Appellate Court Addresses Issue of First Impression Concerning Apparent Agency, Consent Forms and a Non-English Speaking Patient

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1 Health Law Roger R. Clayton, Mark D. Hansen and J. Matthew Thompson Heyl, Royster, Voelker & Allen, P.C., Peoria Appellate Court Addresses Issue of First Impression Concerning Apparent Agency, Consent Forms and a Non-English Speaking Patient In a case of first impression, the appellate court recently considered the impact of a patient s inability to read or speak English on the well-settled principles of apparent agency claims. Mizyed v. Palos Cmty. Hosp., 2016 IL App (1st) In a positive outcome, the court found that a hospital has no duty to determine a patient s education or ability to understand English-language consent forms, and has no duty to ensure the patient subjectively understands a consent he signs. Mizyed, 2016 IL App (1st), , If recent trends concerning language use in the United States continue, this decision could be applied in a significant number of future cases, both in and out of the apparent agency arena. Therefore, defense counsel may be well served to familiarize themselves with this important decision. Background In January 2009, the plaintiff was sent emergently to Palos Community Hospital for cardiac issues. Id. 4. The plaintiff was a native Arabic speaker, who spoke limited English and could not read or write in either Arabic or English. He testified to relying upon his adult children to read and translate documents for him. Id. 3. The plaintiff s daughter, Nadera, and other family members visited the plaintiff in the emergency room and at times during the subsequent admission. Id. 5, 9, 13. Over the course of his emergency room visit and admission, the plaintiff executed five hospital consent forms, all of which were written in English. Id. 6. While the evidence was somewhat conflicting as to whether Nadera was present for the signing of some of the five consents, it was undisputed that Nadera was present with the plaintiff for the signing of others. Id. 9, 11-13, 16. Each of the consents signed by the plaintiff contained a paragraph explicitly disclaiming any employment relationship between the hospital and its staff physicians. Specifically, a paragraph of each consent provided: I understand that all physicians providing services to me are independent medical staff physicians and not employees or agents of Palos Community Hospital. Id. 8, 11-13, 15. Asked at his deposition whether Nadera explained or went over the consents with him before he signed, the plaintiff testified, Yes. She told me, Dad, sign the paper because they want to do surgery for you, and I trust my daughter. So I signed the papers. Id. 6. The plaintiff further testified, I don t speak English 100 percent, and I don t know what the doctors were telling me. I based everything upon what Nadera told me and based upon that I signed. Id. With regard to the consents she assisted her father in signing, Nadera testified that she did not read the documents entirely, but still encouraged the plaintiff to sign. Id. 9, 11. Nadera explained that she did not exactly go line to line IDC Quarterly Volume 26, Number 3 ( ) Page 1

