NOTICE This order was filed under Supreme FILED Court Rule 23 and may not be cited 2020 IL App (4th) 190773-U October 1, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). NO. 4-19-0773 Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
TAMRA PRINCE and KENNETH RYAN PRINCE, ) Appeal from the Plaintiffs-Appellants, ) Circuit Court of v. ) Macon County DAVID KIEL, M.D., PRAIRIE EMERGENCY ) No. 17L135 PHYSICIANS, S.C., an Illinois Corporation, and ) DECATUR MEMORIAL HOSPITAL, an Illinois ) Corporation, ) Defendants ) Honorable (Decatur Memorial Hospital, an Illinois Corporation, ) Thomas E. Little, Defendant-Appellee). ) Judge Presiding.
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court. Justices Knecht and Cavanagh concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in granting defendant hospital’s motion for summary judgment on the basis that, as a matter of law, it was not vicariously liable for the alleged negligent acts or omissions of a physician in its emergency department under the doctrine of apparent agency.
¶2 Plaintiffs, Tamra and Kenneth Ryan Prince, filed an action against defendants—
Decatur Memorial Hospital (DMH), an Illinois Corporation; Dr. David Kiel; and Prairie
Emergency Physicians, S.C., an Illinois Corporation (Prairie)—seeking damages for injuries
Tamra sustained after receiving allegedly negligent treatment from Dr. Kiel in DMH’s emergency
department. DMH moved for summary judgment on the basis that it could not be held vicariously
liable for Dr. Kiel’s alleged negligent acts or omissions because he was not DMH’s employee or agent. The circuit court granted DMH’s motion, and plaintiffs appeal, arguing summary judgment
was improper because a material question of fact exists as to whether Dr. Kiel was an apparent
agent of DMH. We affirm.
¶3 I. BACKGROUND
¶4 In October 2017, plaintiffs filed a four-count complaint against defendants, alleging
DMH contracted with Prairie to provide physicians to staff its emergency medicine department
and that Dr. Kiel was a Prairie employee who specialized in emergency medicine. According to
the complaint, in December 2016, Tamra was evaluated in DMH’s emergency room by Dr. Kiel
after experiencing numbness in her left arm, hand, and leg; a loss of balance; and other
“coordination issues.” Plaintiffs alleged Dr. Kiel was negligent in his care and treatment of Tamra
and failed to diagnose that she was developing a stroke or treat her for that condition. They asserted
that, as a result of Dr. Kiel’s negligence, Tamra’s “condition worsened” and plaintiffs suffered
damages.
¶5 Plaintiffs’ claims against DMH were based on the theory of apparent agency. They
alleged that DMH held itself out as a provider of emergency room care and that plaintiffs neither
knew, nor should have known, that Dr. Kiel was not DMH’s employee. Plaintiffs further asserted
that Tamra did not choose Dr. Kiel as her physician but relied upon DMH “to provide complete
emergency room care.”
¶6 In May 2019, DMH filed a motion for summary judgment, alleging no genuine
issue of material fact existed that Dr. Kiel was not its employee or its agent and, as a result, it was
entitled to a judgment in its favor as a matter of law. DMH argued Dr. Kiel’s deposition testimony
showed he was not its employee and that it had disclosed the lack of any employment or agency
-2- relationship between it and Dr. Kiel both on signs displayed at its facility and in “Consent for
Treatment” forms signed by plaintiffs. It attached several documents to its motion, including Dr.
Kiel’s discovery deposition; documents signed by plaintiffs in which they consented to treatment
at DMH in December 2016 and in years prior; the affidavit of Larry Fore, DMH’s facilities
technician; and the discovery depositions of both plaintiffs.
¶7 During his deposition, Dr. Kiel testified he had been a partner with Prairie and was
not an employee of DMH at the time he evaluated Tamra. When he saw Tamra, he was wearing
plain scrubs and a name badge with DMH’s logo. Dr. Kiel testified he did not tell Tamra that he
was not DMH’s employee and asserted he never discussed his employment situation with patients.
