Hammer v. Barth

2016 IL App (1st) 143066

FIRST DIVISION
January 25, 2016

No. 1-14-3066

NATALIE HAMMER, Individually and as ) Appeal from the
Administrator of the Estate of Jerry Michael ) Circuit Court of
Hammer, ) Cook County
)
Plaintiff-Appellant, )
)
v. ) No. 2010 L 13668
)
MARY JANE BARTH, M.D.; )
CARDIOVASCULAR SURGEONS, LTD., a )
Corporation; and ADVOCATE CHRIST )
HOSPITAL, ) Honorable
) Kathy M. Flanagan,
Defendants-Appellees. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Liu and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Natalie Hammer, individually and as administrator of her husband Jerry

Michael Hammer's estate, appeals the order of the circuit court granting summary judgment in

favor of defendant Advocate Christ Hospital (Advocate) on plaintiff's wrongful death complaint.

Plaintiff alleged that Advocate was vicariously liable for Dr. Barth's negligence based on

theories of agency. On appeal, plaintiff contends the trial court erred in granting summary

judgment because a genuine issue of material fact exists whether defendant Dr. Barth acted as an

agent of Advocate. For the following reasons, we affirm the trial court's summary judgment on

the issue of actual agency and reverse and remand for a jury trial on Advocate's liability under

the doctrine of apparent authority.
No. 1-14-3066

¶2 JURISDICTION

¶3 The trial court entered its order granting summary judgment on September 15, 2014.

Respondent filed her notice of appeal on October 3, 2014. Accordingly, this court has

jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff.

May 30, 2008) governing appeals from final judgments entered below.

¶4 BACKGROUND

¶5 The following are facts relevant to the issues on appeal. Plaintiff testified in her

deposition that in late 2006 or early 2007, her husband's long-time physician recommended that he

see Dr. Javois for a catheterization procedure. At the time, she had not heard of Advocate. She

and her husband met with Dr. Javois in an office building near the hospital, but not on hospital

grounds. On March 21, 2007, in connection with the catheterization procedure, plaintiff's

husband signed a health care consent form bearing Advocate's logo. The consent form contains

the following:

"INDEPENDENT PHYSICIAN SERVICES. I acknowledge and fully understand

that some or all of the physicians who provide medical services to me at the hospital are

not employees or agents of the hospital, but rather independent practitioners on the

hospital medical staff who are permitted to use the hospital facilities to render medical

care and treatment. Non-employed physicians may include, but are not limited to, those

practicing emergency medicine, trauma, cardiology, obstetrics, surgery, radiology,

anesthesia, pathology and other specialties. My decision to seek medical care at the

hospital is not based upon any understanding, representation, advertisement, media

campaign, inference, implication or reliance that the physicians who are or will be

treating me are employees or agents of the hospital."

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The form also states that "the hospital bill does not include most physician services" and the

patient understands that he "will receive separate physician bills."

¶6 When plaintiff's husband needed another procedure, Dr. Javois referred him to Dr.

Ilbawi. He 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 employed by

Cardiovascular Surgeons, Ltd. (CSL), which entered into a professional service agreement with

Advocate. The agreement provided, in relevant part, that "[t]he services of [CSL] and its

physicians, employees, and contractors are those of an independent contractor practicing the

profession of medicine and specializing in pediatric cardiac surgery."

¶7 In connection with the procedure, plaintiff's husband signed a health care consent form

identical to the one he signed in March. Dr. Ilbawi, assisted by Dr. Barth who was also

employed by CSL, performed the procedure on July 30, 2007, after which plaintiff's husband

was transferred from the pediatric surgical heart unit to a floor in the general hospital. On

August 7, 2007, he experienced shortness of breath and was brought back to the pediatric

surgical heart unit. At that time, Dr. Barth placed right and left sided chest tubes. Plaintiff

had not spoken with Dr. Barth before this procedure.

¶8 On September 6, 2007, plaintiff's husband needed another chest tube placement for

treatment of a left side pleural effusion. Consent for the procedure was obtained by telephone,

and plaintiff testified that she was in the parking lot of Advocate when she received the call.

The form indicating the consent made no reference to the agency of the physicians and had

Advocate's name and logo on it. On the form, someone wrote that plaintiff gives her consent

with the condition that an adult pulmonologist see her husband. Plaintiff stated that she asked

for the condition because her husband "was in the children's hospital and they were all

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pediatricians and pediatric doctors and he was *** having trouble with pulmonary issues."

