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05/31/94 ROSEMARIE MONTI AND DONALD MONTI v. SILVER

May 31, 1994

ROSEMARIE MONTI AND DONALD MONTI, PLAINTIFFS-APPELLANTS,
v.
SILVER CROSS HOSPITAL, DR. NABIL YAMOUT, DR. BAKULK PADYA, DR. LEONARD RUTKOWSKI, DR. D. MIKOLAJCZAK, FISCHER MANGOLD EMERGENCY PHYSICIANS, HERSCHEL FISCHER AND CARL MANGOLD, INDIVIDUALLY AND AS PARTNERS D/B/A THE FISCHER MANGOLD GROUP, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois. No. 91 L 828. Honorable Herman Haase, Judge, Presiding

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Lytton

MODIFIED

JUSTICE LYTTON delivered the opinion of the court:

Plaintiffs Rosemarie Monti and Donald Monti appeal from summary judgment entered in the circuit court of Will County in favor of defendant Silver Cross Hospital in a medical malpractice action arising out of its allegedly negligent emergency treatment of Rosemarie. We hold that material issues of fact exist concerning the apparent agency relationship between the physicians and the hospital which preclude entry of summary judgment, and we reverse and remand.

Background

On August 28, 1989, Rosemarie Monti was thrown from the horse she was riding and suffered a head injury which rendered her unconscious. She was taken by ambulance to the emergency room of Silver Cross Hospital in Joliet, Illinois, where she was admitted at 10:52 a.m. She was examined by an emergency room physician and by a trauma surgeon who ordered various diagnostic tests, including a CT scan, and at 2:20 p.m. she was admitted to the intensive care unit. At 7 p.m she was seen by a staff neurologist. After the neurologist obtained the results of a second CT scan, he determined that a problem was developing. At 9:25 p.m. he ordered her transferred to Loyola Medical Center for examination by a neurosurgeon, and she underwent surgery there.

Discovery depositions disclosed that Silver Cross had only one neurosurgeon on its staff. He had informed the hospital in writing that, during the last part of August, all emergency room patients with closed head trauma should be transferred to Loyola Medical Center because he would be unavailable. Rosemarie was not transported to Loyola until approximately 12 hours after her admission to Silver Cross.

Two counts of plaintiffs' complaint alleged that permanent injury was caused by the failure of defendant Silver Cross Hospital to have personnel available who were competent to diagnose and treat closed head injuries. Additional counts allege negligent medical treatment by the various physicians who examined and treated Rosemarie at Silver Cross.

Silver Cross filed a motion for summary judgment asserting that, because the defendant doctors were independent contractors and not its agents or employees and the hospital did not control their actions or participate in their treatment decisions or diagnoses, it was not liable for any negligence of physicians treating patients in the hospital emergency room. Greene v. Rogers (3d Dist. 1986), 147 Ill. App. 3d 1009, 498 N.E.2d 867, 101 Ill. Dec. 543.

Plaintiffs' response to the hospital's summary judgment motion included an affidavit from a certified emergency physician, Dr. John E. Turns. In his opinion, Silver Cross was negligent in holding itself out as a trauma center capable of handling patients with closed head injuries and representing that it had neurosurgical services available when, on the date of Rosemarie's injury, no neurosurgeon was available and no one else was qualified to provide appropriate diagnostic services. Dr. Turns also stated that Silver Cross was negligent in not transferring Rosemarie to Loyola Medical Center when it had known for two weeks that its staff neurosurgeon would be on vacation.

Silver Cross filed a reply accompanied by excerpts from several depositions asserting that decisions to seek a consultation or to transfer a patient are medical judgments to be made by emergency room physicians or the trauma surgeon, not hospital administration, and that any negligence on the part of the physicians cannot be imputed to the hospital. The trial court entered summary judgment in favor of Silver Cross with a notation that the reasoning of Greene v. Rogers was controlling.

Apparent Agency

In Greene and later in Johnson v. Sumner (3d Dist. 1987), 160 Ill. App. 3d 173, 513 N.E.2d 149, 111 Ill. Dec. 903, this court held that a hospital is not liable for the acts of emergency room physicians who are independent contractors and who are not subject to direct control by ...


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