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.
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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.
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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?
A. Yes.
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?
A. Yes.
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?
A. Yes.
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?
A. Yes.
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Q. Okay. So, you know, any good hospital would sound good to you?
A. Yes.
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
party to the present litigation?”
¶ 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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