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March 18, 1994


Appeal from Circuit Court of Morgan County. No. 92L4. Honorable Ronald F. Robinson, Judge Presiding.

As Corrected April 29, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Robert W. Cook, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

This is an appeal in a medical malpractice action from a grant of summary judgment in favor of defendant Drennan. The issue presented on appeal is whether an attending physician, under the facts of this case, can be held vicariously liable for a covering physician's negligence. We affirm.

Plaintiffs' decedent, Shannan Steinberg, incurred injuries in a car accident on July 11, 1991, and was admitted to the intensive care unit of Passavant Area Hospital (Passavant). She came under the care and treatment of defendant Dr. James Drennan. During the early morning hours of July 18, 1991, Shannan developed a respiratory problem and was examined by Drennan, who ordered inhalation therapy and X rays. Drennan was thereafter required to be absent from the hospital for the rest of the day. When the results of theX rays ordered by Drennan were returned from the laboratory, the nursing staff of Passavant contacted Dr. Dunseth, as the covering physician for Drennan. Dunseth determined it was necessary to perform a surgical procedure on Shannan to alleviate her respiratory problem. As a result of the surgery, Shannan suffered cardiac arrest and lapsed into a vegetative coma. She was subsequently taken off life support and died on July 29, 1991.

Plaintiffs filed a complaint for negligence against Dunseth, Dr. Petra (the anesthetist), and the hospital. Plaintiffs subsequently amended the complaint to add counts against Drennan as an additional defendant, based on a theory of vicarious liability for the alleged negligence of Dunseth in performing the surgical procedure on July 18, 1991. In support plaintiff offered the deposition testimony of Drennan and an affidavit of Jane Steinberg, Shannan's mother. Drennan's deposition stated that he and Dunseth had an agreement to assume the care of the other's patients if one of them was required to be out of town. Mrs. Steinberg's affidavit indicated that she was not advised Drennan would be unable to render care and treatment to Shannan on July 18, 1991. In granting summary judgment for Drennan, the trial court noted that a referring physician will not be liable for another physician's negligence unless there is some control of the course of treatment, concert of action, or negligence in the referral, none of which were present in this case. The court also noted that plaintiffs had failed to establish an apparent agency, which required a showing that Drennan held out Dunseth to be his agent and that plaintiffs relied on that representation. The court concluded the act of one physician covering for another does not create an ostensible or apparent agency.

Physicians are sometimes held vicariously liable for the negligent acts of other physicians. A physician who employs another physician may be held vicariously liable for the physician-employee's negligent acts committed while acting in the scope of employment, despite the argument that the physician-employee is an independent contractor. Even ship captains and officers of corporations may be considered "servants." (See Restatement (Second) of Agency § 2, Comment c ; § 220, Comment d (1958).) A medical partnership (and its partners) is vicariously liable for the torts of partners committed in the course of the partnership business. ( Comfort v. Wheaton Family Practice (1992), 229 Ill. App. 3d 828, 833, 594 N.E.2d 381, 385, 171 Ill. Dec. 529; see Cunningham v. Huffman (1993), 154 Ill. 2d 398, 408, 609 N.E.2d 321, 326, 182 Ill. Dec. 18 (vicarious liability of clinic); cf. Fure v. Sherman Hospital (1977), 55 Ill. App. 3d 572, 574, 371 N.E.2d 143, 144 (Medical Corporation Act (Ill. Rev. Stat. 1973, ch. 32, par. 631 et seq.) imposes personal liability only upon the physician furnishing medical service).) Physicians who are employed together, who diagnose and treat the case together, without withdrawal by or discharge of either, are both responsible if the treatment is negligent. See 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers § 292 (1981).

Plaintiffs direct our attention to the supreme court's recent decision in Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, 519, 524, 622 N.E.2d 788, 792-93, 795, 190 Ill. Dec. 758, where the court held that under the doctrine of apparent authority a hospital could be held vicariously liable for the negligent acts of a physician (an independent contractor) providing care at the hospital, unless the patient knows or should have known that the physician is an independent contractor. There are some similarities between Gilbert and this case. In Gilbert the patient went to the hospital for treatment and ended up being treated by the emergency room physician. In this case the patient went to Drennan for treatment and ended up being treated by Dunseth. There is a difference, however, in that the patient in Gilbert knew that he would be treated by some individual, not the hospital itself. The patient here expected that Drennan would treat her and had no reason to believe that an employee of Drennan would treat her if Drennan were not available.

