                              Illinois Official Reports

                                     Appellate Court



                      Gore v. Provena Hospital, 2015 IL App (3d) 130446



Appellate Court          FELICIA GORE, Individually and as Mother and Next Friend of
Caption                  Randall Robinson, a Disabled Person, Plaintiff-Appellant, v.
                         PROVENA HOSPITAL, d/b/a Provena Saint Joseph Medical Center,
                         Defendant-Appellee (Patricia P. Panelli, M.D., and Prairie Emergency
                         Services, S.C., Defendants).



District & No.           Third District
                         Docket No. 3-13-0446



Rule 23 Order filed      February 9, 2015
Motion to publish
allowed                  March 31, 2015
Opinion filed            March 31, 2015



Decision Under           Appeal from the Circuit Court of Will County, No. 08-L-270; the Hon.
Review                   Michael J. Powers, Judge, presiding.




Judgment                 Affirmed.



Counsel on               Joseph A. Power, Jr., and Kathryn L. Conway (argued), both of Power
Appeal                   Rogers & Smith, P.C., of Chicago, for appellant.

                         Nancy G. Lischer (argued), of Hinshaw & Culbertson, of Chicago, for
                         appellee.
     Panel                    PRESIDING JUSTICE McDADE delivered the judgment of the
                              court, with opinion.
                              Justice Carter concurred in the judgment and opinion.
                              Justice Holdridge specially concurred, with opinion.



                                               OPINION

¶1         Gore appeals the trial court’s grant of Provena Saint Joseph Medical Center’s (Provena)
       motion for summary judgment where the court held the consent form she signed was an
       acknowledgment that the hospital was not holding out physicians as agents or employees and
       thus there was no reliance on such holding out. We affirm.

¶2                                               FACTS
¶3         Randall Robinson is one of Felicia Gore’s three children. On July 19, 1989, Randall was
       born prematurely with cerebral palsy at Michael Reese Hospital. He was diagnosed with
       hydrocephalus and at three months a shunt was placed in his head. He remained at Michael
       Reese Hospital until he gained enough weight to be transferred to Silver Cross Hospital,
       where he stayed for six months. There, Dr. Kishnor Jain became and has remained his
       pediatrician.
¶4         On January 30, 2000, when he was 10 years old, Randall began experiencing
       complications including vomiting, headaches, nasal congestion, increased drooling, and a
       sore throat. An ambulance was called. Knowing that Dr. Jain was affiliated with Silver Cross
       and wanting Randall to be seen by him, Gore insisted to the paramedics that Randall be
       transported to Silver Cross for treatment. In the paramedics’ opinions, Randall required
       immediate care and since Provena was closer than Silver Cross that is where they took
       Randall. Though she failed to accurately remember during her deposition, Gore went to
       Silver Cross while the paramedics transported Randall to Provena. Neither Gore nor Randall
       had been treated by any physician at Provena prior to January 30, 2000.
¶5         Randall’s medical records from Provena show that at 9:45 a.m. on January 30, his vital
       signs were checked and recorded by Provena personnel. The record notes also show that at
       10:15 a.m., Gore phoned Provena from Silver Cross to determine where Randall had been
       taken. The nurse’s report noted that Gore was upset that Randall was taken to Provena and
       that Gore was informed by Provena that “once the patient arrives [at Provena], they [sic]
       become [their] responsibility.”
¶6         At 10:20 a.m., Dr. Patricia Panelli examined Randall at Provena and ordered a CT scan.
       She made several notes in Randall’s medical history and also spoke with Dr. Jain. After
       noting an inability to accurately compare Randall’s CT scans from Children’s Memorial
       Hospital with the newer ones she had ordered, Dr. Panelli discharged Randall at 2:10 p.m.
       with a diagnosis of an upper respiratory infection. She gave instructions to follow up with Dr.
       Jain the next day and to seek immediate care if he vomited, the rash persisted, or his
       condition worsened.


