Gilbert v. Frank

• Decision Date: 28 August 1992
• Docket Number: No. 2-91-0898,2-91-0898
• Citation: 599 N.E.2d 143,233 Ill.App.3d 372
• Parties: , 174 Ill.Dec. 597 Dimple GILBERT, Special Adm'x of the Estate of Jack Gilbert, Deceased, Plaintiff-Appellant, v. Irving FRANK, Defendant-Appellee (Sycamore Municipal Hospital, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 143

599 N.E.2d 143

233 Ill.App.3d 372, 174 Ill.Dec. 597

Dimple GILBERT, Special Adm'x of the Estate of Jack Gilbert Deceased, Plaintiff-Appellant, v. Irving FRANK, Defendant-Appellee (Sycamore Municipal Hospital, Defendant-Appellee).

No. 2-91-0898.

Appellate Court of Illinois Second District.

Aug. 28, 1992.

Bernard R. Nevoral, David L. Cwik, Bernard R. Nevoral & Associates, Ltd., Chicago, for Dimple Gilbert, Special Adm.

Jack D. Ward, Reno, Zahm, Folgate, Lindberg & Powell, Rockford, for Irving Frank, M.D.

Robert R. McWilliams, Kostantacos, Traum, Reuterfors & McWilliams, Rockford, Franklin C. Cook, Freeport, for Sycamore Mun. Hosp Justice DUNN delivered the opinion of the court:

Plaintiff, Dimple Gilbert, acting as special administratrix for the estate of her late husband, Jack, filed an action for medical malpractice and wrongful death against defendants, Sycamore Municipal Hospital (hospital), and Irving Frank, M.D. Dr. Frank, who reached a settlement with plaintiff, is not a party to this appeal. The hospital moved for summary judgment on the basis that it was not vicariously liable for Dr. Frank's alleged negligence because he was not an agent of the hospital. Plaintiff appeals from the order of the circuit court of De Kalb County granting the motion. The issue on appeal is whether summary judgment should have been denied because a material issue of fact existed as to whether the hospital could be held liable under the doctrines of apparent agency or agency by estoppel. We affirm.

The evidence submitted in connection with the hospital's motion for summary judgment established the following facts. Jack Gilbert arrived by ambulance at the hospital's emergency room at about 2:30 p.m. on April 8, 1981. He had experienced chest pains and pain in his left arm while lifting weights that morning. When he arrived at the hospital, Jack asked to be treated by Dr. Stromberg, a member of the hospital's active staff who was not on call that day. Dr. Frank had been asked to cover the emergency room by Dr. Wassner, a surgeon who was on call that day. An emergency room nurse called Dr. Frank at home, and he arrived at the hospital a few minutes later.

After Jack arrived at the emergency room, he signed a form which stated in part as follows:

"The undersigned has been informed of the emergency treatment considered necessary for the patient whose name appears above and that the treatment and procedures will be performed by physicians and employees of the hospital. Authorization is hereby granted for such treatment and procedures."

The hospital prepared the consent form which contained the above statement.

Dr. Frank had Jack undergo several tests including an electrocardiogram or EKG. The tests did not reveal any signs of heart disease or trouble. Dr. Frank ordered some pain medication for Jack and discharged him at 4:20 p.m. Jack died later that evening as a result of a myocardial infarction. An autopsy revealed that Jack was suffering from heart disease at the time of his death.

Marty Losoff was the hospital's administrator at the time of the above events. Losoff testified as follows during his deposition. The hospital was a full-service, acute care facility. Between 14 and 20 physicians, including Dr. Frank, were on the active staff. Active staff physicians were required to be on call in the emergency room when scheduled, although they sometimes arranged for backups to replace them.

Losoff further testified that the emergency room was not operated by an outside contractor; it was considered a function of the hospital. The emergency room nurses were hospital employees, and the hospital owned the equipment in the emergency room. The hospital's emergency room committee reviewed emergency medical treatment rendered by physicians.

According to Losoff, patients in the emergency room would be treated by the physician who was on call unless a patient requested his or her own doctor and that doctor was available. The emergency room physicians had the authority to admit patients to the hospital. The hospital considered them to be independent contractors, however, because they billed the patients separately for their services. The hospital also billed emergency room patients, but not for the physician's services. The hospital did not pay any salary to its active staff physicians. If the hospital administration did not approve of a physician's conduct, a hospital representative would speak to the physician. Losoff acknowledged that the behavior of emergency room physicians could have an impact upon the hospital in a public relations sense. He also stated that he did not believe the hospital ever advised patients that the emergency room physicians were independent contractors.

