Delegatto v. Advocate Health and Hospitals, 1-20-0484
| Court | United States Appellate Court of Illinois |
| Writing for the Court | JUSTICE COBBS delivered the judgment of the court, with opinion. |
| Citation | 2021 IL App (1st) 200484,191 N.E.3d 606,455 Ill.Dec. 299 |
| Parties | James DELEGATTO, Individually and as Special Administrator of the Estate of Tracy A. Delegatto, Deceased, Plaintiff-Appellant, v. ADVOCATE HEALTH AND HOSPITALS, an Illinois Not-For-Profit Corporation; Advocate Health and Hospitals, an Illinois Not-For-Profit Corporation, d/b/a Advocate Medical Group ; Silver Cross Hospital and Medical Center, an Illinois Corporation d/b/a Silver Cross Hospital; Adel Mouradi, M.D.; Maggie Boban; Melissa Zaragoza; Anthony S. Rinella, M.D. S.C., an Illinois Corporation d/b/a Illinois Spine and Scoliosis Center ; Anthony S. Rinella, M.D.; Doulas Stevens, PA-C; Allied Anesthesia Associates S.C.; and Boris Nulman, M.D., Defendants (Silver Cross Hospital and Medical Center, Defendant-Appellee). |
| Docket Number | 1-20-0484 |
| Decision Date | 10 August 2021 |
2021 IL App (1st) 200484
191 N.E.3d 606
455 Ill.Dec. 299
James DELEGATTO, Individually and as Special Administrator of the Estate of Tracy A. Delegatto, Deceased, Plaintiff-Appellant,
v.
ADVOCATE HEALTH AND HOSPITALS, an Illinois Not-For-Profit Corporation; Advocate Health and Hospitals, an Illinois Not-For-Profit Corporation, d/b/a Advocate Medical Group ; Silver Cross Hospital and Medical Center, an Illinois Corporation d/b/a Silver Cross Hospital; Adel Mouradi, M.D.; Maggie Boban; Melissa Zaragoza; Anthony S. Rinella, M.D. S.C., an Illinois Corporation d/b/a Illinois Spine and Scoliosis Center ; Anthony S. Rinella, M.D.; Doulas Stevens, PA-C; Allied Anesthesia Associates S.C.; and Boris Nulman, M.D., Defendants
(Silver Cross Hospital and Medical Center, Defendant-Appellee).
No. 1-20-0484
Appellate Court of Illinois, First District, Second Division.
August 10, 2021
Vivian Tarver-Varnado, of AMB Law Group, LLC, of Chicago, for appellant.
Shana A. O'Grady, James M. Bream, and Debra O'Brien Daly, of L&G Law Group, of Chicago, for appellees.
JUSTICE COBBS delivered the judgment of the court, with opinion.
¶ 1 This appeal arises from a wrongful death action premised on medical negligence filed by James Delegatto (James), in his capacity as special administrator for his wife Tracy Delegatto's (Tracy) estate against several defendants, including Silver Cross Hospital (Silver Cross). Silver Cross sought summary judgment as to the claims of vicarious liability, alleging that Anthony Rinella, M.D., and physician assistant Douglas Stevens (PA Stevens) were agents of Silver Cross. The circuit court granted the motion, and James appealed, arguing that the circuit court erred in granting Silver Cross's motion for summary judgment because Tracy had no notice that Dr. Rinella was not an agent of Silver Cross.
¶ 2 For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The following facts are taken from the record. On June 15, 2016, James, as special administrator of the estate of Tracy, filed a 15-count complaint in the circuit court against various defendants, including Silver Cross, alleging medical negligence resulting in the death of his wife and wrongful death. His complaint was subsequently amended. As relevant here, count III of the second amended complaint alleged that Silver Cross was vicariously liable for the acts of Dr. Rinella and PA Stevens, who were agents of Silver Cross and were acting in the scope and agency of their employment. Specifically, the complaint alleged that Silver Cross "acted in a manner that would lead a reasonable person to conclude that [Dr. Rinella and PA Stevens] were employees and/or agents of [Silver Cross]" and that Silver Cross never informed Tracy that her care was being provided by nonemployees. The facts surrounding Tracy's death are as follows.
¶ 5 In 2014, Tracy was injured in a motor vehicle accident. On February 9, 2015, she had an appointment at Pain Treatment Centers of Illinois with Dr. Faris Abusharif, a pain medicine specialist, regarding her complaints of cervical spinal stenosis and cervical radiculopathy. At this point, she had undergone physical therapy and epidural steroid injections; however, her pain had not been relieved. Dr. Abusharif suggested surgery as the next option and referred her to either Dr. Rinella or Dr. Cary Templin.
