at 240. Moreover, while
a plaintiff need not prove her entire cause during summary judgment, she must present some
evidentiary facts to support the elements of her cause of action. See Wallace v. Alexian Bros.
Medical Center, 389 Ill. App. 1081, 1085 (2009), citing Bellerive v. Hilton Hotels Corp., 245
Ill. App. 3d 933, 936 (1993). If the plaintiff fails to establish even one element of the cause
of action, summary judgment in favor of the defendant is wholly proper. See Bagent v.
Blessing Care Corp., 224 Ill. 2d 154, 163 (2007). Appellate review of a trial court’s grant of
summary judgment is de novo (see Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 370
(2007); accord Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102
8
No. 1-20-0834
(1992); Zakoff, 336 Ill. App. 3d at 420), and reversal will occur only if we find that a genuine
issue of material fact exists (see Addison v. Whittenberg, 124 Ill. 2d 287, 294 (1988)). See
also Wallace, 389 Ill. App. 3d at 1085.
¶ 18 Next, when it comes to the doctrine of apparent authority, we note that, ordinarily,
whether such an agency relationship exists is a question of fact. See Stewart v. Jones, 318
Ill. App. 3d 552, 560-61 (2001). However, when only one conclusion can be drawn from
undisputed facts presented, a court may properly decide this question as a matter of law,
pursuant to the principles of summary judgment just discussed. See James v. Ingalls
Memorial Hospital, 299 Ill. App. 3d 627, 632 (1998).
¶ 19 The doctrine of apparent authority, as related to medical negligence, states that a hospital
can be held vicariously liable for the negligent acts of a physician providing care at that
hospital, regardless of whether the physician is an independent contractor. See Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511, 524 (1993). However, it is undisputed that
the burden rests with the party asserting the existence of apparent authority to both plead and
prove the required legal elements of this cause of action, of which there are three. See
Wallace, 389 Ill. App. 3d at 1086; accord see also Buckholtz v. MacNeal Hospital, 337 Ill.
App. 3d 163, 172 (2003) (“burden of proving the existence of an agency relationship is on
the party seeking to charge the alleged principal”). These elements are:
“ ‘(1) the hospital, or its 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
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No. 1-20-0834
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, 156 Ill.
2d at 525, quoting Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188, 207-08
(1988).
Accord York v. Rush -Presbyterian—St. Luke’s Medical Center, 222 Ill. 2d 147, 193 (2006)
(reaffirming Gilbert’s “analytical framework” regarding apparent agency claims against
hospitals). Again, although a plaintiff is not required to prove her entire case at the summary
judgment stage, she is still required to present at least a factual basis that would arguably
entitle her to judgment in her favor. See Wallace, 389 Ill. App. 3d at 1086. “This includes
all three elements” of an apparent agency hospital claim just described, and the failure to
prove even one of them renders summary judgment in favor of the hospital proper. Wallace,
389 Ill. App. 3d at 1086, citing Bagent, 224 Ill. 2d at 163, and Bellerive, 245 Ill. App. 3d at
936.
¶ 20 Based on the record before us, we find that plaintiff here did not satisfy all the
requirements of an apparent agency claim and, therefore, the trial court’s grant of summary
judgment in favor of defendant was wholly proper.
¶ 21 With respect to the first two elements at issue, known together as the “holding out”
component of apparent authority, plaintiff was required to present some evidence that
defendant’s or Drs. Kumar and Jones’ actions created the appearance of authority and that
defendant had knowledge of or acquiesced in these. See Wallace, 389 Ill. App. 3d at 1086-
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No. 1-20-0834
87; James, 299 Ill. App. 3d 627 (1998). However, the law is clear that, if decedent knew or
should have known that Drs. Kumar and Jones were independent contractors, then defendant
cannot be held vicariously liable. See Gilbert, 156 Ill. 2d at 522 (“[i]f a patient knows, or
should have known, that the treating physician is an independent contractor, then the hospital
will not be liable”). Therefore, if decedent was placed on notice of the independent
contractor status of these doctors, “it would be unreasonable” for her to assume that they
were employed by defendant and, thus, she (and plaintiff here) could not sustain an apparent
agency claim against defendant. York, 222 Ill. 2d at 202 (“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”).
