Thede v. Kapsas ( 2008 )

No. 3--07--0757
Filed October 21, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
REBECCA THEDE, ) Appeal from the Circuit Court
) of the 14th Judicial Circuit,
Plaintiff-Appellant, ) Whiteside County, Illinois
)
v. ) No. 03--AR--16
)
HELEN KAPSAS, )
) Honorable Stanley B. Steines,
Defendant-Appellee. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
Plaintiff Rebecca Thede sued defendant Dr. Helen Kapsas for
medical malpractice. The trial court granted Kapsas summary
judgment on her affirmative defense that the suit was untimely.
Thede appeals. We affirm.
BACKGROUND
Rebecca Thede engaged the services of Dr. Helen Kapsas to
remove a mole from her shoulder. She became a patient of
Kapsas's, at the CGH Prophetstown Family Medical Center, after
the only previous doctor in Prophetstown and a second doctor in
Sterling left private practice. Thede had been to see Kapsas at
least five times before scheduling this surgery. She was aware
that the clinic was operated by Community General Hospital of
Sterling and that Kapsas had not independently billed her for
services on previous occasions.
Thede and Kapsas intended this particular procedure to be an
outpatient surgery conducted at the clinic. Kapsas gave Thede
the choice of having the surgery seated or lying down; Thede
chose to have the mole removed while seated. Kapsas administered
a local anesthetic and proceeded to operate on Thede. During the
surgery, Thede fainted and fell off the examination table,
striking her face on a chair, breaking her front teeth and
injuring her jaw and nose. Thede was then admitted to Community
General Hospital for treatment of her injuries.
One year and eleven months after Thede was injured, she sued
the hospital and Kapsas for malpractice. The complaint against
Kapsas alleged that she was a hospital employee.1 Kapsas
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We recognize that this original complaint was nullified
and withdrawn when Thede later filed her amended complaints
against Kapsas. Barnett v. Zion Park District, 171 Ill. 2d 378,
384, 665 N.E.2d 808, 811 (1996). However, the statements made in
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admitted this allegation. Within two months, Thede amended her
complaint for reasons unrelated to this appeal. She again
alleged Kapsas was an employee of Community General Hospital.
The hospital moved for dismissal, establishing that it is a
municipal corporation and personal injury suits against it were,
at the time, subject to a one-year limitations period. 745 ILCS
10/8--101 (West 1998). The hospital's motion for dismissal was
granted. Thede amended her complaint against Kapsas again, this
time alleging that Kapsas was a physician in private practice and
the applicable limitations period was two years.
Kapsas moved for summary judgment on the affirmative defense
that she was a hospital employee, the applicable limitations
period for her was also one year, and it had expired. The trial
court first denied summary judgment because the limitations
period for public employees accused of medical malpractice had
recently been changed from one year to two years, and there was
doubt about whether the old rule or the new rule applied. It was
the original and first amended complaints are relevant to our
analysis of Thede's prayer for equitable relief. Texas Eastern
Transmission Corp. v. McCrate, 76 Ill. App. 3d 828, 833, 395
N.E.2d 624, 628 (1979).
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later determined that the one-year rule would apply if Kapsas was
a hospital employee. Kapsas then asked the court to reconsider
summary judgment. The trial court refused a second time, this
time believing there was a genuine issue of material fact
regarding whether Kapsas was an independent contractor and not
protected by the one-year limitations period. Discovery was
ordered. At the close of discovery, Kapsas made a second motion
to reconsider summary judgment. The court granted summary
judgment, finding there was no genuine question of material fact
with respect to Kapsas's status as an employee of Community
General Hospital.
ANALYSIS
Thede makes two claims on appeal. First, that the trial
court erred in granting summary judgment because a genuine issue
of material fact still exists regarding Dr. Kaspas's employment
relationship with the hospital. Second, that the trial court
erred by not giving Thede equitable relief from the statute of
limitations.
