Casey v. Forest Health System, Inc.

                                         SIXTH DIVISION 
                                         August 1, 1997

  


   




No. 1-96-1914  

DANIEL T. CASEY,                  )  Appeal from the  
                                  )  Circuit Court of 
     Plaintiff-Appellant,         )  Cook County
                                  )
     v.                           )  No. 92 L 09123
                                  )
FOREST HEALTH SYSTEM, INC.,       )
OF ILLINOIS,                      )
                                  )
     Defendant-Appellee           )
                                  )
(Ralph Menezes and                ) 
Kathy Pasic,                      )  Honorable
                                  )  Barbara Disko, 
     Defendants).                 )  Judge Presiding. 

     PRESIDING JUSTICE GREIMAN delivered the opinion of the
court:  
     Plaintiff Daniel Casey attempted to commit suicide by
jumping in front of a Chicago Transit Authority train.  Prior to
his suicide attempt, plaintiff was a patient at defendant Forest
Health System, Inc., a hospital that renders psychiatric and
psychological services, and was treated by Dr. Ralph Menezes, the
medical director of defendant, and Kathy Pasic, a psychologist. 
For injuries sustained in his suicide attempt, plaintiff filed a
negligence action against defendant Forest Health System, Dr.
Menezes and Pasic.  Subsequently, the trial court granted summary
judgment in favor of defendant.        
     On appeal, the sole issue presented by plaintiff is whether
a genuine issue of fact existed to preclude summary judgment for
defendant.  The alleged genuine issue of fact on which plaintiff
relies is whether liability could be imposed on defendant under
the theories of respondeat superior or agency, either actual or
apparent, arising from Dr. Menezes' relationship to defendant.  
     Although there may be an issue of fact as to the issue of
apparent agency, we affirm the entry of summary judgment in favor
of defendant because, under the Illinois Supreme Court's holding
in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 528
(1993), any possible liability on the part of defendant was
extinguished when plaintiff entered into a settlement agreement
with Dr. Menezes.     
     From December 17, 1990, through January 15, 1991, plaintiff
was treated as a patient in defendant Forest Health System.  On
March 6, 1991, plaintiff sustained personal injuries in a suicide
attempt.  
     On July 23, 1992, plaintiff filed a three-count complaint
against defendant, Dr. Menezes and Kathy Pasic.  Count I was
directed against defendant as an alleged principal through the
negligence of Dr. Menezes as an employee or agent of defendant. 
Count II was directed against defendant as an alleged principal
through the negligence of Pasic as an employee or agent of
defendant.  Count III, the only count directed solely against
defendant, alleged that defendant knew plaintiff's insurance
proceeds would cover 100% of in-hospital charges for only 30 days
and that defendant was negligent in its discharge of plaintiff
once the insurance proceeds had been exhausted.  In its responses
to plaintiff's complaint, defendant denied that Dr. Menezes and
Pasic were agents of the hospital.        
     On January 10, 1996, the trial court granted summary
judgment in favor of defendant.  On August 21, 1996, the trial
court approved a settlement between plaintiff and Dr. Menezes. 
On September 12, 1996, after a trial, the jury entered a verdict
in favor of Pasic, specifically finding her not guilty of
negligence.  
     In his appeal, plaintiff argues that Dr. Menezes failed to
implement adequate discharge care for plaintiff and the
inadequate discharge care was the proximate cause of plaintiff's
injuries.  To reach defendant, plaintiff contends that Dr.
Menezes was the actual or apparent agent of defendant. 
Accordingly, plaintiff asserts that summary judgment in favor of
defendant was not proper.  
     In reviewing a summary judgment order on appeal, this court
applies a de novo standard of review (Outboard Marine Corp. v.
Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992)) and
considers the record as it existed when the trial court issued
its order (Masciola v. Chicago Metropolitan Ski Council, 257 Ill.
App. 3d 313, 316 (1993)).   
     We agree with plaintiff that the record, as it existed at
the time the summary judgment order was entered, might well have
been sufficient to withstand summary judgment under the theory of
apparent agency.  In addition, contrary to defendant's argument,
the issue of apparent agency can be considered even if plaintiff
simply pled in his complaint that Dr. Menezes was an agent or
employee of defendant and did not specifically plead that Dr.
Menezes was an apparent agent of defendant.  Gilbert, 156 Ill. 2d 
at 527.   
     In the present case, however, even assuming that Dr. Menezes
could be an agent of defendant, as plaintiff adamantly argues,
the settlement agreement between plaintiff and Dr. Menezes
extinguished any possible liability of defendant.  In Gilbert,
the Illinois Supreme Court clearly held that "'any settlement
between the agent and the plaintiff must also extinguish the
principal's vicarious liability.'"  Gilbert, 156 Ill. 2d  at 528,
quoting American National Bank & Trust Co. v. Columbus-Cuneo-
Cabrini Medical Center, 154 Ill. 2d 347, 355 (1992).  The supreme
court further concluded that the settlement rule "shall apply
prospectively from the date of the filing of this opinion." 
Gilbert, 156 Ill. 2d  at 529.  The supreme court filed the Gilbert
decision in October 1993 and the trial court approved the
settlement in the present case in August 1996, i.e., nearly three
years after the Gilbert opinion was issued.  Therefore, even if
this court ruled in favor of plaintiff by finding that Dr.
Menezes was or could be an agent of defendant for the purpose of
withstanding a summary judgment motion by defendant, such
finding, in turn, would be rendered meaningless because the
settlement between plaintiff and Dr. Menezes extinguished any
vicarious liability on the part of defendant pursuant to the
prospective application of the settlement rule announced in
Gilbert.  
     As the agent or nonagent status of Dr. Menezes presents a
futile exercise here, so also does the consideration of Pasic. 
First, in his appeal to this court, plaintiff advances no
arguments concerning Pasic as the source of liability for
defendant.  Second, even assuming the alleged agency between
Pasic and defendant were asserted and this court found Pasic to
be an agent of defendant, the jury verdict in her favor vitiates
any liability on the part of defendant because an adjudication on
the merits as to either an agent or a principal operates as an
adjudication as to the other.  Towns v. Yellow Cab Co., 73 Ill. 2d 113, 124 (1978).  Therefore, even assuming Pasic could be a
possible agent of defendant, she was judicially determined not to
be negligent and such decision constitutes an adjudication to
defendant as her alleged principal.  
     Finally, we note that the only count in plaintiff's
complaint alleging independent liability on the part of defendant
concerned the insurance proceeds available to plaintiff. 
Although no mention is made of the allegation regarding insurance
proceeds, plaintiff urges this court to consider imposing
liability on defendant based on the discharge plan of defendant,
including reference to defendant's bylaws.  Plaintiff maintains
that he would have amended the complaint during discovery to
include a proper allegation of independent liability on a
different basis and concedes that such allegations of independent
liability were not explicitly stated in his complaint.  We must
reject plaintiff's urging because a plaintiff obviously cannot
initiate a new allegation or complaint in the appellate court.  
     In light of the settlement between plaintiff and Dr. Menezes
and the explicit holding in Gilbert, we are compelled to affirm
the trial court's summary judgment order in favor of defendant. 
In addition, even assuming the issues were available for our
review, the jury verdict finding Pasic not guilty of negligence
and the absence in plaintiff's complaint of any allegation of
defendant's liability independent from Dr. Menezes and Pasic
preclude us from holding otherwise.  
     Affirmed. 
     THEIS and ZWICK, JJ., concur.