Medical Malpractice By: Edward J. Aucoin, Jr. Pretzel & Stouffer, Chartered Chicago Illinois Supreme Court s Decision in York v. Rush a Mixed Blessing? My favorite adage has always been be careful what you wish for. But seldom has this become more relevant in my practice over the years than with the Illinois Supreme Court s recent decision in York v. Rush-Presbyterian-St. Luke s Medical Center on June 22, 2006. Docket No. 99507. I had spoken with several colleagues over the past three or so years, questioning when the Illinois Supreme Court would address the seeming conflict among the appellate courts as to the reliance element of apparent agency claims in medical malpractice cases. Many had argued that the Illinois Supreme Court s prior decision in O Banner v. McDonald s Corp., 173 Ill. 2d 208 (1996) had already set the standard for reliance in apparent agency claims, even though that case dealt with premises liability rather than medical malpractice. Citing O Banner, the defendant hospital in York argued that in order for liability to attach to it for the actions of an independent doctor, the plaintiff must first prove that a representation by the hospital induced the plaintiff to come to that facility in the first instance. In essence, the defendants argued that a but for causal connection was needed between the holding out and the injury suffered. The First District had previously rejected this argument in its review of York, 353 Ill. App. 3d 1 (1st Dist.2004), and the supreme court agreed, adopting the First District s reasoning that those cases that have sought to incorporate the holding of O Banner into the medical malpractice context have analyzed their cases with the wrong focus. York, 353 Ill. App. 3d at 29. It would be fair to say that rejecting the application of the supreme court s prior reasoning from O Banner in a medical malpractice claim was not the result wished for by the defendants. But while the York decision certainly resolved certain questions, it is questionable whether the decision removed reliance as an element that the plaintiff must prove at trial, as argued by Justice Garman in her dissent. Rather, the York decision will be beneficial to the defense of hospital clients so long as they have consent forms that adequately disclaim the agency of the physician whose care is at issue. The Court s Holding The facts of York are fairly extensive. The plaintiff, Dr. James York ( Dr. York ), was a retired physician and had a chronic knee condition that required several surgeries. Dr. York had had two prior knee surgeries at Rush-Presbyterian-St. Luke s Medical Center ( Rush ) since 1997, both of which were performed by Dr. Rosenberg, an orthopaedic surgeon. Dr. York planned to have a third knee surgery on February 9, 1998 at Rush, which was also to be performed by Dr. Rosenberg. The February knee surgery was the procedure during which the negligence was committed. During one of the prior knee surgeries, Dr. Rosenberg had been assisted by an attending anesthesiologist, Dr. Krolick, and a Page 1 of 5
resident anesthesiologist, Dr. Miller. Dr. York requested both Dr. Krolick and Dr. Miller as anesthesiologists for the February 1998 procedure but Dr. Krolick was not available on that date. Instead, Rush s Director of Operating Services chose Dr. El-Ganzouri to be the attending anesthesiologist for that procedure. Dr. York s son, Dr. Jeff York ( Jeff York ), had previously been employed at Rush as an anesthesiology resident. The defendants argued that Jeff York was involved in requesting anesthesiology coverage for the February 1998 procedure and, in essence, acted as an agent for Dr. York in choosing the physicians who performed that procedure. This was disputed by the plaintiffs (Dr. York and his wife on a loss of consortium claim) at trial. Prior to the procedure, Dr. York met Dr. El-Ganzouri briefly in the surgery holding area. He stated that he had no conversation with Dr. El-Ganzouri regarding his employment relationship with Rush, but Jeff York testified that the physicians would wear scrubs that had Rush insignia all over them. Dr. York claimed that Dr. El-Ganzouri was negligent in his administration of a combined spinal epidural anesthetic prior to the February 1998 knee procedure, which resulted in permanent, partial spinal injury. Dr. York initially filed suit against Dr. El-Ganzouri and University Anesthesiologists, Inc., his employer, in November 1998. Nearly fifteen months later, in February 2000, Dr. York filed an amended complaint naming Rush as the apparent principal for Dr. El-Ganzouri. The trial in this matter commenced on May 30, 2002. At the close of evidence, Rush moved for a directed verdict on the issue of apparent agency, arguing that the plaintiff had failed to prove both the holding out and reliance elements required under law. The circuit court denied Rush s motion, stating there was no evidence presented that Dr. York had signed a consent form advising him that the anesthesiologists at Rush were independent contractors and not employed by the hospital. It