dissenting:
The majority interprets this court’s decision in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), far too broadly and, in doing so, dilutes the “reliance” element of apparent authority claims against hospitals. Under the position adopted by the majority, the fact a plaintiff sought care from a specific physician is now virtually inconsequential in determining whether a hospital is vicariously liable for the negligence of an independent-contractor physician. In effect, as long as the plaintiff can satisfy the “holding out” element of his apparent authority claim, he may recover from the hospital. This approach conflicts with the rationale this court originally set forth for allowing apparent authority claims against hospitals in Gilbert and promises to significantly expand the scope of apparent authority liability.
As a preliminary matter, I would clarify that while this case requires us to review the sufficiency of the evidence supporting the jury’s verdict against Rush-Presbyterian-St. Luke’s Medical Center (Rush), deciding whether the evidence is sufficient is not simply a matter of evaluating it in light of clearly established law. On the contrary, this case calls on us to examine the requirements of the apparent authority theory of liability itself, which this court recognized in Gilbert as a basis for holding hospitals vicariously liable for the negligence of independent-contractor physicians. Gilbert, 156 Ill. 2d at 524-25. Thus, although we are reviewing a jury verdict, the deference we must accord to that verdict extends only to factual inferences or conclusions drawn from the evidence presented to the jury and should have no bearing on our purely legal determination regarding the principles under which that evidence must be evaluated. See Maple v. Gustafson, 151 Ill. 2d 445, 452-53 (1992) (noting “it is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses’ testimony,” and a court of review “should not usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way”).
Gilbert is the correct point of departure for analyzing this case, but it does not, as the majority suggests, resolve all of the issues presented here. Gilbert established that a hospital may be vicariously liable for the negligent acts of a physician who is an independent contractor. Gilbert, 156 Ill. 2d at 518-23. It also set forth the means by which a plaintiff may prove a hospital’s vicarious liability. Gilbert, 156 Ill. 2d at 523-26. The rationale expressed in Gilbert for allowing hospitals to be held vicariously liable for the acts of independent contractors has to do with what Gilbert termed the “realities of modern hospital care,” particularly the “business of a modern hospital” and “the reasonable expectations of the public.” Gilbert, 156 Ill. 2d at 520-21. According to Gilbert, the business of modern hospitals is characterized by advertising campaigns intended to promote hospitals’ good reputations by holding hospitals out to the public as providers of quality health care. See Gilbert, 156 Ill. 2d at 520, quoting Kashishian v. Port, 167 Wis. 2d 24, 38, 481 N.W.2d 277, 282 (1992). Further, it is typically reasonable for members of the public who seek health care from hospitals to assume that the physicians who care for them are hospital employees, since patients are generally unaware of the nature of the employment relationships between hospitals and the physicians who work there. See Gilbert, 156 Ill. 2d at 521, quoting Arthur v. St. Peters Hospital, 169 N.J. Super. 575, 583, 405 A.2d 443, 447 (1979). Given these justifications for holding hospitals vicariously liable, Gilbert concluded that a plaintiff may prove a hospital’s vicarious liability through a claim based on the doctrine of apparent authority. Gilbert, 156 Ill. 2d at 523-24. The elements of an apparent authority claim include a “holding out” by the hospital that the individual alleged to be negligent is a hospital employee and “justifiable reliance” by the plaintiff on that “holding out.” See Gilbert, 156 Ill. 2d at 525.
