                               Illinois Official Reports

                                       Appellate Court



                  Magnini v. Centegra Health System, 2015 IL App (1st) 133451



Appellate Court           JULIE MAGNINI and MARTIN MAGNINI, Plaintiffs-Appellants, v.
Caption                   CENTEGRA HEALTH SYSTEM, a Corporation, Defendants-
                          Appellees (John Alverdy, University of Chicago Hospitals, a
                          Corporation, Amir Heydari, Aaron Schwaab, Richard E. Lind, M.D.,
                          S.C. d/b/a Surgical Associates of Fox Valley, S.C., a Corporation, and
                          BMI Weight Busters Weight Loss Center Inc., a Corporation,
                          Defendants).


District & No.            First District, Third Division
                          Docket No. 1-13-3451


Filed                     June 10, 2015


Decision Under            Appeal from the Circuit Court of Cook County, No. 10-L-9361; the
Review                    Hon. John P. Kirby, Judge, presiding.

Judgment                  Affirmed.



Counsel on                Clifford Law Offices, P.C., of Chicago (Keith A. Hebeisen, Susan A.
Appeal                    Capra, and Sara F. King, of counsel), for appellants.

                          Swanson, Martin & Bell, LLP, of Chicago (Kay L. Schichtel,
                          Catherine Basque Weiler, and Megan E. Schneider, of counsel), for
                          appellees.



Panel                     JUSTICE MASON delivered the judgment of the court, with opinion.
                          Presiding Justice Pucinski and Justice Hyman concurred in the
                          judgment and opinion.
                                              OPINION

¶1       Plaintiff Julie Magnini brought a medical malpractice suit against Centegra Health System,
     Dr. Amir Heydari, Dr. Aaron Schwaab, Dr. Richard Lind (collectively, the doctors), and
     various other defendants not relevant to this appeal. She alleged that she was injured as a result
     of gastric bypass surgery performed at Centegra Hospital in 2007, as well as later surgeries to
     treat complications arising out of the original surgery. Additionally, Julie’s husband, Martin
     Magnini, sought damages for loss of consortium.
¶2       The Magninis sought recovery against Centegra on a theory of vicarious liability, alleging
     that the doctors were “agents and employees” of Centegra. The trial court granted summary
     judgment for Centegra, finding that the doctors were independent contractors, not agents, since
     Centegra did not control the manner in which they rendered care to patients. The Magninis
     appeal, arguing that there is an issue of material fact as to whether Centegra retained sufficient
     control over the doctors to negate their status as independent contractors. Finding no error, we
     affirm.

¶3                                          BACKGROUND
¶4       The Magninis’ fourth amended complaint, which frames the issues in this appeal, alleges
     that on October 30, 2007, Julie underwent Roux-en-Y gastric bypass surgery for obesity at
     Centegra Hospital. The procedure was performed by Drs. Heydari and Schwaab. Following the
     operation, Julie experienced persistent abdominal pain, inability to eat, excessive weight loss,
     and malnourishment. She was repeatedly hospitalized at Centegra Hospital for continuing
     treatment of her complications. Drs. Heydari, Schwaab, Lind, and Eugene Lee all played roles
     in her treatment and care.
¶5       In its count against Centegra, the complaint alleges that Drs. Heydari, Schwaab, Lind, and
     Lee were all agents and employees of Centegra. The complaint further alleges that Drs.
     Heydari and Schwaab negligently performed the initial gastric bypass surgery on Julie, and all
     four doctors improperly treated her resulting complications, causing her to sustain various
     injuries. The complaint therefore seeks relief against Centegra for the doctors’ alleged
     negligence.
¶6       Centegra moved for summary judgment. In its motion, Centegra argued that the Magninis
     raised no allegations of direct or institutional negligence against Centegra; their sole theory of
     liability was that Centegra was vicariously liable for the actions of the doctors. However,
     according to Centegra, none of the doctors was its actual or apparent agent. Dr. Heydari was an
     “independent member of the medical staff at Centegra.” Centegra further stated that Drs.
     Schwaab, Lind, and Lee were all employees of Surgical Associates of Fox Valley (SAFV), a
     medical services corporation, and they were not employees of Centegra.
¶7       In support of its summary judgment motion, Centegra attached the deposition testimony of
     the four doctors. Dr. Heydari testified that he had both administrative and clinical
     responsibilities at Centegra Hospital. On the administrative side, he was the director of
     bariatric health services at Centegra. He explained that bariatrics is a branch of medicine
     dealing with weight loss. As director, he would meet with nurses, dieticians, secretaries, and
     patients on a regular basis, and he was available to answer any questions that people might



