The Appellate Court of Illinois First District Sixth Division (“Illinois Appellate Court”) stated in its January 5, 2024 Opinion: “In the competition for healthcare market share, hospitals today promote themselves to the public as centers for comprehensive medical care with teams of highly competent and compassionate physicians and ancillary care providers. But in order to limit their liability, hospitals employ few, if any, physicians. In the medical malpractice context, our apparent agency case law largely involves physicians who provide treatment to patients who have been admitted to the hospital, and in that instance courts have held that a disclaimer form signed by a patient acknowledging that the physician is an independent contractor and not employed by the hospital generally forecloses a malpractice claim against the hospital under apparent agency theory. In this instance, the patient was treated in a medical professional building located within the hospital medical complex but was neither asked to acknowledge in writing nor otherwise informed that her treating physician was not employed by the hospital. Based on the evidence in the record, we see no theoretical or pragmatic difference in our approach here than in cases involving treatment by physicians in the hospital in-patient setting. For the reasons we explain below, we find that the circuit court erred in dismissing the claim against the hospital as the apparent agent of the physician [sic] and reverse and remand for further proceedings.”
Apparent Agency
For a hospital to be liable under the doctrine 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.
To determine whether a hospital held a physician out as its agent, courts consider a number of factors, including whether the hospital’s advertising creates the appearance of an agency relationship.
Holding Out
The Illinois Appellate Court stated: “Here, the record establishes a genuine issue of material fact on the “holding out” element. On its website, WSMC held itself out as the principal for its physicians because it referred to the “orthopedic specialists at WSMC” as “our team” and “our *** compassionate physicians” and included no disclaimers about its relationship with them … The fact that WSMC issued a badge to Dr. Romano, even if he never wore it, and the fact that Dr. Romano held a number of leadership positions at the hospital over the years, including most notably as chairman of WSMC’s orthopedics department and president of WSMC’s medical staff, also support Solorzano’s argument that WSMC held Dr. Romano out as its agent. Indeed, given his position as president of WSMC’s medical staff, one may be hard-pressed to find a physician who is a greater personification of WSMC than Dr. Romano.”
“Another factor courts consider when analyzing the “holding out” element is whether the patient signed a consent to treatment form containing independent contractor language. When the language in the consent forms is clear and unambiguous, courts have found them “almost conclusive” in determining whether a hospital can be held liable for the medical negligence of its independent contractor physicians … However, when hospital consent forms fail to inform patients that doctors are not hospital employees, or the language in the consent forms is ambiguous, courts have found them insufficient to defeat “holding out” claims … Although the consent form states that treatment would be “provided by healthcare providers at Romano Orthopaedics, LLC,” it notably does not state who employs these healthcare providers or expressly disclaim any employment relationship with WSMC. We also question whether an average consumer would understand that an “LLC” is an acronym for limited liability company and that an LLC is a legal entity similar to a corporation through which business is conducted. While the employment relationship may be obvious to Dr. Romano and WSMC, patients like Solorzano are entitled to disclosure of essential facts about the relationship between their healthcare providers and should not be left to speculate about corporate ownership structures and employment relationships. For these reasons, we find that the consent form Solorzano signed was at least ambiguous and thus cannot defeat her “holding out” claim.”
The Illinois Appellate Court summarized: “When we consider the evidence presented, including WSMC’s advertisements; the WSMC badge issued to Dr. Romano; the number of senior levels positions Dr. Romano held at the hospital over the years, including chairman of the WSMC’s orthopedics department and president of its medical staff; the referral form Solorzano received from PCC (who Solorzano believed was affiliated with WSMC) stating that Dr. Romano’s office address was “West Suburban Hospital”; Dr. Romano’s office was located inside the WSMC professional
building; the professional building is in the same physical structure as the hospital; the entrance Solorzano used to access Dr. Romano’s office was also the entrance to the hospital; the professional building contains WSMC signs but none of them inform patients that physicians like Dr. Romano who work there are independent contractors; and Dr. Romano did not tell Solorzano that he was not employed by WSMC, we conclude that it was sufficient to create a genuine issue of material fact as to the “holding out” element.”
Reasonable Reliance
“As Dr. Romano testified in his deposition, he would only tell a patient that he was not employed by WSMC if he was specifically asked, and the consent form Solorzano signed said nothing about Dr. Romano’s relationship with WSMC. Therefore, Solorzano’s statement—that she did not understand the relationship between Dr. Romano and WSMC—is not necessarily inconsistent with her testimony that she assumed that Dr. Romano was employed by WSMC and relied on WSMC for her care … Moreover, because the professional offices and the hospital are located in the same building or adjoining buildings (the record is not clear on this point) and are accessed through a shared main entrance, we are at a loss to see how Solorzano’s reliance argument is defeated by the difference in addresses. Taken together, we find that a genuine issue of material fact exists as to whether Solorzano justifiably relied upon WSMC, not Dr. Romano or Romano Orthopaedics, to provide her with healthcare. We therefore conclude that the trial court’s grant of summary judgment was error.”
Solorzano v. Magnani, M.D., 2024 IL App (1st) 221169.
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