Yarbrough v. Northwestern Memorial Hospital

2016 IL App (1st) 141585, 61 N.E.3d 972

• Court: Appellate Court of Illinois
• Decided: August 19, 2016
• Docket: 1-14-1585
• Status: Unpublished

Opinion

2016 IL App (1st) 141585

FIFTH DIVISION August 19, 2016

No. 1-14-1585

CHRISTINA YARBROUGH and DAVID ) Appeal from the Circuit Court

GOODPASTER, on Behalf of Hayley Joe Goodpaster, ) of Cook County.

a Minor, )

) Plaintiffs-Appellants, ) ) No. 10 L 296 v. ) ) NORTHWESTERN MEMORIAL HOSPITAL and ) The Honorable NORTHWESTERN MEDICAL FACULTY ) William Gomolinski, FOUNDATION, ) Judge, presiding. )

Defendants )

)

(Northwestern Memorial Hospital, Defendant-Appellant). )

JUSTICE BURKE delivered the judgment of the court, with opinion.

Presiding Justice Reyes and Justice Gordon concurred in the judgment and opinion.

OPINION

¶1 This interlocutory appeal arises from a medical negligence action that plaintiffs Christina

Yarbrough and David Goodpaster brought against Northwestern Memorial Hospital (NMH) and

Northwestern Medical Faculty Foundation (NMFF), stemming from the premature birth of their

daughter, Hayley Joe Goodpaster. NMH filed a partial motion for summary judgment, which the

trial court denied. NMH requested that the trial court certify a question of law pursuant to Illinois

Supreme Court Rule 308 (eff. Feb. 26, 2010) regarding the doctrine of apparent authority in the

medical negligence context. The trial court ultimately issued a certified question sua sponte. 1-14-1585

Following this court’s denial of NMH’s subsequent petition for leave to appeal, the Illinois

Supreme Court directed us to consider the question certified by the trial court as follows:

“Can a hospital be held vicariously liable under the doctrine of apparent agency

set forth in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (Ill. 1993), and its

progeny for the acts of the employees of an unrelated, independent clinic that is not a

party to the present litigation?”

¶2 For the reasons that follow, we answer the question in the affirmative.

¶3 I. BACKGROUND

¶4 We begin by setting forth the facts to the extent necessary to address the issues on appeal.

In this endeavor, we rely on the pleadings, motions for summary judgment, and associated

briefing, and the discovery evidence contained in the record on appeal.

¶5 Plaintiffs alleged that Yarbrough, believing she was pregnant, went to Erie Family Health

Center, Inc. (Erie), a federally funded, not-for-profit clinic, on November 14, 2005, after

searching the Internet for a nearby clinic offering free pregnancy testing. After receiving a

positive pregnancy test, healthcare workers at Erie inquired where Yarbrough would receive

prenatal care. Yarbrough was advised that if she obtained prenatal care from Erie, she would

deliver at NMH and receive additional testing and care at NMH, including ultrasounds. She was

given pamphlet and flyer information regarding scheduling tours and classes at NMH. Plaintiffs

alleged that based on her knowledge of NMH’s reputation and the information provided by Erie,

Yarbrough believed that if she received prenatal care from Erie, she would be receiving

treatment from NMH health care workers.

¶6 Plaintiffs alleged that when Yarbrough was eight weeks pregnant, she experienced

vaginal bleeding and went to the Advocate Illinois Masonic Medical Center (Advocate) on

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November 30, 2005. An ultrasound was performed and she was diagnosed with having a

bicornuate uterus. The emergency department notified Erie. Yarbrough received an ultrasound at

Erie on December 2, 2005, and she was told that she had a shortened cervix but did not have a

bicornuate uterus. No other follow-up regarding a uterine abnormality was performed. She

continued receiving prenatal care at Erie. She also received a 20-week ultrasound on February

21, 2006, at NMH, which was interpreted by Dr. William Grobman. Plaintiffs alleged that as a

result of the failure to identify and address appropriately Yarbrough’s bicornuate uterus and

shortened cervix, she delivered Haley Goodpaster prematurely at 26 weeks’ gestation on April 8,

2006, via emergency cesarean section. As a result of the premature delivery, Hayley Goodpaster

suffered numerous medical complications.

¶7 Plaintiffs filed their initial complaint on December 28, 2009. Count I alleged medical

negligence by Dr. Grobman, as an actual or apparent agent of NMFF, in performing and

interpreting Yarbrough’s 20-week ultrasound. Count II alleged medical negligence against NMH

based on the prenatal care Yarbrough was provided at Erie, asserting that Erie was NMH’s actual

or apparent agent. NMH moved for summary judgment. The trial court granted the motion as to

all claims related to Erie as NMH’s agent. The trial court granted plaintiffs leave to file an

amended complaint.

¶8 In the amended complaint filed on August 22, 2013, plaintiffs again alleged medical

negligence against NMFF in count I based on Dr. Grobman’s conduct. 1 In count II, plaintiffs

alleged medical negligence against NMH based on the doctrine of apparent authority. Plaintiffs

alleged that health care providers at Erie (Dr. Raymond Suarez, Dr. Virgil Reid, Janet Ferguson,

CNM, and Elizabeth O. McKelvey, CNM) were the apparent agents of NMH and rendered

1 Plaintiffs’ claim relating to Dr. Grobman is not at issue on appeal. -3­ 1-14-1585

negligent prenatal care in failing to properly scan, diagnose, and treat Yarbrough for a shortened

cervix and bicornuate uterus, leading to preterm delivery.

¶9 In support of their apparent authority claim, plaintiffs set forth numerous allegations

regarding the close ties between NMH and Erie in order to satisfy the elements of Gilbert v.

Sycamore Municipal Hospital, 156 Ill. 2d 511, 524-25 (1993). 2 Plaintiffs alleged that Erie was

founded as a project between NMH and Erie Neighborhood House in 1957, and NMH provides

financial support, technological assistance, and strategic support through board membership.

