                           No. 3--07--0757

Filed October 21, 2008
                                IN THE

                    APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2008


REBECCA THEDE,                  )    Appeal from the Circuit Court
                                )    of the 14th Judicial Circuit,
     Plaintiff-Appellant,       )    Whiteside County, Illinois
                                )
          v.                    )    No.     03--AR--16
                                )
HELEN KAPSAS,                   )
                                )    Honorable Stanley B. Steines,
     Defendant-Appellee.        )    Judge, Presiding.


     JUSTICE SCHMIDT delivered the opinion of the court:



     Plaintiff Rebecca Thede sued defendant Dr. Helen Kapsas for

medical malpractice.   The trial court granted Kapsas summary

judgment on her affirmative defense that the suit was untimely.

Thede appeals.   We affirm.

                              BACKGROUND

     Rebecca Thede engaged the services of Dr. Helen Kapsas to

remove a mole from her shoulder.    She became a patient of

Kapsas's, at the CGH Prophetstown Family Medical Center, after

the only previous doctor in Prophetstown and a second doctor in
Sterling left private practice.        Thede had been to see Kapsas at

least five times before scheduling this surgery.       She was aware

that the clinic was operated by Community General Hospital of

Sterling and that Kapsas had not independently billed her for

services on previous occasions.

     Thede and Kapsas intended this particular procedure to be an

outpatient surgery conducted at the clinic.       Kapsas gave Thede

the choice of having the surgery seated or lying down; Thede

chose to have the mole removed while seated.       Kapsas administered

a local anesthetic and proceeded to operate on Thede.       During the

surgery, Thede fainted and fell off the examination table,

striking her face on a chair, breaking her front teeth and

injuring her jaw and nose.    Thede was then admitted to Community

General Hospital for treatment of her injuries.

     One year and eleven months after Thede was injured, she sued

the hospital and Kapsas for malpractice.       The complaint against

Kapsas alleged that she was a hospital employee.1       Kapsas



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         We recognize that this original complaint was nullified

and withdrawn when Thede later filed her amended complaints

against Kapsas.    Barnett v. Zion Park District, 171 Ill. 2d 378,

384, 665 N.E.2d 808, 811 (1996).       However, the statements made in

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admitted this allegation.   Within two months, Thede amended her

complaint for reasons unrelated to this appeal.    She again

alleged Kapsas was an employee of Community General Hospital.

     The hospital moved for dismissal, establishing that it is a

municipal corporation and personal injury suits against it were,

at the time, subject to a one-year limitations period.    745 ILCS

10/8--101 (West 1998).    The hospital's motion for dismissal was

granted.   Thede amended her complaint against Kapsas again, this

time alleging that Kapsas was a physician in private practice and

the applicable limitations period was two years.

     Kapsas moved for summary judgment on the affirmative defense

that she was a hospital employee, the applicable limitations

period for her was also one year, and it had expired.    The trial

court first denied summary judgment because the limitations

period for public employees accused of medical malpractice had

recently been changed from one year to two years, and there was

doubt about whether the old rule or the new rule applied.      It was



the original and first amended complaints are relevant to our

analysis of Thede's prayer for equitable relief.    Texas Eastern

Transmission Corp. v. McCrate, 76 Ill. App. 3d 828, 833, 395

N.E.2d 624, 628 (1979).

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later determined that the one-year rule would apply if Kapsas was

a hospital employee.   Kapsas then asked the court to reconsider

summary judgment.   The trial court refused a second time, this

time believing there was a genuine issue of material fact

regarding whether Kapsas was an independent contractor and not

protected by the one-year limitations period.        Discovery was

ordered.   At the close of discovery, Kapsas made a second motion

to reconsider summary judgment.        The court granted summary

judgment, finding there was no genuine question of material fact

with respect to Kapsas's status as an employee of Community

General Hospital.

                             ANALYSIS

     Thede makes two claims on appeal.        First, that the trial

court erred in granting summary judgment because a genuine issue

of material fact still exists regarding Dr. Kaspas's employment

relationship with the hospital.        Second, that the trial court

erred by not giving Thede equitable relief from the statute of

limitations.