The hospital submitted an affidavit from Losoff in support of its motion for summary judgment. The affidavit stated that the hospital did not pay Dr. Frank's withholding taxes or provide him insurance, sick leave or vacations. Additionally, Dr. Frank determined his own work schedule and fee rates. According to the affidavit, Dr. Frank was not an agent or employee of the hospital; he was merely granted staff privileges.

In its motion for summary judgment, the hospital contended that it could not be held liable for the alleged negligence of Dr. Frank because he was not an agent or employee of the hospital. Plaintiff argued in her response that potential liability existed under the doctrines of apparent agency and agency by estoppel, thereby precluding entry of summary judgment. The trial court granted the motion, and plaintiff now appeals.

A motion for summary judgment should be granted only if the pleadings, depositions, admissions, and affidavits on file show that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) Summary judgment is a drastic means of resolving litigation, and it should be granted only if the movant's right to such relief is free from doubt. Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.

The hospital initially argues that we should not consider the issue raised by plaintiff because count II of her complaint alleges that Dr. Frank was an agent of the hospital rather than an apparent agent or an agent by estoppel. In count II, plaintiff alleged that Dr. Frank treated Jack in the hospital's emergency room on April 8, 1981, and that Dr. Frank was an agent and employee of the hospital at that time. Plaintiff further alleged in count II that Dr. Frank was guilty of several negligent acts or omissions relating to his treatment of Jack and that the hospital was liable for these acts or omissions of its agent and employee.

Although, in their briefs, the parties discuss apparent agency and agency by estoppel separately, the doctrine of apparent agency is based upon the doctrine of equitable estoppel. (Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill.App.3d 270, 278, 119 Ill.Dec. 37, 522 N.E.2d 699; Crittendon v. State Oil Co. (1966), 78 Ill.App.2d 112, 115, 222 N.E.2d 561.) We therefore agree with the conclusions of the court in Northern Trust Co. that these doctrines are based upon the same elements, and there is no practical difference between them. (Northern Trust Co., 168 Ill.App.3d at 278, 119 Ill.Dec. 37, 522 N.E.2d 699.) Accordingly, we consider apparent agency and agency by estoppel to be different labels applied to the same doctrine. We shall refer to this doctrine as apparent agency in the remainder of this opinion.

Pleadings should be construed liberally in order to achieve substantial justice. (Ill.Rev.Stat.1989, ch. 110, par. 2-603(c); Champaign National Bank v. Illinois Power Co. (1984), 125 Ill.App.3d 424, 428, 80 Ill.Dec. 670, 465 N.E.2d 1016.) A pleading is not considered to be bad in substance if it reasonably informs the adverse party of the nature of the claim that he or she must meet. (Ill.Rev.Stat.1989, ch. 110, par. 2-612(b); Champaign National Bank, 125 Ill.App.3d at 428, 80 Ill.Dec. 670, 465 N.E.2d 1016.) Bearing these principles in mind, we shall consider whether plaintiff's complaint was sufficient to allege apparent agency.

An apparent agent is an individual who, whether authorized or not, reasonably appears to third parties to be authorized to act as the agent for another person or entity as a result of the actions of that other person or entity. (Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill.App.3d 226, 232, 164 Ill.Dec. 825, 583 N.E.2d 1147.) An apparent agency is an agency relationship. (See Lang, 222 Ill.App.3d at 232-33, 164 Ill.Dec. 825, 583 N.E.2d 1147.) Therefore we believe plaintiff's allegation that Dr. Frank was the hospital's agent could refer to either an actual or apparent agency.

Furthermore, precision pleading should not be required if knowledge of the pertinent facts is within the control of the defendant rather than the plaintiff. (Holton v. Resurrection Hospital (1980), 88 Ill.App.3d 655, 658, 43 Ill.Dec. 836, 410 N.E.2d 969.) In the case at bar, the hospital would have had knowledge about the nature of its relationship with Dr. Frank, but it is highly unlikely that plaintiff would have had access to this information when she filed her complaint. Therefore we do not believe it is unfair to the hospital to construe the allegation that Dr. Frank was its agent to be an allegation that he was either an actual or apparent agent. We conclude that plaintiff adequately alleged in count II that Dr. Frank was an apparent agent of the hospital and reject the hospital's contrary contention.

On appeal, plaintiff does not challenge the trial court's apparent conclusion in granting summary judgment that the evidence established conclusively that Dr. Frank was not an actual agent of the hospital. Her sole contention is that a genuine issue of material fact existed as to whether Dr. Frank was an...