Plaintiffs alleged that in 1998, NMH’s parent company, Northwestern Memorial Corporation

(NMC) (now Northwestern Memorial HealthCare (NMHC)) and Erie entered into an “Affiliation

Agreement” with the stated purpose of increasing NMC’s “services to the community, building

on our current substantial commitments and partnerships” and to “provide clarity and continuity

to the historical relationship between the Parties.” The agreement called for Erie to utilize NMH

as a “primary site for acute and specialized hospital care for its patient population,” and NMC

would arrange to treat Erie patients in need of more comprehensive care. Further, plaintiffs

alleged that the agreement provided for joint marketing efforts, a board seat designated for an

NMH representative, committee participation, and consideration of Erie providers for medical

staff membership at NMH.

2 “[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. The elements of the action have been set out as follows: ‘For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (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.’ ” Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 524-25 (1993) (quoting Pamperin v. Trinity Memorial Hospital, 423 N.W.2d 848, 856 (Wis. 1988)).

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¶ 10 Plaintiffs further alleged that NMH held out Erie as its agent in its published materials

and on its website. Plaintiffs alleged that NMHC published annual reports and community

service reports that discussed Erie. For example, plaintiffs alleged that the 2005 community

service report stated that NMHC improves access to health care “[t]hrough partnerships with

community health centers”; it was committed to the community and to building “collaborative

relationships with a number of neighborhood based centers”; Northwestern Memorial

Foundation granted $1 million annually to the hospital’s “Community Service Expansion

Project,” which “provides key funding for *** [Erie] sites on the West and Northwest sides”; and

the project funded facility improvements and physician salaries. It stated that Erie physicians

were “affiliated with Northwestern Medical Faculty Foundation, a multispecialty group practice

with more than 500 physicians covering more than 40 specialties.” The 2005 report included a

statement from an Erie patient who was treated by an obstetrician who led “Woman’s Health at

Erie” and was on staff at NMH. Further, the report discussed its “longstanding affiliations with

community-based health centers” in ensuring that patients “have access to quality primary and

specialty care regardless of their ability to pay” and that it has “shared a relationship with Erie

Family Health Center for more than 45 years.” Plaintiffs alleged that the 2006 community

service report stated that “Northwestern Memorial, in collaboration with [Erie] has provided the

information technology infrastructure, educational tools and access to facilities with

mammography equipment” and that 11.2% of the babies delivered at NMH’s Prentice Women’s

Hospital in 2006 received prenatal care at Erie.

¶ 11 With regard to NMH’s website, plaintiffs alleged that NMH listed Erie under “Our

Health Partners,” along with a link to Erie’s website, and promoted that it has a “formal and

long-standing” affiliation with Erie, including two members on Erie’s board of directors.

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Plaintiffs alleged that Erie’s website similarly promoted its relationship with NMH and stated

that it “partners with Northwestern Memorial Hospital *** to increase access to specialized

medical care and state-of-the-art medical technologies. Patients who are in need of services not

offered at Erie are eligible to receive care at these hospitals.” Further, Erie’s website stated that

all Erie doctors “have faculty status at Northwestern University Feinberg School of Medicine.”

Plaintiffs alleged that NMH was aware of Erie’s website but did not monitor or review it and

never instructed Erie to change it.

¶ 12 NMH moved for partial summary judgment as to all apparent authority claims related to

the alleged negligence of employees or agents of Erie. NMH argued that NMH did not hold out

Erie as its agent and Erie and its employees did not hold themselves out as agents of NMH.

NMH asserted that Erie was an independent, federally funded community health center

comprised of 10 clinics in the Chicago area, it was not named as a defendant, and Erie’s

employees were working onsite at Erie within the scope of their employment with Erie. NMH

argued that neither it nor Erie represented that Erie was an outpatient facility of NMH and there

was no legal partnership or joint marketing efforts. NMH asserted that Erie has its own

management structure, budget, board of directors, employees, and facility. NMH asserted that

although it provides some charitable funding to Erie and has a small presence on its board, NMH

has no control over Erie.

¶ 13 In support of its argument that there was no evidence of an apparent agency relationship

between NMH and Erie, NMH relied on the deposition testimony of Holli Salls, vice president of

public relations for NMH; Doctor Daniel Derman, vice president of operations at NMH; William

Kistner, vice president of internal audit for NMHC; and Yarbrough. Salls testified that NMH

does not bring pamphlets about NMH to independent medical groups to distribute to their

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patients, NMH did not do any joint marketing with other entities between 2004 to 2006, and Erie

has never sought to do any joint promotional marketing. Salls testified that she was aware that

Erie discussed its affiliation with NMH on its website. Salls testified that Erie did not obtain her

permission to do so, but NMH has never told Erie not to promote the affiliation between them.

Salls testified that use of the word “partner” in promotional materials was not meant in the legal

sense, but merely described collaborative activities.

¶ 14 Dr. Derman acknowledged in his deposition that NMH’s website stated that NMH had

“formal and long-standing affiliations with two federally qualified health center partners, Near

North Health Services Corporation and Erie Family Health Center” and that it had two

representatives on Erie’s board of directors. Further, NMH’s website listed Erie under “Our

Health Partners” and stated that Erie “was founded in 1956 as a project of volunteer physicians

from Northwestern Memorial and Erie Neighborhood.” Dr. Derman also acknowledged NMH’s

press releases discussing NMH’s partnership initiatives with Erie in treating diabetes and

women’s health, promoting the fact that NMH and Erie “worked together to provide information

about transportation, navigating and processes for accessing additional diagnostic services if

needed,” and developing educations programs together. Dr. Derman acknowledged that Erie’s

website listed NMH under “Our Partners” and “Hospital Affiliations” and it stated that “Erie

partners with” NMH, among other hospitals, “to increase access to specialized medical care and

state-of-the-art medical technologies. Patients who are in need of services not offered at Erie are

eligible to receive care at these hospitals.” Further, Derman acknowledged that Erie’s website

stated, “All Erie pediatricians, internists, OB/GYN physicians and family physicians have faculty

status at Northwestern University Feinberg School of Medicine,” and that medical students and

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residents from Northwestern train at Erie. Dr. Derman testified that he was aware that Erie has a

website but his office does not review the information on Erie’s website.