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       have about the program. Additionally, he stated that he was tasked with “[b]eing an advisor,
       giving direction which way our bariatric program is going.”
¶8         Dr. Heydari testified that in addition to his administrative role, he also had a clinical role as
       an independent surgeon practicing medicine. Dr. Heydari’s administrative and clinical roles
       were “two different hats.” When Dr. Heydari made decisions about what kind of surgery
       would be best for Julie, or what actions to take during surgery, those decisions were
       independent decisions that he made based upon his own expertise as an independent member
       of the medical staff. When Dr. Heydari performed surgery, he was not acting as an employee of
       Centegra.
¶9         Dr. Schwaab testified that he had never been an employee of Centegra. He stated that he
       was the medical director of the breast program at Centegra, as well as the director of the wound
       and hyperbaric center, but he did not see Julie in connection with either of those programs.
¶ 10       Dr. Lind was the founding member of SAFV and Drs. Heydari, Schwaab, and Lee were all
       hired by SAFV. He stated that he was not employed by Centegra at the time he provided health
       care services to Julie, and his provision of such services was based upon his independent
       judgment as an independent contractor. Similarly, Dr. Lee testified that he was not an
       employee of Centegra, and he was acting as an employee of SAFV when he provided care to
       Julie.
¶ 11       The Magninis filed a response to Centegra’s summary judgment motion in which they
       argued that a genuine issue of material fact existed as to whether Centegra controlled the
       manner in which its doctors provided medical care services to patients. They argued that such
       control was evidenced by the 2004 medical director services agreement, whereby Dr. Heydari
       became the director of bariatric health services at Centegra; the 2009 bariatric services
       agreement, whereby SAFV became the exclusive provider of bariatric surgery services at
       Centegra; and Centegra’s medical staff bylaws. All three documents were attached to the
       response.
¶ 12       The medical director services agreement between Centegra and Dr. Heydari was entered
       into on October 1, 2004. Under that agreement, Dr. Heydari accepted the administrative
       position of director of bariatric health services at Centegra. The agreement states that, as
       director, Dr. Heydari would make efforts to improve the quality of care and reduce the cost of
       care. He was also required to work with the site administrator on an annual program evaluation
       to assess evidence of the program’s improvement and its need for further improvement. The
       agreement states that these administrative services are “distinct and separate from any general
       patient care services the Director should assume.” The agreement stipulates that Dr. Heydari
       was not to spend more than 10 hours per month on these administrative services, and he was
       paid for the time he spent. It also provides:
                   “5.3 Independent Contractor–Nothing contained in the Agreement shall constitute
               or be construed to create a partnership, joint venture, employment, or agency
               relationship between the parties and/or their respective successors and assigns, it being
               mutually understood and agreed that the parties shall provide the services and fulfill all
               other obligations hereunder as independent contractors. [Centegra] shall neither have,
               nor exercise any control, over the methods by which Director shall perform
               responsibilities.”
¶ 13       The bariatric services agreement, entered into by Centegra, SAFV, and Dr. Heydari on
       May 27, 2009, provides that SAFV will be the exclusive provider of bariatric surgery services

