                                        2015 IL App (3d) 130446

                                Opinion filed March 31, 2015
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                               A.D., 2015

     FELICIA GORE, Individually and as      )     Appeal from the Circuit Court
     Mother and Next Friend of RANDALL      )     of the 12th Judicial Circuit,
     ROBINSON, a Disabled Person,           )     Will County, Illinois,
                                            )
             Plaintiff-Appellant,           )
                                            )
             v.                             )     Appeal No. 3-13-0446
                                            )     Circuit No. 08- L-270
     PROVENA HOSPITAL d/b/a Provena         )
     Saint Joseph Medical Center            )
                                            )
             Defendant -Appellee            )
                                            )
                                            )     The Honorable
                                            )     Michael J. Powers,
     (Patricia P. Panelli, M.D., and        )     Judge, Presiding.
     Prairie Emergency Services, S.C.,      )
                                            )
             Defendants).                   )
                                            )
     _____________________________________________________________________________

           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."


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¶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.

¶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




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       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

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       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).

¶ 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


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                      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) ("[c]ertainly having

       the patient sign a consent for treatment form which expressly states that 'the physicians on staff


                                                        6
       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


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       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 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.




                                                         8
¶ 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 patients 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


                                                        9
       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 January 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 Corps., 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")).

¶ 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


                                                        10
       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


                                                        11
       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 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


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       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

       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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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.




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