     We review trial court's decision to grant Kapsas's motion

for summary judgment de novo.     Happel v. Wal-Mart Stores, Inc.,

199 Ill. 2d 179, 185, 766 N.E.2d 1118, 1123 (2002).        We review

the trial court's decision to refuse equitable relief for the

                                   4
abuse of discretion.    Babcock v. Martinez, 368 Ill. App. 3d 130,

142-43, 857 N.E.2d 911, 921 (2006).

            I. Employment Relationship Between Defendant
                   and Community General Hospital

     The trial court found that Thede offered no evidence

inconsistent with Kapsas's evidence establishing that she was an

employee of Community General Hospital.    Thede contends that both

Kapsas's employment agreement and the universal consent form

Thede signed create a genuine issue of material fact as to

Thede's status as a hospital employee.    We disagree.

     Summary judgment is available to a defendant "if the

pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law."    735 ILCS 5/2--1005(c) (West 2006).

Pleadings, depositions, admissions, and affidavits must be

construed strictly against the movant and in favor of the

opponent.   Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32,

43, 809 N.E.2d 1248, 1257 (2004).

     In February 2001, when Thede was injured, personal injury

suits against municipal employees were subject to a one-year

limitations period.    745 ILCS 10/8--101 (West 2002).


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Accordingly, if Kapsas was an employee of Community General

Hospital, Thede's suit is time-barred.     Tosado v. Miller, 188

Ill. 2d 186, 196, 720 N.E.2d 1075, 1081 (1999).    If Kapsas was an

independent contractor, the one-year limitations period does not

apply.   745 ILCS 10/1--202 (West 2006).

     The nature of the relationship between a principal and an

agent is a question of fact.   Gilbert v. Sycamore Municipal

Hospital, 156 Ill. 2d 511, 524, 622 N.E.2d 788, 795 (1993).

Therefore, summary judgment would be inappropriate unless the

evidence documenting the relationship between Kapsas and

Community General Hospital is so clear as to be undisputed.

Scardina v. Alexian Brothers Medical Center, 308 Ill. App. 3d

359, 363, 719 N.E.2d 1150, 1153 (1999).    See Adams v. Northern

Illinois Gas Co., 211 Ill. 2d at 43, 809 N.E.2d at 1257.     Thede

could only rely upon her pleadings to create a question of

material fact until Kapsas supplied facts that clearly entitled

her to judgment as a matter of law.   Williams v. Covenant Medical

Center, 316 Ill. App. 3d 682, 737 N.E.2d 662 (2000).

     Kapsas produced a copy of her employment agreement with

Community General Hospital, as well as deposition testimony from

herself and representatives of the hospital.    Thede claims a

genuine issue of material fact is created by a clause in Kapsas's

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employment agreement and language in a consent form Thede signed.

Thede asserts these items controvert Kapsas's evidence that

Community General Hospital had a right to control Kapsas's work

as a physician.     See Wheaton v. Suwana, 355 Ill. App. 3d 506,

511-12, 823 N.E.2d 993, 997 (2005).

     Whether a principal has a right to control the manner in

which an agent works is the most important of eight factors in

determining whether the agent is an employee or an independent

contractor.      Warren v. Williams, 313 Ill. App. 3d 450, 730 N.E.2d

512 (2000).      Wheaton, 355 Ill. App. 3d at 511, 823 N.E.2d at 997

(all eight factors).     At issue is not whether the principal

exerts actual control, but whether the principal reserves the

right to control the agent.      Gunterburg v. B & M Transportation

Co., 27 Ill. App. 3d 732, 738, 327 N.E.2d 528, 533 (1975).

     First, Thede argues Community General Hospital has no right

to control Kapsas's work because the hospital bargained for the

following language assigning it any income Kapsas earned for

medically-related activities outside the scope of her employment

at the hospital:

           "6.    Outside Contract - Fees and Revenue belong to

     CGH

           Physician [Kaspas] shall not enter into any contract

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     utilizing or altering any of CHG's assets, nor shall she

     enter into any contract for the rendering of medical

     services to any third party.