¶ 15 Dr. Derman reviewed the affiliation agreement during his deposition and acknowledged

that, in it, NMC agreed to cause NMH to consider Erie staff for hospital privileges. Further, the

parties agreed to “jointly participate in collective marketing efforts as they relate to the affiliation

of the parties” and that the other party “may publicize and refer to this affiliation agreement and

their affiliation with each other with the prior consent of the other party.” The agreement also

contained an “independent contractor” provision indicating that the parties did not have a joint

venture, partnership, or employer/employee relationship.

¶ 16 Dr. Derman testified that NMH does not employ Erie staff and does not provide Erie with

any equipment or supplies, lab coats, or promotional material. Dr. Derman testified that NMH

makes charitable contributions to Erie of approximately $333,000 and $600,000 per year, passes

along grant money, and does not charge Erie patients for care given at NMH. Derman testified

that NMH makes charitable contributions to Erie and other organizations because “we’re just

good community members and we try to support other people that are doing good in the

community.” NMH has also provided Erie with free informational technology support services.

¶ 17 Kistner testified in his deposition that he has served on Erie’s board of directors since

2002, and he was the chairman for two years. At one point, there was a second NMHC

representative on the board. Kistner explained that as indicated in the affiliation agreement, Erie

must follow specific guidelines to satisfy Federally Qualified Health Center (FQHC) governance

requirements, which requires 51% or more of the board to be composed of patients and

community members, while the remaining 49% may be nonpatients, but “no more than 50

percent of the 49 percent can derive more than 10 percent of their income from the healthcare

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field.” He signed a conflict of interest statement indicating that his fiduciary responsibility was to

Erie when acting as a board member. He testified that Erie operates as an independent entity and

its community board members are “very vocal.” Kistner testified that he could not recall any

collective marketing efforts in the 10 years of his board membership. Kistner testified that in

2006, Erie’s revenue was approximately $25 million; approximately 60% came from patient

revenue and 40% came from grants from various organizations, including NMH or NMC.

¶ 18 Yarbrough testified in her deposition that she found Erie by searching the Internet for a

clinic where she could obtain a pregnancy test without having health insurance. When the test

was positive, someone at Erie asked what her plans were for prenatal care. Yarbrough testified

that she “asked questions about the doctors there, what hospital I would be going to, things like

that. That’s when I chose Erie Family Clinic.” The Erie clinic was approximately five blocks

from where she lived at the time. She filled out paperwork for Medicaid and scheduled her first

appointment. She was also given written materials or a pamphlet about Erie. She testified that

she was informed that she “would have ultrasounds done at Women’s Prentice Hospital, which is

part of Northwestern, and that’s where I would most likely deliver the baby.”

“Q. Did anybody at Erie say anything to suggest to you that Erie Family Health

Center and Northwestern Memorial Hospital were the same entity?

A. I was under the impression that they were.

Q. And what would give you that impression?

A. Most likely because of the delivery at Northwestern, the delivery privileges.

Q. So that if you had gone to Dr. Smith whose office was on Michigan Avenue

and you were told you would most likely deliver at Northwestern, would you have

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drawn the inference that Dr. Smith’s practice and Northwestern were actually the

same entity?

A. Yes.

Q. But in terms of whether anybody at Erie said, hey, we are Northwestern and

Northwestern is part of us, fair to say nobody said anything like that?

A. No one said that, but they also never said that they weren’t.”

¶ 19 Yarbrough testified that after being treated for vaginal bleeding at Advocate on

November 30, 2005, and being diagnosed with a bicornuate uterus, she went to Erie on

December 2, 2005, where she was examined by Dr. Suarez and midwife McKelvey. Dr. Suarez

performed an ultrasound and informed her that she did not have a bicornuate uterus. She was told

that she had a shortened cervix. Yarbrough returned to Erie several times after that for routine

appointments, a urinary tract infection, and a lab test. She had the routine 20-week ultrasound

performed at NMH on February 21, 2006, and she continued with her regular prenatal visits at

Erie after that. Yarbrough testified that on April 5, 2006, she experienced severe cramps and

back pain. She called Erie and was told to go to NMH. She was admitted to the hospital and

delivered her daughter three days later via a cesarean-section performed by Dr. Suarez.

Yarbrough testified that either during the delivery or afterward, Dr. Suarez mentioned something

about her having a bicornuate uterus and an incompetent cervix when Yarbrough asked why she

had delivered prematurely.

¶ 20 Regarding her decision to go to Erie, Yarbrough further testified as follows:

“Q. Early on you talked about doing some research, and you found Erie Clinic,

and when you went through the first time and confirmed your pregnancy, you asked

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questions and were told about the delivery at Northwestern, and you believed that

they were working—they would be working together?

Q. When you had your 20-week ultrasound and they sent you—when Erie sent

you on to Northwestern to Prentice to have it done, did that reconfirm your belief that

the two were working together?

Q. Okay, and that was because you would get your complete care was all

affiliated, since the ultrasound was there, the delivery was going to be there?

Q. And you did not have your own o-b-g-y-n and you just went there initially

at Erie to confirm your belief that you were pregnant. Once you did find out that

you were pregnant, did the fact that they said that you would have the delivery and

other care at Northwestern influence your decision to stay at Erie?

A. Yes.”

¶ 21 Yarbrough also testified:

“Q. Did you have any particular knowledge of [NMH]?

A. I was under the impression that they were a very good hospital, very big, very

well-known in the city.

