Gilbert v. Sycamore Mun. Hosp., 74319

CourtSupreme Court of Illinois
Citation190 Ill.Dec. 758,622 N.E.2d 788,156 Ill.2d 511
Docket NumberNo. 74319,74319
Parties, 190 Ill.Dec. 758, 62 USLW 2289 Dimple GILBERT, Special Adm'r of the Estate of Jack Gilbert, Deceased, Appellant, v. SYCAMORE MUNICIPAL HOSPITAL, Appellee.
Decision Date21 October 1993

Page 788

622 N.E.2d 788
156 Ill.2d 511, 190 Ill.Dec. 758, 62
USLW 2289
Dimple GILBERT, Special Adm'r of the Estate of Jack Gilbert,
Deceased, Appellant,
No. 74319.
Supreme Court of Illinois.
Oct. 21, 1993.

Page 790

[156 Ill.2d 514] [190 Ill.Dec. 760] Bernard R. Nevoral, Paul W. Pasche and David L. Cwik of Bernard R. Nevoral & Associates, Ltd., Chicago, for appellant.

Steven E. Garstki and Stewart D. Stoller, Stoller & Garstki, Chicago, for amicus curiae Illinois Trial Lawyers Ass'n.

Franklin C. Cook, Freeport (Robert R. McWilliams, Kostantacos, Traum, Reuterfors & McWilliams, P.C., Rockford, of counsel), for appellee.

Justice FREEMAN delivered the opinion of the court:

The question presented for review is whether a hospital can be found vicariously liable for the negligence of a physician who is not a hospital employee, but rather an independent contractor. We hold that a hospital may be vicariously liable in such a case under the doctrine of apparent authority.

Page 791

[190 Ill.Dec. 761] BACKGROUND

The record contains the following pertinent evidence. On April 8, 1981, defendant, Sycamore Municipal Hospital (hospital), in Sycamore, Illinois, was a full service, [156 Ill.2d 515] acute care facility. The hospital's active staff consisted of 14 to 20 physicians including Irving Frank, M.D. Dr. Frank was a general practitioner.

Many of the hospital's active staff physicians practiced through professional associations. Dr. Frank was the founder and president of one such group, Kishwaukee Medical Associates, Ltd. (KMA). Five to eight physicians practiced through KMA.

The hospital considered its active staff physicians to be independent contractors. The hospital did not pay them any salary. The record shows, for example, that the hospital did not pay Dr. Frank any business expense, or pay his social security taxes, or provide him with insurance, vacation, or sick leave. The hospital did not control his diagnosis or treatment. Dr. Frank set his own fees, billed separately for services rendered, kept the profits and bore the losses from his practice, and determined his own work schedule, salary, vacations, and maximum absences.

Various practice areas in the hospital had a quality assurance review committee that would meet regularly to review cases, statistics, and medical treatment generally. (E.g., an emergency room committee, an operating room committee, etc.) Committee members included active staff physicians, hospital employees, and a representative of hospital administration. If the hospital did not approve of a physician's conduct, a hospital representative would speak to the physician.

The hospital had a "call roster," but a physician association could have its own call roster. For example, if a patient asked for a KMA physician who was unavailable, then another KMA-designated physician would respond.

The hospital emergency room was not managed or operated by an outside independent contractor or a particular medical association. Rather, the emergency room was considered a hospital function. The hospital employed[156 Ill.2d 516] emergency room nurses and owned emergency room equipment. The hospital's emergency room committee reviewed emergency room treatment rendered by physicians.

Active staff physicians were scheduled to be on call in the emergency room. However, an assigned physician could arrange for a substitute. As with their relationship generally, the hospital considered active staff physicians assigned to the emergency room to be independent contractors. The physicians billed emergency room patients separately for their services. The hospital also billed emergency room patients, but not for the physician's services. Marty Losoff, the hospital administrator in April 1981, testified in a deposition that the behavior of emergency room physicians could affect the hospital's public relations. Losoff also testified that, to his knowledge, the hospital did not advise emergency room patients that emergency room physicians were not hospital employees but rather independent contractors.

On the morning of April 8, 1981, Jack Gilbert (decedent) suffered pain in his chest and left arm while lifting weights. At approximately 2:30 p.m., decedent arrived by ambulance at the hospital's emergency room. Upon arrival, decedent signed a consent form, prepared by the hospital, which stated in pertinent part:

"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."