¶ 22 This brings us to an examination of patient consent forms and notice, which is the crux of
the instant appeal.
¶ 23 While plaintiff is correct that hospital consent forms containing independent contractor
disclaimers are not always dipositive on the issue of “holding out,” they certainly are very
critical in an examination of notice and what a patient knew with respect to the treating
physicians’ employment status. See Wallace, 389 Ill. App. 3d at 1087, citing James, 299 Ill.
App. 3d at 633. “[W]hether a patient signs a hospital consent to treatment form that contains
clear and unambiguous independent contractor disclaimer language is an important factor to
consider *** because it is unlikely that a patient who signs such a form can reasonably
believe that her treating physician is an employee or agent of a hospital when the form
contains specific language to the contrary.” Lamb-Rosenfeldt v. Burke Medical Group, Ltd.,
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No. 1-20-0834
2012 IL App (1st) 101558, ¶ 26. Thus, with the existence in evidence of a signed treatment
consent form which expressly provides that the physicians on staff at the hospital are not
employees or agents of the hospital, it becomes incredibly difficult for a plaintiff to prove the
holding out element of apparent agency. See James, 299 Ill. App. 3d at 633. As our state
supreme court has declared, if “the patient is in some manner put on notice of the
independent status of the professionals with who [s]he might be expected to come into
contact[,]” the hospital cannot be held vicariously liable. York, 222 Ill. 2d at 182.
¶ 24 In the instant cause, there two important facts that are undisputed. First, Drs. Kumar and
Jones are both physicians who consulted on decedent’s care and, more specifically, are
cardiologists; plaintiff was admitted into defendant hospital and underwent a cardiological
procedure which was performed by them in defendant’s cardiac unit lab. Second, decedent
signed defendant’s patient consent form prior to the procedure.
¶ 25 What is disputed by the parties is the clarity of section 2 of the consent form. That
section, which appears on the first page of the form and is the only that deals with physician
treatment of patients, states, again, in toto:
“2. PHYSICIAN SERVICES: I understand and agree that [defendant] does not
control or direct my physicians’ independent medical judgement regarding the care
and treatment of me. I understand that my physicians who provide services to me at
[defendant] may not be employed or paid by [defendant]. Non-employed,
independent medical contractors include, emergency department physicians,
anesthesiologists, radiologists, pathologists, hospitalists, on-call and consulting
12
No. 1-20-0834
physicians, surgeons, specialists, obstetricians/nurse midwifes, gynecologists,
pediatricians, neonatologists, cardiologists, other specialists and allied health
providers working with these physicians. They have been permitted to use the
hospital’s facilities and have chosen our facilities as the place they wish to treat and
care for their private patients.
My decision to seek care from [defendant] is not based upon any
understanding or representation or advertisement that the physicians who will
be treating me are employees or agents of the hospital. If I wish to know if my
physician is employed by the hospital, I will ask the physician. I have a right to
select my own physician and the right to change any of my physicians at any
time.” (Emphasis in original.)
At the end of the section, a line for initials appears next to the following statement:
“______________ (Initial) I acknowledge and understand that the hospital uses
independent medical contractors to provide various services as described above.”
In addition to, again, her signature, date and time on the last page of the consent form,
plaintiff’s initials appear at the end of section 2 in the space provided, as just described. And,
again, the record is clear that decedent signed this same consent form in the same manner—
full signature, date and time on the last page and initials in the space provided at the end of
section 2 on the first page—on four other occasions during which she sought treatment at
defendant hospital. All of these occasions were within four months of signing the fifth (and
identical) form involved in the instant appeal, with the fourth one only six days prior.
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No. 1-20-0834
¶ 26 Plaintiff insists that section 2 is unclear and ambiguous. She focuses her argument on the
four-word phrase in the second sentence of the section’s first paragraph that says physicians
who provide services “may not be employed” by defendant. Relying on Schroeder v.
