Malanowski v. Jabamoni
Annotate this Case
FIFTH DIVISION
November 26, 1997
No. 1-95-3381
JANE MALANOWSKI and ALAN ) Appeal from the
MALANOWSKI, ) Circuit Court of
) Cook County.
Plaintiffs-Appellants, )
)
v. )
)
DR. REENA JABAMONI, ) No. 93 L 9192
)
Defendant, )
)
and )
)
LOYOLA UNIVERSITY OF CHICAGO, ) The Honorable
) Patrick McGann,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE HOURIHANE delivered the opinion of the court:
Plaintiff, Alan Malanowski, individually and as special
administrator for the estate of his wife, Jane Malanowski
(Malanowski), deceased, sued Dr. Reena Jabamoni and Loyola
University of Chicago (Loyola) for negligence and wrongful death,
claiming Dr. Jabamoni negligently misdiagnosed his wife's breast
cancer. Loyola successfully moved to dismiss certain counts of
plaintiff's third amended complaint pursuant to sections 2-615
and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
615, 2-619 (West 1996)), and was granted summary judgment (735
ILCS 5/2-1005 (West 1996)) as to the remaining counts. Plaintiff
appeals. 155 Ill. 2d R. 304(a).
For the reasons set forth below, we affirm in part, reverse
in part, and remand for further proceedings.
BACKGROUND
In his third amended complaint, plaintiff alleges that on
July 31, 1991, Malanowski saw Dr. Jabamoni at the Loyola
University Mulcahy Outpatient Center (outpatient center) for her
regular annual gynecological exam. For several years, Malanowski
had been a regular patient of Dr. Jabamoni. At the July 31
appointment, Malanowski noted certain lumps in her right breast,
which Dr. Jabamoni concluded were of no medical consequence. Dr.
Jabamoni did not suggest any further testing.
Plaintiff further alleges that in April, 1993, Malanowski
was diagnosed with a form of advanced breast cancer,
necessitating a modified radical mastectomy. She succumbed to
the disease on December 15, 1993.
In counts II and V, plaintiff seeks damages against Loyola
on a respondeat superior basis, alleging that Dr. Jabamoni was an
employed staff physician at the outpatient center and that she
treated Malanowski in July, 1991, "during the normal course of
her assigned employment at the center." In counts VIII and IX,
plaintiff seeks damages against Loyola on an apparent agency
theory, alleging that Malanowski reasonably believed that Dr.
Jabamoni was an employee of the outpatient center. Finally, in
counts III, VI and VII, plaintiff seeks damages against Loyola
for its own negligence in failing to supervise the treatment
rendered by Dr. Jabamoni.
The trial court dismissed counts II and V on Loyola's 2-619
motion, and counts VIII and IX on Loyola's 2-615 motion. The
trial court further granted summary judgment in favor of Loyola
as to counts III, VI and VII, and made a Rule 304(a) finding of
appealability (155 Ill. 2d R. 304(a)).
ANALYSIS
Section 2-619 Dismissal
of Respondeat Superior Claims
Loyola moved to dismiss counts II and V pursuant to section
2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1996)),
arguing that Dr. Jabamoni was not, in fact, an employee of Loyola
and that Loyola could not, therefore, be liable for any
negligence of Dr. Jabamoni based on respondeat superior. In
support of its motion, Loyola submitted the affidavit of Dr. Jan
Radke, Vice-President of Health Care Services at Loyola.
Plaintiff was granted leave to take Dr. Radke's deposition, the
transcript of which plaintiff submitted in opposition to Loyola's
motion. The trial court determined that there was no question of
fact as to the employment relationship between Loyola and Dr.
Jabamoni, and that the only such relationship was in connection
with her role as a professor at Loyola's Stritch School of
Medicine. Accordingly, the trial court granted Loyola's motion
dismissing counts II and V. We affirm.
Preliminarily, we observe that Loyola's motion should have
been brought under section 2-1005 of the Code (735 ILCS 5/2-1005
(West 1996)), not section 2-619. The purpose of a section 2-619
motion is to dispose of issues of law or easily proved issues of
fact at the outset of the litigation. Spiegel v. Hollywood
Towers Condominium Association, 283 Ill. App. 3d 992, 998, 671 N.E.2d 350 (1996). More specifically, section 2-619(a)(9)
permits dismissal of an action where "the claim asserted against
defendant is barred by other affirmative matter avoiding the
legal effect of or defeating the claim." 735 ICLS 5/2-619(a)(9)
(West 1996). An "affirmative matter" is something in the nature
of a defense that completely negates the cause of action or
refutes crucial conclusions of law or conclusions of material
fact unsupported by allegations of specific fact contained in or
inferred from the complaint. Bucci v. Rustin, 227 Ill. App. 3d
779, 782, 592 N.E.2d 297 (1992). Evidence which merely refutes a
well-pled fact in the complaint is not an "affirmative matter"
within the meaning of the statute. Bucci, 227 Ill. App. 3d at
782; Evergreen Oak Electric Supply and Sales Co. v. First Chicago
Bank of Ravenswood, 276 Ill. App. 3d 317, 319, 657 N.E.2d 1149
(1995).
Here, Loyola's section 2-619 motion challenged plaintiff's
factual allegation that Dr. Jabamoni was an "employed staff
physician" at the outpatient center, and that her allegedly
tortious conduct was committed "during the normal course of her
assigned employment" with Loyola. Clearly, however, Dr.