2 through the consents. Id. 11. Nevertheless, she answered questions her father asked about the consents, and encouraged him to sign them. Id. 9, 11, 13. Upon admission, the plaintiff did not have a physician who was on staff at the hospital. Id. 26. Dr. Kanashiro, an employee of a separate corporation known as Cardiology Internal Medicine Associates who had staff privileges at the hospital, was on call for the emergency department at that time. Therefore, she became the plaintiff s attending physician. Id. Dr. Kanashiro testified that she exercised her own independent training, skill and judgment in treating the plaintiff, and her care was not controlled or directed by the hospital. Id. 27. Dr. Kanashiro never told the plaintiff she was an employee or agent of the hospital, but also testified that she did not tell the plaintiff she was employed by Cardiology Internal Medicine Associates. Her badge simply indicated that she was a staff physician at the hospital, not an employee. Id. Dr. Kanashiro testified that the plaintiff spoke English with her, and they did not need an interpreter to communicate. Id. During his admission to the hospital, the plaintiff developed an infection resulting from a PICC line insertion. Id. 17. One of the five consents signed by the plaintiff was for placement of the PICC line, and that consent contained the same language disclaiming any employment relationship between any of the plaintiff s physicians and the hospital. Id. 15. Dr. Kanashiro confirmed the presence of infection from blood cultures. She then consulted with an infectious disease physician to address the infection. Id. 17. The plaintiff was given vancomycin, and was later discharged with a prescription for outpatient antibiotics. Id The plaintiff was later readmitted to a separate hospital for further treatment of the infection. Id Thereafter, the plaintiff filed a medical malpractice action against the hospital, alleging that agents or employees of the hospital were negligent in their treatment by failing to prevent, recognize and treat his infection and by discharging him prematurely. Id. 21. After a series of amended complaints, the plaintiff finally alleged the hospital was liable for the negligent acts of Dr. Kanashiro and other physicians who were actual or apparent agents of the hospital. Id On the hospital s motion to dismiss, the trial court dismissed all allegations of negligence against the hospital except those based on the alleged negligence of Dr.Kanashiro. Id. 25. After initial discovery, the hospital moved for summary judgment on the sole disputed issue of apparent agency. Id. 28. The hospital argued that, based upon the clear language of the consents, it had not held out Dr. Kanashiro as its agent or employee. Similarly, it argued that neither it nor Dr. Kanashiro acted in a manner that would lead a reasonable person to believe Dr. Kanashiro was its agent or employee, and the plaintiff could not have reasonably relied upon any holding out. Id. The plaintiff countered by essentially arguing that these were questions of fact for a jury. Id. 29. The trial court granted the hospital s motion for summary judgment, and an appeal followed. Id General Law Applicable to Apparent Agency Claims Before considering the unique facts of Mizyed, the appellate court first discussed the background and applicable law for apparent agency claims. The Illinois Supreme Court first applied the apparent agency doctrine to a medical malpractice case in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993). There, the supreme court held that a plaintiff must plead and prove three elements in order to hold a hospital vicariously liable under the apparent agency doctrine, including: (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 IDC Quarterly Volume 26, Number 3 ( ) Page 2

3 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, 156 Ill. 2d at 525. The first two factors, typically grouped together by the appellate courts, are referred to jointly as the holding out factor, and the focus is whether the patient knew or should have known the physician is an independent contractor. Lamb- Rosenfeldt v. Burke Med. Group, Ltd., 2012 IL App (1st) , 26. If a patient has actual or constructive knowledge that a physician is an independent contractor, the hospital cannot be vicariously liable. Steele v. Provena Hosps., 2013 IL App (3d) , 138. Put another way, if a patient is in some manner put on notice of the independent status of the professionals with whom he might be expected to come into contact, the hospital must prevail. York v. Rush- Presbyterian-St. Luke s Med. Ctr., 222 Ill. 2d 147, 182 (2006). An important factor to consider in determining whether the plaintiff can prove the holding out element is whether the plaintiff signed a consent form that clearly disclaims an employment relationship between the hospital and physician. In such cases, a plaintiff typically cannot prove a reasonable belief that the physician was an employee or agent of the hospital. Lamb-Rosenfeldt, 2012 IL App (1st) , 27. Going further, the Illinois Appellate Court Third District has held that consents are almost conclusive in determining whether a hospital should be held liable for the medical negligence of an independent contractor. Steele, 2013 IL App (3d) , 131 (internal citation omitted). On the other hand, a signed consent form will not preclude an apparent agency claim if the consent is ambiguous or confusing regarding whether the plaintiff s treating physician is a hospital employee or independent contractor. York, 222 Ill. 2d at ; Schroeder v. Northwest Cmty. Hosp., 371 Ill. App. 3d 584, (1st Dist. 2006); Spiegelman v. Victory Mem. Hosp., 392 Ill. App. 3d 826, 837 (1st Dist. 2009). Issue of First Impression: English-Language Consent Forms and a Non-English Speaking Patient Mizyed, however, presented unique facts not discussed in any of the court s precedent the plaintiff s limited ability to speak English and inability to read English or any other language. Mizyed, 2016 IL App (1st) , 47, 50. Based upon this, the plaintiff argued that the hospital could not rely upon the English-language consent forms to support summary judgment. Id. The plaintiff asserted that he did not receive notice of or consent to the terms of the consent forms he signed, and instead, the hospital was required to ensure the plaintiff actually understood the terms and legal implications of the consent forms. Id According to the plaintiff, the hospital was required to provide oral Arabic translation of the consent forms.id. 49. The court, however, rejected the plaintiff s arguments, finding that they conflicted with well-settled precedent regarding: (1) the requisite notice sufficient to defeat the holding out element of an apparent agency claim; and (2) the effect of signing a document, even where the signing party claims not to have read or understood it. Id. 50. First, the court rejected the plaintiff s argument that the hospital was required to provide him actual notice of the terms of the consent forms so that he subjectively understood them. Id. 51. It found that [r]ather than requiring proof of the patient s subjective understanding, our court has explained that if a plaintiff is placed on notice of the independent contractor status of [her] doctors, it would be unreasonable of her to assume that they were employed by defendant and, thus, she could not sustain an apparent agency claim. Id. (quoting Wallace v. Alexian Bros. Med. Ctr., 389 Ill. App. 3d IDC Quarterly Volume 26, Number 3 ( ) Page 3