                                                     -3-
       at Centegra. The agreement lists a surgeon roster of five doctors, including Drs. Heydari,
       Schwaab, Lind, and Lee, and states that changes to the roster may only be made with prior
       approval by Centegra. It further provides that SAFV will work with Centegra on “cost
       reduction initiatives” and will work with Centegra’s director of surgical services to prepare an
       annual report. Regarding this report, the agreement states that “[a]ll parties shall mutually
       agree upon findings and recommendations and shall use best efforts to implement
       recommendations over the next calendar year.” The agreement further provides that Centegra
       will review Dr. Heydari’s performance as director of bariatric health services at least once a
       year and can terminate him from that position if he materially breaches the agreement in any
       way, including failing to provide services in accordance with the standards required by the
       agreement.
¶ 14       As to SAFV’s and Dr. Heydari’s status vis-à-vis Centegra, the agreement states:
                   “7.3 Independent Contractors.
                   The parties expressly acknowledge and agree that as to any general medical duties
               performed by SAFV or [Dr. Heydari] during the term of this Agreement, including but
               not limited to provision of direct care of patients, which duties are separate and distinct
               from the obligations of Bariatric Medical Director specified in this Agreement, SAFV
               and [Dr. Heydari] are independent contractors. The parties expressly acknowledge and
               agree that Centegra shall neither have nor exercise any control over the methods by
               which SAFV or [Dr. Heydari] shall carry out his general medical duties, and Centegra
               shall assume no responsibility or liability associated with such conduct by SAFV or
               [Dr. Heydari].”
¶ 15       Attached to the bariatric services agreement is a document that describes Dr. Heydari’s
       duties as director of bariatric services. Many of the provisions of that document mirror the
       provisions of the medical director services agreement, as described above, but some are new:
       according to the document, Dr. Heydari is required to coordinate with Centegra management
       concerning quality control of all procedures that impact the provision of bariatric services at
       the hospital. He must also monitor and evaluate the professional performance of individuals
       providing bariatric services and make recommendations for action, including disciplinary
       action. He must monitor the financial impact of the bariatric services program and assist
       Centegra in achieving its financial objectives. Finally, he must direct all aspects of the
       maintenance and development of the bariatric services program, including “oversight of the
       appropriateness of care.” The document states that these obligations are “separate and distinct”
       from Dr. Heydari’s general medical duties.
¶ 16       Finally, the Magninis relied on Centegra’s medical staff bylaws. All physicians with staff
       privileges at Centegra are required to comply with these bylaws. Because the bylaws are
       lengthy, we summarize briefly only those portions that are cited by the Magninis as evidence
       of Centegra’s control over the doctors.
¶ 17       The bylaws provide that physicians may only exercise those clinical privileges that have
       been specifically granted to them by Centegra’s board of directors. Physicians may be granted
       temporary privileges for up to three months by Centegra’s chief executive officer, upon
       consultation with the president of the staff or the appropriate department chair. Physicians with
       temporary privileges shall act under the supervision of the department chair, and privileges
       will be withdrawn if either the chief executive officer withdraws the appointment or the
       president or department chair withdraws the recommendation.

                                                    -4-
¶ 18       With regard to medical records, the bylaws state that attending practitioners are responsible
       for preparation of a complete medical record for each patient. Medical records must be
       completed “in a timely and legible manner.” If a patient’s medical record is not completed
       within 30 days of discharge, the physician’s clinical privileges will be suspended until the
       record at issue is completed.
¶ 19       With regard to surgery, the bylaws provide: “Surgeons must be in the Operating Room and
       ready to scrub at the time scheduled.” The bylaws state that if a surgeon fails to comply with
       this regulation, the surgery will be rescheduled to the end of that day. Additionally, if a surgeon
       fails to comply more than three times in a three-month period, the surgeon’s privileges may be
       curtailed for one month.
¶ 20       Finally, the bylaws state the following regarding consultations:
                   “When, in the judgment of the attending practitioner, a consultation or
                consultations will benefit the patient, he shall request consultation with an approved
                consultant of the Medical Staff in the following patient care areas:
                       A. All major medical and surgical cases in which the patient is not a good risk;
                       B. In which the diagnosis is obscure;
                       C. Where there is an unusually complicated situation where specific skill of
                   another practitioner is needed;
                       D. Where the patient exhibits severe psychiatric symptoms;
                       E. Other operations which may interrupt a known or suspected pregnancy.”
¶ 21       On October 2, 2013, the trial court granted Centegra’s motion for summary judgment,
       finding that the Magninis could not establish that the doctors were agents of Centegra. The trial
       court also entered a finding pursuant to Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff.
       Feb. 26, 2010)) that there was no just reason to delay enforcement of the order. The Magninis
       appealed.

