Greene v. Rogers

Decision Date02 October 1986
Docket NumberNo. 3-85-0257,3-85-0257
Citation101 Ill.Dec. 543,498 N.E.2d 867,147 Ill.App.3d 1009
Parties, 101 Ill.Dec. 543 James A. GREENE, Executor of the Estate of Bernadine Greene, Deceased, Plaintiff-Appellant, v. Dr. James ROGERS and Silver Cross Hospital, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

George P. Troha (argued), Troha, Troha and Bednarek, Theodore J. Bednarek, Troha, Troha & Bednarek, Joliet, for James A. Greene.

Theodore J. Jarz (argued) McKeown, Fitzgerald, Zollner, Buck, Sangmeister Joliet, for Silver Cross Hosp.

James D. Rogers, M.D., pro se. Presiding Justice SCOTT delivered the opinion of the court:

This was an action brought by James A. Greene, as executor, for the wrongful death of his wife, Bernadine Greene, for medical malpractice against Silver Cross Hospital and Dr. James Rogers. The plaintiff-appellant alleged, among other things, that the hospital was negligent in not initially admitting Bernadine Greene into the coronary care unit because of failure to diagnose her condition and by allowing her to be put through extensive physical testing when she was suffering from myocardial infarction. Further, that Dr. Rogers was also negligent by misdiagnosing her condition and prescribing certain physical activities which proximately caused her death.

The trial court awarded Silver Cross Hospital a summary judgment based on the grounds that the emergency room physician, Dr. D'Arcy, was not an agent of the hospital and a jury returned a verdict in favor of Silver Cross Hospital and Dr. Rogers on all other counts. Plaintiff appeals the summary judgment ruling of the trial court as well as raising numerous other issues for appeal.

Bernadine Greene was a 54 year old female who weighed approximately 220 pounds. She had a history of high blood pressure, hypertension, and diabetes. Both of her parents had died of heart problems and one of her brothers had a heart problem. Mrs. Greene was admitted to Silver Cross Hospital on February 27, 1981. She was complaining of chest pains radiating into the arm and diaphoresis (sweating) from the day before. Dr. D'Arcy, the emergency room physician, ordered one EKG and one cardiac enzyme test and admitted her to a regular hospital ward. While in the hospital under the care of Dr. Demus, she underwent x-rays, an upper G.I. series, and other diagnostic tests. With the possibility that Mrs. Greene's pain might be of a surgical nature, Dr. Demus, the attending physician, called Dr. Rogers as a surgical consultant to make an evaluation of Mrs. Greene. Dr. Roger's evaluation took place at 9 a.m. on March 5, 1981. Dr. Rogers dictated a consultation in which he determined that Mrs. Greene was suffering from an esophageal hiatus hernia and gall stones. Dr. Rogers at that time informed both Mr. and Mrs. Greene of a way to alleviate Mrs. Greene's pain. After a meal and with a full stomach, she was to stand up on her toes and come down hard on her heels. Dr. Rogers, however, did not tell either Mr. or Mrs. Greene to perform the activity at that time. Dr. Rogers did not see Mrs. Greene after this consultation.

Another electrocardiogram and cardiac enzyme test were performed on Mrs. Greene sometime later in the day on March 5, 1981. The tests revealed conclusively for the first time the presence of a myocardial infarction and Mrs. Greene was transferred to the hospital coronary care unit. Mrs. Greene expired at 12:55 a.m. on March 6, 1981. The subsequent autopsy revealed that Mrs. Greene died of a myocardial rupture, but was also found to have an esophageal hiatus hernia and gall stones. The autopsy was performed by Dr. Veenbas, a pathologist employed by Silver Cross Hospital, who was later a witness for the plaintiff-appellant at trial.

At the time the myocardiam ruptured, the decedent was in bed in the intensive care unit either asleep or resting. The cardiologist treating Mrs. Greene at the time of her death was Dr. Fitzpatrick. Appellant deposed Dr. Fitzpatrick prior to trial but did not call Dr. Fitzpatrick as a witness at trial. Dr. Fitzpatrick was called as a witness by the defendant hospital and testified that the physical activity exerted by Mrs. Greene in the hospital prior to her death was not responsible for her death. The doctor further testified that had the decedent been brought to the intensive care unit earlier, the result would have been the same. Appellant asserts on appeal that Dr. Fitzpatrick violated the doctor-patient privilege by talking to the attorneys for the defendants and that the doctor was an undisclosed expert for the defendants.

