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Plaintiffs Beware - Case Law Updates




by:
Dawn A. Sallerson
Hinshaw & Culbertson LLP - Edwardsville Office

 
December 19, 2013

Previously published on December 17, 2013

Two decisions out of the Illinois Appellate Court, First District, are significant medical malpractice cases for physicians, hospitals, risk managers, insurance carriers and their counsel, one decision reflecting the importance of diligent opposition to plaintiff's late expert disclosures and the other decision depicting the crucial language of hospital consent forms for treatment rendered by independent practitioners, despite plaintiffs attempts at repudiating their recollection of the terms and/or circumstances under which the consent was executed. Both cases are well reasoned opinions by the First District and demonstrate the Appellate Court's careful legal and practical analysis and application of the law.

The two decisions from the First District are Smith v. Murphy, 2013 IL App (1st) 121839, 994 N.E.2d 617 and Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) 121835, 991 N.E.2d 817. The Smith opinion addresses and upholds the exclusion of plaintiff's late expert disclosure as admissible evidence at trial and further refuses to consider the expert opinion as a basis to defeat summary judgment. The Frezados opinion affirms summary judgment in a medical malpractice case for the hospital, with the court holding that there was no genuine issue of material fact raised by the plaintiff as to whether the hospital "held out" the physicians as employees of the hospital.

Discovery Sanctions Bar Plaintiff's Expert Disclosure

In Smith v. Murphy, 2013 IL App (1st) 121839, 994 N.E.2d 617 (appeal pending), the First District of the Illinois Appellate Courts examined the plaintiff's late expert disclosure, scrutinized the underlying trial court record, including the factual and legal arguments presented, and affirmed summary judgment in favor of the defendant physicians. The court held that the plaintiff's late filing of an affidavit of a new previously undisclosed expert that the defendant physicians had committed malpractice, which the plaintiff submitted in opposition to the defendants' Motion for Summary Judgment, was appropriately excluded as admissible evidence as a discovery sanction. The Appellate Court further rejected the plaintiff's argument that despite the new expert opinion being excluded as admissible evidence at trial, that the affidavit should still be considered as raising a genuine issue of fact to prohibit summary judgment. Notably, the Appellate Court examined the reality of permitting the case to proceed to trial, envisioned the absurd end result, and upheld summary judgment in favor of the defendants.

The Appellate Court opinion in Smith noted that after the plaintiff's expert witness testified in his deposition that he held no opinions the defendants deviated from the standard of care, that the plaintiff, despite numerous opportunities to bring the issue to the court's attention, did not do so, did not abide by the mandates set forth in Supreme Court Rule 213 with respect to controlled expert witnesses, made no attempt to seasonably supplement or amend the Rule 213 disclosures, and did not comply with the trial court discovery order. It was only after defendants disclosed their Rule 213 experts, submitted their experts for deposition, the deadline for discovery as set forth in the trial court's case management order had closed, a trial date was set, and the defendants filed their Motion for Summary Judgment that the plaintiff submitted an unsigned proposed affidavit of a previously undisclosed retained expert, filed in opposition to the Defendant's Motion for Summary Judgment. The Appellate Court affirmed the trial court order which barred the plaintiff's expert's opinions and entered Summary Judgment in favor of the defendant physicians.

The Appellate Court in Smith, citing the Illinois Supreme Court decision in Sullivan v. Edward Hospital, 209 Ill.2d 100, 282 Ill. Dec. 348 (2004), indicated that in deciding whether exclusion of a witness's testimony in court or by affidavit is an appropriate sanction for nondisclosure, the court examines the following factors: (1) the surprise to the adverse party; (2) the prejudicial effect of the witness's testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timeliness of the objection to the witness's testimony; and (6) the good faith of the party seeking to offer the testimony. The Smith court examined each of the pertinent factors and held that the trial court appropriately weighed all of those factors when issuing its decision to bar the testimony of plaintiff's expert.