¶ 22                                            ANALYSIS
¶ 23       The Magninis argue that the trial court erred in finding that the doctors were not agents of
       Centegra, since the medical director services agreement, the bariatric services agreement, and
       Centegra’s bylaws create issues of material fact as to whether Centegra retained control over
       the doctors’ actions. The Magninis therefore contend that the trial court erred in granting
       summary judgment to Centegra. We review the trial court’s grant of summary judgment
       de novo (Williams v. Manchester, 228 Ill. 2d 404, 417 (2008)), keeping in mind that summary
       judgment is only appropriate where “there is no genuine issue as to any material fact and ***
       the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
       2012). We must construe the record strictly against the movant and liberally in favor of the
       nonmoving party. Williams, 228 Ill. 2d at 417. In order to prevail, the nonmoving party must
       present some evidence that would arguably entitle that party to recover at trial. Keating v. 68th
       & Paxton, L.L.C., 401 Ill. App. 3d 456, 472 (2010).
¶ 24       In Illinois, a hospital may be liable in a medical malpractice action in two circumstances:
       directly, when the hospital owes the plaintiff an independent duty to review and supervise the
       plaintiff’s medical care, or vicariously, when there exists a principal-agent relationship
       between the hospital and the physician accused of malpractice. Gilbert v. Sycamore Municipal
       Hospital, 156 Ill. 2d 511, 518 (1993). In this case, the Magninis’ claims against Centegra are

                                                    -5-
       premised solely upon a theory of vicarious liability. Specifically, they argue that Centegra is
       vicariously liable for the doctors’ alleged negligence under a theory of actual agency. 1
¶ 25        To prevail on a claim for actual agency, or respondeat superior, a plaintiff must establish
       that (1) a principal-agent relationship existed between the defendant and the actor, (2) the
       principal controlled or had the right to control the conduct of the alleged agent; and (3) the
       alleged conduct fell within the scope of the agency. Wilson v. Edward Hospital, 2012 IL
       112898, ¶ 18. The “ ‘hallmark of agency’ ” is the principal’s right to control the manner in
       which the agent performs the work. Simich v. Edgewater Beach Apartments Corp., 368 Ill.
       App. 3d 394, 402 (2006) (quoting Kaporovskiy v. Grecian Delight Foods, Inc., 338 Ill. App. 3d
       206, 210 (2003)). By contrast, an independent contractor undertakes to produce a given result
       but is not controlled with regard to how that result is achieved. Id. A principal will generally
       not be held vicariously liable for the acts of an independent contractor. Petrovich v. Share
       Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). The reason for this limitation on liability
       is that “by definition of the relationship between a principal and an independent contractor, the
       principal does not supervise the details of the independent contractor’s work and therefore is
       not in a good position to prevent negligent performance.” (Internal quotation marks omitted.)
       Horwitz v. Holabird & Root, 212 Ill. 2d 1, 11 (2004). For this reason, a hospital is generally not
       liable for the actions of one who provides medical care as an independent agent outside the
       hospital’s control. Wogelius v. Dallas, 152 Ill. App. 3d 614, 621 (1987); see also Buckholtz v.
       MacNeal Hospital, 337 Ill. App. 3d 163, 172 (2003) (noting that “the decision to treat a patient
       in a particular manner is generally a medical question entirely within the discretion of the
       treating physician and not the hospital”).
¶ 26        In determining whether an actor is an agent or an independent contractor, the primary
       consideration is whether the principal retains the right to control the manner in which the work
       is performed. Petrovich, 188 Ill. 2d at 42; see Horwitz, 212 Ill. 2d at 13 (“An independent
       contractor is defined by the level of control over the manner of work performance.”). Where
       the principal retains a sufficient right of control, the actor’s status as an independent contractor
       is negated and the principal is subject to liability for the actor’s tortious actions under the
       doctrine of respondeat superior. Petrovich, 188 Ill. 2d at 42. The intent of the parties is not
       dispositive if the conduct of the parties demonstrates the existence of an agency relationship.
       Oliveira-Brooks v. Re/Max International, Inc., 372 Ill. App. 3d 127, 134 (2007).
¶ 27        Here, Centegra argues, and the trial court found, that the doctors are independent
       contractors, and therefore Centegra cannot be held vicariously liable for any negligence in
       connection with their treatment of Julie. We agree.