          All   fees,   billing   and   revenue   generated     or

     attributable to Physician's services in any way related

     to the practice of medicine and/or surgery, whether

     within or without CGH shall belong to CHG. This includes

     any renumeration [sic] received by Physician for outside

     medically-related activities.      CGH may, at its sole

     discretion, grant exceptions to the outside income rule."

     Thede asserts that this provision anticipates and approves

of Kapsas practicing medicine without the hospital's supervision,

and the portion of paragraph 6 appearing in Thede's brief could

be read that way.   But when the paragraph is taken as a whole, it

restates Kapsas's fiduciary duties to the hospital and generally

prohibits Kapsas from outside medical employment.     See ABC Trans

National Transport, Inc. v. Aeronautics Forwarders, Inc., 62 Ill.

App. 3d 671, 683, 379 N.E.2d 1228, 1237 (1978); Restatement

(Third) of Agency §§8.01 through 8.12 (2006).     In context,

paragraph 6 gives the hospital an express contractual right to

disgorge any income Kapsas makes from moonlighting.     East Peoria

Elevator Co. v. Geo. W. Cole Grain Co., 19 Ill. App. 2d 82, 94-

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95, 153 N.E.2d 307 313-314 (1958); Restatement (Third) of Agency

§8.02 (2006).

     A trial court is not required to entertain unreasonable

inferences raised in opposition to a motion for summary judgment.

Purdy Co. v. Transportation Insurance Co., Inc., 209 Ill. App. 3d

519, 527, 568 N.E.2d 318 322-23 (1991).   The trial court was

correct to conclude, as a matter of law, that paragraph 6 of

Kapsas's employment agreement was not evidence creating a genuine

issue of material fact regarding Kapsas's employment relationship

with Community General Hospital.

     Second, Thede argues the hospital's universal consent form

is evidence that Kapsas was a contractor and not an employee.

The form stated, "Physicians providing care are independent

practitioners and are not employees or agents of CGH Medical

Center."   Patient consent forms are almost conclusive in

determining a hospital's liability for an independent physician's

malpractice.    York v. Rush-Presbyterian-St. Luke's Medical

Center, 222 Ill. 2d 147, 174, 854 N.E.2d 635, 650 (2006).      A

hospital can be found liable for the negligence of physicians it

does not employ on a theory of apparent authority, if a plaintiff

reasonably believed the physician was a hospital employee.      York,

222 Ill. 2d at 197, 854 N.E.2d at 663.

                                   9
     Here, we are not dealing with the hospital's vicarious tort

liability for a physician's decisions.    We are dealing with a

state statute that depends solely on the actual employment

relationship between Kapsas and Community General Hospital.

745 ILCS 10/1--202 (West 2006).    When an actual agency

relationship exists, the principal cannot alter that relationship

by denying it to a third party.    Daniel Forbes Co. v. Leonard,

119 Ill. App. 629 (1905); Restatement (Third) of Agency §§3.06,

3.10 (2006).   No language in any form given to Thede by Community

General Hospital could turn Kapsas from an employee into an

independent contractor.   In essence, Thede asks us to create a

new theory of "respondeat inferior" where an agent becomes

responsible for the acts of her principal.    We decline.   The

trial court was correct to conclude, as a matter of law, that the

consent form did not create a genuine issue of materal fact as to

the nature of the employment relationship between Kapsas and

Community General Hospital.

     Finally, neither of these items supports an inference that

Kapsas treated Thede while moonlighting as an independent

physician.   Contrary to Thede's argument on this point, the

provision of the employment agreement Thede offered as evidence

expressly prohibited Kapsas from treating Thede independent of

                                  10
Community General Hospital.    The consent form Thede signed was

prepared by the hospital, not Kapsas.    The negligence of which

plaintiff complains took place inside the four walls of Community

General Hospital.    There is simply no evidence to support the

argument that there is a question of material fact regarding

whether Kapsas treated Thede outside of her employment

relationship with the hospital.