Q. And I assume that if you had been living on the south side and you had gone to

a physician’s office and they said, you know, we are likely to deliver you at Christ

Hospital, you would have been happy about that as well?

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Q. Okay. So, you know, any good hospital would sound good to you?

Q. Did anybody at [NMH], flipping this around, say anything to you to suggest

that [NMH] and Erie Family Health Center had some special connection?

A. No.”

¶ 22 Based on this testimony, NHM argued that Yarbrough was never told that NMH and Erie

were the same entity and the fact that she was informed she would likely deliver at NMH was

insufficient to establish apparent authority. Further, Yarbrough was not seeking treatment from

NMH as she had no specific desire to deliver at NMH and “any good hospital would sound good

to” her. NMH contended that plaintiffs’ claim would require a massive expansion of the apparent

authority doctrine under Gilbert, and plaintiffs could not show that NMH held Erie out as its

apparent agent, that NMH acquiesced to any holding out by Erie, or any reasonable reliance by

Yarbrough. NMH asserted that Yarbrough sought care from Erie and all of the treatment Erie

provided was performed at Erie’s facility.

¶ 23 Plaintiffs responded that Yarbrough agreed to receive prenatal treatment at Erie based on

her knowledge of NMH and after being led to believe, reasonably, that the Erie health care

workers were employees or agents of NMH. Plaintiffs contended that her belief was reasonable

because Erie staff informed her that she would deliver and have ultrasounds performed at NMH,

she was provided pamphlets with information about delivering at NMH, she knew NMH had a

very good reputation, and she was never told that the doctors and nurses at Erie were not

employees or agents of NMH. Plaintiffs asserted that NMH promoted itself as a provider in

partnership with Erie under the affiliation agreement, in its press releases, and on its website, and

it did not prevent Erie from discussing its affiliation with NMH on Erie’s website.

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¶ 24 At a hearing on the motion for summary judgment on February 21, 2014, NMH orally

moved to certify a question under Rule 308. The circuit court stated that the case was “the first of

its kind” and it entered an order denying NMH’s partial summary judgment motion and ordering

the parties to submit proposed certified questions.

¶ 25 Following their respective submissions, the circuit court took the matter under

advisement. According to NMH, the circuit court decided not to certify a question but did not

enter an order to that effect. On May 16, 2014, the circuit court sua sponte entered an order

certifying the question set forth supra, pursuant to Rule 308, and holding that its February 21,

2014, order “involves a question of law as to which there is substantial ground for difference of

opinion and that an immediate appeal from the order may materially advance the ultimate

termination of the litigation.” At our supreme court’s direction, we allowed NMH’s petition for

leave to appeal on January 14, 2015.

¶ 26 II. ANALYSIS

¶ 27 A. The Certified Question

¶ 28 As set forth above, the certified question is as follows:

“Can a hospital be held vicariously liable under the doctrine of apparent agency

set forth in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (Ill. 1993), and its

progeny for the acts of the employees of an unrelated, independent clinic that is not a

¶ 29 B. Standard of Review

¶ 30 “The scope of review in an interlocutory appeal under Rule 308 is ordinarily limited to

the question certified by the trial court, which is reviewed de novo.” Kennedy v. Grimsley, 361

Ill. App. 3d 511, 513 (2005) (citing Thompson v. Gordon, 356 Ill. App. 3d 447 (2005)). Rule

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308(a) provides in relevant part that the trial court may certify a question to this court when, “in

making an interlocutory order not otherwise appealable, finds that the order involves a question

of law as to which there is substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate termination of the litigation.” Ill. S.

Ct. R. 308(a) (eff. Feb. 26, 2010).

¶ 31 C. Gilbert v. Sycamore Municipal Hospital

¶ 32 The parties agree that under Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 525

(1993), a hospital may be vicariously liable for negligent medical treatment rendered in the

hospital by an independent-contractor physician under the doctrine of apparent authority. Id. at

524. Before our supreme court decided Gilbert, “hospitals in Illinois could be subject to

vicarious liability for a physician’s negligent acts only if the physician was an actual agent of the

hospital.” Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st) 101558, ¶ 24. The

court cited the “realities of modern hospital care” as its impetus for allowing hospitals to be

vicariously liable under the doctrine of apparent authority. The court observed that hospitals

“increasingly hold themselves out to the public in expensive advertising campaigns as offering

and rendering quality health services,” and spend “billions of dollars marketing themselves,

nurturing the image with the consuming public that they are full-care modern health facilities” in

order to attract patients and compete for health care dollars. (Internal quotation marks omitted.)

Gilbert, 156 Ill. 2d at 520. Further, the public is generally unaware of whether the staff in an

emergency room is comprised of independent contractors or employees of the hospital, and

absent a situation where a patient is somehow put on notice of a doctor’s independent status, a

patient generally relies on the reputation of the hospital and reasonably assumes that the staff is

comprised of hospital employees. Id. at 521.

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¶ 33 With these concerns in mind, the Gilbert court held that a plaintiff must establish the

following three factors to hold a hospital liable under the doctrine of apparent authority for acts

of independent-contractor physicians:

“ ‘(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.’ ” Gilbert, 156 Ill.

2d at 525 (quoting Pamperin v. Trinity Memorial Hospital, 423 N.W.2d at 856).

¶ 34 The first two elements are “frequently grouped together and have been referred to as the

‘holding out’ factor.” Lamb-Rosenfeldt, 2012 IL App (1st) 101558, ¶ 26. A plaintiff must present

some evidence of all three elements in order to avoid summary judgment. Wallace v. Alexian

Brothers Medical Center, 389 Ill. App. 3d 1081, 1094 (2009); Lamb-Rosenfeldt, 2012 IL App

(1st) 101558, ¶ 25. The Gilbert court stressed that “liability attaches to the hospital only where

the treating physician is the apparent or ostensible agent of the hospital. If the patient knows, or

should have known, that the treating physician is an independent contractor, then the hospital

will not be liable.” Gilbert, 156 Ill. 2d at 522.