The Smith opinion further addressed the plaintiff's argument that even if the disclosure of the expert was untimely, that the affidavit of the physician critical of the defendants should still be allowed to defeat the defendants' Motion for Summary Judgment. The plaintiff argued that the procedure permitted under the Code of Civil Procedure, 735 ILCS 5/2-1005(c) which allows a party to contest summary judgment by the filing of affidavits, should trump any discovery sanctions imposed by a trial court. The court found the plaintiff's argument unpersuasive, noting both practical and legal authority in their decision. The court stated that the "Plaintiff is, in effect, requesting that we require the trial court to allow the parties to proceed to trial, only to then grant a directed verdict for the two defendant-doctors as there would be no admissible evidence to show any medical professional negligence against them. This would result in wasting the court's and all the parties' time, incur costs and expend energy on what everyone knows is a useless proceeding. '[T]he law does not require the doing of a useless act.'" Smith at 623 citing Stone v. La Salle National Bank, 118 Ill.App.3d 39, 45, 73 Ill.Dec. 811, 454 N.E.2d 1060 (1983).

The Smith court noted in its decision that "Plaintiff's attachment of a previously undisclosed expert opinion in an affidavit in response to a motion for summary judgment was nothing more than a thinly veiled attempt to circumvent the trial court's discovery orders and its authority to reasonably regulate the parties' discovery process in the interests of justice during litigation." Smith at 624, citing Ill. S.Ct. R. 201 (eff. July 1, 2002).

In conclusion, the First District in Smith found, after their review of the trial court record, that the lower court adhered to its prior court orders referable to discovery cutoff dates and expert disclosures, adhered to the Illinois Supreme Court Rules, and did not abuse its discretion in barring the plaintiff's newly disclosed expert to defeat defendants' Motion for Summary Judgment. As such, judgment in favor of the defendants and against the plaintiff was affirmed by the Appellate Court.

Consent Form Trumps Plaintiff's Testimony

In Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) 121835, 991 N.E.2d 817, the plaintiff presented to the hospital and was treated in the Urgent Aid Center by a physician. When the patient arrived at the hospital, he testified that he was provided a "Consent for Treatment" form by a person working at the intake desk.

The consent form read, in pertinent part, as follows:

"I have been informed and understand that physicians providing services to me at Ingalls, such as my personal physician, Emergency Department and Urgent Aid physicians, radiologists, pathologists, anesthesiologists, on-call physicians, consulting physicians, surgeons, and allied health care providers working with those physicians are not employees, agents or apparent agents of Ingalls but are independent medical practitioners who have been permitted to use Ingalls' facilities for the care and treatment of their patients. I further understand that each physician will bill me separately for their services."

Frezados at 819.

At the time the plaintiff was deposed, he testified that he signed an identical form in 2002, but did not recall signing the form. At the time of the care and treatment rendered at the Urgent Aid Center in the case at hand, he testified he did not read the form before he signed because he was in too much pain and simply wanted treatment.

The plaintiff testified he believed the physician he saw at the Urgent Aid Center was an employee of the hospital because the doctor was present in the hospital that day. The plaintiff also testified that he believed another physician (hereinafter "specialist") was an employee of the hospital because the specialist worked in the building where the Urgent Aid Center was located and because the physician who had rendered treatment in the Urgent Aid Center had referred him to the specialist.

In addition to the consent form the plaintiff denied reading, the hospital also had a sign posted in the waiting and examination rooms which read that the doctors at the hospital are "not employees or agents of the hospital. They are independent contractors. Billing for their services will be provided separately from the hospital charges. Urgent Aid Physicians, CT, MRI, Mammography, Ultrasound, Cardiology, Radiology, Pathology."

The defendant hospital moved for summary judgment on the grounds that there was not an issue of fact as to whether the two physicians were the actual or apparent agents of the hospital so as to support recovery on the theory of vicarious liability. The defendant hospital submitted supporting evidence that the physicians were not employees, that they may have privileges and lease agreements, but were not employed by the hospital nor did the hospital provide the physicians with compensation.