           1
              The Magninis also argued the issue of apparent agency before the trial court, but they explicitly
       disavow any such claim in their briefs on appeal, and it is therefore abandoned. See People v. Dabbs,
       239 Ill. 2d 277, 294 (2010). In any event, an apparent agency claim would be unavailing. A hospital
       may only be held liable on a theory of apparent agency where the treating physician is held out as an
       agent of the hospital. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 522 (1993). In this case,
       it is undisputed that over the course of her treatment with SAFV, Julie signed 82 consent forms which
       stated that her physicians were independent contractors and not agents of Centegra. Based upon these
       forms, it is clear that Julie knew or should have known that her physicians were not being held out as
       agents of Centegra.

                                                       -6-
¶ 28       Initially, we observe that Drs. Heydari, Schwaab, Lind, and Lee all testified in their
       depositions that they are not employees of Centegra. The doctors also testified about their
       independence in making patient care decisions. Dr. Heydari stated that his decisions about
       what surgery would be best for Julie or what actions to take during surgery were independent
       decisions that he made based upon his own expertise as an independent member of the medical
       staff. Dr. Lind likewise testified that his provision of health care services was up to his
       independent judgment as an independent contractor.
¶ 29       The doctors’ testimony in this regard is corroborated by the bariatric services agreement
       and the medical director services agreement, both of which provide that physicians retain
       exclusive control over treatment decisions. The bariatric services agreement, under the
       heading “Independent Contractors,” explicitly states that “Centegra shall neither have nor
       exercise any control over the methods by which SAFV or [Dr. Heydari] shall carry out his
       general medical duties, and Centegra shall assume no responsibility or liability associated with
       such conduct by SAFV or [Dr. Heydari].” Similarly, the medical director services agreement
       states: “[It is] mutually understood and agreed that the parties shall provide the services and
       fulfill all other obligations hereunder as independent contractors. [Centegra] shall neither have,
       nor exercise any control, over the methods by which Director shall perform responsibilities.”
¶ 30       The Magninis nevertheless argue that even though the parties may have intended to create
       an independent contractor relationship, that intent is not dispositive in light of other evidence
       which demonstrates the existence of an agency relationship. See Oliveira-Brooks, 372 Ill. App.
       3d at 134. We turn now to examine that evidence.
¶ 31       The Magninis first argue that Centegra’s bylaws constitute evidence of Centegra’s control
       over the physicians that practice there. All physicians with privileges at Centegra must comply
       with the policies and procedures set forth in the bylaws, including preparing medical records
       for patients, being in the operating room at the time scheduled for surgery, and requesting
       consultations in certain patient care areas “[w]hen, in the judgment of the attending
       practitioner, a consultation or consultations will benefit the patient.” Additionally, the bylaws
       provide that physicians may be granted temporary privileges for up to three months by
       Centegra’s chief executive officer.
¶ 32       All of these policies concern matters that are collateral to patient care decisions, which
       remain in the exclusive control of physicians. For instance, although the bylaws direct
       surgeons to be in the operating room at the time scheduled for surgery, they do not purport to
       direct the actions taken by surgeons during surgery, nor do they restrict what forms of surgery
       that surgeons may recommend to their patients. Consultation decisions are explicitly left up to
       “the judgment of the attending practitioner.” Thus, the bylaws do not interfere with
       practitioners’ exercise of independent medical judgment and, correspondingly, do not negate
       the doctors’ status as independent contractors. As this court has previously observed, the
       relationship between a hospital and staff members who are not regular hospital employees “has
       traditionally been an independent relationship even though both parties must cooperate for the
       purposes of hospitalization to succeed. The necessity for co-operation neither authorizes [n]or
       requires a change or an abandonment of the independent roles of each.” Hundt v. Proctor
       Community Hospital, 5 Ill. App. 3d 987, 990 (1972).
¶ 33       Consistent with Hundt, this court has held on multiple occasions that requiring an
       independent contractor to follow certain policies and procedures does not, standing alone,
       constitute sufficient control to create an agency relationship. In Oliveira-Brooks, 372 Ill. App.