Northwest Community Hospital, 371 Ill. App. 3d 584 (2006), and Spiegelman v. Victory
Memorial Hospital, 392 Ill. App. 3d 826 (2009), wherein reviewing courts determined the
consent forms at issue to be ambiguous, she claims that, because the phrase cited does not
unequivocally “eliminate all possibility” that Drs. Kumar and Jones were employees or
agents of defendant, a question of fact as to defendant’s vicarious liability exists. Defendant,
meanwhile, urges that, when section 2 is read in its entirety, it inherently and clearly notified
decedent that Drs. Kumar and Jones were independent contractors. Relying on Frezados v.
Ingalls Memorial Hospital, 2013 IL App (1st) 121835, and Mizyed v. Palos Community
Hospital, 2016 IL App (1st) 142790, wherein reviewing courts determined the consent forms
at issue to be clear, defendant claims that section 2 is unambiguous in that Drs. Kumar and
Jones were not its apparent agents, leaving no material question of fact.
¶ 27 Based on our review of the record and case law, we find that defendant is correct.
¶ 28 The cases cited by the parties have been discussed by our reviewing courts repeatedly,
with Schroeder and Spiegelman at one end of the consent form language clarity spectrum and
Frezados and Mizyed at the other. In Schroeder, 371 Ill. App. 3d at 587, the patient-decedent
and/or his wife had signed the same multi-section hospital consent form on three occasions.
In one section, the hospital disavowed any apparent agency relationship with the phrase
“[y]our care will be managed by your personal physician or other physicians who are not
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No. 1-20-0834
employed by [the hospital],” but that phrase was immediately followed by the statement that
the physician’s care “is supported by a variety of individuals employed by [the hospital],”
and soon thereafter stated that “[y]our physician may also decide to call in consultants ***
[who] are not employed by [the hospital].” Schroeder, 371 Ill. App. 3d at 587. In
maintaining that the trial court’s grant of summary judgment in favor of the hospital was
inappropriate, the plaintiff argued that this language made the form confusing as to whether
the doctors who would be caring for the decedent were or were not hospital employees. See
Schroeder, 371 Ill. App. 3d at 589. The reviewing court agreed, finding that the differing
language about which physicians were employed by the hospital was confusing and
misleading and, thus, reversed summary judgment. See Schroeder, 371 Ill. App. 3d at 589.
¶ 29 Likewise, in Spiegelman, 392 Ill. App. 3d at 829, the plaintiff signed a nine-paragraph
consent form wherein the third paragraph stated, “I am aware that during my visit ***,
hospital employees will attend to my medical needs as may be necessary,” but the fourth
paragraph stated, “I understand that the Emergency Department physician and my attending
physician are independent contractors.” Spiegelman, 392 Ill. App. 3d at 829. Upon
examination of this language, the reviewing court upheld a jury verdict in favor of the
plaintiff and against the defendant hospital, finding that the two paragraphs made the consent
form ambiguous and confusing as to which doctors were employees of the hospital and
which were independent contractors. See Spiegelman, 392 Ill. App. 3d at 837.
¶ 30 At the other end of the spectrum lie Frezados and Mizyed. In Frezados, 2013 IL App
(1st) 121835, ¶ 5, the plaintiff signed a consent form which stated that “physicians providing
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No. 1-20-0834
services to me ***, such as my personal physician, Emergency Department and Urgent Aid
physicians, radiologist, pathologists, anesthesiologists, on-call physicians, consulting
physicians, surgeons, and allied health care providers working with those physicians are not
employees, agents or apparent agents of [the defendant hospital] but are independent medical
practitioners” for which he would be billed separately; signs were also posted throughout the
hospital to the same effect. The reviewing court there found the form to be not at all
comparable to those in Schroeder and Spiegelman, as it was clear and concise that none of
the physicians at the defendant hospital were its employees, agents, or apparent agents, but
only independent contractors. See Frezados, 2013 IL App (1st) 121835, ¶ 21 (distinguishing
Schroeder and Spiegelman). There were no other paragraphs or phrases that provided an
exception to this or that contradicted the cited language in any way and, thus, as the plaintiff
could not raise a factual question as to the holding out element, summary judgment in favor
of the defendant hospital was proper. See Frezados, 2013 IL App (1st) 121835, ¶¶ 22, 25.
