                                         2015 IL App (1st) 133451
                                                                                     THIRD DIVISION
                                                                                         June 10, 2015

                                               No. 1-13-3451

     JULIE MAGNINI and MARTIN MAGNINI,               )
                                                     )
                    Plaintiffs-Appellants,           )
                                                     )
     v.                                              )            Appeal from the
                                                     )            Circuit Court of
     CENTEGRA HEALTH SYSTEM, a Corporation, )                     Cook County
                                                     )
                    Defendants-Appellees             )
                                                     )            No. 10 L 9361
     (John Alverdy, University of Chicago Hospitals, )
     a Corporation, Amir Heydari, Aaron Schwaab,     )
     Richard E. Lind, M.D., S.C. d/b/a Surgical      )            Honorable
     Associates of Fox Valley, S.C., a Corporation,  )            John P. Kirby,
     and BMI Weight Busters Weight Loss Center       )            Judge Presiding.
     Inc., a Corporation,                            )
                                                     )
                    Defendants).                     )

            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

     Systems, 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
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     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.



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       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 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



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       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



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              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 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



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              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



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       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.

¶ 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;



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                              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



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       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 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

              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.


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       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.




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¶ 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



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       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.

       3d at 128, plaintiff sued a franchisor, Re/Max International, alleging that it was vicariously liable



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       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. at 727.



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¶ 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 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]




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       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.”




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¶ 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 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

              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.


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       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



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       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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