Jabamoni's employment relationship with Loyola was elemental to
plaintiff's respondeat superior claim. Evidence which merely
refutes this ultimate fact and well-pled allegation is not an
"affirmative matter" under section 2-619. See Longust v. Peabody
Coal Co., 151 Ill. App. 3d 754, 757, 502 N.E.2d 1096 (1986). Had
Loyola wished to challenge the factual sufficiency of plaintiff's
claim that Dr. Jabamoni was an employed staff physician of
Loyola, then the proper vehicle would have been a motion for
summary judgment under section 2-1005 (735 ILCS 5/2-1005 (West
1996)). Longust, 151 Ill. App. 3d 754; Barber-Colman v. A & K
Midwest Insurance Co., 236 Ill. App. 3d 1065, 1072-73, 603 N.E.2d 1215 (1992).
Although a section 2-619(a)(9) motion may not be used as a
substitute for a summary judgment motion (Longust, 151 Ill. App.
3d at 757), we note that they are similar in that a fact motion
under section 2-619 essentially amounts to a summary judgment
procedure. Landon v. Jarvis, 255 Ill. App. 3d 439, 446, 627 N.E.2d 371 (1993); Ralston v. Casanova, 129 Ill. App. 3d 1050,
1056, 473 N.E.2d 444 (1984). Thus, we do not regard the
misdesignation of Loyola's motion as grounds for reversal. As
this court has observed:
"Meticulous practice dictates that motions should
be properly designated. However, misdesignation
is not always fatal to the right of the movant to
prevail. [Citation omitted.] The court will look
to the substance of the motion to determine which
section of the Code of Civil Procedure governs.
[Citation omitted.] Reversal by reason of
misdesignation is only required where the
nonmovant has been prejudiced by the error
[Citation omitted] ***." Scott Wetzel Services v.
Regard, 271 Ill. App. 3d 478, 481, 648 N.E.2d 1020
(1995).
Here, we find no prejudice to the plaintiff. A very narrow,
clearly defined issue was raised in Loyola's motion, Loyola was
ordered to produce Dr. Radke for his deposition, and plaintiff
was granted leave to issue written discovery on the matters
raised in Dr. Radke's affidavit. Thus, in the interests of
judicial economy, we shall treat Loyola's motion as one for
summary judgment.
We review the grant of summary judgment de novo. Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
102, 607 N.E.2d 1204 (1992). Our function is to determine
whether the trial court properly determined that no genuine issue
of material fact had been raised, and if none was raised, whether
judgment was proper as a matter of law. Lavat v. Fruin Colnon
Corp., 232 Ill. App 3d 1013, 1023, 597 N.E.2d 888 (1992). The
record will be construed strictly against the moving party and
liberally in favor of the opponent. First State Insurance Co. v.
Montgomery Ward & Co., 267 Ill. App. 3d 851, 855, 642 N.E.2d 715
(1994).
We agree with the trial court that there is no question of
fact as to the employment relationship between Dr. Jabamoni and
Loyola and that the only such relationship was with respect to
the doctor's role as a professor at Loyola's Stritch School of
Medicine. The unrebutted deposition testimony of Dr. Radke
established that the only persons Loyola employs at the
outpatient center are the administrative directors and managers
for each practice discipline, nurses, clerical staff, and medical
assistants. Physicians practicing at the outpatient center are
independent contractors who use the medical office space for
their private practices. Although Loyola's credentials committee
must grant "privileges" to physicians who wish to see patients at
the outpatient center, Dr. Radke testified that Loyola has
"nothing to say about how the individual physicians practice or
how their decisions are made." Loyola is only the
administrative manager of the facility; it provides no clinical
management. Significantly, the type of control necessary to
establish an employer-employee relationship is control over the
details and methods of work. Bryant v. Fox, 162 Ill. App. 3d 46,
50, 515 N.E.2d 775 (1987); Spivey v. Brown, 150 Ill. App. 3d 139,
143, 502 N.E.2d 23 (1986). Plainly, such control is absent here.
Further, the fact that Loyola supplied personnel and equipment to
the physicians practicing at the outpatient center does not
evidence a right to govern their conduct. Barton v. Evanston
Hospital, 159 Ill. App. 3d 970, 974, 513 N.E.2d 65 (1987).
Plaintiff directs this court's attention to the economic
arrangement between Loyola and the physicians practicing at the
outpatient center as evidence of an on-going employer-employee or
principal-agent relationship. We have reviewed the record on
this issue and find nothing which would raise a material question
of fact as to whether Dr. Jabamoni was an employee of Loyola with
respect to her practice at the outpatient center. Accordingly,
we affirm the judgment of the trial court as to counts II and V.
Section 2-615 Dismissal
of Apparent Agency Claims
We next consider whether the trial court properly granted
Loyola's motion to dismiss counts VIII and IX for failure to
state a cause of action (735 ILCS 5/2-615 (West 1996)). A motion
to dismiss for failure to state a cause of action admits all
well-pled facts and attacks only the legal sufficiency of the
complaint. Towner by Towner v. Board of Education of City of
Chicago, 275 Ill. App. 3d 1024, 1031, 657 N.E.2d 28 (1995). On
review, we must determine whether the complaint, when viewed in a
light most favorable to the plaintiff, alleged facts sufficient
to establish a cause of action upon which relief may be granted.
The issue is one of law and review is de novo. Majumdar v.
Lurie, 274 Ill. App. 3d 267, 268, 563 N.E.2d 915 (1995).
Although the parties here cite to various matters outside the
complaint, our review is limited solely to consideration of the
allegations of the complaint. Towner by Towner, 275 Ill. App. 3d
at 1031; Oakly Transport, Inc. v. Zurich Insurance Co., 271 Ill.
App. 3d 716, 720, 648 N.E.2d 1099 (1995).
Counts VIII and IX seek damages against Loyola for Dr.