We review trial court's decision to grant Kapsas's motion
for summary judgment de novo. Happel v. Wal-Mart Stores, Inc.,
199 Ill. 2d 179, 185, 766 N.E.2d 1118, 1123 (2002). We review
the trial court's decision to refuse equitable relief for the
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abuse of discretion. Babcock v. Martinez, 368 Ill. App. 3d 130,
142-43, 857 N.E.2d 911, 921 (2006).
I. Employment Relationship Between Defendant
and Community General Hospital
The trial court found that Thede offered no evidence
inconsistent with Kapsas's evidence establishing that she was an
employee of Community General Hospital. Thede contends that both
Kapsas's employment agreement and the universal consent form
Thede signed create a genuine issue of material fact as to
Thede's status as a hospital employee. We disagree.
Summary judgment is available to a defendant "if the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." 735 ILCS 5/2--1005(c) (West 2006).
Pleadings, depositions, admissions, and affidavits must be
construed strictly against the movant and in favor of the
opponent. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32,
43, 809 N.E.2d 1248, 1257 (2004).
In February 2001, when Thede was injured, personal injury
suits against municipal employees were subject to a one-year
limitations period. 745 ILCS 10/8--101 (West 2002).
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Accordingly, if Kapsas was an employee of Community General
Hospital, Thede's suit is time-barred. Tosado v. Miller, 188
Ill. 2d 186, 196, 720 N.E.2d 1075, 1081 (1999). If Kapsas was an
independent contractor, the one-year limitations period does not
apply. 745 ILCS 10/1--202 (West 2006).
The nature of the relationship between a principal and an
agent is a question of fact. Gilbert v. Sycamore Municipal
Hospital, 156 Ill. 2d 511, 524, 622 N.E.2d 788, 795 (1993).
Therefore, summary judgment would be inappropriate unless the
evidence documenting the relationship between Kapsas and
Community General Hospital is so clear as to be undisputed.
Scardina v. Alexian Brothers Medical Center, 308 Ill. App. 3d
359, 363, 719 N.E.2d 1150, 1153 (1999). See Adams v. Northern
Illinois Gas Co., 211 Ill. 2d at 43, 809 N.E.2d at 1257. Thede
could only rely upon her pleadings to create a question of
material fact until Kapsas supplied facts that clearly entitled
her to judgment as a matter of law. Williams v. Covenant Medical
Center, 316 Ill. App. 3d 682, 737 N.E.2d 662 (2000).
Kapsas produced a copy of her employment agreement with
Community General Hospital, as well as deposition testimony from
herself and representatives of the hospital. Thede claims a
genuine issue of material fact is created by a clause in Kapsas's
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employment agreement and language in a consent form Thede signed.
Thede asserts these items controvert Kapsas's evidence that
Community General Hospital had a right to control Kapsas's work
as a physician. See Wheaton v. Suwana, 355 Ill. App. 3d 506,
511-12, 823 N.E.2d 993, 997 (2005).
Whether a principal has a right to control the manner in
which an agent works is the most important of eight factors in
determining whether the agent is an employee or an independent
contractor. Warren v. Williams, 313 Ill. App. 3d 450, 730 N.E.2d
512 (2000). Wheaton, 355 Ill. App. 3d at 511, 823 N.E.2d at 997
(all eight factors). At issue is not whether the principal
exerts actual control, but whether the principal reserves the
right to control the agent. Gunterburg v. B & M Transportation
Co., 27 Ill. App. 3d 732, 738, 327 N.E.2d 528, 533 (1975).
First, Thede argues Community General Hospital has no right
to control Kapsas's work because the hospital bargained for the
following language assigning it any income Kapsas earned for
medically-related activities outside the scope of her employment
at the hospital:
"6. Outside Contract - Fees and Revenue belong to
CGH
Physician [Kaspas] shall not enter into any contract
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utilizing or altering any of CHG's assets, nor shall she
enter into any contract for the rendering of medical
services to any third party.