As Gilbert acknowledged, the doctrine of apparent authority is normally applied in contract cases. Gilbert, 156 Ill. 2d at 524. In that context, the doctrine binds a principal to a contract that an apparent agent makes while acting within the scope of the apparent authority with which the principal has clothed him. Lynch v. Board of Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 439 (Ryan, J., dissenting, joined by Underwood and Ward, JJ.); see also Gilbert, 156 111. 2d at 524, citing Lynch, 82 111. 2d at 439 (Ryan, J., dissenting, joined by Underwood and Ward, JJ.). The doctrine functions like estoppel: where a principal creates the appearance of authority, a court will not hear the principal’s denial of agency to the prejudice of an innocent third party who has been led to reasonably rely upon the agency and is harmed as a result. Petrovich v. Share Health Plan of Illinois, Inc., 188 111. 2d 17, 31 (1999). Gilbert recognized that the doctrine of apparent authority can also serve as a basis for imposing tort liability {Gilbert, 156 111. 2d at 524) and set forth some specific guidelines as to how a claim based on the doctrine plays out in the context of emergency room medical malpractice {Gilbert, 156 111. 2d at 524-26). Gilbert established that a hospital cannot be held liable under the doctrine of apparent authority if a plaintiff knew, or should have known, that the physician who committed malpractice was an independent contractor. Gilbert, 156 111. 2d at 524. It further explained that the “holding out” element of an apparent authority claim “is satisfied if the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by independent contractors.” Gilbert, 156 111. 2d at 525. In addition, Gilbert stated that the “reliance” element of an apparent authority claim “is satisfied if the plaintiff relies upon the hospital to provide complete emergency room care, rather than upon a specific physician.” Gilbert, 156 111. 2d at 525. The “ ‘critical distinction’ ” is whether the plaintiff seeks care from the hospital itself or merely looks to the hospital as a place for a personal physician to provide care. Gilbert, 156 111. 2d at 525, quoting Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188, 211-12, 423 N.W.2d 848, 857 (1988).
Gilbert represents a divergence from the general rule that no vicarious liability exists for the actions of independent contractors. Petrovich, 188 Ill. 2d at 31. This divergence is justified in the medical malpractice context by the policy rationale set forth in Gilbert. See Gilbert, 156 Ill. 2d at 520-22. Gilbert also represents an attempt to explain the conditions under which vicarious liability will attach to a hospital in a given case. See Gilbert, 156 Ill. 2d at 523-26. The elements of an apparent authority claim that Gilbert recognizes broadly reflect these conditions, and Gilbert takes the additional step of expressing them in more specific terms by explaining what a plaintiff must prove to satisfy the “holding out” and “reliance” elements in the context of emergency care malpractice. Here, we are faced with a situation where we must further clarify how an apparent authority claim against a hospital should proceed. As I shall explain, unlike in Gilbert, the record in this case clearly demonstrates that plaintiff sought care from a particular physician, rather than from the hospital itself, when he made his initial decision to undergo knee surgery at Rush. Contrary to what the majority’s analysis suggests, this fact should have significant bearing on determining whether plaintiff satisfied the “reliance” element of his apparent authority claim.
The majority characterizes Gilbert as recognizing that “when a patient relies on a hospital for the provision of support services, 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.” (Emphasis added.) 222 Ill. 2d at 193. I find no support in Gilbert for this proposition. In fact, Gilbert contains language to the contrary. For instance, quoting Arthur v. St. Peters Hospital, Gilbert states, “ ‘Absent a situation where the patient is directed by his own physician or where the patient makes an independent selection as to which physicians he will use while [at the hospital], it is the reputation of the hospital itself upon which [the patient] would rely.’ ” (Emphasis added.) Gilbert, 156 Ill. 2d at 521, quoting Arthur, 169 N.J. Super, at 583, 405 A.2d at 447. Likewise, quoting Pamperin v. Trinity Memorial Hospital, Gilbert states, “ ‘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.’ ” (Emphasis added.) Gilbert, 156 Ill. 2d at 525-26, quoting Pamperin, 144 Wis. 2d at 211-12, 423 N.W.2d at 857. This language does not suggest that Gilbert recognized the possibility of allowing recovery under the doctrine of apparent authority “when a patient relies on a hospital for the provision of support services, even when a physician specifically selected for the performance of a procedure directs the patient to that particular hospital.” 222 Ill. 2d at 193. If anything, it suggests reservation over holding a hospital vicariously liable where a patient seeks care from a particular physician. Yet, the majority makes no effort to explain this language. Instead, the majority simply uses its initial misreading of Gilbert as a basis for further misattributions, concluding that the “reasoning which animated our decision in Gilbert” was that:
“[T]he reliance element of a plaintiffs apparent agency claim is satisfied if the plaintiff reasonably relies upon a hospital to provide medical care, rather than upon a specific physician. [Citation.] Upon admission to a hospital, a patient seeks care from the hospital itself, except for that portion of medical treatment provided by physicians specifically selected by the patient. If a patient has not selected a specific physician to provide certain treatment, it follows that the patient relies upon the hospital to provide complete care — including support services such as radiology, pathology, and anesthesiology — through the hospital’s staff. If, however, a patient does select a particular physician to perform certain procedures within the hospital setting, this does not alter the fact that a patient may nevertheless still reasonably rely upon the hospital to provide the remainder of the support services necessary to complete the patient’s treatment. Generally, it is the hospital, and not the patient, which exercises control not only over the provision of necessary support services, but also over the personnel assigned to provide those services to the patient during the patient’s hospital stay. To the extent the patient reasonably relies upon the hospital to provide such services, a patient may seek to hold the hospital vicariously liable under the apparent agency doctrine for the negligence of personnel performing such services even if they are not employed by the hospital.” 222 Ill. 2d at 194-95.