¶8 In his affidavit, Fore averred that his duties at DMH included maintaining its
signage. In December 2016, DMH displayed signs in various areas of its facility entitled
“Identification of Physicians” that stated as follows:
“You are notified that the emergency physicians, pathologists, radiologists, and
anesthesiologists, as well as some other hospital-based physicians are not
employees or agents of the hospital. For a list of those physicians not covered by
the foregoing statement, please contact the hospital’s medical staff office at 217-
876-2115.”
According to Fore, the signs were posted in the waiting rooms for DMH’s emergency room and at
each registry desk in the emergency room. A photograph of one of the signs was attached to Fore’s
affidavit.
¶9 As stated, DMH also attached to its motion documents signed by plaintiffs,
consenting to treatment at DMH for multiple visits from February 2007 to December 2016. The
-3- documents contained the same notification as the “Identification of Physicians” signs with
identical wording. In some of the documents, the notification was in bold print.
¶ 10 Finally, plaintiffs’ discovery depositions showed that on December 28, 2016, an
ambulance was called for Tamra and she asked to be taken to DMH. Tamra did not recall signing
any documents at DMH and “probably” did not read the documents she signed. She also did not
remember seeing the “Identification of Physicians” signs displayed at DMH or seeing Dr. Kiel.
Tamra stated she believed Dr. Kiel was an employee of DMH because he wore a white lab coat
and was a doctor.
¶ 11 Kenneth recalled seeing Dr. Kiel at DMH but did not remember if Dr. Kiel was
wearing a white coat. He believed Dr. Kiel was employed by DMH “[b]ecause he worked there.”
Kenneth also did not specifically recall signing any documents at DMH and stated he would not
have read any document that was given to him to sign. He further did not remember seeing the
“Identification of Physicians” signs that DMH displayed.
¶ 12 In June 2019, plaintiffs filed a response to DMH’s motion for summary judgment.
They argued DMH heavily marketed its “comprehensive emergency services” through
advertisements, which contained no notification that the physicians working in its emergency
department were not its employees and, instead, gave the impression that the emergency care it
offered included “providing an emergency physician—vetted and employed by DMH itself.”
Plaintiffs also argued that the notification contained in DMH’s “Consent for Treatment” forms and
on its “Identification of Physicians” signs was “unclear and ambiguous,” such that plaintiffs
neither knew nor should have known that Dr. Kiel was employed by Prairie rather than DMH.
¶ 13 Attachments to plaintiffs’ response included Dr. Kiel’s discovery deposition, the
-4- discovery depositions of two emergency room nurses involved in treating Tamra in December
2016, plaintiffs’ discovery depositions, and Tamra’s affidavit. In the affidavit, Tamra averred that
she did not choose Dr. Kiel as her physician on December 28, 2016, but relied on DMH to assign
a physician to her. She asserted she thought the physician assigned to her was a DMH employee
and that she had seen advertisements for DMH’s emergency room prior to December 28, 2016.
Tamra further averred that she did not read any patient consent forms prior to receiving care in the
emergency room, asserting she was “extremely anxious about [her] health and thought that [she]
was having a stroke.” Tamra also stated she did not recall seeing or reading any signs at DMH that
addressed the employment status of physicians who worked there. She did not learn Dr. Kiel was
not employed by DMH until after her lawsuit was filed.
¶ 14 Plaintiffs also attached various DMH advertisements to their response. In some
advertisements, DMH asserted “All ERs Are Not Created Equal” and that it offered
“Comprehensive Emergency Services,” provided “total emergency care,” and offered “24/7
critical emergency services.” It advertised “24/7” heart, stroke, brain and spine care. In other
advertisements, DMH promoted specific doctors that both lived and worked in the community,
including cardiologists and brain and spine surgeons. It advertised that it had “New ER Doctors,”
asserting it “brought in a new group of highly skilled, compassionate doctors to provide quality
care to [its] ER patients.” Further, it advertised new directors in its emergency room, as well as its
emergency stroke services.
¶ 15 In July 2019, the circuit court conducted a hearing on DMH’s motion for summary
judgment. The following month, it entered a written order granting the motion. In finding summary
judgment in DMH’s favor was appropriate, the court stated as follows:
-5- “This court reads [the consent form language] to clearly and unequivocally provide
that emergency physicians are not employees or agents of [DMH]. There is no
factual dispute that Dr. Kiel is an emergency room physician. The issue of whether
‘some other hospital-based physicians’ are or are not employees or agents of the
hospital is not before the court and this court finds no ambiguity in the [consent
form] language as it relates to emergency room physicians.”