4 1081, 1087 (1st Dist. 2009) (emphasis in original and internal quotation marks omitted)). Rejecting any requirement that the plaintiff subjectively understand the consent, the court further explained that if a patient has actual or constructive knowledge that the doctor is an independent contractor, the hospital is not vicariously liable. Mizyed, 2016 IL App (1st) , 51 (quoting Steele, 2013 IL App (3d) , 138) (emphasis in original). Therefore, the hospital had no duty to determine the plaintiff s education or ensure that he understood the English language consent forms. Mizyed, 2016 IL App (1st) , 52. All the hospital had to show was that the plaintiff was placed on notice that his physicians were not hospital employees. Id. In finding that the hospital provided such notice, the court pointed to the involvement of the plaintiff s daughter, Nadera, who assisted the plaintiff in reviewing the consent forms and encouraging him to sign. Id. Although Nadera claimed not to have read the consent forms entirely, the hospital had no reason to doubt that she had fully read and understood the forms and accurately communicated them to her father before he signed, indicating his understanding and consent. Id. The court also pointed out that neither the plaintiff nor Nadera asked for clarification as to the terms of the consent forms. Id. Under these circumstances, the court found, the hospital could rely on [the plaintiff s] signing of the documents as evidence of his understanding of their terms. Id. Second, the court found that the plaintiff s argument violated the long-standing principle that a person is charged with knowledge of the contents of a document he signs, whether or not he actually read the document. Id. 54. Upholding this principle in Mizyed, the court pointed to Illinois Supreme Court precedent holding that illiteracy does not exempt a party from the terms of the document he signs. Id. 55 (citing Shulman v. Moser, 284 Ill. 134, 140 (1918)). Thus, the court concluded that although he may not have been able to read the consent forms, his decision to sign them legally signifies that he had an opportunity to become familiar with and comprehend their terms. Mizyed, 2016 IL App (1st) , 55 (quoting Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) , 14). In sum, the court held that the plaintiff s inability to read or speak English does not undermine the effect of the consent forms that he signed and conclude[d] that the explicit language of those consent forms put him on notice that his treating physicians were not [the hospital s] agents or employees, defeating his apparent agency claim. Mizyed, 2016 IL App (1st) , 57. Significance in Light of Population Trends The importance of the court s decision in Mizyed is only likely to grow in coming years. We all understand that the United States is becoming more linguistically diverse, but some recent statistics emphasize what we experience day to day. According to the U.S. Census Bureau, the number of people that spoke a language other than English at home grew from about 23 million in 1980 to more than 59 million by CAMILLE RYAN, DEP T OF COMMERCE, LANGUAGE USE IN THE UNITED STATES: 2011, p. 7, Table 2 (U.S. Census Bureau, 2013), 22.pdf. During that timeframe, the total population increased by about 38 percent, while the number of people that spoke a language other than English at home increased by more than 158 percent. Id. By 2011, more than 60 million people in the U.S. spoke a language other than English at home. Id. at p. 3, Table 1. Of those 60 million people, over 13 million could not speak English well or could not speak English at all. Id. Similar statistics were reported in Illinois as of 2011, where more than 2.7 million people spoke a language other than English at home, of which about 600,000 people (or 22 percent) could not speak English well or could not speak English at all. Id. at p. 11, Table 4. Some may point to these statistics to argue that courts in similar cases should require hospitals to provide actual notice to patients through consent forms written in their native language or through interpreters reading the English- IDC Quarterly Volume 26, Number 3 ( ) Page 4