Gilbert does acknowledge that the “reliance” element of a plaintiffs apparent authority claim hinges on whether the plaintiff sought care from the hospital itself or from a particular physician. See Gilbert, 156 Ill. 2d at 525-26, quoting Pamperin, 144 Wis. 2d at 211-12, 423 N.W.2d at 857. It is inaccurate, however, for the majority to assert that the other propositions quoted above “animated our decision in Gilbert.” 222 Ill. 2d at 195.
The fact of the matter is that only a small portion of the discussion in Gilbert was devoted to the “reliance” element of an apparent authority claim. See Gilbert, 156 Ill. 2d at 525-26. More importantly, to the extent Gilbert did address reliance, it did so in relation to a different factual scenario from the one at issue here. As mentioned, Gilbert dealt with medical malpractice committed in the course of emergency care. Gilbert, 156 Ill. 2d at 516. This case involves malpractice committed during a scheduled surgical procedure at Rush. Furthermore, the doctor who committed malpractice in Gilbert, a general practitioner on call in the emergency room, was primarily responsible for treating the plaintiff upon the plaintiffs admission to the defendant hospital. Gilbert, 156 Ill. 2d at 515-17. Here, an anesthesiologist providing a service ancillary to plaintiffs knee surgery caused plaintiffs injuries. Finally, in Gilbert, it was unclear whether the plaintiff chose to use the defendant hospital for the sole purpose of seeing a particular physician. The evidence disclosed only that the plaintiff asked for a particular physician after he arrived at the hospital, and the physician was not on call. Gilbert, 156 Ill. 2d at 516, 526. As a result, Gilbert did not directly address the consequences of a patient’s decision to use a hospital as a means of obtaining care from a particular physician. In this case, plaintiff testified at trial that he would have gone to the surgeon who performed his knee surgery even if the surgeon had moved his practice to a hospital other than Rush.
In short, this case presents a situation where a patient arranged a procedure in advance with a particular physician and was injured by the malpractice of another physician providing a support service related to the scheduled procedure. Gilbert did not involve these circumstances. In addition, Gilbert was not primarily concerned with establishing standards to govern the application of the “reliance” element of the apparent authority claim. The majority’s reading of Gilbert erroneously suggests that Gilbert resolved the reliance issues before us in this case.
As mentioned, Gilbert recognized, as a general matter, that the “reliance” element of a plaintiffs apparent authority claim hinges on whether the plaintiff sought care from the hospital itself or from a particular physician. Gilbert, 156 Ill. 2d at 525-26. To summarily conclude, as the majority does, that “[i]f *** a patient does select a particular physician to perform certain procedures,” the patient “may nevertheless still reasonably rely upon the hospital to provide the remainder of the support services necessary to complete the patient’s treatment” (222 Ill. 2d at 194) ignores two of the main questions posed by Rush. First, may a patient recover based on the doctrine of apparent authority at all where he chooses a hospital for his treatment because he handpicked a particular physician to perform the treatment, and the physician practices only at that hospital? Second, to satisfy the “reliance” element of an apparent authority claim, should a patient who schedules a procedure with a particular physician, and who is injured by another physician providing a support service, have to prove that his belief regarding the employment status of the physician who committed malpractice actually mattered in his decision to proceed with treatment?