Further, the court stated that after considering the materials submitted by the parties, including the
consent for treatment forms, the “Identification of Physicians” signs, and the advertisement
materials, it found plaintiffs could not establish that DMH held Dr. Kiel out as either its agent or
its employee.
¶ 16 In September 2019, plaintiffs filed a motion to reconsider the circuit court’s grant
of summary judgment in DMH’s favor. Alternatively, it asked the court to make a finding pursuant
to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), that there was no just reason for delaying
either the enforcement or appeal, or both, of its ruling. In October 2019, the court denied plaintiffs’
motion to reconsider but made a written Rule 304(a) finding.
¶ 17 This appeal followed.
¶ 18 II. ANALYSIS
¶ 19 On appeal, plaintiffs argue the circuit court erred by granting DMH’s motion for
summary judgment in its favor. They contend a genuine issue of material fact exists as to whether
Dr. Kiel was DMH’s apparent agent.
¶ 20 Initially, we note DMH contends the statement of facts in plaintiffs’ brief should
be stricken due to noncompliance with Illinois Supreme Court Rule 341 (eff. May 25, 2018), which
-6- sets forth the requirements for the form and content of appellate court briefs. Specifically, the rule
provides that an appellant’s brief must include a “Statement of Facts, which shall contain the facts
necessary to an understanding of the case, stated accurately and fairly without argument or
comment ***.” Ill. S. Ct. R. 341(h)(6) (eff. May 25, 2018). We agree that plaintiffs’ statement of
facts is in violation of Rule 341(h)(6), in that it contains improper argument and commentary by
plaintiffs. As argued by DMH, this court “may strike [an appellant’s] statement of facts when the
improprieties hinder our review.” Hall v. Naper Gold Hospital LLC, 2012 IL App (2d) 111151,
¶ 9, 969 N.E.2d 930. In this instance, however, we find it unnecessary to strike the entirety of
plaintiffs’ statement of facts. Instead, we disregard any improper argument or commentary.
¶ 21 Turning to the merits of plaintiffs’ appeal, we note “[s]ummary judgment is
appropriate ‘if the pleadings, depositions, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’ ” Wingert by Wingert v. Hradisky, 2019 IL 123201, ¶ 42, 131
N.E.3d 535 (quoting 735 ILCS 5/2-1005(c) (West 2016)). “The purpose of summary judgment is
not to try an issue of fact but to determine whether one exists.” Monson v. City of Danville, 2018
IL 122486, ¶ 12, 115 N.E.3d 81. “[W]here reasonable persons could draw divergent inferences
from the undisputed material facts or where there is a dispute as to a material fact, summary
judgment should be denied and the issue decided by the trier of fact.” (Internal quotation marks
omitted.) Beaman v. Freesmeyer, 2019 IL 122654, ¶ 22, 131 N.E.3d 488. On appeal, the trial
court’s summary judgment ruling is subject to de novo review. Monson, 2018 IL 122486, ¶ 12.
¶ 22 The doctrine of apparent authority refers to a type of agency relationship under
which “[a] principal will be bound by not only that authority which he actually gives to another,
-7- but also by the authority which he appears to give.” Gilbert v. Sycamore Municipal Hospital, 156
Ill. 2d 511, 523, 622 N.E.2d 788, 795 (1993). “Apparent authority in an agent is the authority
which the principal knowingly permits the agent to assume, or the authority which the principal
holds the agent out as possessing.” Id. “It is the authority which a reasonably prudent person,
exercising diligence and discretion, in view of the principal’s conduct, would naturally suppose
the agent to possess.” Id.
¶ 23 “[U]nder the doctrine of apparent authority, a hospital can be held vicariously liable
for the negligent acts of a physician providing care at the hospital, regardless of whether the
physician is an independent contractor, unless the patient knows, or should have known, that the
physician is an independent contractor.” Id. at 524. For such liability to exist, a plaintiff must show
the following:
“(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.” (Internal
quotation marks omitted.) Id. at 525.
“To survive a defendant hospital’s motion for summary judgment on a claim of apparent agency,
a plaintiff must present at least some evidence to satisfy each of the Gilbert factors.”
Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st) 101558, ¶ 25, 967 N.E.2d 411.
¶ 24 The first two Gilbert factors are commonly grouped together and referred to as the
-8- “holding out” element of apparent agency. Id. ¶ 26. That element “does not require an express
representation by the hospital that the person alleged to be negligent is an employee.” Gilbert, 156
Ill. 2d at 525. “Rather, the element is satisfied if the hospital holds itself out as a provider of
emergency room care without informing the patient that the care is provided by independent
contractors.” Id. In Gilbert, the supreme court stressed that liability does not attach to a hospital
“[i]f a patient knows, or should have known, that the treating physician is an independent
contractor[.]” Id. at 522.
¶ 25 Here, plaintiffs assert DMH unquestionably held itself out as a provider of complete
emergency medical services, noting the advertisements promoting its emergency department.
Although they acknowledge that the “holding out” element of Gilbert is not met where a plaintiff
knew or should have known that his or her treating physicians were not employees or agents of
the defendant hospital, they contend that their knowledge, actual or constructive, cannot be
determined as a matter of law in the present case. Specifically, plaintiffs challenge DMH’s claim,
with which the circuit court agreed, that the language contained in DMH’s consent forms and its
“Identification of Physicians” signs clearly and unambiguously informed plaintiffs of Dr. Kiel’s
independent contractor status. They assert the language of both is ambiguous, creating a question
of fact as to whether Dr. Kiel was DMH’s apparent agent and precluding summary judgment in
DMH’s favor.
¶ 26 As the parties acknowledge, one factor relevant to the “holding out” element of
apparent agency is the existence of an independent contractor disclaimer in a defendant hospital’s
consent forms. See James by James v. Ingalls Memorial Hospital, 299 Ill. App. 3d 627, 633, 701
N.E.2d 207, 210-11 (1998) (“While we do not hold that the existence of an independent contractor
-9- disclaimer in a consent form is always dispositive on the issue of ‘holding out,’ it is an important
factor to consider.”). A patient who signs a consent for treatment form “legally signifies that he
had an opportunity to become familiar with and comprehend [its] terms.” (Internal quotation marks
omitted.) Mizyed v. Palos Community Hospital, 2016 IL App (1st) 142790, ¶ 55, 58 N.E.3d 102
(rejecting the plaintiff’s argument that English-language consent forms were insufficient to put a
non-English speaker on notice of their terms). Thus, where a physician’s independent contractor
status is “clearly set out in the consent to treatment form, which [the plaintiff] signed,” it may be
said that the plaintiff knew or should have known that the physician was not an employee or agent
of the hospital. James, 299 Ill. App. 3d at 633; see also Wallace v. Alexian Brothers Medical
Center, 389 Ill. App. 3d 1081, 1087, 907 N.E.2d 490, 495 (2009) (stating, “if [the] plaintiff was
placed on notice of the independent contractor status of [her] doctors, it would be unreasonable for
her to assume that they were employed by [the] defendant and, thus, she could not sustain an
apparent agency claim against [the] defendant” (internal quotation marks omitted)).
¶ 27 Several of our appellate court decisions have upheld summary judgment in favor of
defendant hospitals based on the plaintiffs’ signing of consent forms containing independent
contractor disclosures. See Mizyed, 2016 IL App (1st) 142790, ¶ 41 (collecting cases). However,
“a consent form will not preclude recovery under an apparent agency theory if it is ambiguous or
potentially confusing as to whether one or more of the plaintiff’s treating physicians are agents of
the hospital or independent contractors.” Id. ¶ 42.
¶ 28 In this case, the record shows plaintiffs signed consent for treatment forms before
receiving treatment at DMH on several occasions, including December 28, 2016, the day Tamra
was evaluated by Dr. Kiel. Again, both the consent forms and signs displayed in and around
- 10 - DMH’s emergency department contained the following disclosure statement:
“You are notified that the emergency physicians, pathologists, radiologists, and
anesthesiologists, as well as some other hospital-based physicians are not
employees or agents of the hospital. For a list of those physicians not covered by
the foregoing statement, please contact the hospital’s medical staff office at 217-
¶ 29 As stated, plaintiffs argue the above disclosure statement is ambiguous. They
acknowledge on appeal that the first sentence of the statement “does clearly say that [emergency
room] physicians are not employees.” However, they contend that the second sentence of the
statement “takes back what the first sentence said and makes it unclear whether any given
emergency physician, pathologist, radiologist, anesthesiologist or other hospital-based physician
is or is not an employee or an agent.” We disagree and find the statement clearly and
unambiguously informed plaintiffs that emergency physicians at DMH were not its employees or
agents.