further found that based upon the evidence presented at trial, a jury could reach the decision that Dr. York had relied upon Rush. Id. at 31. On June 13, 2002, the jury returned a verdict in favor of the plaintiffs and against all defendants in the amount of $11,598,591.31 to Dr. York, and $1,000,000 to his wife for loss of consortium. Rush subsequently filed post-trial motions seeking judgment n.o.v. or alternatively, a new trial. The circuit court denied that post-trial motion on December 19, 2002, and Rush filed its Notice of Appeal to the First District on January 17, 2003. The appellate court affirmed the judgment of the circuit court as to all arguments. The Illinois Supreme Court only granted review as to Rush s appeal from the First District and, therefore, its decision focused solely upon the apparent agency issues at trial. The supreme court began its analysis by thoroughly reciting its prior holding in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993). Specifically, the court reiterated that in order to find holding out on the part of a hospital, it is not necessary that there be an express representation by the hospital that the person alleged to be negligent is an employee. Rather, this element is satisfied if the hospital holds itself out as a provider of care without informing the patient that the care is provided by independent contractors. Citing Gilbert, 156 Ill. 2d at 525. Also, the court stated that the element of a plaintiff s reliance is satisfied if the plaintiff relies upon the hospital to provide medical care rather than upon a specific physician. Id at 525. The supreme court next addressed the applicability of the O Banner v. McDonald s Corp. decision (cited supra) to a medical malpractice case. While recognizing that O Banner stood for the proposition that a principal can be held vicariously liable in tort for injury caused by the negligent acts of his apparent agent only if the injury would not have occurred but for the injured party s justifiable reliance on the apparent agency, it rejected O Banner s application to a medical malpractice case. In so doing, the court cited to language in Gilbert wherein it recognized that the relationship between a patient and health care providers, both physicians and hospitals, presents for a matrix of unique interactions that finds no ready parallel to other relationships. The court further stated that Gilbert did not hold that, regardless of the circumstances, the mere existence of a pre-existing physician- Page 2 of 5
patient relationship automatically precludes any claim by the patient of reliance upon the hospital for the support staff. Rather, when a patient relies on a hospital for the provision of support services, even when a physician specifically selected for the performance of a procedure directs the patient to go to that particular hospital, there may be sufficient reliance under the theory of apparent agency for liability to attach to the hospital in the event one of the supporting physicians commits malpractice. The supreme court agreed with the First District that those cases that have sought to incorporate the holding of O Banner into the medical malpractice context have analyzed their cases with the wrong focus. York, 353 Ill.App,3d at 29. Upon admission to a hospital, the court stated: a patient seeks care from the hospital itself, except for that portion of medical treatment provided by physicians specifically selected by the patient. If a patient has not selected a specific physician to provide certain treatment, it follows that the patient relies upon the hospital to provide complete care - including support services such as radiology, pathology, and anesthesiology - through the hospital s staff. If, however, a patient does select a particular physician to perform certain procedures within the hospital setting, this does not alter the fact that a patient may nevertheless still reasonably rely upon the hospital to provide the remainder of the support services necessary to complete the patient s treatment. The court supported its reasoning with the belief that the hospital, rather than the patient, usually exercises control over the provision of necessary support services and the personnel assigned to provide those services. The supreme court made several justifications for its affirmation of the circuit court s denial of Rush s post-trial motion for judgment n.o.v. First, the court found that the uncontroverted evidence revealed that it was only after Dr. York developed an interest in Rush, based upon his knowledge of the hospital and its staff, that he sought out Dr. Rosenberg. This statement seems somewhat superfluous when considering the court s broader holding that a prior relationship with a particular physician will not bar reliance on a hospital s supporting staff thereafter. The next area addressed by the court in its decision gives most comfort to hospital defense attorneys, because it reaffirms the viability of independent physician disclosures in consent forms as a defense against the holding