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05/23/89 Kathleen O'hara, v. Holy Cross Hospital Et Al.

May 23, 1989

KATHLEEN O'HARA, PLAINTIFF-APPELLANT

v.

HOLY CROSS HOSPITAL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

542 N.E.2d 11, 185 Ill. App. 3d 694, 134 Ill. Dec. 11 1989.IL.778

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BILANDIC delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, Kathleen O'Hara, appeals from orders of the trial court granting summary judgment in favor of defendants, Holy Cross Hospital and Emergency Medicine, S.C., and dismissing her cause of action with prejudice. Counts III and IV of plaintiff's amended complaint, alleging negligence and wilful and wanton misconduct against Stanley Fronczak, M.D., are not involved in this appeal.

Various depositions, affidavits and the pleadings were considered by the trial court prior to granting summary judgment. The record reveals that on February 28, 1982, Patrick O'Hara was 11 years old. On that date, he incurred a laceration when he was hit in the face by a golf club. His mother, plaintiff Kathleen O'Hara, took him to the emergency room of Holy Cross Hospital for treatment.

Defendant Holy Cross Hospital leased the operation of its emergency room to defendant Emergency Medicine, S.C. Under the terms of the agreement, Emergency Medicine provided emergency room physicians while Holy Cross provided the nurses, administrative personnel, space and equipment. The trial court found that Dr. Max Domie Koenigsberg was the agent of Emergency Medicine and that a principal and agent relationship existed between Holy Cross Hospital and Emergency Medicine.

Summary judgment was first granted in favor of Emergency Medicine. One of the grounds urged by Holy Cross Hospital for summary judgment was that a principal cannot be held liable if its agent is not liable. To achieve this favorable result, it had to acknowledge that Emergency Medicine was its agent.

Count I of plaintiff's amended complaint is directed against Holy Cross Hospital, while count II is directed against Emergency Medicine. Each defendant is alleged to owe a duty of reasonable care to the plaintiff. Each defendant is alleged to have violated that duty to the plaintiff by:

"a. allowing Plaintiff to remain in the emergency room when it knew or should have known that Plaintiff was susceptible to fainting when she saw her son receiving stitches;

b. requesting Plaintiff to assist in the emergency care of her son by asking here to wipe novocain from his mouth;

c. allowing Plaintiff to assist in the emergency care of her son by allowing her to wipe novocain from her son's mouth;

d. failing to have the emergency room adequately staffed such that it would not be necessary to request Plaintiff to participate in the ...


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