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¶7          Dr. Panelli did not consult any other physician about the CT scan comparisons. She did
       note in her discharge summary that the CT taken at Provena demonstrated a “marked dilated
       left lateral ventricle, as well as a large posterior fossa cystic mass, which is probably related
       to a very dilated fourth ventricle.” Dr. Panelli further wrote that “these findings suggest [the]
       possibility of shunt malfunction and clinical correlation is advised.”
¶8          Gore arrived at Provena at some point after Randall was initially seen by Dr. Panelli, but
       the exact time of her arrival is not recorded. Upon her arrival, she was given a consent form
       to sign as Randall’s nearest relative or legal guardian. The consent form contained an
       independent contractor disclaimer under a section heading, “CONSENT TO TREAT.” This
       section states, in relevant part: “I understand that all doctors furnishing service to me,
       including emergency department physicians, radiologists, anesthesiologists, pathologists,
       cardiologists, surgeons, and the like, are not employees nor agents of Saint Joseph Medical
       Center.”
¶9          The consent form concludes with a section entitled “acknowledgement of receipt of
       patient’s bill of rights and responsibilities,” which states, in relevant part: “I hereby
       acknowledge receipt of Statement of Patient’s Rights and Responsibilities. I understand that
       professional personnel are available to explain the statement.” There is no evidence that
       anyone explained the terms of the consent form to Gore. Gore is a high school graduate who
       has held a variety of professional jobs.
¶ 10        The next day, January 31, Gore took Randall for a follow-up with Dr. Jain, as directed.
       At that time, Randall was still complaining of a headache, lethargy, and dehydration. Later
       that day, Randall’s condition worsened. Dr. Jain decided that Randall should be admitted
       because of his respiratory problems, and his mother brought him to the Silver Cross
       emergency room. After admission, Randall continued to experience lethargy, headaches,
       dehydration and severe discomfort. Randall was treated by Dr. Jain and other hospital staff
       while at Silver Cross.
¶ 11        On February 2, Randall was transferred to Children’s Memorial Hospital by ambulance
       where he underwent a ventriculoperitoneal shunt revision to correct the shunt disconnection
       at the valve.
¶ 12        Gore claims that as a consequence of Dr. Panelli’s allegedly negligent treatment, Randall
       suffered serious and permanent injuries resulting in decreased physical and cognitive
       function.
¶ 13        On April 7, 2008, Gore filed her original complaint against several entities involved in
       the care of Randall including Provena. After multiple amended complaints, on May 11, 2012,
       Provena filed its motion for summary judgment. On July 24, the court awarded Provena
       summary judgment after considering the written briefs and oral arguments. Gore’s motion to
       reconsider was denied.
¶ 14        This appeal followed.

¶ 15                                         ANALYSIS
¶ 16       We review de novo an order granting summary judgment. Hall v. Henn, 208 Ill. 2d 325,
       328 (2003). Summary judgment is proper when the pleadings, depositions, and affidavits
       demonstrate that no genuine issue of material fact exists and that the moving party is entitled
       to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010); State Farm Mutual

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       Automobile Insurance Co. v. Coe, 367 Ill. App. 3d 604, 607 (2006). In making this
       determination, the court must view the record materials in the light most favorable to the
       nonmovant. Federal Insurance Co. v. Lexington Insurance Co., 406 Ill. App. 3d 895, 897
       (2011).
¶ 17        As an initial matter, Provena argues that Gore is relying only upon allegations from her
       complaint to oppose summary judgment. Our courts have held that “[i]f the moving party
       presents facts which, if not contradicted, would entitle the moving party to judgment as a
       matter of law, the opposing party cannot rely upon his complaint alone to raise genuine
       issues of material fact.” Lulay v. Parvin, 359 Ill. App. 3d 653, 658-59 (2005) (citing
       Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 380 (1974)). Provena is correct in its
       statement of the law. However, Gore was not solely relying upon her complaint to oppose
       summary judgment. She contradicted Provena’s assertion that her signing the consent form
       was dispositive with not only the allegation in her initial complaint but also with facts
       presented at the hearing. Her complaint argued that she was not aware of any nonagency
       relationship between Provena and Panelli despite signing the consent form and her arguments
       at the hearing related to her contention that Provena held Panelli out as an agent.
¶ 18        In analyzing Gore’s agency relationship argument, we turn to Gilbert v. Sycamore
       Municipal Hospital, 156 Ill. 2d 511, 525 (1993), which sets out the elements required to
       prove apparent agency between a physician and hospital:
               “[A] plaintiff must show that: (1) the hospital, or its agent, acted in a manner that
               would lead a reasonable person to conclude that the individual who was alleged to be
               negligent was an employee or agent of the hospital; (2) where the acts of the agent
               create the appearance of authority, the plaintiff must also prove that the hospital had
               knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the
               conduct of the hospital or its agent, consistent with ordinary care and prudence.”
               (Internal quotation marks omitted.) Id.
¶ 19        The supreme court has interpreted this to mean that liability attaches to a hospital for the
       negligent acts of a physician who is not employed by the hospital when the physician is the
       apparent or perceived agent of the hospital unless the patient knows or should know that the
       physician is an independent contractor. Id. at 522. Thus, the first two elements required to
       establish apparent agency merge, leaving two final elements of apparent agency, which are:
       (1) a “holding out” of the party who was alleged to be negligent as an agent; and (2)
       reasonable reliance by a third party on the principal’s conduct. Id. We will review each
       element in turn.