The First District in Frezados, noted that the leading decision by the Illinois Supreme Court in Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511, 622 N.E.2d 788 (1993), held that a hospital may be vicariously liable for medical or professional negligence if there is an apparent agency relationship between the hospital and physician. Prior to Gilbert, hospitals could only be held vicariously liable for the negligent acts of their actual agents. The Frezados court noted that the decision in Gilbert reflected the "reality of modern hospital care" in which patients rely on the reputation of the hospital, rather than individual doctors, in seeking emergency treatment and naturally assume the doctors are hospital employees, citing Gilbert. The Frezados court stated that it was for this reason that the Illinois Supreme Court in Gilbert expanded the scope of a hospital's liability to include negligent acts of apparent, in addition to actual, agents.

The issue presented to the court in Frezados was not one of actual agency, for which a hospital may be found liable, but was instead the issue of apparent agency, which, if proven, may also establish liability against a hospital, as pronounced in Gilbert. The First District stated in Frezados, that:

"in order to establish apparent agency, 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.'"

Frezados at 820, citing Gilbert, quoting Pamperin v. Trinity Memorial Hospital, 144 Wis.2d 188, 423 N.W.2d 848, 856 (1988).

The Frezados court first turned its attention to the "holding out" element, namely, whether the hospital or the physicians in the case at hand reasonably led the plaintiff to believe that the doctors were the hospital's employees or agents. The court noted that in Gilbert, the Illinois Supreme Court found this "holding out" element to be satisfied if the hospital (1) presents itself as a provider of emergency room care and (2) does so without advising the patient that the care is being provided by independent contractors. In distinguishing Gilbert, the court noted that the hospital in Gilbert did not inform its patients they were independent contractors, but instead, actually had a consent form stating that the patient would be treated by "physicians and employees of the hospital." Unlike the facts presented to the Supreme Court in Gilbert, in Frezados, the "Consent for Treatment" form included a disclaimer that the physicians are not employees, agents or apparent agents of the hospital, but were instead independent contractors. The court took note as well of the signs posted in the waiting and examination areas.

The First District made specific reference in Frezados of other similar consistent decisions made by their court to the effect that a patient's signature on a consent form containing similar language disclaiming an agency relationship is an important factor to consider in determining whether the "holding out" element has been met. The court reviewed and cited the plaintiff's deposition testimony that other than the physician's presence in the hospital and the rendering of care to the plaintiff, that there was nothing the physician said and nothing the hospital did which led the plaintiff to believe that the physician was employed by the hospital. The court found that this testimony, in conjunction with the signed consent form, which explicitly and clearly disclaimed any employer-employee status between the physician and hospital, to suggest that no reasonable person could have believed the doctors were the agents of the defendant. The court in Frezados specifically found, however, that the consent form in the case pending before it was a clear disclaimer of an agency relationship between the hospital and the physicians. The court referenced other cases where the hospital consent forms also contained disclaimers of agency relationships between physicians and hospitals, but noted that the forms in those cases were found to have some language or formatting found by the courts to have triable issues of fact for a jury to decide the issue of apparent agency.

Of interest in Frezados is that the court, having found the consent form to clearly disclaim an agency relationship between the hospital and physicians, also addressed the plaintiff's argument that his signature did not foreclose the existence of a genuine issue of fact because his pain prevented him from reading the form prior to signing. The court pointed to multiple other cases, in other business arenas, where the courts have routinely held that a party has a duty to read documents prior to signing them and a failure to read the documents will not necessarily raise an issue of fact as to the party's knowledge of the document's contents. The First District stated in Frezados, that they "see no reason not to extend this well-established principle to consent for treatment forms. Indeed, we have never been persuaded by plaintiffs who have opposed motions for summary judgment on the basis that they did not read the form or that their shock prevented them from understanding the form's provisions. Significantly, a holding to the contrary would drastically diminish the value of independent contractor disclaimers. Nearly everyone who seeks emergency treatment is in some physical or emotional distress, and were we to hold that such distress could operate to nullify provisions in an otherwise duly signed treatment consent form, hospitals would always be required to proceed to trial on claims of vicarious liability."

The First District in Frezados held that the plaintiff failed to raise a factual question as to the "holding out" element of his cause of action. Given that the plaintiff must prove every element of his cause of action, the court found no reason to address the arguments or evidence as to whether the plaintiff could prove justifiable reliance. As such, the First District affirmed the trial court's order granting summary judgment in favor of the hospital and against the plaintiff.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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