Illinois Appellate Court Denies Hospital Vicarious Liability For Medical Malpractice Claim

Court Denies Hospital Vicarious Liability Claim: On November 5, 2013, Josef Stelzer saw his regular physician, Dr. Carl Lang, for his annual exam. Dr. Lang practiced through NCH Medical Group, an entity that is separate from but related to NCH. When Stelzer’s electrocardiogram results came back abnormal, Dr. Lang ordered a stress test for Stelzer. When the stress test results also came back abnormal, Dr. Suhr performed a catheterization procedure, which revealed that Stelzer’s left anterior descending
(LAD) artery (sometimes known as the “widowmaker”) was totally occluded. Dr. Suhr referred Stelzer to NCH and recommended that he undergo open heart surgery right away.

On November 15, 2013, Dr. David DeBoer performed coronary artery bypass grafting (CABG) surgery on Stelzer at NCH. During the CABG procedure, anesthesiologist Dr. Kathryn Podgorny employed a diagnostic procedure called transesophageal echocardiography (“TEE”), where a special probe was advanced down Stelzer’s esophagus to provide pictures of Stelzer’s heart.

After his surgery, Stelzer developed complications and, on November 21, 2013, he was diagnosed with an esophageal perforation. The perforation was repaired, but Stelzer developed septic infection and had to spend an additional eight weeks in the hospital to recover.

Stelzer sued Dr. DeBoer, Dr. Podgorny, and physician assistant (PA) Christine Gilbert, who handled Stelzer’s post-operative care. Stelzer also sued NCH and alleged that NCH was vicariously liable for the actions of Dr. DeBoer, Dr. Podgorny, and PA Gilbert.

It was undisputed that Dr. DeBoer and Dr. Podgorny were not NCH employees when they treated Stelzer in 2013. Dr. DeBoer was employed by Cardiac Surgery Associates, S.C., and Dr. Podgorny was employed by Midwest Anesthesia Partners, LLC. Both are independent physician groups that contracted to provide services to NCH. NCH does not dispute that PA Gilbert was an NCH employee in 2013.

Vicarious Liability

For a hospital to be held liable under a theory of apparent authority, 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 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.

The Illinois Appellate Court stated in its June 5, 2023 Rule 23 Order: “In this case, Stelzer concedes that he signed NCH’s consent form prior to his surgery and that “the consent form states that the doctors treating [him] are not employed by NCH.” Nevertheless, he argues that the language in the consent form is confusing and misleading, and
thus is insufficient to support the court’s grant of summary judgment … Here, the consent form Stelzer signed put him on notice that his doctors were not employed by the hospital. While “the existence of an independent contractor disclaimer in a consent form” is not “dispositive on the issue of ‘holding out,’ it is an important factor to consider … any claim that Stelzer “might not have subjectively understood the consent forms does not create a genuine question of material fact, as we view the issue from the perspective of a reasonable person.””

The Illinois Appellate Court held: “We find that the clear, unequivocal language in the consent form Stelzer signed was sufficient to notify him that his doctors were independent contractors and not NCH employees … Stelzer signed a consent form containing clear, unambiguous language, which put him on notice that the doctors whose treatment is at issue here – Dr. Podgorny and Dr. DeBoer – were not employed by NCH.”

The Illinois Appellate Court noted, however: “We appreciate that NCH marketed itself in its advertisements as “a top hospital in both the Chicago metropolitan area and the State of Illinois” with a “medical staff of more than 1,000 physicians,” and agree that these advertisements could lead a reasonable person to believe that NCH actually employed these physicians. A more accurate advertisement would state that NCH does not actually employ any of the physicians on its medical staff, but that probably would not sit well with NCH’s marketing folks or its business model. Nevertheless, we have held that a signed consent form like the one at issue here, which clearly and unambiguously informs a patient that the physicians working at the hospital were independent contractors and not employees, supersedes misleading advertising … Moreover, we note that signs in NCH’s reception areas also stated that the physicians on NCH’s medical staff “are independent practitioners and not [NCH] employees or agents.””

Source Stelzer v. Northwest Community Hospital, 2023 IL App (1st) 220557-U.

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