¶ 6 On February 19, 2015, Tracy had a consultation with Dr. Rinella, an orthopedic surgeon, and PA Stevens. The consultation took place at the office of Dr. Rinella's private practice, Illinois Spine and Scoliosis Center (ISSC). Dr. Rinella recommended that Tracy undergo spinal surgery to alleviate her pain. At this consultation, Tracy signed two patient forms titled "ISSC Patient Registration Form" and "ISSC Authorization to Release Healthcare Information." Included in the first form was the following: "I authorize payment of medical benefits for any services to me by Illinois Spine & Scoliosis Center, to be paid directly to Illinois Spine & Scoliosis Center." James accompanied Tracy to all her visits with Dr. Rinella.
¶ 7 At some point, Tracy did research to determine at which hospital the surgery should be performed. She decided that Silver Cross was the best option, as it had a good reputation and was brand new. According to James's deposition, Tracy chose Dr. Rinella because of his affiliation with Silver Cross, and she was adamant about having the surgery done there. Both Dr.
Rinella and PA Stevens are independent contractors and have privileges at Silver Cross and are employed by "Anthony S. Rinella, M.D., S.C. d/b/a Illinois Spine and Scoliosis Center."
¶ 8 On February 25, 2015, Dr. Rinella signed Silver Cross's orthopedic surgery preadmission order and faxed it to Silver Cross. On March 9, 2015, Tracy went to Silver Cross to have preadmission testing conducted in accordance with Dr. Rinella's orders. While at Silver Cross, she signed a "Silver Cross Hospital Consent Form." On March 26, 2015, Tracy returned to ISSC for a follow-up surgical consultation. Also on March 26, 2015, Darlene Fabek, an employee of Silver Cross, contacted Tracy via telephone to perform a preadmission assessment. Tracy signed and initialed additional Silver Cross consent forms, one on March 28 and another March 30, 2015.
¶ 9 The consent forms signed on March 9, 2015, March 28, 2015, and March 30, 2015, are identical. The entire text of the forms is contained on a single page with five paragraph headers in bold text: "CONSENT," "HOSPITAL SERVICES," "PATIENT SELF-DETERMINATION ACT (PSDA)," "ASSIGNMENT OF INSURANCE BENEFITS," and "FINANCIAL AGREEMENT." The "HOSPITAL SERVICES" paragraph provides the following text, all in upper case and bold text:
"I UNDERSTAND THAT 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. ________(initial)" (Emphasis omitted.)
¶ 10 Other than the text above, and the paragraph headers, no other text under any of the other paragraph headers on the form is in all upper case or bold text. Tracy's initials appear on all three forms in the space provided. Additionally, her handwritten signature appears at the bottom of all three forms attesting to the following (in bold text): "I [h]ave read this form and I am satisfied that I understand it's [sic ] content and significance." (Emphasis omitted.)
¶ 11 Also on March 30, 2015, Tracy signed a surgical consent form giving Dr. Rinella permission to perform the necessary surgical procedure. In pertinent part, the surgical consent form stated, "I understand all physicians furnishing services to me, including anesthesiologists, radiologist[s], pathologists, physician assistant[s], nurses anesthetists, and the like are independent contractors and are not employees or agents of the hospital." Dr. Rinella, assisted by PA Stevens, performed the surgery that day at Silver Cross. Tracy was discharged two days later on April 1. A week after the surgery, on April 6, 2015, Tracy died.
¶ 12 During discovery, Dr. Rinella's deposition was taken. Regarding his relationship with Silver Cross, he stated that he did not report to anyone at Silver Cross and there was no direct supervision from Silver Cross. He stated that he had maintained a surgical schedule at Silver Cross since 2009. In 2015, the only hospital at which he had privileges was Silver Cross. He identified a form that showed his reappointment of orthopedic clinical privileges at Silver Cross for the period of December 31, 2014, to December 31, 2016. His only role within the hospital was serving on the surgical committee. Silver Cross did not compensate Dr. Rinella for any services provided to Tracy. He stated that he was "not aware of any activity or statement or
conduct by Silver Cross Hospital that held [him] out as its agent, service[,] or employee" nor did he engage in any activity in which he held himself out as an agent of Silver Cross. He described his private office as containing multiple signs bearing the ISSC brand name, including his doorway, on the wall, on informational materials, and his business cards. He also identified billing statements that specifically show that payments are to be made out to ISSC.
¶ 13 On January 28, 2020, Silver Cross filed a "Partial Motion for Summary Judgment" as to James's claims of vicarious liability against Silver Cross, in which James had alleged that Dr. Rinella and PA Stevens were its agents. Silver Cross first argued that neither Dr. Rinella nor PA Stevens were employees or actual agents of Silver Cross. On the contrary, they were independent contractors. Second, Silver Cross argued that neither of them were apparent agents of Silver Cross and that James was unable to prove any of the requisite elements for an apparent agency action against Silver Cross.
¶ 14 In his response to Silver Cross's motion, James asserted that Tracy...
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