¶ 31 Similarly, in Mizyed, 2016 IL App (1st) 142790, ¶ 15, perhaps the clearest case of all, the
plaintiff-patient signed a consent form which stated, in bold print: “all physicians providing
services to me, including emergency room physicians, radiologists, pathologists,
anesthesiologists, my attending physician and physician consultants, are independent medical
staff physicians and not employees or agents of [the defendant hospital].” (Emphasis
omitted.) The plaintiff signed this same form some five different times. In reviewing this
language, the court noted that while the form had a multipart format with various provisions
like those in Schroeder and Spiegelman, this did not undermine the language used therein.
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No. 1-20-0834
Instead, the court found that the form signed by the plaintiff was explicit that “all physicians
providing services” to him were independent contractors, and there was nothing else in the
form that dealt with physician services so as to create any ambiguity with respect to the clear
disavowal of any apparent agency by the defendant-hospital. See Mizyed, 2016 IL App (1st)
142790, ¶¶ 60-62. See also Delegatto v. Advocate Health and Hospitals, 2021 IL App (1st)
200484, ¶¶ 9, 61 (summary judgment in favor of hospital affirmed where consent form
clearly and unambiguously resolved any question of apparent agency with the following
language: “ ‘I understand that all physicians *** furnishing services to me *** are
independent contractors and are not employees or agents of the hospital’ ” (emphasis
omitted)).
¶ 32 In our view, while the instant cause lies somewhere in between Schroeder/Spiegelman
and Frezados/Mizyed, we conclude that it stands much closer to the latter than the former.
¶ 33 Plaintiff is correct that section 2 of the consent form here does contain the phrase “may
not be employed” which, admittedly, is permissively exclusive as opposed to, for example,
language containing the phrase “are not employed,” which would be clearer, more direct and,
perhaps, more practicable. If such language had been used, we, most likely, would not be
here. And, of course, as much as the law prefers the clearest of phrases and terminology, we
cannot rewrite this consent form. But, far from plaintiff’s contention that the phrase used
“frankly says nothing,” we find that there is, instead, much language here that inherently put
decedent on notice that Drs. Kumar and Jones were not employees or agents of defendant.
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No. 1-20-0834
¶ 34 Primarily, we cannot, as plaintiff would have us, isolate our reading of the section to
solely the four words she cites in the second sentence of that first paragraph. Parsing out a
paragraph, or even a document, for that matter, in such a manner is a dangerous precedent
and in direct contrast to our legal principles that contracts and documents should be read as a
whole. We cannot approach our review in such a piecemeal fashion. Accordingly, once we
do look at section 2 as a whole, it becomes clear that this consent form is more like those
found in the Frezados/Mizyed line of case law.
¶ 35 Immediately after the phrase plaintiff cites, the next sentence begins by introducing who
defendant’s “[n]on-employed, independent medical contractors” are. It then provides an
itemized list and states, precisely, that this group consists of “emergency department
physicians, anesthesiologists, radiologists, pathologists, hospitalists, on-call and consulting
physicians, surgeons, specialists, obstetricians/nurse midwifes, gynecologists, pediatricians,
neonatologist, cardiologists, and other specialists and allied health providers working with
these physicians.” (Emphasis added.) As we have discussed, Drs. Kumar and Jones were
consulting physicians, namely, following decedent’s admission to defendant hospital on
August 16, 2017, consultation with doctors was had and it was recommended at some point
during her stay that she undergo a procedure in the cardiac lab, which took place five days
later, on August 21, 2017, a day when Drs. Kumar and Jones were working there. Moreover,
and unmistakably, Drs. Kumar and Jones were cardiologists and, as such, specialists. All of
these groups—“consulting physicians,” “specialists” and “cardiologists”—are specifically
identified in section 2 of the consent form as “[n]on-employed, independent medical
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No. 1-20-0834
contractors.” They are not, and cannot be, considered tied to the sentence before this, on
which plaintiff relies, which simply states that “my physicians who provide services to me at
[defendant hospital] may not be employed” by it. Yes, considering such language, “my
physicians who provide services to me” are physician who may be employed, but just as
equally, the possibility is that they may not be; this, by certain standards, may be considered
ambiguous. However, from that general language, the consent form moves immediately into
specificity in the very next sentence. With that specificity, the form clearly forecloses any
possibility of employment by defendant of Drs. Kumar and Jones. They are set apart from
any potential permissive exclusivity by the form’s statement that they, distinctly, as
“consulting physicians” and/or “specialists” and/or “cardiologists,” are, without a doubt,
“[n]on-employed, independent medical contractors.” The consent form’s specific reference
to the subgroups listed, to which Drs. Kumar and Jones undeniably belong (in any one of
three ways), erases any internal inconsistency, should any exist, between the general phrase
“may not be employed” as cited by plaintiff that begins section 2 and the very specific and
itemized list of independent contractors who, definitively, are not employed, as explained in
the remainder of that section.