5 language consent form. This, however, would present a whole host of problems for hospitals, which demonstrates why the decision in Mizyed is so significant. First, producing consent forms in languages other than English may be simple enough if only a handful of other languages were spoken in the U.S. However, according to the U.S. Census Bureau, at least 153 languages are spoken in the Chicago metropolitan area alone. U.S. DEP T OF COMMERCE, Census Bureau Reports at Least 350 Languages Spoken in U.S. Homes, (Nov. 3, 2015), available at Is each hospital truly expected to prepare consents and other forms provided to patients in over 150 languages? Notably, this would not even address another issue raised in Mizyed, where the patient is illiterate. Furthermore, how is a hospital expected to test a patient s ability to read or speak English? The hospital obviously cannot administer an exam, so the only logical way for a hospital to become aware of this is through the patient or patient s family. Absent that, the hospital has no real way of knowing. In such cases, it is reasonable for the hospital to rely upon a family member, like the daughter in Mizyed, to interpret the consent form. In cases where a patient asks for an interpreter or asks a question about the consent, it may make sense for the hospital to attempt to accommodate the patient (assuming the hospital can find an interpreter for the given language within a reasonable time frame in light of the patient s condition). However, it would likely be impossible for a hospital to know whether a patient subjectively understands the terms of a consent form, as advocated by the plaintiff in Mizyed. The only thing a hospital can logically do is provide a clearlyworded consent form. Beyond that, the onus must be on the plaintiff to request an explanation if he does not understand a given term. Conclusion The Mizyed decision is a big win for hospitals and other institutions facing similar issues with consent forms. If the court had adopted the plaintiff s arguments, it would have created significant problems for hospitals and health care providers, many of which would have no logical solution. Defense counsel should continue to advocate for similar interpretations in other courts and cases with factually similar scenarios. About the Authors Roger R. Clayton is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., where he chairs the firm s healthcare practice group. He also regularly defends physicians and hospitals in medical malpractice litigation. Mr. Clayton is a frequent national speaker on healthcare issues, medical malpractice, and risk prevention. He received his undergraduate degree from Bradley University and law degree from Southern Illinois University in He is a member of the Illinois Association of Defense Trial Counsel (IDC), the Illinois State Bar Association, past president of the Abraham Lincoln Inn of Court, president and board member of the Illinois Association of Healthcare Attorneys, and past president and board member of the Illinois Society of Healthcare Risk Management. He co-authored the Chapter on Trials in the IICLE Medical Malpractice Handbook. Mark D. Hansen is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He has been involved in the defense of cases involving catastrophic injury, including the defense of complex cases in the areas of medical IDC Quarterly Volume 26, Number 3 ( ) Page 5

6 malpractice, products liability, and professional liability. Mark has defended doctors, nurses, hospitals, clinics, dentists, and nursing homes in healthcare malpractice cases. He received his undergraduate degree from Northern Illinois University and law degree from University of Illinois College of Law. Mark is a member of the Illinois Association of Defense Trial Counsel and is a former co-chair of the Young Lawyers Committee, former ex officio member of the Board of Directors, and has served as chair for various seminars hosted by the IDC. He is also a member of the Illinois Society of Healthcare Risk Management, the Abraham Lincoln American Inn of Court, and the Defense Research Institute. J. Matthew Thompson is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices primarily in the area of general tort defense. He received his B.S. in Accounting from Culver-Stockton College in 2005 and his J.D. cum laude from Southern Illinois University School of Law in About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at or contact us at PO Box 588, Rochester, IL , , , idc@iadtc.org. IDC Quarterly Volume 26, Number 3 ( ) Page 6

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Health Law Roger R. Clayton, Mark D. Hansen and J. Matthew Thompson Heyl, Royster, Voelker & Allen, P.C., Peoria Isn t Every Party Entitled to be Represented by its Own Attorney? Take Note of Gapinski