When asked if she knew of a specific adult pulmonologist at Advocate she wanted her husband

to see, plaintiff answered, "No."

¶9 Several hours after the procedure, bleeding was found in his abdomen and a splenectomy

was performed. Plaintiff's husband remained hospitalized for eight more months. He died of

a cardiac arrhythmia on August 27, 2010. Plaintiff filed a complaint seeking damages for

medical negligence. In her third-amended complaint, plaintiff contended that Dr. Barth was an

agent of Advocate thus rendering Advocate vicariously liable for her negligence. She alleged

that her husband did not choose Dr. Barth to provide surgical services and that he relied on

Advocate to provide complete surgical care.

¶ 10 Plaintiff never discussed whether the physicians caring for her husband were employed

by Advocate. However, it was her understanding that Dr. Ilbawi and Dr. Barth "worked in the

same group" and were "part of the hospital." Plaintiff did not recall whether Dr. Barth or Dr.

Ilbawi ever wore lab coats with the Advocate symbol on them, or had identification badges with

the Advocate symbol. In her answer to plaintiff's interrogatories, Dr. Barth stated that at all

relevant times she was an employee of CSL. She also stated that Advocate provided her with a

lab coat but she did not know if she was wearing it when she treated plaintiff's husband. Dr.

Barth had other lab coats that did not feature Advocate's logo. While working at Advocate, Dr.

Barth always wore a name tag which identified her as an Advocate employee so she could have

access to the hospital unit. She stated that "[t]here is no question I would have worn my I.D.

when caring for [plaintiff's husband]." Dr. Barth also served, unpaid, as cochairman of the

quality assurance committee at Advocate from 2006 to 2009. Dr. Ilbawi testified that the

professional service agreement related to administrative duties pertaining to pediatric cardiac

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No. 1-14-3066

surgery, and not to the provision of private fee-for-service patient care. Dr. Ilbawi was the

director of pediatric cardiac surgery at Advocate and Hope Children's Hospital, but the position

did not involve clinical activities. A printout of charges for physician services sent to plaintiff's

husband showed that CSL prepared the billing.

¶ 11 Advocate's website advertises itself as a medical center which "has earned clinical

leadership in more than 60 fields of medicine. Our team of 1,000+ doctors includes specialists

in cardiology, neurosciences, oncology, orthopedics, pediatrics, surgical services, women's

health, and emergency medicine. Our Level I trauma center stands among the most

experienced emergency centers in Illinois." As a medical staff member, Dr. Barth was required

to provide cardiac surgical services to patients of the medical center, even if they were not her

patients. She was also required to accept committee assignments from Advocate and to

participate in the emergency department's on-call list. Dr. Barth was subject to periodic

reappraisals by Advocate and under its bylaws, Advocate could revoke Dr. Barth's clinical

privileges or terminate her appointment for cause.

¶ 12 Advocate filed a motion for summary judgment, which the trial court granted. 1 The

trial court found no evidence that Dr. Barth was an employee of Advocate, since the agreement

states that physicians associated with CSL are independent, and any services provided through

the professional service agreement are administrative in nature. The trial court also found that

no implied agency existed because Dr. Barth retained the right to control her work as a physician

and to guide the treatment and care of her patients, regardless of the procedures and bylaws

applicable to the medical staff. Finally, the trial court determined that no apparent agency

1
The cause remains pending against the other defendants.

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existed because the consent form signed by plaintiff's husband contained a clear disclaimer

regarding Dr. Barth's hospital employee status. Plaintiff filed this timely appeal.

¶ 13 ANALYSIS

¶ 14 Plaintiff contends that the trial court erred in granting summary judgment in favor of

Advocate. Summary judgment is proper where "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." 735 ILCS 5/2-1005(c)

(West 2010). In reviewing a motion for summary judgment, we construe the record in the light

most favorable to the nonmoving party and strictly against the moving party. Williams v.

Manchester, 228 Ill. 2d 404, 417 (2008). Although plaintiff need not prove her entire case at

the summary judgment stage, she must present facts showing she is entitled to judgment.

Wallace v. Alexian Brothers Medical Center, 389 Ill. App. 3d 1081, 1086 (2009). We review

the trial court's ruling on a summary judgment motion de novo. Williams, 228 Ill. 2d at 417.