¶ 36 In addition, there are several other considerable factors with respect to the instant consent
form that further support our conclusion. In examining these, we take a page directly from a
most recent (and very similar) decision regarding vicarious liability and consent form clarity
issued by our very Court, cited earlier herein: Delegatto. There, we obviously first examined
the consent form language cited by the parties. Very helpful to the defendant hospital, and
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quite determinative of our decision to affirm summary judgment in its favor, was that the
paragraph at issue contained the very explicit and clear phrase, “all physicians *** furnishing
services to me *** are independent contractors and are not employees or agents.” See
Delegatto, 2021 IL App (1st) 200484, ¶¶ 36- 37. We held that “all physicians” meant just
that: the broad category of every physician who provided treatment to the decedent-patient
while she was at defendant hospital, which included the physician at issue (a surgeon), the
physician assistant, and a practice group. See Delegatto, 2021 IL App (1st) 200484, ¶ 37
(upholding summary judgment in favor of the defendant hospital based on clarity of consent
form language which could only mean no physician was excluded from its non-agency
provision); accord Mizyed, 2016 IL App (1st) 142790, ¶¶ 60-62; Prutton v. Baumgart, 2020
IL App (2d) 190346, ¶ 54 (same, also using language “all physicians” as being independent
contractors).
¶ 37 However, instead of stopping there, we went on to examine other factors surrounding the
consent form, as well—factors that further supported our conclusion regarding the clarity of
non-agency. For example, we noted that the phrase at issue which contained the words “all
physicians” also contained a specific reference to subgroups of physicians. That is, the
complete phrase read, “ ‘all physicians, nurse practitioners and physician assistants
furnishing services to me, including emergency department, radiologists, anesthesiologists,
pathologists, and the like, are independent contractors and are not employees or agents of the
hospital.’ ” (Emphasis omitted.) Delegatto, 2021 IL App (1st) 200484, ¶ 9. The plaintiff
insisted that, because the physician at issue was a surgeon and surgeons were not mentioned
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in this subgroup, he was not covered by the agency disclaimer in the consent form and the
language “and the like” was otherwise confusing. In direct contradistinction, we held this
was precisely incorrect. Rather, we found that, as the physician at issue was a surgeon, and
as all medically trained surgeons are physicians, the term “all physicians” included the
surgeon, even though the subcategory “surgeons” was not specifically included. See
Delegatto, 2021 IL App (1st) 200484, ¶ 37. In so doing, we further noted that consent forms
with separate groupings are becoming increasingly common and create no internal
inconsistency with the term “physicians;” in fact, “express reference to these particular
medical practitioners does no more than clarify the independent contractor status of these
subgroups,” thereby reinforcing and emphasizing their non-agency. Delegatto, 2021 IL App
(1st) 200484, ¶¶ 38-41. Moreover, other factors within the consent form we considered
included its format (though it had multiple parts, all of the text regarding independent
contractors and employees appeared in one paragraph only); the fact that the decedent had
signed the same consent form on three separate occasions (all of which indicated her
satisfaction in understanding the consent and its significance); and the fact that, in addition to
a full signature at the end of the form, there was a spot for initials just to the right of the
employer-agency disclaimer cited, which decedent had initialed. See Delegatto, 2021 IL
App (1st) 200484, ¶¶ 43-45. With all these considerations, we concluded that any argument
that the consent form was inadequate because it could have included more specificity could
not stand. See Delegatto, 2021 IL App (1st) 200484, ¶¶ 46-47 (there is no ambiguity, and no
agency relationship, when “[i]t is sufficient that the consent form set forth the relationship
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between the physician and the hospital with enough clarity that the consenting patient is on
notice”).
