By its decision filed on December 31, 2015, the Appellate Court of Illinois First Judicial Circuit Second District (“Appellate Court”) upheld the $4.7 million verdict against the defendant hospital despite the defendant hospital arguing that it could not be held liable for the alleged medical negligence of the physician who treated the plaintiff’s mother in the hospital emergency room because that physician was an independent contractor and her son had signed a form acknowledging that relationship while his mother was gasping for breath.
The plaintiff alleged that his mother died as a result of an unreasonable delay and efforts in establishing his mother’s airway upon her arrival in the emergency room (his mother was unable to speak but was responsive when she arrived at the hospital; however, many attempts to intubate her, during which she repeatedly vomited, led to her suffering cerebral hypoxia, leaving her effectively brain dead, and she was taken off life support and died three days later).
The son filed a medical malpractice wrongful death lawsuit on behalf of his mother’s estate against the defendant emergency room physician and the defendant hospital, alleging that it took approximately 25 minutes before establishing an airway despite the fact that his mother arrived with a respiratory emergency.
The plaintiff’s medical malpractice expert testified at trial that the defendants deviated from the standard of care by waiting too long to initially attempt intubation and that, when they did attempt to intubate his mother, they failed to administer sedation or properly oxygenate her prior to the attempts. The expert further testified that the defendant emergency room physician should have concluded after the first failed attempt that the mother had a failed airway and ordered a cricothyrotomy at that time. The plaintiff’s medical malpractice expert concluded that the failure to establish an airway while 25 minutes of respiratory failure persisted constituted a deviation from the standard of care leading to the mother’s death.
The plaintiff alleged that the defendant emergency room physician was personally liable for his individual negligent acts and that the defendant hospital was liable because the emergency room physician was an apparent agent of the hospital (there were additional allegations of medical negligence, including allegations of the breach of the standard of care by a nurse).
The Illinois medical malpractice jury trial lasted seven days after which the jury returned a general verdict in the plaintiff’s favor and against the defendant hospital and the defendant emergency room physician in the amount of $4.7 million.
One of the defendant hospital’s arguments on appeal was that it cannot be liable for the defendant emergency room physician’s conduct because he was an independent contractor and not its agent.
The Appellate Court stated that for a hospital to be liable under the doctrine of apparent authority, a plaintiff must show: (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 (i.e., justifiable reliance).
The Appellate Court stated that the element of justifiable reliance is satisfied if the plaintiff relies upon the hospital to provide complete emergency room care, rather than upon a specific physician. In the case it was deciding, the Appellate Court stated that the plaintiff’s mother was seeking emergency care from the hospital itself; the plaintiff’s mother did not choose to be treated specifically by the defendant emergency room physician, who was simply the attending physician in the emergency room that day (neither party chose the other, and it was the hospital that chose the defendant physician to treat the plaintiff’s mother); the plaintiff’s mother did not live in the area and was simply taken to the defendant hospital as a result of its proximity to the location where her respiratory emergency occurred; the defendant hospital holds itself out as a provider of general emergency care; the plaintiff’s mother had no way to know or to choose who would render her care (she was in respiratory distress and could not speak); and, the plaintiff’s mother could not have known that the people rendering care to her were not employees of the defendant hospital. The Appellate Court held that it was the province of the jury to resolve this question of fact, which it properly did in the plaintiff’s favor.
The defendant hospital argued on appeal that the plaintiff’s son signed a consent form that the hospital uses to inform patients that its emergency room physicians are independent contractors. The Appellate Court stated that the existence of an independent contractor disclaimer in a consent form is an important factor to consider in deciding whether a hospital held a physician out as its agent, but that it is not necessarily dispositive of the issue of independent contractor versus apparent agency.
The Appellate Court held that the consent form signed by the son had no bearing in this case: the mother did not sign the form and never knew of its existence (the mother was already brain dead by the time her son signed the consent form), and by the time the form was signed, the negligent acts had already occurred. Furthermore, the Appellate Court held there was no evidence offered as to how the son could have legally bound his mother by his signature.
The Appellate Court therefore held that the after-the-fact “consent” is, as a matter of law, insufficient to abrogate a vicarious link between the hospital and the attending physician (a third party signing a consent form after the negligence has occurred and after the patient is brain dead would not inform any unsuspecting patient that the four doctors that treated the individual were independent contractors).
Source Fragogiannis v. Sisters of St. Francis Health Services, Inc., 2015 IL App (1st) 142706.
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