Dr. Wassner, a KMA physician who was on call that day, asked Dr. Frank to cover the emergency room for that day. Decedent asked for Dr. Stromberg, a KMA physician. Since Wassner and not Stromberg was on call, an emergency room nurse telephoned Dr. Frank, who arrived[156 Ill.2d 517] a few minutes later. Dr. Frank had never met decedent before that day.

Page 792

[190 Ill.Dec. 762] Dr. Frank gave decedent several tests, which did not reveal any sign of heart disease or a heart problem. Dr. Frank prescribed pain medication for decedent and discharged him at 4:20 p.m. Later that evening, decedent died as a result of a myocardial infarction. An autopsy revealed the presence of heart disease at the time of his death.

Plaintiff, Dimple Gilbert, as special administrator of decedent's estate, brought a medical malpractice and wrongful death action against Dr. Frank (count I) and the hospital (count II). In count II, plaintiff alleged that the hospital, by its agents or employees, including Dr. Frank, negligently failed to perform various acts in relation to the diagnosis and treatment of decedent. Plaintiff subsequently settled with Dr. Frank, who is not a party to this appeal, but reserved her causes of action against the hospital.

The hospital moved for summary judgment. The hospital contended, inter alia, that it was not vicariously liable for Dr. Frank's alleged negligence because he was not the hospital's agent or employee. The circuit court of De Kalb County granted summary judgment in favor of the hospital. The appellate court, with one justice dissenting, affirmed. (233 Ill.App.3d 372, 174 Ill.Dec. 597, 599 N.E.2d 143.) We allowed plaintiff's petition for leave to appeal (134 Ill.2d R. 315(a)), and now reverse and remand for further proceedings.


The purpose of summary judgment is not to try a question of fact, but to determine whether one exists. (Ray v. City of Chicago (1960), 19 Ill.2d 593, 599, 169 N.E.2d 73.) Summary judgment is appropriate only where "the pleadings, depositions, and admissions on file, together with [156 Ill.2d 518] 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." Ill.Rev.Stat.1989, ch. 110, par. 2--1005(c).

In determining whether a genuine issue as to any material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) A triable issue precluding summary judgment exists where the material facts are disputed (Ray, 19 Ill.2d at 599, 169 N.E.2d 73; Barkhausen v. Naugher (1946), 395 Ill. 562, 566, 70 N.E.2d 565), or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts (Pyne v. Witmer (1989), 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304). The use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit. However, it is a drastic means of disposing of litigation and, therefore, should be allowed only when the right of the moving party is clear and free from doubt. Pyne, 129 Ill.2d at 358, 135 Ill.Dec. 557, 543 N.E.2d 1304; Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.

Vicarious Liability

In its motion for summary judgment, the hospital argued that it could not be vicariously liable for the alleged negligence of Dr. Frank because he was not an agent or employee of the hospital. In Illinois, a hospital may be liable in a medical malpractice case on two distinct theories. First, the hospital may be liable based upon a principal-agent relationship between the hospital and the physician. Second, the hospital may owe a duty, independent of any relationship between physician and patient, to review and supervise the medical care administered to a patient. (Rohe v. Shivde (1990), 203 Ill.App.3d 181, 198, 148 Ill.Dec. 516, 560 N.E.2d 1113; Hansbrough v. Kosyak (1986), 141 Ill.App.3d 538, 550, 95 Ill.Dec. 708, 490 N.E.2d 181, citing Darling v. Charleston Community Memorial [156 Ill.2d 519] Hospital (1965), 33 Ill.2d 326, 211 N.E.2d 253.) In the present case, the appellate court correctly noted that the parties raise only the first of these theories on appeal.

In some decisions, the appellate court has held that a hospital is vicariously liable for the negligence of a physician who is the

Page 793

[190 Ill.Dec. 763] apparent agent of the hospital. (Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill.App.3d 270, 278-79, 119 Ill.Dec. 37, 522 N.E.2d 699; Sztorc v. Northwest Hospital (1986), 146 Ill.App.3d 275, 278-79, 100 Ill.Dec. 135, 496 N.E.2d 1200.) In other decisions, however, the appellate court has refused to hold a hospital vicariously liable based on an agency relationship unless the physician was an actual agent of the hospital. Johnson v. Sumner (1987), 160 Ill.App.3d 173, 175, 111 Ill.Dec. 903, 513 N.E.2d 149; Greene v. Rogers (1986), 147 Ill.App.3d 1009, 1015-16, 101 Ill.Dec. 543, 498 N.E.2d 867.

In the present case, the appellate court acknowledged that the Northern Trust and Sztorc decisions and...

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