Jabamoni's negligence under a theory of apparent agency. Both
counts contain allegations that Loyola owns and operates, as part
of its diverse medical center in Maywood, Illinois, an outpatient
clinic known as the "Loyola University Mulcahy Outpatient Center
and Physicians", which holds itself out to the public as a direct
provider of health care services. Plaintiff also alleges that
Malanowski was a patient of the outpatient center from 1982, when
she first contacted the center for the purpose of a routine
medical examination, up to and including her final contact with
the center in 1991. Plaintiff further alleges that, for a
variety of reasons set forth in the complaint, Malanowski
reasonably believed Dr. Jabamoni was an employee of the
outpatient center. Finally, plaintiff alleges that "[f]or
several years preceding July 31, 1991, Jane M. Malanowski had
been a regular patient of Dr. Jabamoni, seeing the doctor yearly
for her routine, annual gynecological examination."
Loyola argued before the trial court that under Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d 788
(1993), the allegations of the complaint did not fall within the
parameters of hospital apparent agency liability. In Gilbert, our
supreme court held that under the doctrine of apparent authority,
a hospital can be held vicariously liable for the negligent acts
of an emergency room 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. The court premised its
decision on the "realities of modern hospital care", i.e., that
hospitals have become big business, competing with each other for
health care dollars, and engaging in expensive advertising
campaigns to persuade potential patients to seek treatment at a
specific hospital; that a major component of modern hospital
business is the emergency room; and that because people who seek
treatment through an emergency room are generally unaware of the
status of the various professionals working there, it would be
natural to assume that these professionals are employees of the
hospital.
Quoting with approval the Wisconsin case of Pamperin v.
Trinity Memorial Hospital, 144 Wis. 2d 188, 423 N.W.2d 848
(1988), the court set forth the elements for a cause of action
against a hospital based on the doctrine of apparent authority.
The plaintiff must show that (1) the hospital or its agent acted
in a manner that would lead a reasonable person to conclude that
the alleged tortfeasor was the employee or agent of the hospital;
(2) where the acts of the agent create the appearance of
authority, that the hospital had knowledge of and acquiesced in
such acts; and (3) that the plaintiff justifiably relied upon the
conduct of the hospital or agent. Gilbert, 156 Ill. 2d at 524-
25, quoting Pamperin, 144 Wis. 2d at 207-8. The court explained
that the element of justifiable reliance is satisfied if the
plaintiff relied upon the hospital to provide complete emergency
room care, rather than upon a specific physician. Gilbert, 156 Ill. 2d at 525.[fn1]
The trial court agreed with Loyola that plaintiff could not
recover under a theory of apparent agency because the issue of
justifiable reliance was negated by plaintiff's affirmative
pleading of an on-going patient-doctor relationship between the
decedent and Dr. Jabamoni. We disagree and reverse the judgment
of the trial court dismissing counts VIII and IX.
Before discussing our reasons therefor, we briefly comment
on Loyola's contention that the applicability of the Gilbert case
is confined solely to situations involving negligent treatment
rendered in a hospital emergency room. While the particular
facts and circumstances present in Gilbert necessarily limited
the court's analysis to medical negligence arising in an
emergency room setting, we discern nothing in the Gilbert opinion
which 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. If, as plaintiff
maintains, Loyola's conduct reasonably led Malanowski to rely
upon "Loyola" for treatment, rather than any particular
physician, then plaintiff should be allowed recovery for damages
caused thereby. Thus, we reject Loyola's narrow reading of
Gilbert.
We turn now to the issue of plaintiff's justifiable
reliance. We observe initially that Loyola does not contend that
plaintiff failed to satisfy the pleading requirements for a claim
against Loyola based on the doctrine of apparent agency. Rather,
relying solely on the Gilbert decision, Loyola contends that
plaintiff's affirmative pleading of an on-going patient-doctor
relationship between decedent and Dr. Jabamoni negates the
element of justifiable reliance. We disagree.
In Gilbert, our supreme court recognized that, in the
context of an apparent agency claim arising out of negligent
emergency room care, the critical distinction is whether the
patient relied upon the hospital for the provision of care, or
rather, upon the services of a particular physician. Gilbert,
156 Ill. 2d at 525. Significantly, Gilbert does not hold that,
regardless of the circumstances, the mere existence of a regular
physician-patient relationship precludes any claim by the patient
of reliance upon the hospital. Further, we decline to read such
a holding into the Gilbert decision as we do not believe that
Gilbert was intended to circumscribe all apparent agency claims
in the medical area.
Depending upon the proofs at trial, the existence of such a
relationship may militate in favor of a finding by the trier of
fact that the plaintiff failed to demonstrate reliance upon the
hospital. However, for pleading purposes, plaintiff's allegation
that decedent was a regular patient of Dr. Jabamoni is not so
inconsistent with plaintiff's claim of apparent agency as to
require dismissal of plaintiff's cause of action. This is
particularly true in light of the other indicia of apparent
agency alleged in the complaint--that the outpatient center bore
the "Loyola" name, that the outpatient center held itself out as
a direct provider of health care services, that the outpatient
center introduced Malanowski to Dr. Jabamoni, that Malanowski was
treated by other physicians at the outpatient center, and that
payment for services provided by Dr. Jabamoni was made directly
to the outpatient center.
Liberally construing the complaint in favor of plaintiff,
and taking all well-pled allegations as true, we cannot agree
that the mere fact that decedent was a regular patient of Dr.
Jabamoni precludes any claim by plaintiff that the decedent
reasonably relied upon Loyola for treatment. Accordingly, the
trial court erred in dismissing counts VIII and IX.