All fees, billing and revenue generated or
attributable to Physician's services in any way related
to the practice of medicine and/or surgery, whether
within or without CGH shall belong to CHG. This includes
any renumeration [sic] received by Physician for outside
medically-related activities. CGH may, at its sole
discretion, grant exceptions to the outside income rule."
Thede asserts that this provision anticipates and approves
of Kapsas practicing medicine without the hospital's supervision,
and the portion of paragraph 6 appearing in Thede's brief could
be read that way. But when the paragraph is taken as a whole, it
restates Kapsas's fiduciary duties to the hospital and generally
prohibits Kapsas from outside medical employment. See ABC Trans
National Transport, Inc. v. Aeronautics Forwarders, Inc., 62 Ill.
App. 3d 671, 683, 379 N.E.2d 1228, 1237 (1978); Restatement
(Third) of Agency §§8.01 through 8.12 (2006). In context,
paragraph 6 gives the hospital an express contractual right to
disgorge any income Kapsas makes from moonlighting. East Peoria
Elevator Co. v. Geo. W. Cole Grain Co., 19 Ill. App. 2d 82, 94-
8
95, 153 N.E.2d 307 313-314 (1958); Restatement (Third) of Agency
§8.02 (2006).
A trial court is not required to entertain unreasonable
inferences raised in opposition to a motion for summary judgment.
Purdy Co. v. Transportation Insurance Co., Inc., 209 Ill. App. 3d
519, 527, 568 N.E.2d 318 322-23 (1991). The trial court was
correct to conclude, as a matter of law, that paragraph 6 of
Kapsas's employment agreement was not evidence creating a genuine
issue of material fact regarding Kapsas's employment relationship
with Community General Hospital.
Second, Thede argues the hospital's universal consent form
is evidence that Kapsas was a contractor and not an employee.
The form stated, "Physicians providing care are independent
practitioners and are not employees or agents of CGH Medical
Center." Patient consent forms are almost conclusive in
determining a hospital's liability for an independent physician's
malpractice. York v. Rush-Presbyterian-St. Luke's Medical
Center, 222 Ill. 2d 147, 174, 854 N.E.2d 635, 650 (2006). A
hospital can be found liable for the negligence of physicians it
does not employ on a theory of apparent authority, if a plaintiff
reasonably believed the physician was a hospital employee. York,
222 Ill. 2d at 197, 854 N.E.2d at 663.
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Here, we are not dealing with the hospital's vicarious tort
liability for a physician's decisions. We are dealing with a
state statute that depends solely on the actual employment
relationship between Kapsas and Community General Hospital.
745 ILCS 10/1--202 (West 2006). When an actual agency
relationship exists, the principal cannot alter that relationship
by denying it to a third party. Daniel Forbes Co. v. Leonard,
119 Ill. App. 629 (1905); Restatement (Third) of Agency §§3.06,
3.10 (2006). No language in any form given to Thede by Community
General Hospital could turn Kapsas from an employee into an
independent contractor. In essence, Thede asks us to create a
new theory of "respondeat inferior" where an agent becomes
responsible for the acts of her principal. We decline. The
trial court was correct to conclude, as a matter of law, that the
consent form did not create a genuine issue of materal fact as to
the nature of the employment relationship between Kapsas and
Community General Hospital.
Finally, neither of these items supports an inference that
Kapsas treated Thede while moonlighting as an independent
physician. Contrary to Thede's argument on this point, the
provision of the employment agreement Thede offered as evidence
expressly prohibited Kapsas from treating Thede independent of
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Community General Hospital. The consent form Thede signed was
prepared by the hospital, not Kapsas. The negligence of which
plaintiff complains took place inside the four walls of Community
General Hospital. There is simply no evidence to support the
argument that there is a question of material fact regarding
whether Kapsas treated Thede outside of her employment
relationship with the hospital.