¶ 38 As in Delegatto, when we further examine other considerations surrounding the consent
form at issue, we, too, find that plaintiff’s similar proposition cannot stand. For example,
first, while the form here is broken up into different paragraphs, there are no conflicting
paragraphs regarding employees and independent contractors. Just like the form in
Delegatto, and in contrast to that in Spiegelman, all the text discussing independent
contractor and employee status of physicians appears only in section 2. There are no other
paragraphs anywhere in the form that could create an ambiguity. Also, as in Delegatto and
unlike Spiegelman, decedent here was presented with and signed the same identical consent
form multiple times. In fact, decedent signed the form on five separate occasions, all within
four months of the one at issue. On all these occasions, she completed the form fully: her full
signature, the date and the time appear on the last page and her initials appear on the line
provided for them at the end of section 2 on the first page.
¶ 39 Moreover, and of significant import, is that initials line itself. Very similar to Delegatto,
the text that accompanies that line states, “I acknowledge and understand that the hospital
uses independent medical contractors to provide the various services described above.” It
appears immediately after the conclusion of section 2 regarding physician services, and it is
in the middle of the first page of the form. Out of all the other sections and paragraphs in this
consent form, there is no other, regarding any other topic, that requires the patient to initial
it—only this section and only this topic identifying the independent contractor status of the
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physicians at defendant hospital. Accordingly, even though the full signature line appears at
the end of the form, this space, provided immediately under section 2 and following the
specific employer-agency disclaimer for consulting physicians, specialists and cardiologists,
further supports the conclusion that this form provided proper notice of non-agency with
respect to Drs. Kumar and Jones.
¶ 40 In addition, and moving beyond even Delegatto, there is a further provision in section 2
that plaintiff here fails to discuss at all. That text, set off from the rest of section 2 in its own
separate paragraph and appearing in bold face type right in the middle between the opening
paragraph of section 2 (which contains the list of non-employed physician-types) and the
disclaimer followed by the initials line that ends the section, states that decedent’s decision to
undergo the procedure at issue at defendant hospital was “not based upon any
understanding or representation or advertisement that the physicians who will be
treating [her] are employees or agents of” defendant (emphasis in original). This
paragraph continues by informing her that if she wishes to know if any physician she
encounters there is so employed, she is to “ask the physician” personally and has “the
right” thereafter to “select her own” or “change” physicians “at any time” following their
answer (emphasis in original). With this bold-faced paragraph, the consent form expressly
placed the burden on decedent to ask Drs. Kumar and Jones if she had any question with
respect to their employment status. The evidence before us consists of Dr. Kumar’s specific
testimony that he never discussed his employment status with decedent, and plaintiff has not
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provided any evidence that decedent otherwise asked either doctor regarding their
employment.
¶ 41 With all these considerations surrounding the form at issue, and with her signature and
initials (on multiple occasions), decedent acknowledged that she was satisfied that she
understood the content and significance of this consent form. See also Prutton, 2020 IL App
(2d) 190346, ¶ 52 (examining, as did Delegatto, factors in the consent form other than just
the language used, including length of form, boldness of type, requirement of initials after
certain paragraphs, use of bullet points, and placement of patient’s signature, and ultimately
finding that all these combined to support conclusion that consent form was not ambiguous
or confusing with respect to the lack of agency between physician and defendant hospital).