¶ 15 In her amended complaint, plaintiff alleges that Advocate is liable for the negligence of

Dr. Barth based on an agency theory. If a principal-agent relationship exists between the

hospital and physician accused of malpractice, the hospital may be vicariously liable for the

physician's alleged negligence. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518

(1993). To prevail on a claim of actual agency, plaintiff must show that (1) a principal-agent

relationship existed between the hospital and physician; (2) the hospital controlled or had the

right to control the conduct of the physician; and (3) the alleged conduct fell within the scope of

the agency. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 18. Traditionally, the relationship

between a hospital and the physicians on its staff who are not employees is an independent one.

Hundt v. Proctor Community Hospital, 5 Ill. App. 3d 987, 990 (1972). A principal is not

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generally liable for the acts of an independent contractor. Petrovich v. Share Health Plan of

Illinois, Inc., 188 Ill. 2d 17, 31 (1999).

¶ 16 However, if the principal retains sufficient control over the independent contractor's

work, his independent status is negated and the principal is vicariously liable for the contractor's

tortious conduct. Id. at 42. This type of authority, termed implied authority, is actual

authority proved by circumstantial evidence. Id. The primary consideration in determining

the existence of implied authority is not the intent of the parties, or whether the physician is an

employee or independent contractor, but rather the degree of control the principal retains over

performance of the contractor's work. Id. In a hospital-physician relationship, the key issue is

whether the hospital has the right to control the physician's exercise of medical judgment in

delivering medical care to patients. Id. at 45-46.

¶ 17 In the case at bar, Dr. Barth's employer, CSL, executed a professional service agreement

with Advocate which states that "[t]he services of [CSL] and its physicians, employees, and

contractors are those of an independent contractor practicing the profession of medicine and

specializing in pediatric cardiac surgery." Plaintiff contends, however, that Advocate retained

control over the physicians' work through the service agreement and its bylaws, and whether this

circumstantial evidence shows an agency relationship between the parties is a question of fact.

As support, she cites to Barbour v. South Chicago Community Hospital, 156 Ill. App. 3d 324

(1987).

¶ 18 In Barbour, the defendant hospital argued that one of the physicians alleged to have

injured plaintiff was not a paid employee of the hospital, and therefore no agency relationship

existed. Id. at 327. The plaintiff alleged, however, that one of the physicians responsible for

her injury was appointed department chief by defendant hospital's board of directors and that as

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department chief he monitored, controlled, and assisted in patient care and quality within the

department. Id. at 327-28. The complaint also alleged that the hospital could remove the

physician from his position as department chief "if he failed to perform his duties properly" and

"that any decision by the board to change policy or practice in the [department] would have to be

implemented by the board through [the physician]." Id. at 329. According to the complaint, the

physician was "not an independent contractor but was rather the board's representative within the

[department]" and "acting within the purview, and under the authority, of" the hospital's Board.

Id. This court concluded that the facts sufficiently alleged the existence of a dispute as to the

extent of the parties' relationship, and therefore "the existence and scope of an agency relationship

are questions of fact for the jury to decide." Id.

¶ 19 Likewise in Petrovich, the plaintiff alleged that the defendant HMO's capitation method of

compensation punished physicians for ordering certain medical treatments, its quality assurance

review monitored patient care to discourage physicians from giving " 'inappropriate' " medical

care, and its physicians served as "gatekeepers" to control which patients were accepted for care by

following criteria on the defendant's referral forms, all of which indicate control over the

physician's work. The supreme court agreed, finding that the plaintiff presented adequate

evidence to survive the defendant's motion for summary judgment. Petrovich, 188 Ill. 2d at

49-51.

¶ 20 Plaintiff here argues that the service agreement and bylaws enable Advocate to control Dr.

Barth's work sufficiently to establish a principal-agent relationship. She contends that Advocate

had the right to terminate the service agreement with CSL for reasons including poor clinical

patient care or case management and retained the right to revoke clinical privileges or terminate

Dr. Barth's appointment for cause. She further contends that Advocate reviewed Dr. Barth's

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participation in medical staff meetings, clinical work, and her adherence to bylaws, rules,

regulations and policies, retained exclusive control over all patient medical records, and required

Dr. Barth to provide an operative report for certain procedures. Advocate also required Dr. Barth

to participate in committees, treat all patients admitted to Advocate, consult with other physicians,

and participate in its emergency on-call list.

