Kenner v. Northern Illinois Medical Center

• Decision Date: 29 December 1987
• Docket Number: No. 2-87-0033,2-87-0033
• Citation: 517 N.E.2d 1137,115 Ill.Dec. 451,164 Ill.App.3d 366
• Parties: , 115 Ill.Dec. 451 William KENNER, Plaintiff-Appellant, v. NORTHERN ILLINOIS MEDICAL CENTER, formerly McHenry Hospital, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1137

517 N.E.2d 1137

164 Ill.App.3d 366, 115 Ill.Dec. 451

William KENNER, Plaintiff-Appellant,

v.

NORTHERN ILLINOIS MEDICAL CENTER, formerly McHenry Hospital,

et al., Defendants-Appellees.

No. 2-87-0033.

Appellate Court of Illinois,

Second District.

Dec. 29, 1987.

Thomas L. Ruth, Jr., Thomas L. Ruth, Jr. & Associates, Barrington, for Dr. William Kenner.

Jeffry S. Spears (argued), Lord, Bissell & Brook, Rockford, Hugh C. Griffin, Diane I Jennings, Lord, Bissell & Brook, Chicago, for Northern Illinois Medical Center.

Tom E. Rausch (argued), Paul A. Krieg, Holmstrom & Green, P.C., Woodstock, for Dr. E.F. Wilt.

Brian T. Henry, Pretzel & Stouffer, Chtd., Chicago, for Dr. Gregory Eckstein.

Justice DUNN delivered the opinion of the court:

Plaintiff, Dr. William Kenner, appeals from a trial court order entering summary judgment in favor of defendants, McHenry County Hospital (now known as Northern Illinois Medical Center, hereinafter NIMC), Dr. E.F. Wilt, and Dr. Gregory Eckstein, on counts II through V, VII through X, and XII through XV of plaintiff's fourth amended complaint. Counts I, VI, XI, and XVI were voluntarily nonsuited by plaintiff. On appeal, plaintiff contends there were genuine issues of material fact which precluded the trial court from entering summary judgment in defendants' favor.

The following facts are not in dispute. On March 21, 1984, plaintiff, an 86-year-old retired physician, entered NIMC for treatment of a fractured ankle. When plaintiff was admitted to the hospital, plaintiff's wife, Mrs. Dolores Kenner, a licensed practical nurse, signed a form on his behalf entitled "Authorization and consent upon admission to hospital" that stated in pertinent part:

"I understand that my admission to this hospital is indicated because of my condition. I voluntarily authorize and consent to the customary examinations, tests, and procedures performed on hospital patients in my condition and to routine medical treatment ordered by my physician(s)."

Dr. Wilt was plaintiff's attending physician.

On the day plaintiff was admitted, surgery was performed by Dr. Elstrom. Prior to surgery, Mrs. Kenner, again on behalf of plaintiff, signed a form entitled "Authorization for surgeon to operate and Administration of Anesthetic." This form provided in relevant part:

"I, William Kenner, * * * authorize Dr. Elstrom (and whomever he may designate as assistant(s)) to administer such treatment * * * as is necessary, and to perform the following operation: * * * and such additional operations or procedures as are considered therapeutically necessary on the basis of finding during the course of said operation."

On March 25, Nurse Rink, believing that plaintiff might injure his recently repaired fracture, attempted to contact Dr. Wilt regarding plaintiff's repeated attempts to get out of bed. Rink called Dr. Wilt's answering service at approximately 10 p.m. and was advised that Dr. Eckstein was covering for Dr. Wilt that evening. Rink called Dr. Eckstein and advised him of the situation. Dr. Eckstein, who had no prior contact with plaintiff, ordered valium every four hours as needed and the use of soft restraints on one arm and one leg as necessary. Valium was subsequently administered by another nurse. On April 2, 1984, plaintiff checked out of NIMC against the advice of his physicians.

In count II of his fourth amended complaint, plaintiff seeks actual damages from NIMC for false imprisonment. In pertinent part, plaintiff alleges that NIMC, through its agents and employees, intentionally injected Valium into plaintiff without his consent causing plaintiff to lose control of the use and free movement of his body; NIMC knew the Valium was administered to deprive plaintiff of control of his body and was not intended for medical treatment; and the failure of the agents and employees of NIMC to consult with the doctors authorized to treat plaintiff subjected plaintiff to an unreasonable use of force. Plaintiff requests actual damages in excess of $15,000 for the grave personal damages, humiliation and mental anguish he suffered as a consequence of NIMC's intentional acts restraining his freedom of movement. In count III, plaintiff prays for punitive damages alleging that NIMC's conduct outlined in count II was done wilfully and with complete indifference and disregard to the consequences of the acts. In count IV, plaintiff seeks actual damages from NIMC for battery based on the allegedly unauthorized injection of Valium. Count V seeks punitive damages for this alleged wilful misconduct.