¶ 20                                          Holding Out
¶ 21       In Wallace v. Alexian Brothers Medical Center, 389 Ill. App. 3d 1081 (2009), the court
       emphasized what the supreme court stated in Gilbert. To defeat a claim of apparent authority,
       all that was required was some evidence to show that the plaintiff knew or should have
       known of the physician’s independent contractor status. Id. at 1088. We have routinely held
       that a plaintiff’s signature on consent forms containing language disclaiming an agency
       relationship is an important factor to consider when determining whether the “holding out”
       requirement has been satisfied. See Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st)
       121835, ¶ 18 (citing Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st)
       101558, ¶ 26); see also James v. Ingalls Memorial Hospital, 299 Ill. App. 3d 627, 633 (1998)

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       (“[c]ertainly having the patient sign a consent for treatment form which expressly states that
       ‘the physicians on staff at this hospital are not employees or agents of the hospital’ may make
       the proving of [the holding out] element extremely difficult”); see also Wallace, 389 Ill. App.
       3d at 1087 (noting that such disclaimers, though “not always dispositive on the issue of
       ‘holding out,’ *** are an important factor to consider”).
¶ 22        It is uncontested that Gore signed the consent form acknowledging her understanding that
       the physicians at the hospital were independent contractors and not agents of the hospital.
       Yet, she argues that when the paramedics made the unilateral decision to transport Randall to
       Provena, an emergency care facility, instead of Silver Cross as Gore instructed, they were
       doing so because the hospital held itself out as a facility capable of providing that care. She
       relies on Monti v. Silver Cross Hospital, 262 Ill. App. 3d 503 (1994). In Monti, the court held
       that the paramedics responsible for the unconscious patient sought care from the hospital and
       not a personal physician, and thus, “a jury could find that they relied upon the fact that
       complete emergency room care *** would be provided through the hospital staff.” Monti,
       262 Ill. App. 3d at 508. The unconsciousness of the patient in Monti can be likened to
       Randall’s status as a minor with neither of them capable of choosing the hospital where he
       was transported and treated.
¶ 23        Gore further argues the facts that treatment of Randall began prior to her signing the form
       and that the paramedics chose the hospital because it held itself out as a facility capable of
       providing care together establish the “holding out” component of apparent agency.
¶ 24        The Wallace decision, however, renders both of these arguments meritless. Wallace, 389
       Ill. App. 3d at 1088. In Wallace, the court noted that even though treatment of the patient
       began before the plaintiff arrived at the hospital, because it was an emergency, the
       in-progress treatment did not render the patient’s consent form irrelevant regardless of
       whether she was aware that treatment would continue without the signing of the consent
       form. Id. Nor is Monti helpful to Gore because in that case there was no consent form
       advising patients that the physicians were independent contractors of the hospital as is the
       case here.
¶ 25        Additionally, we agree with the trial court regarding the terms of the consent form.
       Unlike the consent forms in the cases Gore relies upon, Spiegelman v. Victory Memorial
       Hospital, 392 Ill. App. 3d 826 (2009), and Schroeder v. Northwest Community Hospital, 371
       Ill. App. 3d 584 (2006), the terms of the form in this case are clear and unambiguous.
¶ 26        In Spiegelman, the court noted that the terms in the consent form, in that case, could be
       construed by a trier of fact as misleading because they did not make clear which physicians
       were employees of the hospital and which were independent contractors. Spiegelman, 392 Ill.
       App. 3d at 837. In that case, “immediately preceding the paragraph containing the
       [disclaimer] is a paragraph stating: ‘I am aware that during my visit to the Emergency
       Department of VICTORY MEMORIAL HOSPITAL, hospital employees will attend to my
       medical needs as may be necessary.’ ” (Emphasis in original.) Id.
¶ 27        Similarly in Schroeder, the court noted the wording of the consent form, in that case,
       disaffirming an agency relationship between the physicians and the hospital, but further
       highlighted the rest of the consent form that stated that the physician’s care is supported by
       employees of the hospital. Schroeder, 371 Ill. App. 3d 584. Thus because of those confusing
       and contradictory terms regarding who would be providing care to the patient, the court held
       that there was sufficient material evidence to establish a triable issue of fact of whether the

