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06/19/96 SUE HARRAZ v. EDWARD J. SNYDER III

June 19, 1996

SUE HARRAZ, INDIV. AND AS ADM'X OF THE ESTATE OF MOHAMED HARRAZ, DECEASED, PLAINTIFF-APPELLEE,
v.
EDWARD J. SNYDER III, DEFENDANT (GLENDALE HEIGHTS HOSPITAL, INC., N/K/A GLEN OAKS MEDICAL CENTER, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Du Page County. No. 95--L--921. Honorable Richard A. Lucas, Judge, Presiding.

Released for Publication September 25, 1996.

The Honorable Justice Geiger delivered the opinion of the court. McLAREN, P.j., and Hutchinson, J., concur.

The opinion of the court was delivered by: Geiger

The Honorable Justice GEIGER delivered the opinion of the court:

On May 4, 1994, the plaintiff, Sue Harraz, individually and as administratrix of the estate of Mohamed Harraz, voluntarily dismissed, without prejudice, the wrongful death and survival complaint brought against the defendants, Dr. Edward J. Snyder III, and Glendale Heights Hospital, Inc., n/k/a Glen Oaks Medical Center (Glen Oaks or hospital), pursuant to section 2--1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1009 (West 1994)). The amended complaint filed in 1992 alleged that the defendants negligently failed to diagnose and treat the abdominal hemorrhage suffered by the decedent, Mohamed Harraz, in February 1989, at Glen Oaks. The original complaint had been filed in Cook County on December 27, 1990. The hospital maintained below that it was not vicariously liable for the conduct of Dr. Snyder, the treating surgeon, because, it asserted, Snyder was not its employee but an independent contractor who had staff privileges at the hospital. Upon motion for summary judgment filed by the hospital, certain nurses and employees (other medical personnel) were dismissed with prejudice from the original action.

The plaintiff refiled her complaint on May 4, 1995, within the one-year extension of the limitations period provided by section 13--217 of the Code (735 ILCS 5/13--217 (West 1994)). On June 12, 1995, Glen Oaks filed a motion to dismiss the refiled case. The hospital argued that, based on the doctrine of res judicata, the plaintiff was barred from relitigating the dismissal with prejudice of the other medical personnel since the court had already ruled as to them. Notwithstanding our supreme court's decision holding that a hospital may be found vicariously liable for the conduct of an independent contractor-physician who is shown to be an apparent or ostensible agent under certain defined conditions ( Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 524-25, 190 Ill. Dec. 758, 622 N.E.2d 788 (1993)), the hospital also argued that the plaintiff could not state a cause of action to hold the hospital vicariously liable for the conduct of Dr. Snyder under the doctrine of apparent agency because of the recently enacted Civil Justice Reform Amendments of 1995 (Amendments) (Pub. Act 89--7, eff. March 9, 1995 (adding 735 ILCS 5/2--624)). This new legislation adding section 2--624 to the Code of Civil Procedure changed substantially the elements that must now be pleaded and proved in an action premised on apparent or ostensible agency in contrast to the elements of apparent agency previously established in Gilbert and prior cases involving medical malpractice. The hospital urged that plaintiff would be bound by the new statutory requirements as the cause was refiled after the effective date of the new statute, March 9, 1995. The trial court initially denied Glen Oaks' motion to dismiss but, upon further clarification, found that claims against Glen Oaks' other medical personnel were barred as res judicata under its prior ruling. However, the court found that the plaintiff stated a cause of action against Glen Oaks based upon the alleged agency relationship of the hospital with Dr. Snyder and denied the motion to dismiss as to that claim. The court certified a question of law for interlocutory review under Supreme Court Rule 308 (155 Ill. 2d R. 308). This court granted leave to appeal. The trial court stated the following question:

"Does the modification of hospital apparent agency liability found in 735 ILCS 5/2--624 apply to a cause of action refiled after a voluntary dismissal where:

(a) the original cause of action was filed prior to the enactment of said sec. 2--624 and

(b) said section 2--624 applies to causes of action filed on or after its enactment."

The hospital first argues on appeal that the trial court should have dismissed the cause for failure to state a cause of action premised on the hospital's vicarious liability because the complaint was insufficient to meet the more stringent requirements for apparent agency set up in section 2--624 of the Code which became effective on March 9, 1995. In Gilbert, 156 Ill. 2d at 524, after reviewing prior judicial decisions in this State and others, our supreme court held that, under the doctrine of apparent authority, a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows or should have known, that the physician is an independent contractor.

Prior to the effective date of the Amendments, the plaintiff had to show the following judicially-defined elements of a cause of action against a hospital to prevail under the doctrine of apparent authority: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. Gilbert, 156 Ill. 2d at 525.

The Gilbert court explained that the element of "holding out" on the part of the hospital did not require an express representation by the hospital that the person alleged to be negligent was an employee. Rather, the element would be satisfied if the hospital held itself out as a provider of care without informing the patient that the care was provided by independent contractors. Gilbert, 156 Ill. 2d at 525.

By contrast, in a case against a hospital or medical care providers involving a claim of apparent agency, section 2--624 of the Code requires the plaintiff to allege with specific facts and prove, by a preponderance of the evidence, the following more stringent elements:

"(i) that the alleged principal affirmatively represented to the party that the alleged agent was the ...


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