While the majority does not squarely address either of these questions, its analysis implicitly answers “yes” to the first and “no” to the second. The majority provides no reasoned justification for this approach. Instead, it makes vague references to the uniqueness of situations involving medical malpractice by independent contractors, and to the specificity of the apparent authority theory of liability outlined in Gilbert. Initially, the majority states that “the relationship between a patient and health-care providers, both physicians and hospitals, presents a matrix of unique interactions that finds no ready parallel to other relationships.” 222 Ill. 2d at 192. This strikes me as an overstatement, but to the extent the relationship between patients and health-care providers does have unique characteristics, those characteristics, broadly described in Gilbert as the “realities of modern hospital care” (Gilbert, 156 Ill. 2d at 520), merely justify recognizing an exception to the general rule that no vicarious liability exists for the actions of independent contractors. They do not justify allowing a patient to proceed with an apparent authority claim under any and all circumstances involving the medical malpractice of an independent contractor working in a hospital. The majority further states that because of the “unique context” in which actions seeking to hold a hospital vicariously liable for the malpractice of an independent contractor physician are brought, “Gilbert established an analytical framework tailored to this precise factual situation.” 222 Ill. 2d at 193. Reiterating this point, the majority notes, “Gilbert formulated [its] analytical framework for specific application to actions wherein a plaintiff seeks to hold a hospital vicariously liable for the malpractice of an independent contractor physician under the doctrine of apparent agency.” 222 Ill. 2d at 193. I agree that Gilbert established a framework to address the situation in which an independent contractor commits medical malpractice while working in a hospital. The fact Gilbert established a framework, however, does not mean it is not subject to further refinement. There are multiple scenarios in which an independent contractor can commit medical malpractice in a hospital setting, and Gilbert dealt only with malpractice committed during the course of emergency care by a general practitioner who was primarily responsible for treating the plaintiff (Gilbert, 156 Ill. 2d at 515-16).
Turning to the questions posed by Rush, I would note that where, as here, a patient chooses to undergo a procedure at a given hospital for the sole purpose of receiving treatment from a particular physician, and the patient is injured by the malpractice of another physician providing a support service, allowing the patient to proceed with an apparent authority claim against the hospital creates tension with the underlying rationale expressed in Gilbert for allowing hospitals to be held vicariously liable for the malpractice of independent-contractor physicians. Part of that rationale is that hospitals hold themselves out to the public through marketing campaigns as providers of quality health care in hopes of persuading the public to utilize their services. See Gilbert, 156 Ill. 2d at 520. If a hospital that has been sued comes forward with proof that the plaintiff patient sought care from a particular physician, and would have obtained treatment from that physician regardless of where the physician was practicing, the assumption is no longer valid that the patient relied on the reputation the hospital held out to the public in deciding to undergo treatment there. I do not believe that, under these circumstances, a patient should be altogether precluded from recovering pursuant to the doctrine of apparent authority. After all, it is true that a patient who schedules a procedure with a particular physician may still look to the hospital where the procedure will be performed to provide support services necessary to complete the procedure. Yet, “relying,” in the general sense of the term, on the hospital to provide support services is not the same as “reliance,” in the context of an apparent authority claim, on the hospital’s act of “holding out” a support service physician as an employee. Moreover, where allowing recovery against a hospital on the basis of an apparent authority claim is somewhat at odds with the underlying rationale for subjecting hospitals to vicarious liability in the first place, it seems appropriate to require more rigorous proof of “reliance.” Accordingly, in cases where a patient chooses to undergo a procedure at a given hospital for the sole purpose of receiving treatment from a particular physician, and the patient is injured by the malpractice of another physician providing a support service, I find it reasonable to require the patient to prove that his belief regarding the employment status of the physician who committed malpractice actually mattered in his decision to proceed with his treatment. As Rush suggests, to prove reliance, the patient should have to demonstrate he accepted treatment from the physician whose conduct is at issue because he assumed the physician was not an independent contractor. A patient who would have acted in exactly the same manner if he had known the employment status of the physician should not be allowed to recover from the hospital.
Applying these principles to the case at bar, I would hold that plaintiff failed to produce sufficient evidence to establish the “reliance” element of his apparent authority claim against Rush.