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       patient or the plaintiff knew or should have known that the physicians who treated the patient
       were independent contractors. Id. at 593-94. Thus, summary judgment was inappropriate. Id.
¶ 28        In the case at hand, the language in the consent form is clear that the identified personnel
       are not agents of the hospital but are independent contractors. This clarity contradicts Gore’s
       argument that this consent form is extremely similar to the forms in Schroeder and
       Spiegelman.
¶ 29        In reality, the form in this case is more like the consent form in Frezados v. Ingalls
       Memorial Hospital, 2013 IL App (1st) 121835. The Frezados court distinguished its consent
       form from those in Schroeder and Spiegelman. Id. ¶¶ 21-22. It held:
                “The form at issue states clearly and concisely that none of the physicians at
                defendant hospital are its employees, agents, or apparent agents and are instead
                independent contractors. There are no exceptions to this language, and the disclaimer
                is not implicitly contradicted elsewhere in the form, as in Schroeder and Spiegelman.
                Moreover, the form specifies that the patient will receive a separate bill from each of
                his treating physicians.” Id. ¶ 22.
¶ 30        Here, there are no additional terms on the consent form that would raise a question of fact
       regarding whether Gore knew or should have known that the physicians who treated Randall
       were independent contractors. Moreover, the additional terms Gore points to that are present
       in Schroeder and Spiegelman referencing service to be provided by actual hospital employees
       were not present in Frezados and are not present in this case.
¶ 31        Gore’s final arguments concerning a lack of any explanation of the consent form and the
       weight to be placed upon the fact that neither she nor Randall had ever been a patient of
       Provena are without merit. The opportunity for assistance in understanding the form is
       presented twice in the consent form itself, which states that “professional personnel are
       available to explain the statement.” There is no evidence in the record that Gore ever asked
       for any explanation or assistance. Moreover, Gore is a high school graduate who has held
       various professional positions. It is not unreasonable to find that she understood the consent
       form that she signed. See Frezados, 2013 IL App (1st) 121835, ¶ 23. Additionally, the issue
       here centers on whether the form Gore was asked to acquiesce to was clear and
       unambiguous–which it was–not how many opportunities she had to review Provena’s
       standard consent form by frequenting and being treated there. See Steele v. Provena
       Hospitals, 2013 IL App (3d) 110374, ¶ 131, appeal denied, No. 116843 (filed Jan. 29, 2014)
       (noting that a single consent form is “ ‘almost conclusive’ ” of determining hospital’s
       liability (quoting Thede v. Kapsas, 386 Ill. App. 3d 396, 401 (2008))).
¶ 32        The court in Frezados found that consent form sufficient to support a grant of summary
       judgment. Frezados, 2013 IL App (1st) 121835, ¶ 22. We find the same with regard to the
       consent form in this case.
¶ 33        Thus in this case, Gore has failed to establish the “holding out” element of apparent
       authority and the trial court did not err in finding the consent form to be sufficient evidence
       of Gore’s awareness of Dr. Panelli’s independent contractor status.
¶ 34        Our conclusion that Gore failed to establish the “holding out” element renders analysis of
       the third element of apparent agency unnecessary. Frezados, 2013 IL App (1st) 121835, ¶ 25
       (citing Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 163 (2007) (“[i]f the plaintiff fails to



                                                   -6-
       establish any element of the cause of action, summary judgment for the defendant is
       proper”)).

¶ 35                                          Public Policy
¶ 36       Gore’s final argument that the trial court’s holding is against the supreme court’s
       emphasis on the realities of hospital business practices and is therefore against public policy
       is without merit. Apparent agency in the context of all business practices is “based upon
       principles of estoppel: ‘The idea is that if a principal creates the appearance that someone is
       his agent, he should not then be permitted to deny the agency if an innocent third party
       reasonably relies on the apparent agency and is harmed as a result.’ ” York v.
       Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 187 (2006) (quoting O’Banner
       v. McDonald’s Corp., 173 Ill. 2d 208, 213 (1996)). Gore argues that to rely on her signing of
       a consent form when the hospital held itself out as the apparent principal of Dr. Panelli would
       be contrary to this principle. However, we have already discussed Gore’s failure to establish
       the “holding out” element of this cause of action. Thus, the court did not ignore the
       fundamental principle of estoppel based on the realities of a hospital’s business practice; such
       estoppel did not exist. To conclude otherwise would “drastically diminish the value of
       independent contractor disclaimers.” Frezados, 2013 IL App (1st) 121835, ¶ 24.

¶ 37                                         CONCLUSION
¶ 38      Gore failed to establish the “holding out” element of apparent agency with regard to
       Provena’s relationship with Dr. Panelli. This finding precludes any conclusion that there has
       been a violation of the public policy asserted by Gore on the grounds of collateral estoppel.
       Therefore, we affirm the trial court’s grant of summary judgment in favor of Provena.