                                                   -7-
       3d at 128, plaintiff sued a franchisor, Re/Max International, alleging that it was vicariously
       liable for the negligence of a franchise employee. As evidence of Re/Max’s control over its
       franchisees, plaintiff cited the testimony of the franchise owner, who stated that Re/Max
       required her to attend a training course and to abide by the Re/Max system of operating her
       franchise. Id. at 131-32. Nevertheless, the Oliveira-Brooks court held that Re/Max was entitled
       to summary judgment, explaining: “Although there is evidence that Re/Max International
       promulgated policies and procedures intended for franchisees, there is no evidence that it
       retained the right to control the specific means and manner by which [franchisee] sales
       associates conduct their day-to-day real estate activities so as to negate Re/Max International’s
       intent.” Id. at 135. Likewise, in Salisbury v. Chapman Realty, 124 Ill. App. 3d 1057, 1061
       (1984), a franchisee agreed to conduct its business in accordance with the franchisor’s
       operations manual, but the franchisor did not hire or fix the compensation of the franchisee’s
       employees, nor did it control the franchise’s day-to-day operation. Under these facts, the court
       found that the franchisor did not exercise the requisite control over the franchisee to create an
       agency relationship. Id.
¶ 34       A similar result was reached in Slates v. International House of Pancakes, Inc., 90 Ill. App.
       3d 716, 727 (1980), where the court held that a franchisee was not an agent of its franchisor.
       The franchise agreement explicitly stated that the franchisee was an independent contractor. Id.
       at 721. However, the franchisee was required to comply with the franchisor’s operational
       procedures manual, which covered a wide range of topics including training and supervision of
       franchisees and restaurant managers, recordkeeping, quality control, and standards for
       training, promotions, advertising, food preparation, and service. Id. at 727. The Slates court
       acknowledged that the franchisor retained a “high degree of supervision” over its franchisees
       but stated that “this control was not so all encompassing as to negate the express intention of
       the parties in the franchise agreement that no agency relationship was created.” Id.
¶ 35       The instant case is analogous to Oliveira-Brooks, Salisbury, and Slates. Although Centegra
       promulgated various policies and procedures via its bylaws, there is no evidence that it retained
       the right to control patient care decisions, decisions that are expressly committed to the
       individual doctors’ discretion and independent medical judgment. The degree of control
       expressed in the bylaws is therefore insufficient to negate the express intention of Centegra and
       SAFV that the doctors would remain independent contractors.
¶ 36       Notwithstanding the foregoing, the Magninis argue that the control that Centegra exercises
       over its physicians is analogous to the control displayed in Petrovich, 188 Ill. 2d 17. The
       Petrovich plaintiff sued her health maintenance organization (HMO), alleging that it was
       vicariously liable for negligence of her treating physicians. The trial court granted summary
       judgment for the HMO, but the Petrovich court reversed, finding that there was an issue of
       material fact as to whether an agency relationship existed between the HMO and its physicians.
       Id. at 51. In reaching this decision, the court relied upon a number of facts not present here:
       First, the HMO’s method of compensating its medical groups provided financial disincentives
       for its physicians to order expensive treatments and tests, thus arguably interfering with the
       physicians’ professional judgment. Id. at 48. Second, the HMO had a “ ‘quality assurance
       review’ ” where it would review patients’ charts once a year to “ ‘make sure that the patients
       are cared for in an appropriate manner.’ ” Id. at 49. Physicians could be terminated for giving
       “ ‘inappropriate’ ” care. Id. Third, the HMO required each of its primary care physicians to
       fulfill a “ ‘gatekeeper’ ” role: without the approval of her primary care physician, a patient


