Hansen v. Caring Professionals, Inc.

• Decision Date: 20 February 1997
• Docket Number: No. 1-95-2346,1-95-2346
• Parties: , 222 Ill.Dec. 145 Thomas E. HANSEN, Guardian of the Estate and Person of Andrina Hansen, a disabled person, Plaintiff-Appellant, v. CARING PROFESSIONALS, INC., Defendant-Appellee, and Mount Sinai Hospital Medical Center; Colleen Golden, R.N.; Progressive Services, Inc.; Eileen Fajardo-Furlin, R.N.; Felipe Bondoc, M.D.; Henri S. Habdala, M.D., S.C., a corporation; Baxter Healthcare Corporation; and Arrow International, Inc., Defendants.
• Court: United States Appellate Court of Illinois

Page 1349

676 N.E.2d 1349

286 Ill.App.3d 797, 222 Ill.Dec. 145

Thomas E. HANSEN, Guardian of the Estate and Person of Andrina Hansen, a disabled person, Plaintiff-Appellant, v. CARING PROFESSIONALS, INC., Defendant-Appellee and Mount Sinai Hospital Medical Center; Colleen Golden, R.N. Progressive Services, Inc.; Eileen Fajardo-Furlin, R.N. Felipe Bondoc, M.D.; Henri S. Habdala, M.D., S.C., a corporation; Baxter Healthcare Corporation; and Arrow International, Inc., Defendants.

No. 1-95-2346.

Appellate Court of Illinois,

First District, Fourth Division.

Feb. 20, 1997.

Edward J. Kionka, Carbondale, Lynne Plum Duffey, Law Office of Paul B. Episcope, Ltd., Chicago, for plaintiff-appellant.

Clausen Miller P.C., Chicago (James T. Ferrini, Richard G. Howser, Imelda Terrazino, Richard H. Lehman, of counsel), for defendant-appellee Caring Professionals, Inc.

Presiding Justice WOLFSON delivered the opinion of the court:

Health care facilities are not always fully staffed. At times they ask a nurse agency to provide a nurse for a period of time. In this case, the nurse agency, Caring Professionals, Inc., assigned a nurse to the Mount Sinai Hospital Medical Center. A patient on that nurse's watch was injured. The patient's guardian sued the nurse agency, among others. The question is whether the nurse agency can be held vicariously liable for the negligent acts of the nurse.

The trial court granted summary judgment to Caring Professionals, holding that neither common law principles nor the Nurse Agency Licensing Act makes the agency legally responsible to an injured patient for any negligent acts performed by the nurse at the hospital. We agree with the trial court.

FACTS

Thomas Hansen (Hansen) filed a medical malpractice complaint. He alleged that Andrina Hansen (Mrs. Hansen) entered Mount Sinai Hospital Medical Center (Mount Sinai) on March 5, 1991, for a surgical procedure, which was performed without incident. While recovering from surgery, however, on March 8, 1991, a central venous catheter (CVC) attached to Mrs. Hansen's jugular vein allegedly became disconnected when one of the nurses was assisting Mrs. Hansen to a sitting position in her hospital bed. As a result, plaintiff claimed, air entered Mrs. Hansen's bloodstream through the disconnected catheter and an air embolus traveled to her brain, causing severe brain damage and total disability. Plaintiff brought suit against the hospital, several doctors, and others.

Later, Hansen's Fourth Amended Complaint alleged that Eileen Fajardo-Furlin (Nurse Furlin) was one of the nurses who attended Mrs. Hansen during her stay at Mount Sinai, that Nurse Furlin worked at Mount Sinai on a temporary basis, and that she was referred to Mount Sinai by Caring Professionals, a nurse agency. Caring Professionals also was named as a party defendant. Caring Professionals' liability was premised on the alleged negligent acts of Nurse Furlin, who, Hansen claimed, was the agent and employee of both Mount Sinai and Caring Professionals.

Caring Professionals moved for summary judgment, claiming that, as a matter of law, it could not be held vicariously liable for the negligent acts of Nurse Furlin because Nurse Furlin was not the agent of Caring Professionals. In support of its motion, Caring Professionals submitted for the court's review the deposition testimony of Nurse Furlin and the affidavit of Susan Kim, Caring Professionals' director and manager.

According to the deposition and affidavit, Caring Professionals, a nurse agency licensed under the Illinois Nurse Agency Licensing Act (225 ILCS 510/1, et seq. (West 1992)), functioned as a referral service for registered and licensed nurses. Hospitals Nurse Furlin, in her deposition, testified that Caring Professionals had no control over the manner in which she performed her duties at Mount Sinai. Mount Sinai, she said, supplied the equipment she used in the performance of her duties, including the catheter, tubing, and connectors attached to Mrs. Hansen, and directed her usage of this equipment.