¶ 21 Plaintiff's case is factually distinguishable from Barbour and Petrovich. Unlike the

physician in Barbour, Dr. Barth is not the department chief. As the trial court below noted,

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. Furthermore, its procedures and regulations required of medical staff are mostly

administrative. Compliance with such review and regulation procedures in itself does not

indicate control by Advocate over its physicians. Id. at 48-49. Unlike the plaintiffs in Barbour

and Petrovich, both of whom alleged facts showing control over the physician's medical judgment

in specific circumstances, plaintiff here generally argues that the substance of Advocate's bylaws

and other requirements show a sufficient right of control, and that the bylaws and service

agreement "go far beyond giving Dr. Barth the right to use the facilities to treat her own patients."

Plaintiff does not provide specific facts supporting these general allegations. Although she need

not prove her entire case at the summary judgment stage, plaintiff must allege facts showing she

is entitled to judgment. Wallace, 389 Ill. App. 3d at 1086. Therefore, the trial court properly

granted summary judgment on the issue of actual agency.

¶ 22 Plaintiff, however, also alleges that Advocate is vicariously liable under the doctrine of

apparent authority. As our supreme court articulated in Gilbert, "[a]pparent authority in an

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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. 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." Gilbert, 156 Ill. 2d at 523. To hold a hospital liable

for physician malpractice under the doctrine of apparent authority, plaintiff must show (1) that

the hospital held itself out as the provider of health care without informing the patient that the

care is provided by independent contractors, and (2) the patient justifiably relied upon the

conduct of the hospital to provide care, rather than on a specific physician. Petrovich, 188 Ill.

2d at 33-34. If plaintiff can prove these elements, the hospital will be held vicariously liable for

the negligent acts of a physician "regardless of whether the physician is an independent

contractor, unless the patient knows, or should have known, that the physician is an independent

contractor." Gilbert, 156 Ill. 2d at 524.

¶ 23 As to the holding out element, Advocate argues that since plaintiff's husband signed a

consent form indicating that "some or all" of the physicians providing services at the hospital are

independent contractors, and he is now deceased, the signed consent forms are "the sole legally

cognizable determinant" of whether a hospital holds itself out as the provider of health care,

quoting Steele v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 131, a Third District case.

However, the First District in James v. Ingalls Memorial Hospital, 299 Ill. App. 3d 627, 633

(1998), and the Second District in Churkey v. Rustia, 329 Ill. App. 3d 239, 244-45 (2002),

determined that while a signed consent form is an important factor on the "holding out" issue, it

is not always dispositive as to this element. As the court in Churkey reasoned, "[t]here certainly

could be situations in which a patient signs a consent form containing such a disclaimer but

additional facts exist that would create a triable issue of fact as to whether the hospital held the

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defendant physician out as its agent." Id. at 245. These decisions did not distinguish patients

who are deceased from those who file their own complaints. We choose to follow the

reasoning in Churkey and James on this issue.

¶ 24 Although plaintiff's husband did sign consent forms, the language pertaining to the

employment status of Advocate's physicians did not clearly state that Dr. Barth, a cardiologist,

was an independent contractor. The form states that "some or all of the physicians who provide

medical services" at the hospital "are not employees or agents of the hospital, but rather

independent practitioners**." It further states that "[n]on-employed physicians may include, but

are not limited to, those practicing emergency medicine, trauma, cardiology, obstetrics, surgery,

radiology, anesthesia, pathology and other specialties." (Emphasis added.) 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.

Cases cited by Advocate in support of its position that the consent forms plaintiff's husband signed

preclude application of the apparent authority doctrine are distinguishable because the forms in

those cases contained clear language of the physicians' independent status. See Frezados v.

Ingalls Memorial Hospital, 2013 IL App (1st) 121835, ¶ 5 (physicians providing services " 'are not

employees, agents or apparent agents' "); Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL

App (1st) 101558, ¶ 4 (form stated that none of the attending physicians are employees); Churkey,

329 Ill. App. 3d at 241 (hospital " 'uses independently contracted physicians' " who " 'are not

employees' "); James, 299 Ill. App. 3d at 633 (physicians on hospital staff " 'are not employees or

agents of the hospital' "). Therefore, a question of material fact exists as to whether the consent

form adequately informed plaintiff's husband of Dr. Barth's status as an independent physician.

See Spiegelman v. Victory Memorial Hospital, 392 Ill. App. 3d 826, 837 (2009).