out and reliance elements, as was discussed in James v. Ingalls Memorial Hospital, 229 Ill. App. 3d 627 (1998). The court stated that if a patient is placed on notice of the independent status of the medical professionals with whom he or she might be expected to come into contact, it would be unreasonable for a patient to assume that these individuals are employed by the hospital. It follows, then, that under such circumstances, a patient would generally be foreclosed from arguing that there was an appearance of agency between the independent contractor and the hospital. The problem in York was the fact that Rush s consent form contained no such language. The court stated that the evidence at trial demonstrated that nothing in the treatment consent form drafted by Rush and signed by the plaintiff alerted Dr. York that Dr. El-Ganzouri was an independent contractor. Rather, the consent form at issue stated that assistants and associates may be selected by either Dr. Rosenberg or Rush. This wording, according to the court, which cited the First District s opinion, could reasonably be interpreted as allowing Rush to select anesthesiologists. York, 353 Ill. App. 3d at 30-31. The court stated several times within its opinion that Dr. El-Ganzouri s presumed clothing on the day of the procedure supported Dr. York s belief that he was an employee of Rush. Specifically, Dr. El-Ganzouri would have worn scrubs and a lab coat with Rush insignia on them. The court did not discuss whether such indicia could be overcome by the James disclosure in a consent form at admission. Therefore, the safest practice seemingly would be to advise decision makers of hospitals to Page 3 of 5
only allow employees to wear medical scrubs and other clothing with the hospital s insignia upon them, regardless of the impracticality associated with this practice. The court also determined that Dr. York s assumption that Rush would provide the attending anesthesiologist was supported by the testimony at trial that the doctor had faith in the institution. The court rejected the defendant s argument that Dr. York relied upon Jeff York to choose the anesthesiologist who would perform the February 1998 procedure, finding no testimony at trial to support prior knowledge of Dr. El-Ganzouri s role by Jeff York. Rather, the court determined there was sufficient evidence to support the conclusion that the plaintiff came into contact with Dr. El- Ganzouri because he relied upon Rush to provide his attending anesthesiologist. The court rejected the defendant s argument that since Dr. York had requested Dr. Krolick to serve as the original attendant anesthesiologist for the February 1998 procedure, he surely similarly selected Dr. El-Ganzouri in the same way. The court found this issue to be a question of fact, which the jury had sufficient evidence to resolve in favor of the plaintiff. The supreme court agreed with the appellate court that there was no injustice in this imposition of vicarious liability upon Rush for the actions of Dr. El-Ganzouri. Id. at 30. The court further stated that the imposition of vicarious liability in this case may encourage hospitals to provide better supervision and quality control over the independent physicians working in their facilities. Whether such language in the decision may, in fact, encourage the plaintiffs attorneys to include more institutional negligence claims in future complaints remains to be seen. A final issue dealt with by the Illinois Supreme Court in York for which defense counsel can find little solace is the reaffirmation of Illinois Pattern Instruction No. 105.10. This, the apparent agency jury instruction, has been criticized by defense counsel since its adoption. Most have offered nonpattern apparent agency instructions to the court that seek to clarify the holding out, acquiescence and reliance elements. The court s reaffirmation should not deter future efforts to submit non-i.p.i. agency instructions, particularly when the issue involves acquiescence, which is non-existent in I.P.I. 105.10. Justice Garman wrote a scathing dissent wherein she argued that under the majority s view, the fact that the plaintiff sought care from a specific physician is now virtually inconsequential in determining whether a hospital is vicariously liable for the negligence of an independent contract physician. In fact, she stated that as long as the plaintiff can satisfy the holding out element of his apparent authority claim, he may recover from the hospital. According to Justice Garman, Gilbert does not resolve all of the issues presented in the York case, but rather the majority must further clarify how an apparent authority claim against a hospital should proceed. Justice Garman sees a distinction between the situation in Gilbert, where the alleged negligence was performed by the primary physician, and that in York, where Dr. El-Ganzouri, the allegedly negligent physician, provided support service related to a scheduled procedure. Dr. York had testified at trial that he would have gone to the surgeon who