The First District Appellate Court recently addressed whether a
hospital could be held liable for the acts of independent-contractor
physicians, when the patient signed a consent form disclosing the physicians’
status as contractors, but the patient was allegedly confused or misled by the
consent form.
In Schroeder v. Northwest
Community Hospital,
No. 1-05-2594, 2006 Ill. App. LEXIS
1142 (1st Dist., December 12, 2006), Charles Schroeder was
admitted to Northwest Community Hospital by his primary care physician on three
separate occasions for treatment of rheumatoid arthritis. During these hospitalizations, Mr. Schroeder
received treatment from his primary care physician as well as several
consulting physicians. Following Mr.
Schroeder’s death, his wife brought an action against the decedent’s primary
care physician, the decedent’s consulting physicians, and
Northwest
Community
Hospital, claiming that
the defendants negligently caused the decedent’s death by administering
medication that was contraindicated for the decedent’s other underlying health
conditions. The complaint alleged that
the named physicians were actual or apparent agents of Northwest and that
Northwest was vicariously liable for their actions.
Northwest moved for summary
judgment asserting that the co-defendant physicians were independent
contractors and not actual or apparent agents of Northwest. In support of its motion, Northwest relied
upon three consent forms signed by either the decedent or his wife at the time
of each hospital admission. The consent
forms stated in pertinent part:
Your care will be managed by your personal physician or other physicians who are not employed by Northwest Community Hospital or Northwest Community Day Surgery Center but have privileges to care for patients at this facility. Your physician's care is supported by a variety of individuals employed by Northwest Community Hospital or Northwest Community Day Surgery Center, including nurses, technicians and ancillary staff. Your physician may also decide to call in consultants who practice in other specialties and may be involved in your care. Like your physician, those consultants have privileges to care for patients at this facility, but are not employed by Northwest Community Hospital or Northwest Community Day Surgery Center.
Upon signing this form, I acknowledge that I have read and understood the foregoing and accept its terms.
The plaintiff responded to the
motion by claiming that the consent form was confusing and ambiguous because it
did not clearly state that the treating physicians were not hospital employees
or agents. The plaintiff argued that the
consent form could be reasonably interpreted to mean that the decedent’s
personal physician was employed by Northwest but the other unidentified
physicians who might be involved in his care were not.
The plaintiff also argued that
the disclosure statement was confusing because it was included among other
“small print” related to release of medical records, responsibility for
valuables, and assignment of insurance benefits and that Northwest made no
meaningful effort to ensure that the plaintiff or decedent understood the
disclosure. The trial court granted the
defendants’ motion for summary judgment finding that both the plaintiff and the
decedent signed the disclosure forms and there was no claim that the plaintiff
was unable to read and understand the disclosure forms which were tendered to
her and signed.
On appeal, the Court began its
analysis by referring to the oft-cited case of Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), in
which the Illinois Supreme Court held that for a hospital to be liable for the
negligence of a physician 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
allegedly negligent physician was an employee or agent of the hospital; (2)
that the hospital had knowledge of acts of the agent which created the
appearance of authority, where there were such acts, 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 Court noted that if there was evidence
that the decedent in this case reasonably believed that his personal care
physician and consulting physicians were agents or employees of the hospital, a
triable issue of fact existed and the issue should have been presented to a
jury.
Based on this, the Schroeder Court reversed the trial court’s order granting
the defendants summary judgment and remanded the case for further proceedings
in the trial court. In reaching its
decision, the Court merely stated that the relevant inquiry in the case was
whether the decedent was confused or misled by the disclosure forms and that
there was “sufficient material evidence” on the issue of apparent agency to
submit the case to the jury. The Schroeder opinion contains no discussion
or description of the material evidence that the Court relied upon in reaching
its decision.
A properly worded independent
contractor disclaimer may be an important tool in successfully defeating
apparent agency claims either by summary judgment or at trial. However, the Schroeder decision highlights the tendency of the courts to resolve
any ambiguities in a disclaimer against the hospital. Accordingly, appropriate steps should be
taken by hospitals to utilize this simple manner of contesting allegations of
apparent agency and its resulting liability exposure. This means that hospitals should be
particularly diligent in phrasing their disclaimer forms in such a way as to
preclude a later claim that the form was confusing or misleading.
Plain language and simple
sentences should be used. Legalese and
compound sentences should also be avoided. If the disclaimer is included in a form with multiple paragraphs, the
disclaimer should be contained in a separate paragraph and should be
underscored or otherwise accentuated to avoid a later claim that the disclaimer
was buried in the fine print. Moreover,
if feasible, the disclaimer should be contained on a separate form
altogether.
If the patient knows, or should
have known, that the treating physician was an independent contractor, then the
hospital will not be vicariously liable for the physician’s negligence. While the existence of an independent
contractor disclaimer is not always dispositive of the issue of apparent
agency, an unambiguous consent form disclaiming a physician’s employment and
agency can be an invaluable tool in demonstrating that the hospital disclosed
the parties’ relationship to the patient and did not hold the physician out as
one of its own.
* * *
Shannon Holbrook, an Associate in our Chicago office,
concentrates his practice in health care liability where he has significant
experience in the defense of medical malpractice claims against hospitals,
physicians, and other health care professionals. Mr. Holbrook's
experience also includes the defense of premises liability and other personal
injury matters, as well as counseling hospitals and other professionals in the
health care industry on the prevention of claims against them and medical
charting issues. He has also been involved in a number of state and
federal appellate court decisions involving medical malpractice, personal
injury, premises liability, and other professional liability claims. If you have any questions regarding this
article, please contact
Shannon via
sholbrook@querrey.com.