¶ 42 Ultimately, we are not persuaded by plaintiff’s argument that the consent form was
inadequate because it does not unequivocally “eliminate all possibility” that Drs. Kumar or
Jones were employees or agents of defendant. As plaintiff puts it, she believes that, in order
for a consent form to break any appearance of agency, it must “leave zero doubt” as to the
issue and anything short of this requires that a cause proceed to a jury trial. That is simply
not the law. Yes, and again in viewing the spectrum, a consent form with language such as
“all physicians who provide treatment are not employees of the hospital” would obviously
break any appearance of agency and, in plaintiff’s words, leave zero doubt of employment
status. This, essentially, was the language used in Mizyed and some of the other cases we
have cited herein. See Mizyed, 2016 IL App (1st) 142790, ¶ 59 (finding there could be no
apparent agency with the phrase “all physicians providing service to me *** are independent
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No. 1-20-0834
medical staff physicians and hot employees or agents of [the defendant hospital]”); see also,
e.g., Delegatto, 2016 IL App (1st) 200484; Gore v. Provena Hospital, 2015 IL App (3d)
130446 (consent form with phrase “all doctors furnishing service to me” clearly absolved
hospital of any apparent agency); Prutton, 2020 IL App (2d) 190346, ¶ 52. However, our
Court has been presented with many cases in which a consent form falls somewhat short of
explicit “all-physician” language but, nonetheless, has found the language used to still be
clear that there is no apparent agency. See, e.g., Lamb-Rosenfeldt, 2012 IL App (1st)
101558, ¶ 28 (affirming summary judgement where form stated, in part, “physicians are not
employees of the medical center”); Wallace, 389 Ill. App. 3d at 1083 (summary judgment in
favor of hospital proper where consent form stated, “I understand that physicians who
provide professional services to me *** are not employees or agents of [the hospital], but are
independent contractors”); Churkey v. Rustia, 329 Ill. App. 3d 239, 241 (2002) (affirming
summary judgment where consent form stated that hospital “ ‘uses independently contracted
physicians’ ”); James, 299 Ill. App. 3d at 629 (summary judgment in favor of hospital proper
where form stated, “ ‘the physicians on staff at this hospital are not employees or agents of
the hospital, but independent medical practitioners who have been permitted to use its
facilities’ ”).
¶ 43 Again, we are operating on a spectrum, one that, as we have noted, is to look at the
totality of the consent form—as a whole. While the phrase cited by plaintiff here that
physicians at defendant hospital who provide services “may not be employed” by defendant
does give us initial pause, the next immediate sentence specifying that consulting physicians,
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No. 1-20-0834
specialists and cardiologist—subgroups to which Drs. Kumar and Jones so obviously
belong—are, indeed, independent contractors, eliminates any assertion of ambiguity here.
This clear and specific language, combined with the stand-alone bold-face paragraph in the
middle of section 2, the initials-requiring text that concludes that section, and the fact that
only this paragraph in the entire form deals with physician services with no contradictory
phrase anywhere else in the document and is the only to require added initials, puts the
instant cause much closer on the spectrum to Mizyed and Frezados’ effective disclaimers of
apparent agency and much farther from Schroeder and Spiegelman’s confusing and
ambiguous provisions.
¶ 44 In sum, we find no ambiguity in the consent form at issue, and plaintiff has not succeeded
in citing any. In our view, the form, which plaintiff signed and initialed on more than one
occasion, was clear and unambiguous that consulting physicians, specialists and cardiologists
Drs. Kumar and Jones were not employees of defendant. Accordingly, plaintiff has failed to
satisfy the holding out component of her apparent agency claim and has not raised any
factual question in this regard. As such, we need not go further to analyze any other claims
made here. See Bagent, 224 Ill. 2d at 163 (“[if] the plaintiff fails to establish any element of
the cause of action, summary judgment for the defendant is proper”); accord Mizyed, 2016 IL
App (1st) 142790, ¶ 64, citing Churkey, 329 Ill. App. 3d at 245 (such finding requires no
further legal analysis); see also Delegatto, 2021 IL App (1sti) 200484, ¶ 47, citing Wallace,
389 Ill. App. 3d at 1085-86 (failure to satisfy the first element of an apparent agency claim,
namely, holding out, renders summary judgment appropriate and there is no need to address
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any other claims made by the plaintiff). Based on the record before us, we find that, as
plaintiff did not satisfy all the requirements of an apparent agency claim, defendant could not
be held vicariously liable; and, as she could not legally survive defendant’s motion for
summary judgment, we hold that summary judgment in favor of defendant was proper.
¶ 45 CONCLUSION
¶ 46 Accordingly, for all the foregoing reasons, we affirm the judgment of the trial court.
¶ 47 Affirmed.
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