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06/22/94 CHICAGO TITLE & TRUST COMPANY v. SISTERS

June 22, 1994

CHICAGO TITLE & TRUST COMPANY, AS GUARDIAN, OF THE ESTATE OF TIMOTHY WILLIAMS, A MINOR, AND SAM WILLIAMS, AS GUARDIAN OF THE PERSON OF TIMOTHY WILLIAMS, A MINOR, PLAINTIFFS-APPELLANTS,
v.
SISTERS OF ST. MARY, A MISSOURI NOT-FOR-PROFIT CORPORATION D/B/A ST. FRANCIS HOSPITAL OF BLUE ISLAND, DEFENDANT-APPELLEE, DR. ANIL B. SHAH AND MEDICAL EMERGENCY SERVICES ASSOCIATES (MESA), DEFENDANTS.



Appeal from the Circuit Court of Cook County. Honorable Donald J. O'Brien, Jr., Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) where we are called upon to consider the following question certified by the circuit court:

"Does a patient who receives medical treatment from a doctor in a hospital emergency room have a cause of action against that hospital based upon apparent or ostensible agency of the doctor under the facts alleged in Count II of the Fourth Amended Complaint? The allegations of that count are incorporated into this order.

We answer in the affirmative.

The underlying case arises from medical treatment rendered to minor plaintiff Timothy Williams by defendant Dr. Anil Shah at defendant St. Francis Hospital of Blue Island (defendant). On November 12, 1977, Timothy was brought to defendant's emergency room for diagnosis and treatment of illness. Plaintiffs' fourth amended complaint alleges that the emergency room physicians failed to diagnose spinal meningitis and this misdiagnosis subsequently caused brain damage to Timothy.

Count II of the complaint alleges that plaintiff Sam Williams, the father of Timothy, selected defendant hospital in place of another hospital (Little Company of Mary Hospital) where Timothy had been born because he believed that defendant was a better hospital and his minor son would receive good medical care from the doctors at defendant. Plaintiffs further allege that Sam Williams believed and assumed that the doctors at defendant were employees of defendant.

Count II also alleges Dr. Shah treated Timothy and, like the other doctors in the emergency room, wore a white jacket and no apparel to indicate that he was not employed by defendant. Dr. Shahhad staff privileges at defendant. The emergency room was an integral part of defendant's building and nothing in the physical plant would lead one to believe that the hospital and its emergency room were separate entities.

Defendant never informed Sam Williams or any other user of defendant's emergency room that the emergency room was being managed by anyone other than defendant's personnel, although pursuant to a written contract, it was managed and staffed by Medical Emergency Services Associates (MESA), an independent contractor not otherwise related to defendant. MESA and MESA doctors were not employees of defendant and, except as to the parameters of the contract, could not be directly controlled by and were not responsible to defendant.

Under the terms of the contract, MESA provided physicians, including Dr. Shah, who operated and managed defendant's emergency room. MESA, through its physicians, was obligated to render medical care to members of the general public who came to the emergency room. On the other side, defendant provided the MESA doctors with equipment, offices, laboratories, all technical and support matters associated with the operation of an emergency room and all necessary nursing and paramedical assistant services. In addition, defendant maintained the physical area of the emergency room and all of the equipment and supplies.

As a consequence of these actions and representations, according to plaintiffs' complaint, defendant led the general public and Sam Williams to believe that defendant managed and controlled its emergency room and employed the doctors working in the emergency room. To operate defendant's emergency room through an independent contractor represents defendant's attempt to avoid liability for the conduct of the doctors in the emergency room while at the same time leading the public to believe that the emergency room was actually a department of defendant. Plaintiffs further allege that as a result of the described actions and representations, MESA and Dr. Shah were the apparent or ostensible agents of defendant.

On April 16, 1993, defendant filed a section 2-615 motion for judgment on the pleadings (735 ILCS 5/2-615 (West 1992)) on count II of plaintiffs' fourth amended complaint. Defendant's motion maintained that count II was substantially insufficient as a matter of law because the theory of apparent or ostensible agency was not a recognized cause of action in a medical malpractice case in Illinois. The trial court granted defendant's motion to ...


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