¶ 39      Affirmed.

¶ 40       JUSTICE HOLDRIDGE, specially concurring.
¶ 41       I agree with the majority’s judgment. I write separately because I disagree with one
       aspect of the majority’s analysis. Relying on Wallace v. Alexian Brothers Medical Center,
       389 Ill. App. 3d 1081 (2009), the majority appears to suggest that, if a plaintiff signs a
       consent form that unambiguously states that the physicians providing emergency treatment at
       a hospital are independent contractors, the hospital cannot be held liable for any negligent
       treatment those physicians provided before the form was signed. See supra ¶ 24. In other
       words, the majority seems to rule that the plaintiff’s signing of such a consent form
       retroactively immunizes the hospital by making it impossible for the plaintiff to prove the
       “holding out” element of apparent agency, regardless of what the doctors or the hospital did
       before the form was signed.
¶ 42       I disagree. The element of “holding out” is satisfied “if the hospital holds itself out as a
       provider of emergency room care without informing the patient that the care is provided by
       independent contractors.” Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 525
       (1993). Hospitals “ ‘increasingly hold themselves out to the public in expensive advertising
       campaigns as offering and rendering quality health services.’ ” Id. at 520 (quoting
       Kashishian v. Port, 481 N.W.2d 277, 282 (Wis. 1992)). Moreover, the element of justifiable

                                                  -7-
       reliance on the part of the plaintiff is satisfied if the plaintiff or those responsible for his care
       (such as paramedics or a parent or other relative if the patient is a minor or an incapacitated
       adult) “rel[y] upon the hospital to provide complete emergency room care, rather than upon a
       specific physician.” Id. at 525; see also Monti v. Silver Cross Hospital, 262 Ill. App. 3d 503,
       507-08 (1994) (holding that emergency personnel who transported an unconscious patient to
       the nearest hospital for emergency treatment “relied upon [that] hospital’s ability to provide
       the services [the patient] would require”).
¶ 43       In this case, the paramedics took Randall to Provena because it was the nearest hospital.
       In choosing Provena, the paramedics relied upon Provena to provide the emergency care
       Randall needed. There is no evidence that the paramedics were aware that the physicians
       who would be treating Randall were independent contractors rather than employees of
       Provena. Moreover, Provena accepted Randall for treatment and admitted him without
       informing the paramedics that its doctors were independent contractors. In my view, this
       evidence could establish the elements of “holding out” and “justifiable reliance” under
       Gilbert and Monti. Accordingly, if the plaintiff in this case could present some evidence that
       a physician at Provena negligently treated Randall before the plaintiff arrived at the hospital
       and signed the consent form, I believe that she could survive summary judgment. To the
       extent that Wallace suggests otherwise, I would decline to follow it.1
¶ 44       However, the plaintiff has not presented such evidence in this case. Based on a Provena
       nurse’s note, Dr. Panelli testified that it was “unlikely” that the plaintiff was present when
       she first saw Randall at the hospital, but she stated that she might not have actually treated or
       examined Randall until the plaintiff was there. The plaintiff did not refute this testimony. To
       the contrary, the plaintiff testified during her deposition that she was “at the emergency
       department the entire time that [her] son was there.” Although the claimant later testified that
       she went to Silver Cross before coming to Provena that day, she presented no testimony or
       other evidence suggesting that Randall’s treatment actually began before she arrived at
       Provena and signed the consent form. Nor did the plaintiff suggest that any acts of negligence
       allegedly committed by Dr. Panelli occurred before that time. Thus, although there is
       evidence suggesting that the plaintiff was not present when Randall was taken to Provena,
       there is no evidence suggesting that Randall underwent any actual medical treatment at
       Provena before the plaintiff arrived and signed the consent form. Under these particular facts,
       the plaintiff’s signing of the consent form acknowledging that all doctors at Provena were
       independent contractors prevents her from establishing the “holding out” element of an
       apparent agency claim against Provena. Thus, I agree with the majority’s judgment.




           1
            It should be noted, however, that Wallace is distinguishable from this case in certain material
       respects. In Wallace, the minor plaintiff’s mother was “unquestionably in charge” of her daughter’s
       care and had the ability to choose where the paramedics would take her child to receive treatment.
       Wallace, 389 Ill. App. 3d at 1094. Here, by contrast, the paramedics chose to take Randall to Provena
       despite the fact that the plaintiff specifically asked them to take him to Silver Cross so he could be
       treated by his regular physician. Moreover, unlike the plaintiff in this case, the plaintiff in Wallace had
       been to the defendant hospital four times before the incident at issue and had signed the hospital’s
       unambiguous consent form each time.

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