¶ 35 D. Application of Gilbert Outside the “Four Walls” of a Hospital

¶ 36 On appeal, NMH first contends that the doctrine of apparent authority is not applicable

here because the conduct at issue did not occur at the hospital but instead occurred, as indicated

in the certified question, at an “unrelated, independent clinic.”

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¶ 37 As this court in Malanowski v. Jabamoni observed, the negligent conduct in Gilbert

occurred in the emergency room of a hospital. Malanowski v. Jabamoni, 293 Ill. App. 3d 720,

727 (1997); Gilbert, 156 Ill. 2d at 516-17. Accordingly, the particular facts in Gilbert necessarily

confined the court’s analysis to medical negligence occurring in an emergency room.

Malanowski, 293 Ill. App. 3d at 727; Gilbert, 156 Ill. 2d at 516-17. The Malanowski court

reasoned that there was

“nothing in the Gilbert opinion that would bar a plaintiff, who could otherwise satisfy

the elements for a claim based on apparent agency, from recovering against a hospital

merely because the negligent conduct of the physician did not occur in the emergency

room or some other area within the four walls of the hospital.” Malanowski, 293 Ill.

App. 3d at 727.

¶ 38 In Malanowski, the allegedly negligent conduct occurred in an outpatient clinic owned

and operated by Loyola University of Chicago (Loyola) called the “Loyola University Mulcahy

Outpatient Center.” Id. at 722. The plaintiff brought suit against Loyola and Dr. Reena Jabamoni,

alleging that Dr. Jabamoni negligently failed to diagnose the decedent’s breast cancer while

treating her at the outpatient clinic. Id. In her apparent authority claims, the plaintiff alleged that

Loyola owned and operated the outpatient center, which held itself out as a “direct provider of

health care services”; the decedent had been a regular patient of the clinic since 1982; had been a

regular patient of Dr. Jabamoni for several years; and she reasonably believed that Dr. Jabamoni

was an employee of the outpatient center, when in fact she was an independent contractor with

privileges at the center. Id. at 726.

¶ 39 In arguing on appeal that the trial court properly dismissed the apparent authority claims,

Loyola contended that Gilbert did not apply because the conduct occurred outside of the

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hospital, but the court found that “[i]f, as plaintiff maintains, Loyola’s conduct reasonably led

[the patient] to rely upon ‘Loyola’ for treatment, rather than any particular physician, then

plaintiff should be allowed recovery for damages caused thereby.” Id. at 727. The court also

found that under Gilbert, the existence of an ongoing doctor-patient relationship did not preclude

a claim of reliance on the hospital, and remained a question of fact for the jury to resolve. Id. at

728. The court observed that the outpatient center bore Loyola’s name, it held itself out as a

direct provider of health care services, it had introduced the decedent to Dr. Jabamoni, the

decedent was also treated by other physicians at the center, and payment for Dr. Jabamoni’s

services were made to the outpatient center. Id. See also Butkiewicz v. Loyola University Medical

Center, 311 Ill. App. 3d 508, 510-11 (2000) (holding that Gilbert was not limited to conduct in

an emergency room where the independent-contractor radiologist failed to diagnose the

decedent’s lung cancer after his admission to the hospital for chest pains), and York v. Rush­

Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 151-52 (2006) (applying Gilbert to

negligent medical conduct that occurred outside of the emergency room, i.e., in the hospital’s

operating room).

¶ 40 NMH argues that Malanowski is distinguishable because Erie is a separate corporate

entity contained in a separate facility, and not a separate corporate entity located within an

outpatient facility owned and operated by NMH, as in Malanowski. However, plaintiffs’ claim is

that there were such close ties between NMH and Erie, despite being separate entities located in

separate facilities, that material issues of fact exist regarding the elements of apparent authority.

Based on Malanowski, York, and Butkiewicz, we reject NMH’s argument that Gilbert is

inapplicable here because the allegedly negligent conduct did not occur within the “four walls”

of the hospital. As the court in Malanowski found, nothing in the Gilbert opinion limits a

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plaintiff from recovering against a hospital “merely because the negligent conduct of the

physician did not occur in the emergency room or some other area within the four walls of the

hospital.” Malanowski, 293 Ill. App. 3d at 727. The key determinant for recovery under Gilbert

is whether the plaintiff can show that the hospital’s “conduct led [the plaintiff] to reply upon

[‘the hospital’] for treatment, rather than on any particular physician.” Id. This is precisely what

plaintiffs aim to show in this case.

¶ 41 NMH also cites Scardina v. Alexian Brothers Medical Center, 308 Ill. App. 3d 359, 365

(1999), in support of its argument. However, the brief passage cited by NMH from Scardina

merely summarizes the holding in Gilbert: “In Gilbert, the court held that a hospital can be

vicariously liable under the doctrine of apparent agency for the negligent acts of a physician

providing care at the hospital, irrespective of whether the physician is an independent

contractor.” Id. at 363. Notably, the Scardina court observed that “although Gilbert speaks of

negligent treatment rendered in a hospital’s emergency room, its decision is not limited to such

factual settings, but applies to cases involving other forms of hospital care.” Id. at 364. As in

Butkiewicz and York, the alleged medical negligence in Scardina occurred in the hospital (an

operating room), but not in the emergency room; thus, the court had no reason to consider

Gilbert’s applicability outside the “four walls” of a hospital. Moreover, the contested issue did

not involve where the conduct occurred, but whether the patient relied on the hospital to provide

radiological services upon his admission to the hospital for stomach and chest pain, where the

patient went there because his family physician instructed him to go to that particular hospital

and had staff privileges there. Id.