Briefly, Rush does not dispute the sufficiency of the evidence presented at trial with respect to the “holding out” element of plaintiff’s apparent authority claim. Indeed, the evidence revealed that plaintiffs anesthesiologist, Dr. Abdel Raouf El-Ganzouri, wore either scrubs or a lab coat displaying the Rush logo during his interactions with plaintiff, and that nothing in the treatment consent form signed by plaintiff indicated Dr. El-Ganzouri was an independent contractor.
With respect to the “reliance” element of plaintiffs apparent authority claim, the majority interprets the testimony presented at trial as providing a sufficient basis for the jury to reasonably conclude that plaintiff did not know, and had no reason to know, that Dr. El-Ganzouri was an independent contractor, not an employee of Rush. 222 Ill. 2d at 195-98. In addition, the majority interprets the testimony presented at trial as providing a sufficient basis for the jury to reasonably conclude that plaintiff did not know who would serve as his attending anesthesiologist, and that he depended on Rush, not his son, to select that individual. 222 Ill. 2d at 198-99. I cannot help but view with some suspicion the conclusion that plaintiff, who was himself an independent-contractor physician for many years, and whose son was an anesthesiology resident at Rush at the time of plaintiff’s surgery, did not know that Dr. El-Ganzouri was an independent contractor. I also cannot accept without some hesitation the conclusions that plaintiff did not know Dr. El-Ganzouri would be his attending anesthesiologist and that plaintiff did not depend on his son to select Dr. El-Ganzouri, given the conflicting evidence on these points. See 222 Ill. 2d at 198-99. Nevertheless, whether plaintiff knew or should have known that Dr. El-Ganzouri was an independent contractor is a factual question, and concluding on review that plaintiff knew or should have known that Dr. El-Ganzouri was an independent contractor would require ignoring the jury’s credibility determinations. Likewise, whether plaintiff knew Dr. El-Ganzouri would be his attending anesthesiologist and whether plaintiff depended on his son to select Dr. El-Ganzouri are also factual questions. To conclude on review that plaintiff knew Dr. El-Ganzouri was going to be his attending anesthesiologist and that plaintiff depended on his son’s selection of Dr. El-Ganzouri would require impermissibly second-guessing the jury’s resolution of conflicting testimony.
Yet, even conceding that the jury could reasonably have concluded that plaintiff neither knew nor should have known that Dr. El-Ganzouri was an independent contractor, that plaintiff did not know Dr. El-Ganzouri would be his attending anesthesiologist, and relatedly, that plaintiff depended on Rush, rather than on his son, to select an attending anesthesiologist, the evidence presented at trial was not sufficient to satisfy the “reliance” element of plaintiff’s apparent authority claim. Plaintiff personally selected Dr. Aaron Rosenberg as his orthopedic surgeon for his February 1998 knee surgery. This selection came in the wake of plaintiff’s positive experience with Dr. Rosenberg during previous knee surgeries in August 1997 and September 1997, which themselves came after approximately three years of conservative knee treatment that plaintiff received after becoming Dr. Rosenberg’s patient in 1994. It is abundantly clear in this case that plaintiff sought care from Dr. Rosenberg, not from Rush, in scheduling his February 1998 knee surgery. Plaintiff testified that he would have gone to Dr. Rosenberg for his February 1998 surgery even if Dr. Rosenberg moved his practice to a hospital other than Rush. The majority’s assertion that “it was only after plaintiff developed an interest in Rush, based upon his knowledge of the hospital and its staff, that he sought out a particular orthopedic surgeon at that institution” is inapposite. 222 Ill. 2d at 196. The testimony the majority relies on to draw this conclusion pertains to plaintiffs initial decision to seek treatment from Dr. Rosenberg in 1994, not to plaintiffs decision to undergo his February 1998 knee surgery.
The fact plaintiff sought care from Dr. Rosenberg, not Rush, does not alone preclude plaintiff from recovering from Rush on the basis of Dr. El-Ganzouri’s negligence. However, there is no indication in the record that plaintiff accepted treatment from Dr. El-Ganzouri because he assumed Dr. El-Ganzouri was not an independent contractor. Therefore, there is no basis for concluding that plaintiff’s belief regarding Dr. El-Ganzouri’s employment status had any effect on his decision to proceed with his treatment.
For the reasons expressed above, I would reverse the judgment of the appellate court, which affirmed the trial court’s denial of Rush’s motion for judgment notwithstanding the verdict.