Section 2-1005 Dismissal
of Direct Negligence Claims
In counts III, VI and VII, plaintiff alleged that Loyola, as
the owner and operator of the outpatient center, owed Malanowski
a duty of ordinary and reasonable care to supervise all
physicians who were rendering medical care at the center, and
that Loyola breached this duty by failing to establish proper
diagnostic procedures and protocols for the examination of breast
masses. The trial court determined that there was no
relationship between Loyola and Malanowski sufficient to impose
an independent duty and granted Loyola's motion for summary
judgment. We affirm.
A hospital's role in a patient's medical treatment is no
longer confined merely to the furnishing of facilities and
equipment. See Darling v. Charleston Hospital, 33 Ill. 2d 326,
332, 211 N.E.2d 523 (1965). Rather, hospitals today assume a
much greater role in coordinating the total health care of
patients, leading the public to rely on the hospital, itself, as
the health care provider. The hospital's expanded role brings
with it increased corporate responsibilities. See generally, M.
Nathanson, Hospital Corporate Negligence: Enforcing the
Hospital's Role of Administrator, 28 Tort & Ins. L.J. 575 (1993);
Note, Hospital Corporate Liability: An Effective Solution to
Controlling Private Physician Incompetence?, 32 Rutgers L. Rev.
342 (1979). Consonant with the changing role of the hospital,
Illinois, like many other jurisdictions, permits recovery in tort
for injuries sustained by a patient under the doctrine of
"hospital corporate negligence", also simply referred to as
"corporate liability". This doctrine recognizes the existence of
an independent duty owed directly by the hospital to the patient
to review and supervise the medical care administered to the
patient. Liability is predicated on the hospital's own
negligence, not the negligence of the physician. Darling, 33 Ill. 2d at 332; Rohe v. Shivde, 203 Ill. App. 3d 181, 198-99, 560 N.E.2d 1113 (1990); Andrews v. Northwestern Memorial Hospital,
184 Ill. App. 3d 486, 493, 540 N.E.2d 447 (1989); Reynolds v.
Mennonite Hospital, 168 Ill. App. 3d 575, 578, 522 N.E.2d 827
(1988). See also Elam v. College Park Hospital, 132 Cal. App. 3d 332, 183 Cal. Rptr. 156 (1982); Insigna v. LaBella, 543 So. 2d 209
(Fla. 1989); Oehler v. Humana, Inc., 105 Nev. 348, 775 P.2d 1271
(1989); Bost v. Riley, 44 N.C. App. 638, 262 S.E.2d 391 (1980);
Strubhart v. Perry Memorial Hospital Trust Authority, 903 P.2d 263 (Okla. 1995); Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991); Rodrigues v. Miriam Hospital, 623 A.2d 456 (R.I.
1993); Pedroza v. Bryant, 101 Wash. 2d 226, 677 P.2d 166 (1984);
Johnson v. Misericordia Community Hospital, 99 Wis.2d 708, 301 N.W.2d 156 (1981).
A hospital's duty to review and supervise treatment is
administrative or managerial in nature. Advincula v. United
Blood Services, 176 Ill. 2d 1, 28, 678 N.E.2d 1009 (1996).
For example, a hospital has a duty to know the qualifications of
the physicians who practice on its premises (Reynolds, 168 Ill.
App. 3d at 578), and to use reasonable care in maintaining
medical records (Fox v. Cohen, 84 Ill. App. 3d 744, 750, 406 N.E.2d 178 (1980)). A duty has also been found where, contrary
to the hospital's own bylaws, it failed to use reasonable efforts
to assist physicians on its staff in obtaining consultations from
other staff physicians. Johnson v. St. Bernard Hospital, 79 Ill.
App. 3d 709, 718, 399 N.E.2d 198 (1970).
Plaintiff alleges that Loyola, as the owner and operator of
the outpatient center, a medical facility open to the public for
the general practice of medicine and other health specialties,
owed Malanowski a duty of ordinary care to properly supervise all
physicians who were rendering medical care at the outpatient
center. While it is true that Loyola owns the outpatient center
and provides administrative management, Loyola provides no
clinical management. Loyola leases the medical office space to
physicians for their private practices. Significantly, we are
aware of no Illinois case, and plaintiff cites to none, which has
found an independent duty to supervise treatment under such
circumstances. Further, at least one jurisdiction has declined
to extend a hospital's corporate negligence to supervision of a
physician's office practice. Pedroza v. Bryant, 101 Wash. 2d 226. See also Insinga v. LaBella, 543 So. 2d 209 (adopting the
hospital corporate negligence doctrine articulated in Pedroza);
Lopez v. Central Plains Regional Hospital, 859 S.W.2d 600 (Tex.
Ct. App. 1993) (hospital, which purportedly was negligent in
granting hospital privileges to obstetrician, not liable for
physician's private performance occurring outside of the
hospital).
While Loyola clearly owes the patients who see their
private physicians at the outpatient center a duty to use
reasonable care in the maintenance of the facilities and
equipment, we decline to find a further duty to supervise the
office practices of Dr. Jabamoni and the other independent
physician contractors who lease space from Loyola at the
outpatient center. Loyola's role in Malanowski's medical
treatment was confined essentially to the furnishing of
facilities, equipment, and support staff. This is an
insufficient basis on which to expand Loyola's potential tort
liability in the manner plaintiff urges.
CONCLUSION
For the reasons set forth above, we affirm the trial court's
judgment as to counts II, III, V, VI and VII, reverse the
judgment as to counts VIII and IX, and remand for further
proceedings consistent with this ruling.
AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED.
[fn1]For causes of action filed on or after March 9, 1995,
the requirements for claims based upon apparent agency in medical
malpractice actions is governed by statute. 735 ILCS 5/2-624
(West 1996); Harraz v. Snyder, 283 Ill. App. 3d 254, 669 N.E.2d 911 (1996).
