                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




               Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) 121835




Appellate Court            JOHN G. FREZADOS, Plaintiff-Appellant, v. INGALLS MEMORIAL
Caption                    HOSPITAL, an Illinois Corporation, d/b/a Ingalls Family Care Center,
                           Tinley Park, Defendant-Appellee (Sullivan Urgent Aid Centers, Ltd., an
                           Illinois Corporation, and John Olivieri, M.D., Defendants).


District & No.             First District, Third Division
                           Docket No. 1-12-1835


Rule 23 Order filed        May 1, 2013
Rule 23 Order
withdrawn                  May 30, 2013
Opinion filed              June 5, 2013


Held                       Summary judgment was properly entered for defendant hospital in a
(Note: This syllabus       medical malpractice action alleging that defendant was vicariously liable
constitutes no part of     for the treatment provided by two physicians at the hospital, since no
the opinion of the court   factual question was raised by plaintiff as to whether the hospital “held
but has been prepared      out” the physicians as employees of the hospital.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-L-9972; the Hon.
Review                     Jeffrey Lawrence, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  McArdle & Frost (Michael J. Frost, of counsel), and Mary Patricia Benz,
Appeal                      both of Chicago, for appellant.

                            Anderson, Rasor & Partners, LLP, of Chicago (Michele C. Anderson and
                            Albert C. Lee, of counsel), for appellee.


Panel                       JUSTICE STERBA delivered the judgment of the court, with opinion.
                            Justices Hyman and Pierce concurred in the judgment and opinion.




                                              OPINION

¶1          Plaintiff-appellant John Frezados filed a complaint alleging medical negligence against
        defendant-appellee Ingalls Memorial Hospital, d/b/a Ingalls Family Care Center, Tinley Park
        (defendant or Ingalls), and defendants Sullivan Urgent Aid Centers, Ltd., and Dr. John
        Olivieri. Specifically, plaintiff alleged defendant was vicariously liable for the negligent acts
        of Dr. Olivieri and Dr. Hassan Ibrahim, two of his treating physicians. Defendant moved for
        summary judgment, which was granted. On appeal, plaintiff contends that the circuit court
        erred in granting summary judgment because genuine issues of material fact exist
        concerning: (1) whether defendant held out Drs. Olivieri and Ibrahim as its employees; and
        (2) whether plaintiff’s signature on a form that disclaimed any employer-employee
        relationship between defendant and Drs. Olivieri and Ibrahim precluded him from arguing
        that he reasonably believed the doctors were employees of the hospital. For the following
        reasons, we affirm.

¶2                                          BACKGROUND
¶3           Plaintiff filed suit against defendant, among others, arising out of personal injuries he
        sustained after he suffered a ruptured abdominal aortic aneurysm. In his third amended
        complaint, plaintiff alleges professional negligence against defendant based on the actions
        of its alleged agents, codefendant Dr. Olivieri and Dr. Ibrahim, who is not a defendant in this
        case.
¶4           At his discovery deposition, plaintiff testified that his son drove him to Ingalls in Tinley
        Park, Illinois on September 11, 2006, because he was experiencing severe abdominal pain.
        Plaintiff chose to receive care at Ingalls because he previously had a triple bypass operation
        there and credited the hospital with saving his life. In addition, he had taken his children to
        Ingalls for treatment for illnesses when they were younger.
¶5           When plaintiff arrived at Ingalls on September 11, he went directly to the Urgent Aid
        Center and spoke to a person at the intake desk about his symptoms. At that time, he was