¶ 42 E. Application of Gilbert Where the Apparent Agent is Not a Defendant

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¶ 43 NMH next argues that the apparent agent, an “unrelated, independent clinic,” i.e., Erie,

was not made a party to the litigation, and therefore NMH cannot be held liable as the principal.

¶ 44 We conclude that Gilbert contains no such requirement. Although whether the apparent

agent must be named as a party was not at issue in Gilbert, we note that the physician and the

hospital were sued in Gilbert but not the independent medical group that employed the physician.

Gilbert, 156 Ill. 2d at 515. Also by way of example, in Mizyed v. Palos Community Hospital, 2016 IL

App (1st) 142790, ¶¶ 23-25, 36, neither the physician who rendered the treatment at issue nor the

independent medical group that employed her were named in the plaintiff’s medical negligence

lawsuit, which alleged that the hospital was vicariously liable for the physician’s negligence under

the doctrine of actual and apparent agency.

¶ 45 As noted by plaintiffs, the apparent agency instruction in the Illinois Pattern Jury

Instructions, Civil, supports that a principal may be sued even where the apparent agent is not.

The Notes on Use for instruction 105.11, “Claims Based on Apparent Agency—Principal Sued,

But Not Agent,” provides that “[t]his instruction should be used where the issue of apparent agency

is in dispute, the principal alone is sued, and plaintiff alleges reliance upon a ‘holding out’ on the

part of the principal.” (Emphasis added.) Illinois Pattern Jury Instructions, Civil, No. 105.11, Notes

on Use (2006) (hereinafter IPI Civil (2006) No. 105.11). See also IPI Civil (2006) No. 105.10, Notes

on Use (“This instruction should be used where the issue of apparent agency is in dispute, the

principal and agent are sued in the same case, and plaintiff alleges reliance on a ‘holding out’ by the

principal.”); IPI Civil (2006) No. 50.04 (general apparent agency instruction where only principal is

sued). Accordingly, plaintiffs were not required to name Erie or any of the Erie treaters as defendants

and their absence is not a bar to recovery against the hospital here.

In sum, we find that a hospital may be held liable under the doctrine of apparent agency

for the acts of the employees of an independent clinic that is not a party to the litigation,

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assuming that the plaintiff establishes the elements of apparent authority as set forth in Gilbert.

Courts may apply Gilbert outside the “four walls” of the hospital, and a plaintiff is not required

to name the individual physician or his employer as a defendant in order to hold the

principal/hospital vicariously liable.

¶ 46 F. Applying Gilbert to the Facts of This Case

¶ 47 NMH argues, in the alternative, that plaintiffs have failed to establish the Gilbert

elements, i.e., they have not shown that NMH held Erie out as its agent, that Erie held itself out

as NMH’s agent with NMH’s acquiescence, or that Yarbrough reasonably relied on any holding

out in electing to treat at Erie. NMH warns that an opposite conclusion would greatly expand

apparent agency law in Illinois. NMH asserts that this case is “ripe” for ruling on summary

judgment as there are no disputed issues of material fact and the only issue remaining is the

question of law regarding apparent authority. NMH asserts that this court should answer the

certified question in the negative and remand for a finding that it is entitled to partial summary

judgment.

¶ 48 Plaintiffs assert that the certified question does not present a novel question and NMH’s

appeal merely involves questions of fact that should be determined by a jury. Plaintiffs argue that

they have established material issues of fact under the Gilbert test as to the holding out and

reasonable reliance requirements.

¶ 49 We note that the parties have engaged in extensive discovery with respect to the agency

issue and NMH has expended considerable effort on appeal discussing why the facts do not

support an apparent authority claim here. In essence, NMH is arguing that the trial court should

have granted its motion for summary judgment. This case is before us on a Rule 308 certified

question from the trial court, and not an appeal from the trial court’s ruling on NMH’s motion for

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partial summary judgment. A Rule 308 appeal focuses on answering a certified question of law

and is “not intended to address the application of the law to the facts of a particular case.” Razavi

v. Walkuski, 2016 IL App (1st) 151435, ¶¶ 7, 8 (declining to address the parties’ arguments

regarding the underlying motion to dismiss). See also Spears v. Ass’n of Illinois Electric

Cooperatives, 2013 IL App (4th) 120289, ¶ 15 (stating that the court should only answer a

certified question if it presents a question of law and decline to answer if the resolution depends

on “a host of factual predicates” (internal quotation marks omitted)). However, even considering

NMH’s alternative argument, given the facts adduced in this case thus far, NMH has failed to

establish that no genuine issue of material fact exists such that its right to a judgment in its favor

is “ ‘clear and free from doubt.’ ” Mizyed, 2016 IL App (1st) 142790, ¶ 35 (quoting Lamb-

Rosenfeldt, 2012 IL App (1st) 101558, ¶ 23).

¶ 50 We recognize that the present case does not involve the traditional situation of an

independent-contractor physician employed by a separate, private medical group, providing

negligent care inside a hospital. However, plaintiffs do not seek to hold NMH liable merely

because, as NMH contends, the Erie physicians have privileges at the hospital. Rather, the issue

of whether NMH and/or Erie held themselves out as having such close ties such that a reasonable

person would conclude that an agency relationship existed, and whether Yarbrough relied upon

NMH or Erie, raises material questions of fact for a jury to resolve. Under the unique facts of this

case and in light of the evidence presented thus far, plaintiffs have, at a minimum, raised a

question of fact regarding the holding out and reliance elements under Gilbert and their apparent

authority claim contains issues of fact subject to a jury’s determination. As the Gilbert court

stated, “[w]hether an agent is authorized to act is a question of fact. [Citation.] Whether a person

has notice of the lack of an agent’s authority, or is put on notice by circumstances, is likewise a

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question of fact.” Gilbert, 156 Ill. 2d at 524. See also Scardina, 308 Ill. App. 3d at 363

(“Whether an agency relationship exist[ed] in such instances is typically a question of fact to be

decided by the trier of fact and may only be disposed of by summary judgment where the parties’

relationship is so clear as to be undisputed.”); McNamee v. Sandore, 373 Ill. App. 3d 636, 651

(2007) (“While agency is a legal concept, the existence and scope of an agency relationship is a

fact-intensive inquiry reserved for the finder of fact unless the parties’ relationship is so clear as

to be undisputed.”).