     There is no genuine issue of material fact regarding the

actual employment relationship between Kapsas and Community

General Hospital, nor is there evidence supporting an argument

that Kapsas was acting as an independent physician when Thede was

in her care.   The trial court correctly granted summary judgment

in Kapsas's favor.

          II. Equitable Extension of Limitations Period

     Thede claims the trial court abused its discretion by not

granting equitable relief from the statute of limitations.    A

trial court abuses its discretion only when no reasonable person

could agree with its decision.    In re Marriage of Getautas, 189

Ill. App. 3d 148, 544 N.E.2d 1284 (1989).    For the reasons that

follow, we find no abuse of discretion.

     A defendant may be equitably estopped from asserting a

particular defense, such as the statute of limitations, if the

                                  11
defendant made a representation that would preclude exercising

that defense and the plaintiff relied on the representation to

her detriment.    Phillips v. Elrod, 135 Ill. App. 3d 70, 74-75,

478 N.E.2d 1078, 1082 (1985).   Here, the only representation

denying that Kapsas was an employee of Community General Hospital

was made by the hospital itself, not by Kapsas.   The trial court

did not abuse its discretion when it decided not to estop Dr.

Kapsas from asserting the statute of limitations as a defense

because of her employer's inconsistent conduct.

     A limitations period may be equitably tolled "if the

defendant has actively misled the plaintiff, or if the plaintiff

has been prevented from asserting his or her rights in some

extraordinary way, or if the plaintiff has mistakenly asserted

his or her rights in the wrong forum."    Clay v. Kuhl, 189 Ill. 2d

603, 614, 727 N.E.2d 217, 223 (2000).    Kapsas, not the hospital,

is the defendant.   There is no evidence that Dr. Kapsas misled

anyone.

     Thede argues that Kapsas had an affirmative duty to notice

and correct the misstatement on the hospital-provided consent

forms.    Even an innocent misstatement by a defendant's agent can

constitute actively misleading a prospective plaintiff and

trigger the doctrine of equitable tolling.    Varga v. Rumsfeld,

                                 12
172 F. Supp. 2d 1323, 1327 (D. Colo. 2003).   As we pointed out in

the previous section, making an employee responsible for her

employer's misstatement would stand the law of agency on its

head.

     The limitations period can be tolled against a defendant who

did not mislead the plaintiff if the plaintiff faced an

extraordinary barrier to asserting her rights in a timely

fashion.   Extraordinary barriers include legal disability, an

irredeemable lack of information, or situations where the

plaintiff could not learn the identity of proper defendants

through the exercise of due diligence.   Griffin v. Willoughby,

369 Ill. App. 3d 405, 415-16, 867 N.E.2d 1007, 1016 (2006).

     Thede contends that she relied on the passage in the

universal consent form stating that, "[p]hysicians providing care

are independent practitioners and are not employees or agents of

CGH Medical Center."   Her assertion that but for the consent

form, she would have timely filed suit against Kapsas is belied

by the record.   Thede filed suit against the hospital late as

well.   It is clear that plaintiff was simply unaware of the one-

year limitations period for both Kapsas and the hospital.

     In essence, equity calls for us to sometimes look beyond the

letter of the law in order to effect a more just result.    The

                                13
suit before us involves Kapsas and not Community General

Hospital.   We find no justice in tolling the statute of

limitations against Kapsas because of a misrepresentation made by

her employer.    We note that in Thede's original complaint, she

alleged an employer-employee relationship between Community

General Hospital and Kapsas.    She obviously was not misled.    The

only conclusion that can be drawn from the evidence is that Thede

was unaware of the one-year limitations period, applicable to

both the hospital and Kapsas.    Had she sued the hospital within

one year but waited to sue Kapsas, this would be another matter.

     Again, we are talking about equity.    We cannot find any

equity in giving relief to a party, on the basis that the party

claims to have relied on a misrepresentation, when the party's

pleadings unmistakably demonstrate that there was no such

reliance.   We find no abuse of discretion.

                             CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Whiteside County is affirmed.

     Affirmed.

     McDADE, P.J., and CARTER, J., concur.




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