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       given a form titled “Consent for Treatment,” which he signed. The 2-page form has his name
       and birth date printed at the top of the first page and consists of 11 numbered paragraphs,
       including a general consent for treatment, assignment of insurance benefits, and a release of
       responsibility for valuables, among others. At issue in this case is paragraph two, which reads
       as follows:
               “I have been informed and understand that physicians providing services to me at
           Ingalls, such as my personal physician, Emergency Department and Urgent Aid
           physicians, radiologists, pathologists, anesthesiologists, on-call physicians, consulting
           physicians, surgeons, and allied health care providers working with those physicians are
           not employees, agents or apparent agents of Ingalls but are independent medical
           practitioners who have been permitted to use Ingalls’ facilities for the care and treatment
           of their patients. I further understand that each physician will bill me separately for their
           services.”
       Plaintiff testified that he signed an identical form in 2002, when he had cataract surgery at
       Ingalls, but did not remember reading it. Likewise, in 2006, he did not read the form before
       signing because he was in too much pain and simply wanted to be treated.
¶6         He told a nurse that his pain was an 8 out of 10, and she took him immediately to an
       examination room where he was treated by Dr. Olivieri, whom he had never met before.
       Plaintiff testified that he believed Dr. Olivieri was an employee of Ingalls based on the fact
       that the doctor was present at the hospital that day.
¶7         Ultimately, plaintiff was diagnosed with an abdominal aortic aneurysm. According to
       plaintiff, Dr. Olivieri told him that there were physicians who could treat this condition at
       Ingalls. Before discharging plaintiff, Dr. Olivieri informed plaintiff that an appointment had
       been made for him with Dr. Ibrahim on September 18 and gave him a card as a reminder.
¶8         Two days later, on September 13, 2006, plaintiff woke at approximately 4 a.m. with
       severe pain. His son called Ingalls, and after speaking with someone there, he called Dr.
       Ibrahim. Dr. Ibrahim spoke to plaintiff and told him to double his dosage of pain medication
       and keep his appointment for the eighteenth. Later that day, plaintiff suffered a ruptured
       abdominal aortic aneurysm which needed surgical repair.
¶9         Prior to the phone conversation on September 13, plaintiff had never met or spoken with
       Dr. Ibrahim. However, plaintiff believed that Dr. Ibrahim was employed by Ingalls because
       Dr. Ibrahim worked in the building where the Urgent Aid Center was located, and because
       he was referred to Dr. Ibrahim by Dr. Olivieri.
¶ 10       Defendant moved for summary judgment on the grounds that there was no issue of fact
       as to whether Drs. Olivieri and Ibrahim were the actual or apparent agents of defendant so
       as to support recovery on the theory of vicarious liability. In support, it submitted the
       affidavit of Diane Jacoby, the general counsel for Ingalls Health System. Jacoby stated that
       neither Dr. Olivieri nor Dr. Ibrahim was defendant’s employee. She explained that defendant
       did not provide compensation to either doctor, and that Dr. Olivieri was an independent
       contractor who was granted privileges to work at the Urgent Aid Center, while Dr. Ibrahim
       leased space in the medical office building. Finally, she stated that in September 2006 there
       were signs posted in the waiting and examination rooms at Ingalls which read:

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                “The doctors at Ingalls are not employees or agents of the hospital. They are
           independent contractors. Billing for their services will be provided separately from the
           hospital charges. Urgent Aid Physicians, CT, MRI, Mammography, Ultrasound,
           Cardiology, Radiology, Pathology.”
¶ 11       The circuit court granted summary judgment in favor of defendant, and plaintiff timely
       filed this appeal.

¶ 12                                         ANALYSIS
¶ 13       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 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). We review de
       novo an order granting summary judgment. Hall v. Henn, 208 Ill. 2d 325, 328 (2003). On
       appeal, plaintiff argues the lower court erred in granting summary judgment in favor of
       defendant because there was a factual question regarding whether defendant was vicariously
       liable for the allegedly negligent acts of Drs. Olivieri and Ibrahim.
¶ 14       In the leading case of Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518
       (1993), our supreme court held that a hospital may be vicariously liable for medical or
       professional negligence if there is an apparent agency relationship between the hospital and
       the treating physicians. Prior to that decision, Illinois law permitted hospitals to be held
       vicariously liable only for negligent acts of their actual agents. Lamb-Rosenfeldt v. Burke
       Medical Group, Ltd., 2012 IL App (1st) 101558, ¶ 24. The decision in Gilbert reflected the
       “reality of modern hospital care” in which patients rely on the reputation of the hospital,
       rather than individual doctors, in seeking emergency treatment and naturally assume the
       doctors are hospital employees. Gilbert, 156 Ill. 2d at 521 (quoting Arthur v. St. Peters
       Hospital, 405 A.2d 443, 447 (N.J. Super. Ct. Law Div. 1979)). It was for this reason that the
       supreme court expanded the scope of a hospital’s liability to include negligent acts of
       apparent, in addition to actual, agents. Gilbert, 156 Ill. 2d at 521-22.
¶ 15       In the case sub judice, only apparent agency is at issue.1 In order to establish apparent
       agency, a plaintiff must show: “ ‘(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.’ ” Id. at 525 (quoting Pamperin v. Trinity