There is no genuine issue of material fact regarding the
actual employment relationship between Kapsas and Community
General Hospital, nor is there evidence supporting an argument
that Kapsas was acting as an independent physician when Thede was
in her care. The trial court correctly granted summary judgment
in Kapsas's favor.
II. Equitable Extension of Limitations Period
Thede claims the trial court abused its discretion by not
granting equitable relief from the statute of limitations. A
trial court abuses its discretion only when no reasonable person
could agree with its decision. In re Marriage of Getautas, 189
Ill. App. 3d 148, 544 N.E.2d 1284 (1989). For the reasons that
follow, we find no abuse of discretion.
A defendant may be equitably estopped from asserting a
particular defense, such as the statute of limitations, if the
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defendant made a representation that would preclude exercising
that defense and the plaintiff relied on the representation to
her detriment. Phillips v. Elrod, 135 Ill. App. 3d 70, 74-75,
478 N.E.2d 1078, 1082 (1985). Here, the only representation
denying that Kapsas was an employee of Community General Hospital
was made by the hospital itself, not by Kapsas. The trial court
did not abuse its discretion when it decided not to estop Dr.
Kapsas from asserting the statute of limitations as a defense
because of her employer's inconsistent conduct.
A limitations period may be equitably tolled "if the
defendant has actively misled the plaintiff, or if the plaintiff
has been prevented from asserting his or her rights in some
extraordinary way, or if the plaintiff has mistakenly asserted
his or her rights in the wrong forum." Clay v. Kuhl, 189 Ill. 2d
603, 614, 727 N.E.2d 217, 223 (2000). Kapsas, not the hospital,
is the defendant. There is no evidence that Dr. Kapsas misled
anyone.
Thede argues that Kapsas had an affirmative duty to notice
and correct the misstatement on the hospital-provided consent
forms. Even an innocent misstatement by a defendant's agent can
constitute actively misleading a prospective plaintiff and
trigger the doctrine of equitable tolling. Varga v. Rumsfeld,
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172 F. Supp. 2d 1323, 1327 (D. Colo. 2003). As we pointed out in
the previous section, making an employee responsible for her
employer's misstatement would stand the law of agency on its
head.
The limitations period can be tolled against a defendant who
did not mislead the plaintiff if the plaintiff faced an
extraordinary barrier to asserting her rights in a timely
fashion. Extraordinary barriers include legal disability, an
irredeemable lack of information, or situations where the
plaintiff could not learn the identity of proper defendants
through the exercise of due diligence. Griffin v. Willoughby,
369 Ill. App. 3d 405, 415-16, 867 N.E.2d 1007, 1016 (2006).
Thede contends that she relied on the passage in the
universal consent form stating that, "[p]hysicians providing care
are independent practitioners and are not employees or agents of
CGH Medical Center." Her assertion that but for the consent
form, she would have timely filed suit against Kapsas is belied
by the record. Thede filed suit against the hospital late as
well. It is clear that plaintiff was simply unaware of the one-
year limitations period for both Kapsas and the hospital.
In essence, equity calls for us to sometimes look beyond the
letter of the law in order to effect a more just result. The
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suit before us involves Kapsas and not Community General
Hospital. We find no justice in tolling the statute of
limitations against Kapsas because of a misrepresentation made by
her employer. We note that in Thede's original complaint, she
alleged an employer-employee relationship between Community
General Hospital and Kapsas. She obviously was not misled. The
only conclusion that can be drawn from the evidence is that Thede
was unaware of the one-year limitations period, applicable to
both the hospital and Kapsas. Had she sued the hospital within
one year but waited to sue Kapsas, this would be another matter.
Again, we are talking about equity. We cannot find any
equity in giving relief to a party, on the basis that the party
claims to have relied on a misrepresentation, when the party's
pleadings unmistakably demonstrate that there was no such
reliance. We find no abuse of discretion.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Whiteside County is affirmed.
Affirmed.
McDADE, P.J., and CARTER, J., concur.
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