Plaintiffs knew that Shannon would be treated by Dunseth on July 18, not by Drennan, and plaintiff Jane Steinberg signed a consent for that treatment. Drennan made no representation regarding Dunseth. Dunseth was not using Drennan's equipment, facilities or staff and Dunseth made no express affirmation that he was an agent or employee of Drennan. Any inference of a connection between Dunseth and Drennan is certainly minimal in comparison to Gilbert. In Gilbert (156 Ill. 2d at 520, 622 N.E.2d at 793) the court relied on "two realities of modern hospital care." The first reality involved the business of a modern hospital: that modern hospitals have spent billions of dollars marketing themselves, nurturing the image with the consuming public that they are full-care modern health facilities, with the emergency room being a major component of that business. The second reality involved the reasonable expectations of the public: that patients rely on the reputation of the hospital and have no reason to know of private contractual arrangements intended to insulate the hospital from liability. ( Gilbert, 156 Ill. 2d at 520-21, 622 N.E.2d at 793-94.) Nothing like that is present in this case.

The Court of Appeals of New York thoroughly analyzed issues similar to those presented here in Kavanaugh v. Nussbaum (1988), 71 N.Y.2d 535, 523 N.E.2d 284, 528 N.Y.S.2d 8. In Kavanaugh a pregnant woman, Mrs. Gonzales, was treated by Dr. Caypinar. She was taken one night to the emergency room, where the emergency room physician contacted the covering physician, Dr. Swenson, who told him to send the woman home and have her contact Caypinar in the morning. Gonzales returned to the emergency room a few hours later where a loss of fetal heartbeat was detected, a Caesarian section performed, and the child delivered with permanent injury. Caypinar, Swenson, and two other doctors had an arrangement whereby each took turns covering for the others. Each retained the entire fee from his own patient, even though services might have been rendered that patient by the others. (Such an arrangement would seem to discourage a covering physician from doing much work.)

The trial court concluded there were three reasons supporting the imposition of vicarious liability:

"First, even if Drs. Caypinar and Swenson were not partners, employees or employers of each other and shared no fees, the covering arrangement was for their mutual benefit; their arrangement afforded continuous treatment for their patients and enabled them to satisfy what appeared to be the hospital's requirement for privileges [that doctors with privileges be continuously available for emergencies]. Second, Mrs. Gonzales had an ongoing relationship with Dr. Caypinar, and had the right to expect satisfactory treatment from him, which included persons to whom he directed her. Third, Mrs. Gonzales had no knowledge of the arrangement and no opportunity to participate in the selection of the covering doctor * * *." Kavanaugh, 71 N.Y.2d at 546, 523 N.E.2d at 287, 528 N.Y.S.2d at 11.

The Court of Appeals of New York reversed, following the decision in Graddy v. New York Medical College (1963), 19 A.D.2d 426, 243 N.Y.S.2d 940, motion to dismiss appeal denied (1964), 13 N.Y.2d 1175, 197 N.E.2d 541, 248 N.Y.S.2d 54, where the physicians in fact shared office space, services, equipment and supplies, and even certain fees. (Our supreme court has cited Graddy with approval in Reed v. Bascon (1988), 124 Ill. 2d 386, 396, 530 N.E.2d 417, 421, 125 Ill. Dec. 259 (a case where the patient had been referred to a specialist).) Although the years since Graddy had seen the development of medical clinics and group practices, which engendered new questions about imputed liability, the court of appeals continued the rule of nonliability. ( Kavanaugh, 71 N.Y.2d at 547, 523 N.E.2d at 288, 528 N.Y.S.2d at 12.) The fact that the Caypinar-Swenson relationship was regular and mutually beneficial was not dispositive. Similar elements existed in Graddy and probably every covering arrangement. The Kavanaugh court determined, as a matter of policy, that imposition of liability would discourage covering arrangements "'and thus curtail the availability of medical service.'" ( Kavanaugh, 71 N.Y.2d at 548, 523 N.E.2d at 289, 528 N.Y.S.2d at 13, quoting Graddy, 19 A.D.2d at 430, 243 N.Y.S.2d at 945.) Emergencies can arise at any moment, and even absent emergencies "surely no person expects that his or her regular physician will always be there to respond." (Emphasis in original.) ( Kavanaugh, 71 N.Y.2d at 548, 523 N.E.2d at 289, 528 N.Y.S.2d at 13.) The Kavanaugh court noted that doctors remain answerable for their own fault, for example, "for negligence in their designation of covering doctors, or for their own joint ...

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