In count VII, plaintiff seeks actual damages from Dr. Wilt for false imprisonment. Plaintiff alleges in relevant part that Dr. Wilt permitted Dr. Eckstein, who did not have the consent or authority to render medical treatment to plaintiff, to interfere with plaintiff's treatment; Dr. Eckstein ordered Valium not as medical treatment but to render plaintiff unconscious and deprive him of control of his body, and also ordered leg and wrist restraints on plaintiff; and Dr. Wilt, through his agents the hospital personnel, intentionally administered Valium to plaintiff and physically restrained plaintiff to his bed without consent and against his will. Plaintiff requests actual damages in excess of $15,000 for the grave personal damages, humiliation and mental anguish he suffered as a consequence of Dr. Wilt's intentional acts restraining his freedom of movement. In count VIII, plaintiff alleges Dr. Wilt's conduct as described in count VII was done wilfully and requested punitive damages. In count IX, plaintiff seeks actual damages for the injection of Valium on a battery theory. Count X requests punitive damages for this alleged wilful misconduct.

Counts XII through XV were directed at Dr. Eckstein and reallege the conduct purportedly rendering Dr. Eckstein liable for actual and punitive damages for false imprisonment and battery.

Each defendant moved for summary judgment on the counts directed at them. In its memorandum in support of summary judgment, NIMC first argued the claims were without merit because plaintiff gave written and implied consent to the treatment administered by Dr. Eckstein by virtue of the consent form signed at admission and the accepted custom and practice in the profession. NIMC next argued the nursing staff did not act with the requisite intent because it acted only upon order of the plaintiff's physician and in reliance on the on-call schedule. Third, NIMC contended it could not be held vicariously liable for the acts or omissions of independent physicians. Finally, NIMC argued that plaintiff was not entitled to punitive damages. Dr. Wilt argued plaintiff had consented to the treatment in question, and he could not be vicariously liable for the acts of the hospital employees because they were implementing purely hospital procedure. Dr. Eckstein argued plaintiff consented to the treatment and punitive damages were unwarranted. As support for these contentions, defendants relied on the consent forms signed by Mrs. Kenner, an affidavit by Dr. Baxamusa stating the treatment ordered by Dr. Eckstein was appropriate under the circumstances, and excerpts from the depositions of Dr. Eckstein, Dr. Wilt, Dr. Lorenc, Nurse Rink, plaintiff, and Mrs. Kenner.

At his deposition, Dr. Eckstein stated he had not previously treated plaintiff and had not discussed plaintiff's condition with Dr. Wilt. Based on the representation of plaintiff's attending nurse regarding plaintiff's condition and his prior history, Dr. Eckstein prescribed Valium for purposes of sedation and to help alleviate agitation, and also ordered restraints administered on an as necessary basis. Dr. Eckstein claimed his authority to treat plaintiff arose from the on-call arrangement he had with Dr. Wilt which was verbally conveyed to the hospital. Dr. Eckstein explained the purpose of the arrangement, which also included Dr. Lorenc, was to permit the doctors to have time off without being concerned about having to treat their patients if the need arose. Under the arrangement, the physician on call is responsible for treating the other doctors' patients as required. Dr. Eckstein distributed a brochure to his new patients explaining the on-call arrangement. Dr. Eckstein was not aware whether Dr. Wilt notified his patients of the on-call arrangement. Nor was Dr. Eckstein aware whether the hospital notified plaintiff of the on-call arrangement.

Dr. Wilt stated in deposition that Dr. Eckstein had authority to leave orders for his patients and those of Dr. Lorenc under a standard hospital rotation call under which the doctors cover for each other every third day. Dr. Wilt stated this arrangement was recognized and spelled out on the doctors' schedules, which were given to the nurses at the hospital. Dr. Wilt claimed the on-call arrangement provided clear-cut authority and was well recognized by NIMC.

The pertinent portions of Dr. Lorenc's deposition indicated that Dr. Wilt and Dr. Lorenc were independent practitioners who shared an office building, a receptionist, and a secretary. Dr. Lorenc explained their professional relationship involved sharing "a call" via a special arrangement in which one doctor would cover for the other. Dr. Lorenc added that Dr. Eckstein was also involved in the arrangement. Dr. Lorenc explained the arrangement was simply an accommodation and the doctors did not share in fees for taking calls and there was no written agreement. According to Dr. Lorenc, the hospital was informed verbally of the arrangement, and the emergency room received a monthly notice indicating which doctor was on call for each day of the month. After 5 p.m., nurses were instructed to call the treating doctor's office to ascertain which doctor was on call. Dr. Lorenc added the monthly notice was not reflected on any notes or orders of the patient.

Nurse Rink stated in her deposition that nurses ascertain the treating doctor from the patient's...