               1
                Plaintiff in his complaint alleges, in the alternative, that defendant was liable for
       professional negligence based on the actions of its actual agents, but he makes no such argument on
       appeal. Indeed, the record conclusively establishes that neither Dr. Olivieri nor Dr. Ibrahim was ever
       employed or compensated by defendant.

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       Memorial Hospital, 423 N.W.2d 848, 856 (Wis. 1988)).
¶ 16       We turn first to the question of whether the actions of defendant or Drs. Olivieri and
       Ibrahim reasonably led plaintiff to believe that the doctors were defendant’s employees or
       agents. In Gilbert, our supreme court explained that this element–commonly referred to as
       “holding out”–is satisfied if the hospital presents itself as a provider of emergency room care
       without informing the patient that the care is being provided by independent contractors. Id.
       The court in Gilbert determined the defendant hospital did not so inform its patients; to the
       contrary, the hospital’s treatment consent form read that patients would be treated by
       “ ‘physicians and employees of the hospital.’ ” Id. at 526.
¶ 17       In contrast, here, the consent for treatment form which plaintiff signed included an
       explicit acknowledgment that “physicians providing services to me at Ingalls, such as ***
       Emergency Department and Urgent Aid physicians *** are not employees, agents or
       apparent agents of Ingalls but are independent medical practitioners.” (Emphasis added.) In
       addition to this acknowledgment, the uncontradicted affidavit of defendant’s general counsel
       stated that signs were posted in both the waiting room and treatment area to the same effect.
¶ 18       We have routinely held that a plaintiff’s signature on consent forms containing similar
       language disclaiming an agency relationship is an important factor to consider when
       determining whether the “holding out” requirement has been satisfied. Lamb-Rosenfeldt,
       2012 IL App (1st) 101558, ¶ 26; see also James v. Ingalls Memorial Hospital, 299 Ill. App.
       3d 627, 633 (1998) (“[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”);
       Wallace v. Alexian Brothers Medical Center, 389 Ill. App. 3d 1081, 1088 (2009) (where
       plaintiff signed consent form referring to physicians as independent contractors and stating
       that physicians and hospital would be paid separately, no issue of fact to survive summary
       judgment).
¶ 19       Of particular import is the decision in Churkey v. Rustia, 329 Ill. App. 3d 239 (2002).
       There, the plaintiff, who alleged that the defendant hospital was liable for the negligence of
       her anesthesiologist, signed a consent form stating that physicians performing anesthesia
       services were independent contractors and not employees of the defendant hospital. Churkey,
       329 Ill. App. 3d at 240-41. When the defendant hospital moved for summary judgment on
       the basis of this signed consent, the plaintiff countered with an affidavit in which she stated
       that she did not read the form prior to signing and that she believed her anesthesiologist was
       a hospital employee. Id. at 241-42. We concluded that this statement did not raise an issue
       of fact given that the plaintiff did not point to any specific actions the hospital took that
       reasonably led her to conclude that her anesthesiologist was the hospital’s agent. Id. at 245.
       The absence of such facts along with the signed consent compelled us to affirm summary
       judgment in favor of the defendant hospital. Id.
¶ 20       Likewise, in the case sub judice, plaintiff admitted in his deposition testimony that
       neither defendant nor Dr. Olivieri did anything to make him believe Dr. Olivieri was
       defendant’s employee:
                “Q. Was there anything–other than the fact that Dr. Olivieri was there working there