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¶ 25 Furthermore, the record contains support for plaintiff's allegations that Advocate held out

Dr. Barth as its employee. Plaintiff stated that it was her understanding that Dr. Ilbawi and Dr.

Barth "worked in the same group" and were "part of the hospital." In her answer to plaintiff's

interrogatories, Dr. Barth stated that Advocate provided her with a lab coat labeled with the

hospital's logo, although she did not know if she was wearing it when she treated plaintiff's

husband. However, while working at Advocate Dr. Barth always wore a name tag which

identified her as an Advocate employee so she could have access to the hospital unit. She

stated that "[t]here is no question I would have worn my I.D. when caring for [plaintiff's

husband]."

¶ 26 Also of relevance is the fact that Advocate's website advertises itself as a medical center

which "has earned clinical leadership in more than 60 fields of medicine. Our team of 1,000+

doctors includes specialists in cardiology, neurosciences, oncology, orthopedics, pediatrics,

surgical services, women's health, and emergency medicine. Our Level I trauma center stands

among the most experienced emergency centers in Illinois." See Id. at 841 (such

advertisements are relevant to the holding out element since a hospital cannot advertise it has the

best physicians and then argue there is no evidence those physicians are employees of the

hospital). For these reasons, we find that a genuine issue of material fact exists as to the

holding out element.

¶ 27 Regarding the reliance element, plaintiff contends that she and her husband "knew

nothing of Dr. Barth" and believed Dr. Barth's treatment was arranged by Advocate. Plaintiff

satisfies the justifiable reliance element if plaintiff shows reliance upon the hospital to provide

medical care, rather than upon a specific physician. Gilbert, 156 Ill. 2d at 525. In York v.

Rush – Presbyterian - St. Luke's Medical Center, 222 Ill. 2d 147, 193-94 (2006), our supreme

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court addressed whether a patient's selection of a specific physician necessarily precludes

recovery under the apparent agency doctrine. The supreme court emphasized that Gilbert did

not hold that "regardless of the circumstances, the mere existence of a preexisting physician -

patient relationship automatically precludes any claim by the patient of reliance upon the hospital

for the support staff. Rather, Gilbert recognized that *** even when a physician specifically

selected for the performance of a procedure directs the patient to that particular hospital, there

may be sufficient reliance under the theory of apparent agency for liability to attach to the

hospital in the event one of the supporting physicians commits malpractice." Id. at 193.

Therefore, a plaintiff is not precluded from showing justifiable reliance under these

circumstances and the hospital may be found vicariously liable for the negligence of a supporting

physician who is not employed by the hospital. Id. at 195.

¶ 28 In McCorry v. Evangelical Hospitals Corp., 331 Ill. App. 3d 668 (2002), the plaintiff's

treating physician referred him to a neurosurgeon from an independent group providing

neurosurgical care at Christ Hospital. The plaintiff accepted care from Dr. Hurley, the next

available neurosurgeon, and testified that he thought Dr. Hurley was employed by Christ

Hospital. Id. at 674. In his complaint, the plaintiff alleged that Dr. Hurley's negligence

resulted in his paralysis, and sought to hold Christ Hospital vicariously liable for Dr. Hurley's

acts. Id. at 670. This court found that the plaintiff never met Dr. Hurley before arriving at the

hospital, his personal physician did not refer him specifically to Dr. Hurley and he did not select

Dr. Hurley; he simply accepted the referral and did not know of Dr. Hurley's independent

contractor status. Id. We held that the plaintiff "presented sufficient evidence to create a

triable issue of fact regarding his reliance on the appearance that Hurley acted as an agent of

Christ Hospital." Id. at 674.

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¶ 29 In her third-amended complaint, plaintiff contended that Dr. Barth was an agent of

Advocate thus rendering Advocate vicariously liable for her negligence. Her husband's

long-time physician recommended that he see Dr. Javois for a catheterization procedure. When

he needed another procedure, Dr. Javois referred him to Dr. Ilbawi, who was assisted by Dr.

Barth when he performed the procedure on July 30, 2007. Subsequently, plaintiff's husband

experienced shortness of breath and he was brought back to the pediatric surgical heart unit. At

that time, Dr. Barth placed right and left sided chest tubes. Plaintiff had never spoken with Dr.

Barth prior to this procedure. She never discussed whether the physicians caring for her

husband were employed by Advocate; rather, it was her understanding that Dr. Ilbawi and Dr.