performed his knee surgery even if the physician had moved his practice to a hospital other than Rush. As a result, there are two questions that were ignored by the majority, according to Justice Garman. First, should a patient not recover at all based on the doctrine of apparent authority where he chooses a hospital for his treatment because he hand-picked a particular physician to perform the treatment and the physician practices only at that hospital? Second, to satisfy the reliance element of an apparent agent authority claim, should a patient who schedules a procedure with a particular physician, and who is injured by another physician providing a support service, have to prove that his belief regarding the employment status of the physician who committed malpractice actually mattered in his decision to proceed with treatment? Justice Garman believes that a patient who would have acted in exactly the same manner if he had known the employment status of a physician should not be allowed to recover from the hospital and Page 4 of 5
stated that she cannot help but view with some suspicion the conclusion that the plaintiff, who was himself an independent contractor physician for many years and whose son was an anesthesiology resident at Rush at the time of the plaintiff s surgery, did not know that Dr. El-Ganzouri was an independent contractor. Nor can she accept without some hesitation the conclusion that the patient did not know Dr. El-Ganzouri would be his attending anesthesiologist and that the plaintiff did not depend on his son to select Dr. El-Ganzouri, given the conflicting evidence on these points. However, recognizing that these are factual questions, Justice Garman stated that she could not ignore the jury s credibility determinations on these issues. Justice Garman s rationale reflects the arguments of hospital defense counsel since the Gilbert decision was first announced. Sometimes termed the first-contact rule and explained in Butkiewicz v. Loyola University Medical Center, 311 Ill. App. 3d 508 (2000), it essentially holds that when a patient was initially sent to the hospital by his or her private physician or chooses a specific physician at a hospital for the relevant care, and reliance on the hospital is defeated by that decision as to that initial physician, then all subsequent physicians with whom the patient comes into contact cannot be considered under the reliance element. The majority in York clearly rejected this rationale. Instead, a patient arguably can make an independent assumption of apparent agency as to each medical professional he or she comes into contact with during the admission, regardless of how many prior physicians he or she is aware of as having an independent contractor status. It is important to note, however, that the supreme court in York was not presented with the issue of whether Dr. York could have reasonably relied upon Dr. Rosenberg as an apparent agent of Rush, since a claim of liability under that theory was never brought. One could argue that given the prior relationship with Dr. Rosenberg, and the testimony by Dr. York that he would have followed the physician to any other hospital, the plaintiff would have been unable to demonstrate reliance. However, given the court s belief that Dr. York sought out Rush prior to Dr. Rosenberg, and assuming that Dr. York would testify that he was never informed that Dr. Rosenberg was an independent contractor, the court could very easily have determined that Dr. York initially and continually relied upon Rush to provide the services of Dr. Rosenberg. Therefore, a thorough James disclosure is an operational must for any hospital. In light of the York decision, now would be the most appropriate time to call hospital clients regarding the sufficiency of their consents and whether they should require each independent physician on staff to present a James disclosure to a patient prior to providing treatment. While that practice would entail an enormous administrative burden, it more likely than not would insulate the hospital from future apparent agency claims as to these independent medical providers. Defense counsel must also roundtable and develop new, more effective ways to argue apparent agency issues to the jury, where it appears this battle will be won should the issue go to trial. ABOUT THE AUTHOR: Edward J. Aucoin, Jr. is an associate in the Chicago firm of Pretzel & Stouffer, Chartered. He has over nine years of experience in medical malpractice defense, commercial litigation, and contract litigation practice. Mr. Aucoin s substantial client base includes private hospitals and medical practice groups, physicians and other medical professionals, and national commercial corporations. He has extensive experience in preparing complex litigation for trial, and has second-chaired medical malpractice trials in Cook County and DuPage County. Mr. Aucoin received his B.A. from Loyola University of New Orleans and his J.D. from Loyola University of New Orleans School of Law. He is also a member of the IDC. Page 5 of 5