November 26, 1997
No. 1-95-3381
JANE MALANOWSKI and ALAN ) Appeal from the
MALANOWSKI, ) Circuit Court of
) Cook County.
Plaintiffs-Appellants, )
)
v. )
)
DR. REENA JABAMONI, ) No. 93 L 9192
)
Defendant, )
)
and )
)
LOYOLA UNIVERSITY OF CHICAGO, ) The Honorable
) Patrick McGann,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE HOURIHANE delivered the opinion of the court:
Plaintiff, Alan Malanowski, individually and as special
administrator for the estate of his wife, Jane Malanowski
(Malanowski), deceased, sued Dr. Reena Jabamoni and Loyola
University of Chicago (Loyola) for negligence and wrongful death,
claiming Dr. Jabamoni negligently misdiagnosed his wife's breast
cancer. Loyola successfully moved to dismiss certain counts of
plaintiff's third amended complaint pursuant to sections 2-615
and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
615, 2-619 (West 1996)), and was granted summary judgment (735
ILCS 5/2-1005 (West 1996)) as to the remaining counts. Plaintiff
appeals. 155 Ill. 2d R. 304(a).
For the reasons set forth below, we affirm in part, reverse
in part, and remand for further proceedings.
BACKGROUND
In his third amended complaint, plaintiff alleges that on
July 31, 1991, Malanowski saw Dr. Jabamoni at the Loyola
University Mulcahy Outpatient Center (outpatient center) for her
regular annual gynecological exam. For several years, Malanowski
had been a regular patient of Dr. Jabamoni. At the July 31
appointment, Malanowski noted certain lumps in her right breast,
which Dr. Jabamoni concluded were of no medical consequence. Dr.
Jabamoni did not suggest any further testing.
Plaintiff further alleges that in April, 1993, Malanowski
was diagnosed with a form of advanced breast cancer,
necessitating a modified radical mastectomy. She succumbed to
the disease on December 15, 1993.
In counts II and V, plaintiff seeks damages against Loyola
on a respondeat superior basis, alleging that Dr. Jabamoni was an
employed staff physician at the outpatient center and that she
treated Malanowski in July, 1991, "during the normal course of
her assigned employment at the center." In counts VIII and IX,
plaintiff seeks damages against Loyola on an apparent agency
theory, alleging that Malanowski reasonably believed that Dr.
Jabamoni was an employee of the outpatient center. Finally, in
counts III, VI and VII, plaintiff seeks damages against Loyola
for its own negligence in failing to supervise the treatment
rendered by Dr. Jabamoni.
The trial court dismissed counts II and V on Loyola's 2-619
motion, and counts VIII and IX on Loyola's 2-615 motion. The
trial court further granted summary judgment in favor of Loyola
as to counts III, VI and VII, and made a Rule 304(a) finding of
appealability (155 Ill. 2d R. 304(a)).
ANALYSIS
Section 2-619 Dismissal
of Respondeat Superior Claims
Loyola moved to dismiss counts II and V pursuant to section
2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1996)),
arguing that Dr. Jabamoni was not, in fact, an employee of Loyola
and that Loyola could not, therefore, be liable for any
negligence of Dr. Jabamoni based on respondeat superior. In
support of its motion, Loyola submitted the affidavit of Dr. Jan
Radke, Vice-President of Health Care Services at Loyola.
Plaintiff was granted leave to take Dr. Radke's deposition, the
transcript of which plaintiff submitted in opposition to Loyola's
motion. The trial court determined that there was no question of
fact as to the employment relationship between Loyola and Dr.
Jabamoni, and that the only such relationship was in connection
with her role as a professor at Loyola's Stritch School of
Medicine. Accordingly, the trial court granted Loyola's motion
dismissing counts II and V. We affirm.
Preliminarily, we observe that Loyola's motion should have
been brought under section 2-1005 of the Code (735 ILCS 5/2-1005
(West 1996)), not section 2-619. The purpose of a section 2-619
motion is to dispose of issues of law or easily proved issues of
fact at the outset of the litigation. Spiegel v. Hollywood
Towers Condominium Association, 283 Ill. App. 3d 992, 998, 671 N.E.2d 350 (1996). More specifically, section 2-619(a)(9)
permits dismissal of an action where "the claim asserted against
defendant is barred by other affirmative matter avoiding the
legal effect of or defeating the claim." 735 ICLS 5/2-619(a)(9)
(West 1996). An "affirmative matter" is something in the nature
of a defense that completely negates the cause of action or
refutes crucial conclusions of law or conclusions of material
fact unsupported by allegations of specific fact contained in or
inferred from the complaint. Bucci v. Rustin, 227 Ill. App. 3d
779, 782, 592 N.E.2d 297 (1992). Evidence which merely refutes a
well-pled fact in the complaint is not an "affirmative matter"
within the meaning of the statute. Bucci, 227 Ill. App. 3d at
782; Evergreen Oak Electric Supply and Sales Co. v. First Chicago
Bank of Ravenswood, 276 Ill. App. 3d 317, 319, 657 N.E.2d 1149
(1995).
Here, Loyola's section 2-619 motion challenged plaintiff's
factual allegation that Dr. Jabamoni was an "employed staff
physician" at the outpatient center, and that her allegedly
tortious conduct was committed "during the normal course of her
assigned employment" with Loyola. Clearly, however, Dr.