Barth "worked in the same group" and were "part of the hospital." She alleged that her husband

did not choose Dr. Barth to provide surgical services and that he relied on Advocate to provide

complete surgical care.

¶ 30 Plaintiff's testimony regarding the circumstances of her husband's second chest tube

placement provides further support for her contention that they relied on Advocate, and not on a

specific physician, to provide medical care. Advocate obtained consent for the procedure from

plaintiff by telephone. The form indicating the consent made no reference to the employment

of the treating physicians and bore Advocate's name and logo. On the form, someone wrote

that plaintiff gives her consent with the condition that an adult pulmonologist see her husband.

Plaintiff asked for the condition because her husband "was in the children's hospital and they

were all pediatricians and pediatric doctors and he was *** having trouble with pulmonary

issues." When asked if she knew of a specific adult pulmonologist at Advocate she wanted her

husband to see, plaintiff answered, "No." We find that a genuine issue of material fact exists

regarding the reliance element. Since questions of material fact exist as to the holding out and

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reliance elements of plaintiff's claim based on the doctrine of apparent authority, the trial court

erred in granting summary judgment on this issue. Therefore, we reverse and remand the cause

for proceedings consistent with this opinion.

¶ 31 The cases cited by Advocate in support of its contrary position, Butkiewicz v. Loyola

University Medical Center, 311 Ill. App. 3d 508 (2000), and Lamb-Rosenfeldt, 2012 IL App (1st)

101558, are distinguishable. In Butkiewicz, uncontradicted evidence showed that the plaintiff

sought treatment from the hospital because his personal physician instructed him to do so, and he

had "such high regard" for the physician that he followed his recommendations "religiously."

Butkiewicz, 311 Ill. App. 3d at 509. The evidence also showed that the plaintiff did not like

Christ Hospital, but chose to go there for treatment based on the recommendation of his trusted

physician. Id. at 514. The plaintiff in Butkiewicz clearly did not rely on the hospital in

seeking treatment. Likewise, in Lamb-Rosenfeldt evidence indicated that the patient would

have gone to any facility recommended by her personal physician in order to receive treatment

from her. Lamb-Rosenfeldt, 2012 IL App (1st) 101558, ¶ 33. Here, plaintiff presented

evidence that she and her husband did not know Dr. Barth, nor did they select Dr. Barth for

treatment at Advocate.

¶ 32 Advocate also argues that since there is no evidence plaintiff's husband saw Dr. Barth's

lab coat or Advocate badge, and plaintiff testified that she could not recall what Dr. Barth wore

when she spoke with her, there is no evidence that they detrimentally relied on these items as

indicators of Dr. Barth's relationship with the hospital. In York, our supreme court noted the

traditional detrimental reliance element of apparent agency in other contexts, but reiterated its

holding in Gilbert that in the medical malpractice context, "the reliance element of a plaintiff's

apparent agency claim is satisfied if the plaintiff reasonably relies upon a hospital to provide

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medical care, rather than upon a specific physician. [Citation.]" York, 222 Ill. 2d at 194. See

also Spiegelman, 392 Ill. App. 3d at 840 (hospital misapplied the detrimental reliance element

which has a limited application in the medical malpractice context). Therefore, the fact that

plaintiff did not testify that she or her husband actually saw Dr. Barth wearing her Advocate lab

coat or badge does not preclude plaintiff from establishing the holding out or reliance elements

of her apparent agency claim.

¶ 33 Finally, Advocate contends that plaintiff cannot show reliance on the hospital to provide

medical care because the consent form her husband signed states that his "decision to seek

medical care at the hospital is not based upon any understanding, representation, advertisement,

media campaign, inference, implication or reliance that the physicians who are or will be treating

me are employees or agents of the hospital." However, as this court found in Churkey and

James regarding disclaimers on the employment status of physicians, although such language is

an important factor to consider, it is not always dispositive of the issue. As Churkey reasoned,

there can be situations in which a patient signs a consent form containing a disclaimer "but

additional facts exist that would create a triable issue of fact." Churkey, 329 Ill. App. 3d at 245.

Although Churkey addressed disclaimers regarding the independent status of physicians, we find

that the same reasoning applies to disclaimers regarding reliance on the hospital's representation

of itself as a medical provider.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the circuit court is affirmed in part and

reversed in part, and remanded for further proceedings.

¶ 36 Affirmed in part and reversed in part; cause remanded.

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