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           that day, was there anything about Dr. Olivieri that led you to believe that he was
           employed by Ingalls?
                A. No, other than the fact that he was walking around over there and he was the
           doctor that took care of me.
                Q. Okay. All right. Did he say anything to lead you to believe that he was employed
           by Ingalls?
                A. No.
                Q. Okay. Was there anything that Ingalls did that led you to believe that Dr. Olivieri
           was employed by Ingalls?
                A. No.”
       Just as in Churkey, this testimony, coupled with the form plaintiff signed that disclaimed any
       employer-employee relationship between defendant and Drs. Olivieri and Ibrahim, suggests
       that as a matter of law, no reasonable person could have believed the doctors were the agents
       of defendant.
¶ 21       Importantly, the form utilized in this case is not comparable to those in Schroeder v.
       Northwest Community Hospital, 371 Ill. App. 3d 584 (2006), or Spiegelman v. Victory
       Memorial Hospital, 392 Ill. App. 3d 826 (2009). In Schroeder, the disclosure provision at
       issue read that a patient’s care “ ‘will be managed by [his] personal physician or other
       physicians who are not employed by Northwest Community Hospital.’ ” (Emphasis omitted.)
       Schroeder, 371 Ill. App. 3d at 587. The plaintiff argued this language could reasonably be
       construed to mean that his personal physician was employed by the defendant hospital, and
       we agreed that there was a triable issue of fact regarding apparent agency. Id. at 589, 594.
       Likewise, the consent form in Spiegelman, though it contained a paragraph disclaiming an
       agency relationship between the hospital and emergency room physicians, also stated that
       during a patient’s visit to the emergency department “hospital employees” would attend to
       his medical needs. Spiegelman, 392 Ill. App. 3d at 829, 837. In addition, the signature line
       on the form was beneath a separate, unnumbered paragraph concerning the release of
       property. Id. at 837. Based on these facts, we affirmed the trial court’s denial of the defendant
       hospital’s motion for judgment notwithstanding the verdict, holding that a jury could
       reasonably conclude that the plaintiff did not know of her doctor’s independent contractor
       status. Id. at 837, 841.
¶ 22       No comparable facts exist in the instant case. 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. Therefore, it is akin to the disclaimers we
       found sufficient to support a grant of summary judgment in favor of the defendant hospitals
       in Wallace, Churkey, and Lamb-Rosenfeldt.
¶ 23       Nevertheless, plaintiff argues that his signature on the consent form does not foreclose
       the existence of an issue of fact where his pain prevented him from reading the form prior
       to signing. We disagree. In other contexts, courts have routinely held that a party has a duty

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       to read documents prior to signing them, and a failure to do so will not necessarily raise an
       issue of fact as to the party’s knowledge of the document’s contents. See, e.g., Oelze v. Score
       Sports Venture, LLC, 401 Ill. App. 3d 110, 117 (2010); see also Magnus v. Lutheran General
       Health Care System, 235 Ill. App. 3d 173, 184 (1992); Great American Federal Savings &
       Loan Ass’n v. Grivas, 137 Ill. App. 3d 267, 275 (1985). We see no reason not to extend this
       well-established principle to consent for treatment forms. Indeed, we have never been
       persuaded by plaintiffs who have opposed motions for summary judgment on the basis that
       they did not read the form (Churkey, 329 Ill. App. 3d at 241-42), or that their shock
       prevented them from understanding the form’s provisions (Wallace, 389 Ill. App. 3d at
       1084).
¶ 24       Significantly, a holding to the contrary would drastically diminish the value of
       independent contractor disclaimers. Nearly everyone who seeks emergency treatment is in
       some physical or emotional distress, and were we to hold that such distress could operate to
       nullify provisions in an otherwise duly signed treatment consent form, hospitals would
       always be required to proceed to trial on claims of vicarious liability. Thus, while we are not
       unsympathetic to the pain experienced by plaintiff at the time he sought medical treatment,
       we cannot hold that this pain could excuse him from reading the form prior to signing, or
       from having someone else sign the form if he was unable to consent due to his condition.
¶ 25       Because we conclude that plaintiff has failed to raise a factual question as to the “holding
       out” element of his cause of action, we need not determine whether there is evidence going
       to show plaintiff’s justifiable reliance. See Bagent v. Blessing Care Corp., 224 Ill. 2d 154,
       163 (2007) (“[i]f the plaintiff fails to establish any element of the cause of action, summary
       judgment for the defendant is proper”).
¶ 26       For the reasons stated, we affirm the circuit court’s order granting summary judgment.

¶ 27      Affirmed.




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