                                                   -8-
       could not see a specialist, and a specialist could not order procedures or tests. Id. at 50. From
       these facts, the Petrovich court held that “a trier of fact could reasonably infer that [the HMO]
       promulgated such a system of control over its physicians that [the HMO] effectively negated
       the exercise of their independent medical judgment, to plaintiff’s detriment.” Id. at 51.
¶ 37       None of the facts cited by the Petrovich court as evidence of the hospital’s control have an
       analogue in the present case. The Magninis have not presented evidence to suggest that
       Centegra provides financial disincentives to physicians in ordering the care that they deem
       necessary for their patients. Nor have they shown that Centegra reviews the appropriateness of
       physicians’ care decisions. On the contrary, as discussed earlier, Centegra explicitly eschews
       control over the methods by which SAFV’s physicians carry out their general medical duties,
       and Drs. Heydari and Lind both testified that their patient care decisions were based upon their
       independent judgment as independent members of the medical staff. Finally, there is no
       evidence that Centegra limits availability of care through a “gatekeeper” system. Accordingly,
       Petrovich does not support the Magninis’ contention that the doctors are agents of Centegra.
¶ 38       The Magninis next argue that the bariatric services agreement is evidence of Centegra’s
       control over the doctors. As noted above, that agreement provides that SAFV, the medical
       services corporation that employs the doctors, is the exclusive provider of bariatric surgery
       services at Centegra. SAFV agrees to work with Centegra on “cost reduction initiatives” and
       work with Centegra’s director of surgical services to prepare annual reports with
       recommendations for improving the bariatric program. The Magninis argue that although this
       agreement is “nominally” between Centegra and SAFV, in practice it functions as nothing
       more than a dressed-up employment contract between Centegra and the doctors employed by
       SAFV. They further assert that SAFV “was merely an accommodation to pass monies from
       Centegra through to the Defendant Doctors.”
¶ 39       The Magninis’ allegations in this regard are unsupported by the record. The record does not
       show that the contractual relationship between Centegra and SAFV was merely nominal, or
       that Centegra used SAFV as a means of controlling the doctors’ patient care decisions.
       Additionally, to the extent that the Magninis’ argument hinges upon the issue of payment, it is
       without merit, since the record does not reflect how the doctors were compensated for their
       services as physicians.2 Ahmed v. Pickwick Place Owners’ Ass’n, 385 Ill. App. 3d 874, 894
       (2008) (rejecting conclusory assertions that were not supported by the record on appeal).
       Consequently, the bariatric services agreement does not serve to negate the doctors’ status as
       independent contractors.
¶ 40       Finally, the Magninis contend that the medical director services agreement creates a
       material issue of fact as to whether Dr. Heydari is an agent of Centegra by virtue of his position
       as Centegra’s director of bariatric health services. In support, they cite Barbour v. South
       Chicago Community Hospital, 156 Ill. App. 3d 324 (1987). In Barbour, the plaintiff’s treating
       physician, Dr. Harrod, performed an unauthorized tubal ligation on her. Plaintiff brought suit
       against Dr. Harrod and the hospital where the operation was performed. The Barbour court
       found that plaintiff’s claims against the hospital were time-barred. Id. at 331. However, in
       dicta, the court stated that a question of fact existed as to whether Dr. Harrod was an agent of