¶ 30 Here, there is no dispute by plaintiffs that Dr. Kiel was an “emergency physician.”
Further, the plain language in the first sentence of the disclosure statement clearly provided,
without qualification, that four categories of physicians—including “emergency physicians”—
were “not employees or agents” of DMH. The first sentence also refers to a fifth category of
physicians—“other hospital-based physicians.” However, the disclosure statement goes on to
qualify the information provided as to that category, indicating that only “some” of the physicians
in that category are independent contractors. Further, rather than negating the information provided
in the first sentence of the statement as plaintiffs claim, the second sentence simply clarifies how
- 11 - a patient may determine who are the physicians, specifically the “other hospital-based physicians,”
not covered by the first sentence. Ultimately, it is only the employment status of “other
hospital-based physicians” that is unclear in the disclosure statement, not the status of the other
four categories of physicians. Only by ignoring the plain language of the disclosure statement,
specifically the qualification of only one of the five categories of physicians set forth in the
statement, are plaintiffs able to find ambiguity in the consent form language.
¶ 31 We note that to support their argument on appeal, plaintiffs cite Hammer v. Barth,
2016 IL App (1st) 143066, 48 N.E.3d 769, wherein the First District held a consent form disclaimer
was ambiguous and not dispositive of the “holding out” element of apparent agency. Id. ¶ 24.
There, however, the relevant consent form disclosure statement provided only that “some or all of
the physicians” providing medical services at the defendant hospital were “not employees or agents
of the hospital, but rather independent practitioners” and that “[n]on-employed physicians”
included, “but [were] not limited to,” certain specified categories of physicians. Id. ¶ 5.
¶ 32 The disclosure statement at issue in this case is clearly distinguishable from the one
presented in Hammer. As set forth above, it clearly and without qualification provided that
emergency physicians like Dr. Kiel were not employees or agents of DMH. We find the
circumstances of this case are more similar to those cases cited by DMH, where consent form
disclosures clearly and unmistakably informed patients that their treating physicians were
independent contractors. See Wallace, 389 Ill. App. 3d at 1088 (holding that a consent form stating
“physicians who provide[d] professional services *** such as *** [the patient’s] attending
physician and consulting physicians” were “not the employees or agents of [the hospital] but ***
independent contractors” was clear and sufficient to demonstrate knowledge by the plaintiff as a
- 12 - matter of law); Churkey v. Rustia, 329 Ill. App. 3d 239, 245, 768 N.E.2d 842, 847 (2002) (finding
no triable issue of fact where disclosures in a consent form stated the defendant hospital “uses
independently contracted physicians” and that “physicians are not employees of [the defendant
hospital]”); James, 299 Ill. App. 3d at 633 (finding the “holding out” element of Gilbert was not
met where the patient signed a consent for treatment form that expressly stated “ ‘the physicians
on staff at this hospital are not employees or agents of the hospital’ ”).
¶ 33 As set forth above, under Gilbert, the “holding out” element “is satisfied if the
hospital holds itself out as a provider of emergency room care without informing the patient that
the care is provided by independent contractors.” (Emphasis added.) Gilbert, 156 Ill. 2d at 525.
Here, although plaintiffs presented evidence that DMH advertised itself as an emergency medicine
provider, evidence also showed that it did inform plaintiffs that the emergency physicians in its
emergency department were not its employees or agents. That information was provided both in
the “Identification of Physician” signs posted in and around its emergency department and in the
consent forms signed by plaintiffs. Under these circumstances, we agree with DMH that no
genuine issue of material fact exists that Dr. Kiel was not its apparent agent and the circuit court
properly granted summary judgment in its favor.
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated, we affirm the circuit court’s judgment.
¶ 36 Affirmed.
- 13 -