Jabamoni's employment relationship with Loyola was elemental to
plaintiff's respondeat superior claim. Evidence which merely
refutes this ultimate fact and well-pled allegation is not an
"affirmative matter" under section 2-619. See Longust v. Peabody
Coal Co., 151 Ill. App. 3d 754, 757, 502 N.E.2d 1096 (1986). Had
Loyola wished to challenge the factual sufficiency of plaintiff's
claim that Dr. Jabamoni was an employed staff physician of
Loyola, then the proper vehicle would have been a motion for
summary judgment under section 2-1005 (735 ILCS 5/2-1005 (West
1996)). Longust, 151 Ill. App. 3d 754; Barber-Colman v. A & K
Midwest Insurance Co., 236 Ill. App. 3d 1065, 1072-73, 603 N.E.2d 1215 (1992).
Although a section 2-619(a)(9) motion may not be used as a
substitute for a summary judgment motion (Longust, 151 Ill. App.
3d at 757), we note that they are similar in that a fact motion
under section 2-619 essentially amounts to a summary judgment
procedure. Landon v. Jarvis, 255 Ill. App. 3d 439, 446, 627 N.E.2d 371 (1993); Ralston v. Casanova, 129 Ill. App. 3d 1050,
1056, 473 N.E.2d 444 (1984). Thus, we do not regard the
misdesignation of Loyola's motion as grounds for reversal. As
this court has observed:
"Meticulous practice dictates that motions should
be properly designated. However, misdesignation
is not always fatal to the right of the movant to
prevail. [Citation omitted.] The court will look
to the substance of the motion to determine which
section of the Code of Civil Procedure governs.
[Citation omitted.] Reversal by reason of
misdesignation is only required where the
nonmovant has been prejudiced by the error
[Citation omitted] ***." Scott Wetzel Services v.
Regard, 271 Ill. App. 3d 478, 481, 648 N.E.2d 1020
(1995).
Here, we find no prejudice to the plaintiff. A very narrow,
clearly defined issue was raised in Loyola's motion, Loyola was
ordered to produce Dr. Radke for his deposition, and plaintiff
was granted leave to issue written discovery on the matters
raised in Dr. Radke's affidavit. Thus, in the interests of
judicial economy, we shall treat Loyola's motion as one for
summary judgment.
We review the grant of summary judgment de novo. Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
102, 607 N.E.2d 1204 (1992). Our function is to determine
whether the trial court properly determined that no genuine issue
of material fact had been raised, and if none was raised, whether
judgment was proper as a matter of law. Lavat v. Fruin Colnon
Corp., 232 Ill. App 3d 1013, 1023, 597 N.E.2d 888 (1992). The
record will be construed strictly against the moving party and
liberally in favor of the opponent. First State Insurance Co. v.
Montgomery Ward & Co., 267 Ill. App. 3d 851, 855, 642 N.E.2d 715
(1994).
We agree with the trial court that there is no question of
fact as to the employment relationship between Dr. Jabamoni and
Loyola and that the only such relationship was with respect to
the doctor's role as a professor at Loyola's Stritch School of
Medicine. The unrebutted deposition testimony of Dr. Radke
established that the only persons Loyola employs at the
outpatient center are the administrative directors and managers
for each practice discipline, nurses, clerical staff, and medical
assistants. Physicians practicing at the outpatient center are
independent contractors who use the medical office space for
their private practices. Although Loyola's credentials committee
must grant "privileges" to physicians who wish to see patients at
the outpatient center, Dr. Radke testified that Loyola has
"nothing to say about how the individual physicians practice or
how their decisions are made." Loyola is only the
administrative manager of the facility; it provides no clinical
management. Significantly, the type of control necessary to
establish an employer-employee relationship is control over the
details and methods of work. Bryant v. Fox, 162 Ill. App. 3d 46,
50, 515 N.E.2d 775 (1987); Spivey v. Brown, 150 Ill. App. 3d 139,
143, 502 N.E.2d 23 (1986). Plainly, such control is absent here.
Further, the fact that Loyola supplied personnel and equipment to
the physicians practicing at the outpatient center does not
evidence a right to govern their conduct. Barton v. Evanston
Hospital, 159 Ill. App. 3d 970, 974, 513 N.E.2d 65 (1987).
Plaintiff directs this court's attention to the economic
arrangement between Loyola and the physicians practicing at the
outpatient center as evidence of an on-going employer-employee or
principal-agent relationship. We have reviewed the record on
this issue and find nothing which would raise a material question
of fact as to whether Dr. Jabamoni was an employee of Loyola with
respect to her practice at the outpatient center. Accordingly,
we affirm the judgment of the trial court as to counts II and V.
Section 2-615 Dismissal
of Apparent Agency Claims
We next consider whether the trial court properly granted
Loyola's motion to dismiss counts VIII and IX for failure to
state a cause of action (735 ILCS 5/2-615 (West 1996)). A motion
to dismiss for failure to state a cause of action admits all
well-pled facts and attacks only the legal sufficiency of the
complaint. Towner by Towner v. Board of Education of City of
Chicago, 275 Ill. App. 3d 1024, 1031, 657 N.E.2d 28 (1995). On
review, we must determine whether the complaint, when viewed in a
light most favorable to the plaintiff, alleged facts sufficient
to establish a cause of action upon which relief may be granted.
The issue is one of law and review is de novo. Majumdar v.
Lurie, 274 Ill. App. 3d 267, 268, 563 N.E.2d 915 (1995).
Although the parties here cite to various matters outside the
complaint, our review is limited solely to consideration of the
allegations of the complaint. Towner by Towner, 275 Ill. App. 3d
at 1031; Oakly Transport, Inc. v. Zurich Insurance Co., 271 Ill.
App. 3d 716, 720, 648 N.E.2d 1099 (1995).
Counts VIII and IX seek damages against Loyola for Dr.