           2
            The record does state that Centegra paid Dr. Heydari for his services as director of bariatric health
       services; however, as shall be discussed later, this is inapposite to the issue of his independence in his
       capacity as a physician, rather than as an administrator.

                                                       -9-
       the hospital, based on the fact that he had an administrative position as chairman of the
       hospital’s obstetrics and gynecology department. Id. at 329-30. The court reasoned that Dr.
       Harrod had a “recognized and continuous association with the hospital itself” in that he acted
       pursuant to the orders of the hospital’s board of directors and could be removed if he failed to
       carry out those orders properly. Id. at 329. The court also observed that “any decision by the
       board to change policy or practice in the obstetrics and gynecology department would have to
       be implemented by the board through Harrod.” Id.
¶ 41       The Magninis argue that Dr. Heydari, like Dr. Harrod, has a “recognized and continuous
       association” with the hospital, which creates an issue of fact as to whether he was an agent. We
       disagree. Barbour is distinguishable from the present case for two reasons. First, as noted
       earlier, the medical director services agreement explicitly states that, in his capacity as
       director, Dr. Heydari is an independent contractor. It further states that Centegra “shall neither
       have, nor exercise any control, over the methods by which Director shall perform
       responsibilities.” This language, which appears to have no parallel in Dr. Harrod’s contract in
       Barbour, indicates that Centegra did not retain the right to control the manner in which Dr.
       Heydari treated his patients, which is the hallmark of an independent contractor relationship.
       Petrovich, 188 Ill. 2d at 42; Simich, 368 Ill. App. 3d at 402. Significantly, nothing in either
       contract or in Centegra’s bylaws relied on by the Magninis allows Centegra to terminate Dr.
       Heydari’s hospital privileges for any claimed violation of his administrative duties. Thus, it is
       clear that Centegra’s control over Dr. Heydari is limited to the performance of his contractual
       duties and does not extend to his independent medical judgment in rendering care to patients.
¶ 42       Second, the medical director services agreement provides that Dr. Heydari’s duties as
       director are “distinct and separate from any general patient care services the Director should
       assume.” Again, no such language was cited by the Barbour court. This is significant because
       the Magninis’ complaint does not allege that Dr. Heydari was negligent in the performance of
       his administrative duties. Rather, it alleges that he was negligent in providing patient care
       services to Julie–i.e., performing gastric bypass surgery on her and treating her resulting
       complications. Since the Magninis seek to hold Centegra vicariously liable for Dr. Heydari’s
       actions in his capacity as a physician and not an administrator, and since those duties are
       “distinct and separate,” the issue is the control that Centegra retains over Dr. Heydari’s acts as
       a physician. See Restatement (Third) of Agency § 7.03(2) (2006) (principal is only subject to
       vicarious liability under a theory of actual agency where employee’s tort is within the scope of
       his employment). For all the reasons discussed above, this control is insufficient to create an
       agency relationship between Dr. Heydari and Centegra or to give rise to any genuine issue of
       material fact that would preclude summary judgment in Centegra’s favor.

¶ 43                                        CONCLUSION
¶ 44       The trial court did not err in granting summary judgment for Centegra based upon its
       finding that the allegedly negligent doctors were independent contractors and not agents of
       Centegra. Accordingly, we affirm the judgment of the trial court.

¶ 45      Affirmed.




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