Appellant, at the close of the evidence, submitted Illinois Pattern Instruction No 15.01, the long form instruction for proximate cause, which states:

"When I use the expression proximate cause I mean any cause which in natural or probable sequence produced the injury complained of. It may not be the only cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time which in combination with it caused the injury."

The court, however, gave the following defendants' instruction over appellant's objection:

"When I use the expression proximate cause I mean any cause which in natural or probable sequence produced the injury complained of."

Appellant now alleges that the trial court's instruction was in error. Further, appellant offered the following issues instruction:

"The plaintiff further claims that one or more of the foregoing was a proximate cause of denying Bernadine Greene a chance of survival."

The court, however, refused to give appellant's issues instruction and gave the following proximate cause paragraph:

"The plaintiff further claims that one or more of the foregoing was a proximate cause of Bernadine Greene's death."

The jury returned a verdict in favor of the defendants-appellees. Appellant then made a post-trial motion for a new trial on the grounds that the attorneys for the hospital agreed to act as the attorney for an out-of-state witness and that they advised the witness not to testify in an out-of-state evidence deposition. The trial court denied the motion.

Appellant raises six issues on appeal: (1) whether the trial court improperly granted summary judgment in favor of the hospital concerning Dr. D'Arcy's emergency room treatment; (2) whether the trial court improperly refused the testimony of plaintiff's witness Dr. Veenbas; (3) whether the trial court improperly allowed the testimony of Dr. Fitzpatrick; (4) whether the trial court erred in not allowing the plaintiff's proximate cause instruction; (5) whether the trial court erred in not allowing the plaintiff's issue instruction regarding proximate cause; and (6) whether the trial court erred in refusing the plaintiff's post-trial motion for a new trial.

As to issue (1), we are of the opinion that the trial court properly issued summary judgment in favor of the hospital. Appellant asserts that the emergency room physician, Dr. D'Arcy, was an agent of the hospital, either by express agency, apparent agency or by estoppel and, therefore, the hospital is vicariously liable under the doctrine of respondent superior. Our review of the law indicates otherwise.

A motion for summary judgment should be granted 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." (Ill.Rev.Stat.1985, ch. 110, par. 2-1005(c).) It is a remedy to be awarded only if the movant can show a right that is clear and free from doubt. (Smith v. St. Therese Hospital (1982), 106 Ill.App.3d 268, 62 Ill.Dec. 141, 435 N.E.2d 939.) A triable issue precluding summary judgment exists where there is a dispute as to material facts, or where, the material facts being undisputed, reasonable persons might draw different inferences from the facts. Ruby v. Wayman (1968), 99 Ill.App.2d 146, 240 N.E.2d 699.

Dr. D'Arcy was an employee of Scott Emergency Medical Services, Ltd., being under contract with Silver Cross Hospital to provide emergency physician services. Appellant asserts that the hospital by-laws, policies and procedures maintain sufficient control over the emergency room physicians so that the physicians are agents of the hospital. Further, that the emergency room physicians used hospital equipment, wore hospital gowns, and received their pay directly from the hospital.

In tort actions, vicarious liability of the principal for the actions of the agent generally rest in the theory of respondeat superior. In order to establish liability under this theory, two elements must exist. First there must be a master-servant relationship and, second, the activity of the agent must be within the scope of the employment. Clearly the second requirement will be satisfied in this case if a master-servant relationship is found to exist between Dr. D'Arcy and Silver Cross Hospital.

Two dominant factors in determining if one is an agent or independent contractor are control retained by the principal and the method of payment. Generally, a decision to treat a patient in a particular manner is one entirely within the discretion of the treating physician and the negligence of the treating physician in the treatment of the patient can not be imputed to the hospital unless the physician is an agent of the hospital. Johnson v. St. Bernard Hospital (1979), 79 Ill.App.3d 709, 35 Ill Dec. 364, 399 N.E.2d 198; Pickle v. Curns (1982), 106 Ill.App.3d 734, 62 Ill Dec. 79, 435 N.E.2d 877.

We are of the opinion that the segments of the hospital policy and procedures with regard to emergency room physicians do not establish that the hospital had control over the initial treatment of patients by an emergency room physician so as to impute an agency relationship. Undeniably, the hospital had some control over the emergency room. We do not believe, however, that the...

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