Jabamoni's negligence under a theory of apparent agency. Both
counts contain allegations that Loyola owns and operates, as part
of its diverse medical center in Maywood, Illinois, an outpatient
clinic known as the "Loyola University Mulcahy Outpatient Center
and Physicians", which holds itself out to the public as a direct
provider of health care services. Plaintiff also alleges that
Malanowski was a patient of the outpatient center from 1982, when
she first contacted the center for the purpose of a routine
medical examination, up to and including her final contact with
the center in 1991. Plaintiff further alleges that, for a
variety of reasons set forth in the complaint, Malanowski
reasonably believed Dr. Jabamoni was an employee of the
outpatient center. Finally, plaintiff alleges that "[f]or
several years preceding July 31, 1991, Jane M. Malanowski had
been a regular patient of Dr. Jabamoni, seeing the doctor yearly
for her routine, annual gynecological examination."
Loyola argued before the trial court that under Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d 788
(1993), the allegations of the complaint did not fall within the
parameters of hospital apparent agency liability. In Gilbert, our
supreme court held that under the doctrine of apparent authority,
a hospital can be held vicariously liable for the negligent acts
of an emergency room 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. The court premised its
decision on the "realities of modern hospital care", i.e., that
hospitals have become big business, competing with each other for
health care dollars, and engaging in expensive advertising
campaigns to persuade potential patients to seek treatment at a
specific hospital; that a major component of modern hospital
business is the emergency room; and that because people who seek
treatment through an emergency room are generally unaware of the
status of the various professionals working there, it would be
natural to assume that these professionals are employees of the
hospital.
Quoting with approval the Wisconsin case of Pamperin v.
Trinity Memorial Hospital, 144 Wis. 2d 188, 423 N.W.2d 848
(1988), the court set forth the elements for a cause of action
against a hospital based on the doctrine of apparent authority.
The plaintiff must show that (1) the hospital or its agent acted
in a manner that would lead a reasonable person to conclude that
the alleged tortfeasor was the employee or agent of the hospital;
(2) where the acts of the agent create the appearance of
authority, that the hospital had knowledge of and acquiesced in
such acts; and (3) that the plaintiff justifiably relied upon the
conduct of the hospital or agent. Gilbert, 156 Ill. 2d at 524-
25, quoting Pamperin, 144 Wis. 2d at 207-8. The court explained
that the element of justifiable reliance is satisfied if the
plaintiff relied upon the hospital to provide complete emergency
room care, rather than upon a specific physician. Gilbert, 156 Ill. 2d at 525.[fn1]
The trial court agreed with Loyola that plaintiff could not
recover under a theory of apparent agency because the issue of
justifiable reliance was negated by plaintiff's affirmative
pleading of an on-going patient-doctor relationship between the
decedent and Dr. Jabamoni. We disagree and reverse the judgment
of the trial court dismissing counts VIII and IX.
Before discussing our reasons therefor, we briefly comment
on Loyola's contention that the applicability of the Gilbert case
is confined solely to situations involving negligent treatment
rendered in a hospital emergency room. While the particular
facts and circumstances present in Gilbert necessarily limited
the court's analysis to medical negligence arising in an
emergency room setting, we discern nothing in the Gilbert opinion
which 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. If, as plaintiff
maintains, Loyola's conduct reasonably led Malanowski to rely
upon "Loyola" for treatment, rather than any particular
physician, then plaintiff should be allowed recovery for damages
caused thereby. Thus, we reject Loyola's narrow reading of
Gilbert.
We turn now to the issue of plaintiff's justifiable
reliance. We observe initially that Loyola does not contend that
plaintiff failed to satisfy the pleading requirements for a claim
against Loyola based on the doctrine of apparent agency. Rather,
relying solely on the Gilbert decision, Loyola contends that
plaintiff's affirmative pleading of an on-going patient-doctor
relationship between decedent and Dr. Jabamoni negates the
element of justifiable reliance. We disagree.
In Gilbert, our supreme court recognized that, in the
context of an apparent agency claim arising out of negligent
emergency room care, the critical distinction is whether the
patient relied upon the hospital for the provision of care, or
rather, upon the services of a particular physician. Gilbert,
156 Ill. 2d at 525. Significantly, Gilbert does not hold that,
regardless of the circumstances, the mere existence of a regular
physician-patient relationship precludes any claim by the patient
of reliance upon the hospital. Further, we decline to read such
a holding into the Gilbert decision as we do not believe that
Gilbert was intended to circumscribe all apparent agency claims
in the medical area.
Depending upon the proofs at trial, the existence of such a
relationship may militate in favor of a finding by the trier of
fact that the plaintiff failed to demonstrate reliance upon the
hospital. However, for pleading purposes, plaintiff's allegation
that decedent was a regular patient of Dr. Jabamoni is not so
inconsistent with plaintiff's claim of apparent agency as to
require dismissal of plaintiff's cause of action. This is
particularly true in light of the other indicia of apparent
agency alleged in the complaint--that the outpatient center bore
the "Loyola" name, that the outpatient center held itself out as
a direct provider of health care services, that the outpatient
center introduced Malanowski to Dr. Jabamoni, that Malanowski was
treated by other physicians at the outpatient center, and that
payment for services provided by Dr. Jabamoni was made directly
to the outpatient center.
Liberally construing the complaint in favor of plaintiff,
and taking all well-pled allegations as true, we cannot agree
that the mere fact that decedent was a regular patient of Dr.
Jabamoni precludes any claim by plaintiff that the decedent
reasonably relied upon Loyola for treatment. Accordingly, the
trial court erred in dismissing counts VIII and IX.