[222 Ill.Dec. 147] and other health care facilities contracted with Caring Professionals to obtain qualified nurses to fill temporary vacancies. When Caring Professionals provided a nurse to a facility, such as Mount Sinai Hospital, the health care facility paid Caring Professionals an hourly fee based on the type of nursing services provided. Caring Professionals, in turn, paid the nurses a portion of that amount.

In addition, Nurse Furlin's contract with Caring Professionals, like all of the agency's contracts with nurses, specifically stated that her relationship with Caring Professionals was that of "independent contractor, not employer-employee." According to the contract, Nurse Furlin was responsible for obtaining her own Worker's Compensation, Liability, and General Property Damage Insurance. She also was responsible for paying her own income and social security taxes. These taxes were not withheld from Nurse Furlin's paycheck by Caring Professionals. For tax purposes, Caring Professionals did not provide any of its nurses with W-2 forms, but, rather, provided them with 1099 independent contractor forms.

In response to Caring Professionals' motion for summary judgment, Hansen contended that the Illinois Nurse Agency Licensing Act specifically defined the relationship between nurse agencies and the nurses it referred as that of employer-employee. Alternatively, Hansen contended that Caring Professionals was not entitled to summary judgment because the facts created a material issue of fact whether Nurse Furlin was the agent of Caring Professionals.

The trial court rejected both of Hansen's contentions. Summary judgment was granted to Caring Professionals. This appeal followed. Our review is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 131-32, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). Our goal is to determine from the record whether there is any material issue of fact that must be resolved at trial. In re Estate of Hoover, 155 Ill.2d 402, 185 Ill.Dec. 866, 615 N.E.2d 736 (1993).

OPINION

1. Liability under common law.

To determine whether there are any material facts supporting the existence of a master-servant relationship we examine the form and substance of the relationship between Caring Professionals and Nurse Furlin. Absent a master-servant relationship, Caring Professionals cannot be liable for any acts of negligence that might have been committed by Nurse Furlin. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 533, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987).

First, the form.

The contract between the two defined Nurse Furlin as an "independent contractor." Caring Professionals did not withhold any income or social security taxes for Nurse Furlin. Instead, she received a form 1099. Caring Professionals provided no malpractice or other insurance, nor did it provide any employee benefits, insurance, or expenses. Nurse Furlin paid for her own transportation to the hospital. She provided her own uniform, or the hospital provided one for her.

Caring Professionals was paid a fee by Mount Sinai Hospital, then it paid a portion of the fee to the nurse.

The form of the relationship, then, paints Nurse Furlin as an independent contractor.

Second, the substance.

Nurse Furlin cared for patients. That was her work. She used her skill, training, experience, and education to perform that work. She followed Mount Sinai's protocols and procedures for carrying out treatment plans. She used equipment provided by Mt. Sinai, not the nurse agency. The hospital determined which patients Nurse Furlin would care for and where in the hospital she would do it. Only the hospital supervised Nurse Furlin's work.

Caring Professionals did not and could not monitor Nurse Furlin's performance. In fact, Caring Professionals had no knowledge that Nurse Furlin was caring for Andrina Hansen or any other particular patient.

In short, Caring Professionals was a referral agency. It was not in the business of treating patients. It was the agency's duty to verify that Nurse Furlin's license was valid. Each year it evaluated her performance based on information provided by the health facility. It also made sure that Nurse Furlin had an annual health examination. These are matters of administration, not performance control.

The principles of law that apply to our analysis are well established. Our Supreme Court has said: "Critical to the determination of a master-servant relationship is the existence of the right to control, which includes the power of discharge." Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 123, 171 N.E.2d 60 (1960).

The right to control what? The cases refer to "the right to control the manner and method in which the work is to be done." Petersen v. U.S. Reduction Co., 267 Ill.App.3d 775, 782-83, 204 Ill.Dec. 415, 641 N.E.2d 845 (1994).

This case strongly resembles Joyce v. National Medical Registry, Inc., 170 Ill.App.3d 141, 120 Ill.Dec. 478, 524 N.E.2d 243 (1988). In Joyce, National Medical Registry (NMR), a nurse registry, placed a certified registered nurse anesthetist (CRNA) at Graham Hospital. An injured plaintiff attempted to hold NMR responsible for allegedly negligent acts of the nurse. There, as here, the agency did not withhold income taxes or social security from the nurse's paycheck. No medical or health benefits were provided. There, too, the agency directly paid her salary. What mattered in Joyce, and what matters to us in this case, is that the agency "had no right to control the manner of Schroeder's [the CRNA] work, nor the time, place, and scope thereof." Joyce, 170 Ill.App.3d at 144, 120 Ill.Dec. 478, 524 N.E.2d 243.

Hansen points to the "Guidelines" Caring Professionals gave to Nurse Furlin as evidence of control. We find the Guidelines are purely administrative, and have nothing to do with the manner in which work is to be performed. The 10...