¶ 51 As stated, the first two elements of apparent authority require a showing that “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,” and if the

agent’s acts created “the appearance of authority, the plaintiff must also prove that the hospital

had knowledge of and acquiesced in them.” (Internal quotation marks omitted.) Gilbert, 156 Ill.

2d at 525. “The focus of this factor is whether or not ‘the patient knows, or should have known,

that the physician is an independent contractor.’ ” Lamb-Rosenfeldt, 2012 IL App (1st) 101558,

¶ 26 (quoting Gilbert, 156 Ill. 2d at 524).

¶ 52 It is undisputed that NMH holds itself out as a “full service hospital.” More relevant to

this case, however, are the facts showing that NMH also promotes itself as a community-oriented

hospital that collaborates with neighborhood centers, including Erie, to make quality health care

available to those in need. NMH publicized its relationship with Erie on its website, annual

reports, community service reports, and other press releases. As plaintiffs noted, NMH promoted

that 11.2% of babies delivered at NMH in 2006 received prenatal care at Erie, and 100% of

prenatal patients at Erie delivered at NMH. NMH’s website provided a link to Erie’s website and

represented that Erie was one of “Our Health Partners” and promoted their “formal and long­

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standing affiliations” with Erie, that two NMH representatives sit on Erie’s board, and that Erie

was founded “as a project of volunteer physicians from Northwestern Memorial and Erie

Neighborhood House.” Dr. Derman testified in his deposition regarding collaborative efforts

between NMH and Erie in providing care in the areas of diabetes and women’s health and its

promotion of these efforts. In addition, NMH has continuously contributed financially to Erie,

provides information technology assistance to Erie, and does not charge Erie patients for care

given at NMH.

¶ 53 Significantly, the relationship between Erie and NMH also involves the affiliation

agreement, pursuant to which the parties agreed that NMH was to be the primary site for acute

and specialized hospital care for Erie patients. The affiliation agreement called for a NMH

representative to sit on Erie’s board of directors, the creation of a community advisory

committee, and appointment of Erie’s executive director to the committee. Although Salls

testified in her deposition that she did not know of any joint marketing efforts between NMH and

Erie, the affiliation agreement provided for joint marketing efforts relating to their affiliation.

¶ 54 Regarding Erie’s actions, which would constitute a “holding out” by Erie, Yarbrough

testified that, upon confirming her pregnancy, Erie staff inquired where she planned to receive

prenatal care and informed her that, if she were treated at Erie, she would likely deliver at NMH

and receive additional testing at NMH and provided her with information about delivering at

NMH. As testified to by Yarbrough, although no one told her that the doctors and staff at Erie

were NMH employees, no one informed her that her treating doctors and staff at Erie were not a

part of NMH.

¶ 55 In addition, Erie’s website referred to NMH as a “Our Partner” and stated that “Erie

partners with [NMH],” in addition to other hospitals, in order to “increase access to specialized

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medical care and state-of-the-art medical technologies. Patients who are in need of services not

offered at Erie are eligible to receive care at these hospitals.” The website stated that all Erie

physicians “have faculty status at Northwestern University Feinberg School of Medicine.” Salls

testified that she was aware that Erie discussed its affiliation with NMH on its website, but that

NMH has never told Erie not to promote the affiliation between them. Dr. Derman testified that

he was also aware of Erie’s website, but his office does not review it.

¶ 56 Whether Yarbrough actually observed these indicia of “holding out” on the websites of

NMH and Erie and in written materials is not determinative. Whether a patient actually observes

a hospital’s advertisements is not relevant to the objective inquiry into the “holding out” factor

under Gilbert. Spiegelman v. Victory Memorial Hospital, 392 Ill. App. 3d 826, 839 (2009). In

Spiegelman, the hospital argued that its advertisements promoting the hospital could not show

reasonable reliance as there was no evidence that the plaintiff actually viewed the

advertisements. Id. The plaintiff argued that the advertisements demonstrated that the hospital

held itself out as a complete provider of care, an objective determination which did not depend

on whether the plaintiff actually viewed them. Id. The court agreed with the plaintiff, holding

that the advertisements “were relevant to the element of holding out—whether the hospital held

itself out as a provider of complete medical care.” Id. at 841. See also Hammer v. Barth, 2016 IL

App (1st) 143066, ¶ 26 (finding that a genuine issue of material fact existed as to the “holding

out” element where the evidence showed that the hospital’s website advertised that the hospital

had clinical leadership in over 60 medical fields and boasted a staff of over 1000 doctors in

various specialties and one of the “most experienced” emergency trauma centers in Illinois).

¶ 57 NMH argues that this case does not involve the same concern present in Spiegelman and

Gilbert, i.e., hospitals using advertisements to attract patients by promising complete, quality

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care while attempting to avoid liability by using independent contractors. Spiegelman, 392 Ill.

App. 3d at 839-41; Gilbert, 156 Ill. 2d at 520-21. However, as in Spiegelman, in holding itself

out as a close partner with Erie to provide specialized and acute care to a targeted population,

NMH attempted not only to be a good citizen of the community but also to attract patients. We

disagree with NMH’s assertion that Spiegelman is distinguishable or that the concerns animating

Gilbert are not present in this case.

¶ 58 Turning to the third element in Gilbert, reasonable reliance is established where “the

plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary

care and prudence.” (Internal quotation marks omitted.) Gilbert, 156 Ill. 2d at 525.

