The Illinois Appellate Court found that Advocate Christ Hospital should not have been dismissed from a wrongful-death lawsuit that involved pediatric cardiovascular surgeon Mary Jane Barth, M.D. The issue in the case was whether Advocate Christ Hospital could be held as the principal for the apparent agency of a doctor who practices there. The hospital argued that Dr. Barth was an independent contractor and thus, the plaintiff could not hold the hospital liable as the principal for any wrongful conduct of an agent (a doctor).
The First District Illinois Appellate Court found it was reasonable for the plaintiff, Natalie Hammer, to assume Dr. Barth was acting on behalf of Advocate Christ Hospital when she performed a number of operations on her husband, Jerry Hammer, who died in 2010.
Natalie Hammer filed a lawsuit against Advocate, Barth and Barth’s employer, Cardiovascular Surgeons Ltd. (CSL) for medical malpractice and wrongful death. The three-justice appellate court panel found that Advocate Christ Hospital could be held liable because Hammer demonstrated that Advocate did not carefully distinguish between itself and its independent doctors and that Hammer relied on Advocate to care for her husband.
The decision of the Illinois Appellate Court reverses a summary judgment that was granted by a Cook County circuit court judge who had dismissed Advocate Christ Hospital from the case.
In 2007, Dr. Barth was brought in to assist another doctor employed by Cardiovascular Surgeons Ltd., Michel Ilbawi, M.D., to perform cardiac procedures on Jerry Hammer.
Jerry Hammer signed health-care consent forms in March and July 2007. Each form provided that “some or all of the physicians who provide medical services . . . are not employees or agents of the hospital.” These consents are rather standard, but as the case holds, those cases do not always excuse the principal hospital.
Natalie Hammer testified that she did not meet Dr. Barth until August 2007 when the doctor placed tubes into her husband’s chest. When the patient needed another tube inserted in the next month, Natalie Hammer gave consent over the phone and requested that a pulmonologist who specializes in adults see her husband.
The form indicated that Natalie Hammer’s consent to the procedures included Advocate’s name and logo but did not mention the company that the physicians worked for.
In the Third Amended Complaint, Natalie Hammer alleged that Dr. Barth was an agent of Advocate, making the hospital responsible for the doctor’s alleged medical negligence.
It was also alleged that Jerry Hammer relied on Advocate, although not specifically on Dr. Barth to take care of him and did not choose Dr. Barth to perform those services.
Natalie testified that she thought Barth was part of the hospital, but could not remember if Dr. Barth ever wore a lab coat or an ID badge with the Advocate name and logo emblazoned on it.
Hammer also argued that Barth was an agent of the hospital because she was subject to the hospital’s bylaws and appraisal system.
At deposition Dr. Barth testified that she was an employee of CSL, but she always wears an Advocate ID badge and sometimes a lab coat provided by the hospital.
CSL is owned and operated by Dr. Michel Ilbawi. At the time of this incident and the death of Jerry Hammer, Dr. Barth was an employee working under Dr. Ilbawi. Jerry Hammer died after being hospitalized for 8 months following cardiac arrhythmia. Dr. Ilbawi was the physician who was originally referred by the pulmonologist. Jerry Hammer originally met with Dr. Ilbawi for the first time at the doctor’s office in the basement of Hope Children’s Hospital, which was adjacent to Advocate.
Dr. Ilbawi was also employed by CSL. Drs. Ilbawi and Barth are pediatric cardiovascular surgeons and thus Jerry Hammer was in the pediatric surgical heart unit until he was transferred to a floor in the general hospital in 2007. Jerry Hammer had never before met Dr. Barth until she was sent to his hospital room to place right and left sided chest tubes.
In the summary judgment motion, the judge at the trial level granted summary judgment finding that Barth was not in an employee or agent of Advocate. The judge rejected Hammer’s argument that Barth was an implied agent of Advocate because she had sufficient control over her work. The judge also ruled that Barth was not an apparent agent of Advocate because the consent form signed by Jerry Hammer had a clear disclaimer.
On the issue of actual agency, the appellate court found that the judge’s decision was correct. “Advocate’s recertification and reappointment process for staff privileges do not indicate sufficient control over Dr. Barth’s medical judgment in the treatment of her patients to negate her independent status, and at most show only control over the conduct and activities of its medical staff.”
However, the Illinois Appellate Court held questions of material fact did exist on whether Barth acted as an apparent agent of Advocate. As a result, it found that the trial lower court’s granting of summary judgment was in error. Even though Jerry Hammer signed a disclaimer, the panel pointed out the form does not say whether Barth was independent from Advocate. The form says “some or all.”
“Such a disclaimer is ambiguous in that one could assume that some or all or none of the treating physicians are independent contractors, and that independent physicians may or may not include cardiologists.” It might be noted that Dr. Barth is a pediatric cardiovascular surgeon and now resides in Tulsa, Oklahoma.
The panel also found in its decision that Advocate made no distinction between itself and Barth or its own doctors in that Barth had her own Advocate ID and Advocate boasts on its websites that it has the best physicians, which would include Dr. Barth.
In addition, the appeals panel said that Hammer relied on Advocate to treat her husband and did not specifically rely on a particular physician. Had Natalie Hammer sought out Barth specifically, she could not claim Barth acted with the apparent authority of Advocate.
Advocate repeatedly argued that the consent form that Jerry Hammer signed essentially prevents his wife from arguing that he held Barth as Advocate’s agent or could rely on the hospital for medical care. The panel pointed out that there were two Illinois Appellate Court decisions from the First and Second Districts that said that other issues “would create a triable issue of fact.”
As a result, the trial court would need to resolve these issues of material fact. Accordingly, the dismissal by summary judgment of Advocate on the grounds found by the trial judge was reversed and the case remanded for further proceedings.
Natalie Hammer, et al. v. Mary Jane Barth, M.D., et al., 2016 IL App (1st) 143066.
Kreisman Law Offices has been handling medical malpractice cases, cardiovascular negligence cases, birth trauma injury cases and nursing home negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Tinley Park, Palos Hills, Antioch, Arlington Heights, Bridgeview, Orland Park, Romeoville, Naperville, Waukegan, Lake Bluff, Gurnee, Grayslake and Midlothian, Ill.
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