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08/17/87 Rex Barton Et Al., v. Evanston Hospital

August 17, 1987

REX BARTON ET AL., PLAINTIFFS-APPELLANTS

v.

EVANSTON HOSPITAL, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

513 N.E.2d 65, 159 Ill. App. 3d 970, 111 Ill. Dec. 819 1987.IL.1188

Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

This appeal arises from an order entered by the circuit court of Cook County dismissing certain counts of a complaint brought against Evanston Hospital by the plaintiffs, Rex and Esther Barton. A medical negligence action was brought against the hospital and David Watts, M.D., by plaintiffs as a result of injuries allegedly suffered by Rex Barton during surgery performed by Dr. Watts. Counts V and VI of plaintiffs' complaint allege that a joint venture exists between Dr. Watts and Evanston Hospital and seek to hold the hospital vicariously liable for Dr. Watts' negligence in performing the surgery. Evanston Hospital moved to dismiss counts V and VI for failure to state a cause of action. The trial court dismissed the counts stating that Illinois law does not recognize a joint venture relationship between a physician and hospital in a factual matrix such as the one in the instant case. Plaintiff contends that the trial court erred in holding, as a matter of law, that a joint venture cannot exist between a hospital and surgeon.

For the reasons which follow, we affirm the decision of the trial court.

In December 1981, plaintiff was admitted to Evanston Hospital for a surgical procedure known as an iliac politeal bypass graft. Dr. David Watts, who was engaged in private practice, performed the operation in the surgical suite at Evanston Hospital. Although a member of the medical staff there, he received no salary or other compensation from the hospital. During the course of the surgery, the plaintiff's bowel was perforated. Notwithstanding, Dr. Watts chose to proceed with the bypass operation and as a result thereof the surgical site became contaminated.

In December 1983, plaintiffs filed a four-count complaint at law in the circuit court of Cook County against the defendants, David Watts, M.D., and Evanston Hospital. Count I is a direct action by Rex Barton against Dr. Watts for his negligence in performing the bypass surgery. Count II is an action by his wife, Esther Barton, for loss of consortium. Count III is an action by Rex Barton against Evanston Hospital for its failure

Evanston Hospital filed a motion for summary judgment as to counts III and IV, supported by the affidavit of Dr. John J. Bergen stating that the care provided to Rex Barton by Evanston Hospital did not deviate from the standard of care within the hospital community.

In November 1985, plaintiffs filed counts V and VI, which allege that a joint venture relationship exists between Dr. Watts and Evanston Hospital. Evanston Hospital filed a motion to dismiss those counts for failure to state a cause of action.

Plaintiffs settled with Dr. Watts, who was subsequently dismissed as a party defendant. On December 30, 1985, a hearing was held on Evanston Hospital's motion for summary judgment and motion to dismiss. Both motions were granted. Plaintiffs do not appeal from the order granting summary judgment as to counts III and IV.

Regarding counts V and VI, plaintiffs contend that the allegations are sufficient to plead the existence of a joint venture between Dr. Watts and Evanston Hospital and that the trial court erred in holding that Illinois does not recognize a joint venture between a hospital and physician as a matter of law.

A hospital is not an insurer of a patient's safety, but it owes him a duty of protection and it must exercise a degree of reasonable care towards him as his known condition requires. (Pickle v. Curns (1982), 106 Ill. App. 3d 734, 739, 435 N.E.2d 877.) As a general rule, the decision to treat a patient in a particular matter is a medical question entirely within the discretion of the treating physician, not the hospital (Johnson v. Saint Bernard Hospital (1979), 79 Ill. App. 3d 709, 714, 399 N.E.2d 198), and traditionally it has been held that a hospital is not liable for acts of one who renders medical care as an independent agent outside the control of the hospital (Hundt v. Proctor Community Hospital (1972), 5 Ill. App. 3d 987, 284 N.E.2d 676; Stein v. Baum (1967), 89 Ill. App. 2d 142, 232 N.E.2d 96). However, a hospital may be liable for injuries suffered by a patient in its care under two distinct theories. The hospital may be liable for a physician's misconduct on a respondeat superior theory when an employer-employee or principal-agent relationship is present or for the violation of an independent duty owed by the hospital to review and supervise medical care administered to the patient. (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 ...


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