Section 2-1005 Dismissal
of Direct Negligence Claims
In counts III, VI and VII, plaintiff alleged that Loyola, as
the owner and operator of the outpatient center, owed Malanowski
a duty of ordinary and reasonable care to supervise all
physicians who were rendering medical care at the center, and
that Loyola breached this duty by failing to establish proper
diagnostic procedures and protocols for the examination of breast
masses. The trial court determined that there was no
relationship between Loyola and Malanowski sufficient to impose
an independent duty and granted Loyola's motion for summary
judgment. We affirm.
A hospital's role in a patient's medical treatment is no
longer confined merely to the furnishing of facilities and
equipment. See Darling v. Charleston Hospital, 33 Ill. 2d 326,
332, 211 N.E.2d 523 (1965). Rather, hospitals today assume a
much greater role in coordinating the total health care of
patients, leading the public to rely on the hospital, itself, as
the health care provider. The hospital's expanded role brings
with it increased corporate responsibilities. See generally, M.
Nathanson, Hospital Corporate Negligence: Enforcing the
Hospital's Role of Administrator, 28 Tort & Ins. L.J. 575 (1993);
Note, Hospital Corporate Liability: An Effective Solution to
Controlling Private Physician Incompetence?, 32 Rutgers L. Rev.
342 (1979). Consonant with the changing role of the hospital,
Illinois, like many other jurisdictions, permits recovery in tort
for injuries sustained by a patient under the doctrine of
"hospital corporate negligence", also simply referred to as
"corporate liability". This doctrine recognizes the existence of
an independent duty owed directly by the hospital to the patient
to review and supervise the medical care administered to the
patient. Liability is predicated on the hospital's own
negligence, not the negligence of the physician. Darling, 33 Ill. 2d at 332; Rohe v. Shivde, 203 Ill. App. 3d 181, 198-99, 560 N.E.2d 1113 (1990); Andrews v. Northwestern Memorial Hospital,
184 Ill. App. 3d 486, 493, 540 N.E.2d 447 (1989); Reynolds v.
Mennonite Hospital, 168 Ill. App. 3d 575, 578, 522 N.E.2d 827
(1988). See also Elam v. College Park Hospital, 132 Cal. App. 3d 332, 183 Cal. Rptr. 156 (1982); Insigna v. LaBella, 543 So. 2d 209
(Fla. 1989); Oehler v. Humana, Inc., 105 Nev. 348, 775 P.2d 1271
(1989); Bost v. Riley, 44 N.C. App. 638, 262 S.E.2d 391 (1980);
Strubhart v. Perry Memorial Hospital Trust Authority, 903 P.2d 263 (Okla. 1995); Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991); Rodrigues v. Miriam Hospital, 623 A.2d 456 (R.I.
1993); Pedroza v. Bryant, 101 Wash. 2d 226, 677 P.2d 166 (1984);
Johnson v. Misericordia Community Hospital, 99 Wis.2d 708, 301 N.W.2d 156 (1981).
A hospital's duty to review and supervise treatment is
administrative or managerial in nature. Advincula v. United
Blood Services, 176 Ill. 2d 1, 28, 678 N.E.2d 1009 (1996).
For example, a hospital has a duty to know the qualifications of
the physicians who practice on its premises (Reynolds, 168 Ill.
App. 3d at 578), and to use reasonable care in maintaining
medical records (Fox v. Cohen, 84 Ill. App. 3d 744, 750, 406 N.E.2d 178 (1980)). A duty has also been found where, contrary
to the hospital's own bylaws, it failed to use reasonable efforts
to assist physicians on its staff in obtaining consultations from
other staff physicians. Johnson v. St. Bernard Hospital, 79 Ill.
App. 3d 709, 718, 399 N.E.2d 198 (1970).
Plaintiff alleges that Loyola, as the owner and operator of
the outpatient center, a medical facility open to the public for
the general practice of medicine and other health specialties,
owed Malanowski a duty of ordinary care to properly supervise all
physicians who were rendering medical care at the outpatient
center. While it is true that Loyola owns the outpatient center
and provides administrative management, Loyola provides no
clinical management. Loyola leases the medical office space to
physicians for their private practices. Significantly, we are
aware of no Illinois case, and plaintiff cites to none, which has
found an independent duty to supervise treatment under such
circumstances. Further, at least one jurisdiction has declined
to extend a hospital's corporate negligence to supervision of a
physician's office practice. Pedroza v. Bryant, 101 Wash. 2d 226. See also Insinga v. LaBella, 543 So. 2d 209 (adopting the
hospital corporate negligence doctrine articulated in Pedroza);
Lopez v. Central Plains Regional Hospital, 859 S.W.2d 600 (Tex.
Ct. App. 1993) (hospital, which purportedly was negligent in
granting hospital privileges to obstetrician, not liable for
physician's private performance occurring outside of the
hospital).
While Loyola clearly owes the patients who see their
private physicians at the outpatient center a duty to use
reasonable care in the maintenance of the facilities and
equipment, we decline to find a further duty to supervise the
office practices of Dr. Jabamoni and the other independent
physician contractors who lease space from Loyola at the
outpatient center. Loyola's role in Malanowski's medical
treatment was confined essentially to the furnishing of
facilities, equipment, and support staff. This is an
insufficient basis on which to expand Loyola's potential tort
liability in the manner plaintiff urges.
CONCLUSION
For the reasons set forth above, we affirm the trial court's
judgment as to counts II, III, V, VI and VII, reverse the
judgment as to counts VIII and IX, and remand for further
proceedings consistent with this ruling.
AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED.
[fn1]For causes of action filed on or after March 9, 1995,
the requirements for claims based upon apparent agency in medical
malpractice actions is governed by statute. 735 ILCS 5/2-624
(West 1996); Harraz v. Snyder, 283 Ill. App. 3d 254, 669 N.E.2d 911 (1996).
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