“ ‘[T]he critical distinction is whether the plaintiff is seeking care from the hospital

itself or whether the plaintiff is looking to the hospital merely as a place for his or her

personal physician to provide medical care. Except for one who seeks care from a

specific physician, if a person voluntarily enters a hospital without objecting to his or

her admission to the hospital, then that person is seeking care from the hospital itself.

An individual who seeks care from a hospital itself, as opposed to care from his or her

personal physician, accepts care from the hospital in reliance upon the fact that

complete emergency room care—from blood testing to radiological readings to the

endless medical support services—will be provided by the hospital through its

staff.’ ” Gilbert, 156 Ill. 2d at 525-26 (quoting Pamperin, 423 N.W.2d at 857).

¶ 59 NMH asserts that plaintiffs failed to establish any reasonable reliance by Yarbrough

because she sought treatment at Erie, she understood her treaters were Erie employees, no one

represented that Erie and NMH were the same entity, and she expressed no specific preference

for any particular hospital.

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¶ 60 Yarbrough testified that she did not have a prior or ongoing relationship with any

physicians at Erie, she had never been to Erie for any treatment before, and she did not seek out a

particular physician at Erie. Her testimony indicated that she went to Erie because it was a local

clinic offering free pregnancy testing. After confirming her pregnancy, Erie staff inquired about

where Yarbrough planned to receive prenatal care and informed her that, if she were treated at

Erie, she would likely deliver at NMH and receive additional testing, including ultrasounds, at

NMH. She was given pamphlets and information about NMH by Erie. Yarbrough testified that

she asked about the doctors and what hospital she would deliver at and “[t]hat’s when I chose

Erie Family Clinic.” She testified that she was under the impression that Erie and NMH were the

same entity “[m]ost likely because of the delivery at Northwestern, the delivery privileges.” She

confirmed that if she had gone to a different doctor’s office and had been told she would most

likely deliver at NMH, she would have drawn the same inference. Yarbrough testified that she

believed Erie and NMH were working together. She affirmed that being sent to NMH for her 20­

week ultrasound reaffirmed this belief because her complete care was “all affiliated, since the

ultrasound was there, the delivery was going to be there.” Yarbrough affirmed that the fact that

she would deliver at NMH and receive other care there influenced her decision. Her impression

of NMH was that it was “a very good hospital, very big, very well-known in the city.” When

asked if she “had been living on the south side and you had gone to a physician’s office and they

said, you know, we are likely to deliver you at Christ Hospital, you would have been happy

about that as well?” Yarbrough answered, “Yes.” She also responded in the affirmative when

asked if “any good hospital would sound good to you?”

¶ 61 Yarbrough’s testimony raises an issue of material fact regarding whether there was

reasonable reliance in this case. Yarbrough indicated that her decision to utilize Erie for prenatal

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treatment was not based on her desire to receive treatment from a particular doctor at Erie or Erie

itself, but was instead based on her expressed preference for a particular hospital, i.e., NMH,

which she deemed to be a “very good” hospital. Her testimony also supports that she was

unaware that her Erie treaters were not part of NMH; it was her understanding or perception that

Erie was the same entity as, or was related to, NMH.

¶ 62 Plaintiffs assert that this case is similar to York, where the plaintiff believed there were

“ ‘good docs at Rush’ ” and, based upon this knowledge, he selected a particular orthopedic

surgeon there to perform his knee replacement surgery. York, 222 Ill. 2d at 195-96. The court

found sufficient evidence to support the jury’s verdict in finding Rush vicariously liable for the

negligent conduct of the anesthesiologist who participated in the plaintiff’s surgery based on

apparent authority. Id. at 195. The plaintiff did not select who would serve as his

anesthesiologist; he relied on the hospital to select one for him. Id. at 195-98. Our supreme

court’s holding was based on evidence showing that the plaintiff selected the orthopedic surgeon

only after determining that the hospital had good doctors and nothing alerted the plaintiff to the

fact that the anesthesiologist was an independent contractor. York, 222 Ill. 2d at 196. Our

supreme court clarified the holding in Gilbert in observing that “the mere existence of a

preexisting physician-patient relationship” did not “automatically preclude[ ] any claim by the

patient of reliance upon the hospital or the support staff.” Id. at 193. Accordingly, “the reliance

element of a plaintiff’s apparent agency claim is satisfied if the plaintiff reasonably relies upon a

hospital to provide medical care, rather than upon a specific physician.” Spiegelman, 392 Ill.

App. 3d at 840.

¶ 63 In the present case, the evidence showed that Yarbrough did not have a preexisting

relationship with Erie or any physician at Erie. She decided to receive prenatal treatment at Erie

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only after she was informed of its relationship with NMH, which she believed to be a very good

hospital, similar to the plaintiff in York. In contrast, where a patient goes to a hospital at the

direction of and in reliance on a trusted personal physician, our court has found no reasonable

reliance under Gilbert. For example, there was no reliance established in Butkiewicz, where the

patient went to the defendant hospital because his long-time personal physician directed him to,

even though he did not like that hospital, and the patient trusted his physician completely and

would have done “whatever he told him to do.” Butkiewicz, 311 Ill. App. 3d at 510, 512-14. See

also Lamb-Rosenfeldt, 2012 IL App (1st) 101558, ¶¶ 33-35 (finding no evidence of reliance

sufficient to avoid summary judgment where the patient went to the defendant hospital to receive

treatment at the direction of her personal physician, with whom she had a preexisting

relationship, and the plaintiff’s negligence claim sought to hold the hospital vicariously liable for

treatment protected by that physician).

¶ 64 III. CONCLUSION

¶ 65 In sum, we answer the certified question in the affirmative. A hospital may be held

liable under the doctrine of apparent agency for the acts of the employees of an independent

clinic that is not a party to the litigation, assuming that the plaintiff establishes the elements of

apparent authority as set forth in Gilbert. We remand this case for further proceedings consistent

with this opinion.

¶ 66 Certified question answered; cause remanded.

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