Category Archives: Agency

Wilson v Edward Hospital – Supreme Court Finds That Re-Filing of Apparent Agency Claim Against Hospital Not Barred by Res Judicata Despite Summary Judgment in Prior Case on Actual Agency

Wilson v. Edward Hospital, 2012 IL 112898 (Garman)

Facts:  Plaintiff suffered a broken femur and was transported to defendant Edward Hospital where he underwent surgery to repair the broken bone.  During the procedure he aspirated vomit into his lungs which caused cardiac arrest and sresulted in an anoxic brain injury.  Plaintiff filed suit against the hospital and two doctors and their resepctive practice groups alleging negligence in the failure to provide sufficient fasting time prior to the procedure.  Plaintiff alleged that the doctors were agents of the hospital under both actual and apparent agency theories.  The two doctors filed motions for summary judgment on the issue of agency and the trial court granted summary judgment on the issue of actual agency but denied the motion and found issues of material fact on the issue of apparent agency.  Plaintiff subsequently filed a voluntary dismissal and then re-filed the case alleging apparent agency in the re-filed complaint.  The defendant moved to dismiss the re-filed complaint arguing that the finding of summary judgment on the actual agency theory was an adjudication on the merits of the cause of action and served to bar the apparent agency count pursuant to res judicata and the prohibition on claim splitting.  The trial court denied the motion but permitted a certified question pursuant to Supreme Court Rule 308 as to whether actual agency and apparent agency are separate claims for purposes of res judicata and the prohibition against claim-splitting.  The appellate court answered the certified question in the affirmative and dismissed the case.  The Plaintiff appeals the finding of the appellate court.

Holding:  Actual and apparent agency are not causes of action, but rather are merely part of the duty analysis in case where the plaintiff seeks to hold the principal liable for the agent’s alleged negligence, and therefore, the plaintiff’s re-filed claim against the hospital for apparent agency is not barred by res judicata or prohibited by the rule against claim splitting.

Filed in Trial Book Under:  Res Judicata; Voluntary Dismissal; Agancy

Commentary:  This case comes as a welcome relief to plaintiffs and makes a lot of sense.  Since the Supreme Court’s ruling in Hudson v. City of Chicago, the plaintiff’s bar has become somewhat paranoid of filing for a non-suit in cases where a summary judgment or motion to dismiss had been granted out of fear that somehow they would be foreclosing a claim that “could have been brought prior to the adjudication on the merits.”  The prohibition against claim splitting is predicated upon avoiding endless litigation where a plaintiff continues to bring cause of action after casue of action when all of them could have been brought at once.  Therefore, once there has been an adjudication on the merits in a cause of action then any other cause of action that could have been brought from the facts is subject to res judicata in the event of a nonsuit and re-filing of the case.  In this case, the plaintiff argued that there was only one cause of action against the hospital, that of negligence based upon vicarious liability, and proving the doctors were agents of the hospital was just one step in the process of establishing the hospital’s liability, and thus the claim was not barred by res judicata. While the hospital, on the other hand, argued that actual and apparent agency are separate and distinct causes of action and therefore the summary judgment on the actual agency counts served to bar any re-filing of claims that could have been brought in the original action.  Fortunately, the Supreme Court concluded that actual and apparent agency are not causes of action and therefore the re-filed claims were not barred.

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Filed under Agency, Civil Procedure, Medical Malpractice

Lamb-Rosenfeldt v. Burke Medical Group, et. al. – Appellate Court Affirms Trial Courts Finding of No Apparent Agency Between Hospital and It’s Chief of Staff

Lamb-Rosenfeldt v. Burke Medical Group, et. al. – 1-10-1558 (Pucinski)

Facts:  Plaintiff’s decedent died from complications related to her lung cancer.  Prior to her death, she had been treated by Defendant, Dr. Burke, at the physicians clinic, Burke Medical Group, on several occasions prior to be admitted to Defendant St. James Hospital, where Dr. Burke had hospital  privileges.  Dr. Burke was not an employee of St. James Hospital but did hold an administrative position as Chief of Staff at the facility.  Over the course of her treatments at St. James Hospital, plaintiff’s decedent signed a consent form containing language above the signature line in BOLD PRINT and ALL CAPS that the physicians were not employees and were independent contractors of the hospital on nine separate occasions.  The lawsuit brought by her Estate included counts against St. James Hospital under an agency theory for the acts of Dr. Burke.  There were no independent allegations against the hospital for institutional negligence, and the sole theory of liability was based upon the doctrine of apparent agency.  The Defendant, St. James Hospital, moved for summary judgment on the issue of apparent agency, which was granted by the trial court and subsequently appealed by the Plaintiff.

Holding:   The Plaintiff failed to present sufficient factual basis to satisfy the elements of “holding out” and reliance necessary to subject St. James to vicarious liability and the trial court was correct in finding the defendant was entitled to summary judgment as a matter of law.

Filed in Trial Book Under:  Apparent Agency

Analysis:  The black letter law for liability under the doctrine of apparent agency requires that the plaintiff establish “(1) the hospital, or it’s agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital, (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.”  Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511, 525 (1993)  Put simply, there must be some holding out that the hospital and physician are linked and that the plaintiff relied upon the reasonable perception that the physician was an agent of the hospital.

Based upon these facts, at least as they were presented in the appellate court opinion, there really was nowhere for the plaintiff to go in order to keep the hospital in this case under an apparent agency theory.  It is clear that the Appellate Court was more than a bit irritated with Plaintiff’s counsel for not including pertinent facts in the record on appeal, which apparently excluded the Plaintiff’s complete deposition transcript as well as Plaintiff’s written response to the motion for summary judgment!  It’s difficult to imagine appealing a case on the basis that the trial court improperly ruled against you on a summary judgment motion and then not provide the appellate court with your written response, but I guess that’s what happened here.  The result was a very one-sided factual recitation that hit all the notes for the defendant’s position and none for the plaintiff.  The most critical facts in the appellate court’s analysis were (a) the nine separate consent forms that explicitly stated that the physicians were independent of the hospital and (b) that the plaintiff’s decedent was a patient of Dr. Burke at her clinic long before she was ever treated by Dr. Burke in the hospital.  Indeed, one of the relatives testified at her deposition that her mom would have likely gone to any hospital that Dr. Burke chose, so long as the drive wasn’t too inconvenient.  Although speculative and likely inadmissible at trial, it is testimony that significantly undermines the type of reliance by the patient and holding out by the hospital that is required to sustain an apparent agency theory.  The more interesting issue for me, and potentially troublesome for future cases, was the court’s analysis of the chief of staff position held by Dr. Burke as merely being “administrative” and, therefore, of no significance to the outcome.  There’s something about the term “administrative” that seems like spin to me, and I suspect that in future cases this opinion will be cited by counsel for hospitals anytime the treating physician has this type of title.  If the facts had supported that the plaintiff’s decedent chose the doctor specifically because of her high ranking position at the hospital, I would hope to see a different result, particularly within a summary judgment analysis.  In this case, however, the plaintiff’s daughter could not establish whether her mother was even aware of the doctor’s title at St. James while receiving the allegedly negligent treatment.  In short, not all cases are meant for an apparent agency theory and this certainly wasn’t one of them.

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Filed under Agency, Medical Malpractice