Kreisman Law Offices Professional Corporation
The plaintiff Saleh Mizyed appealed from the trial judge’s order granting summary judgment, which dismissed his medical malpractice complaint against the defendant Palos Community Hospital. The hospital was named as a party defendant under the theory of vicarious liability for the alleged negligence of Mizyed’s treating physicians. The Illinois Appellate Court for the First District affirmed the dismissal.
Mizyed was treated at Palos Community Hospital (Palos) in early 2009. He is a native Arabic speaker. Although he speaks a limited amount of English, he was deposed in this case with the assistance of an interpreter. At his deposition, he testified that he cannot read or write in either English or Arabic, and that he relies on his adult children to read and translate documents for him. His adult daughter, Nadera (who testified that she has no difficulty speaking or reading English), sometimes went with Mizyed to his doctors’ appointments.
On Jan. 26, 2009, Mizyed visited his primary care physician, Dr. Odeh, for a regularly scheduled appointment. Nadera accompanied him to this doctor’s appointment. Based on the EKG at the doctor’s office, Dr. Odeh told Mizyed that he needed to go to a hospital immediately. According to Nadera, Dr. Odeh told Mizyed that “it looks like you’re having a heart attack right now.” Dr. Odeh called an ambulance and Mizyed was transported to Palos.
At the emergency room, the doctors told Mizyed and Nadera that he had a “major blockage” that could require surgery. None of the personnel at Palos spoke Arabic.
During his treatment at Palos, Mizyed signed a number of consent forms, which was the basis of Palos’s motion for summary judgment. All of the consent forms provided by Palos are in English. There were five of them. Mizyed testified at his deposition that he acknowledged that he signed certain forms based on Nadera’s advice. The consents stated that the patient understood that all physicians providing services are not employees or agents of Palos Community Hospital. At his deposition, Mizyed acknowledged that the consent forms contained his signature, but he did not recall signing them.
Mizyed remained hospitalized at Palos until Feb. 7, 2009. In the days following the Jan. 30, 2009 PICC line procedure, Mizyed developed a fever. Doctors at Palos, including his attending physician, Dr. Kanashiro, determined that he had developed an infection resulting from the PICC line insertion.
Mizyed was discharged from the hospital on the morning of Feb. 7, 2009, with directions to take an antibiotic. Dr. Kanashiro testified that the decision that Mizyed was ready for discharge was made by her in consultation with physicians from “cardiology, infectious disease and the cardiovascular surgeon. And all of them decided that the patient was able to go home.”
Mizyed and Nadera testified that Mizyed was still not feeling well when he was discharged from Palos. Nadera recalled that Mizyed appeared weak, had a fever and complained that he was having difficulty breathing. The family called an ambulance and Mizyed was admitted to Advocate Christ Hospital.
Mizyed remained for several days at Christ Hospital, where he continued to receive treatment for the infection that he had contracted at Palos. For several additional weeks, Mizyed required daily injections of antibiotics to treat the infection.
Mizyed filed his initial medical malpractice complaint on Feb. 9, 2011, alleging that unidentified agents or employees of Palos had been negligent in choosing not to prevent, recognize and treat his infection and they had prematurely discharged him. After Palos moved to dismiss, Mizyed filed an amended complaint on Oct. 7, 2011 which identified Dr. Kanashiro as one of the treating physicians. A second amended complaint was filed on Dec. 8, 2011. On Jan. 12, 2012, Palos filed a motion to dismiss the second amended complaint. On April 11, 2012, Mizyed responded by seeking to file a third amended complaint. In that third amended complaint, it was alleged that Palos “employed physicians,” including Dr. Kanashiro, who were “actual agents and/or employees” of Palos, in caring for Mizyed. The complaint alternatively alleged that Dr. Kanashiro and other physicians acted as Palos’s “apparent” agents or employees.
On July 3, 2012, Palos filed an answer to the complaint in which it admitted that Dr. Kanashiro was Mizyed’s attending physician and that Mizyed had developed an infection. However, Palos denied that Dr. Kanashiro was its agent, servant or employee, and denied all allegations of negligence.
On April 10, 2014, Palos moved for summary judgment arguing that the evidence demonstrated that Mizyed could not establish that Dr. Kanashiro was either an actual or apparent agent of Palos. On Aug. 13, 2014, the trial court entered an order granting Palos’s motion for summary judgment “in its entirety.”
The sole issue on appeal was whether summary judgment should have been granted in favor of Palos with respect to Mizyed’s theory of liability premised on apparent agency. The court, relying on the newer cases of York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill.2d 147, 179 (2006) (citing Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511 (1993)), “a hospital may be found vicariously liable under the doctrine of apparent agency for the negligent acts of a physician providing care at a hospital, ‘regardless of whether the physician is an independent contract, unless the patient knows, or should have known, that the physician is an independent contractor.’” York, 222 Ill.2d at 184.
In the Gilbert decision, it was held:
“’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.’ [Citation.]” Id. at 184-85 (quoting Gilbert, 156 Ill.2d at 525).
“To survive a defendant hospital’s motion for summary judgment on a claim of apparent agency, plaintiff must present at least some evidence to satisfy each of the Gilbert factors.” Lamb-Rosenfeldt, 2012 IL App (1st) 101558, ¶25. Mizyed was not able to do this in this case. Here the consent forms explicitly disclosed that Palos’ treating physicians were not agents or employees of the hospital. If the consent forms had been ambiguous or confusing, that would lead to a different conclusion.
In this case, Mizyed was not able to identify any cases holding that a non-English speaking or illiterate patient cannot be held to the terms of a consent form that he signed. Rather, Mizyed claimed that he cannot be deemed to have received notice of, or that he gave “informed consent” to, the provision of the consent form. Mizyed’s arguments ignored the long-standing principle that one who signs a document is charged with knowledge of its contents, regardless of whether he or she actually read the document. In conclusion, the court held that the consent form, by itself, would not necessarily warrant summary judgment in Palos’s favor, if there was other evidence that Palos was “holding out” Dr. Kanashiro as its agent or employee. There was no evidence to support the “holding out” element. For those reasons, the court affirmed the judgment of the Circuit Court of Cook County allowing for the dismissal of this case as to Palos Community Hospital.
Saleh Mizyed v. Palos Community Hospital, 2016 IL App (1st) 142790; May 9, 2016.
Kreisman Law Offices has been handling medical malpractice cases, hospital negligence cases, birth trauma injury cases and nursing home abuse cases for individuals and families who have been injured or killed by a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Calumet City, Flossmoor, Schiller Park, Hanover Park, Elmhurst, Elmwood Park, Melrose Park, Hanover Park, Hinsdale, Wheaton, Cary, Aurora, Crystal Lake, Niles, Des Plaines, Hoffman Estates, Wheeling and Vernon Hills, Ill.
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