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02/20/97 THOMAS E. HANSEN v. CARING PROFESSIONALS

February 20, 1997

THOMAS E. HANSEN, GUARDIAN OF THE ESTATE AND PERSON OF ANDRINA HANSEN, A DISABLED PERSON, PLAINTIFF-APPELLANT,
v.
CARING PROFESSIONALS, INC., DEFENDANT-APPELLEE, AND MOUNT SINAI HOSPITAL MEDICAL CENTER; COLLEEN GOLDEN, R.N.; PROGRESSIVE SERVICES, INC.; EILEEN FAJARDO-FURLIN, R.N.; FELIPE BONDOC, M.D.; HENRI S. HABDALA, M.D., S.C., A CORPORATION; BAXTER HEALTHCARE CORPORATION; AND ARROW INTERNATIONAL, INC., DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LESTER A. BONAGURO, JUDGE PRESIDING.

Released for Publication March 31, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Cerda, JJ., concurring.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

Health care facilities are not always fully staffed. At times they ask a nurse agency to provide a nurse for a period of time. In this case, the nurse agency, Caring Professionals, Inc., assigned a nurse to the Mount Sinai Hospital Medical Center. A patient on that nurse's watch was injured. The patient's guardian sued the nurse agency, among others. The question is whether the nurse agency can be held vicariously liable for the negligent acts of the nurse.

The trial court granted summary judgment to Caring Professionals, holding that neither common law principles nor the Nurse Agency Licensing Act makes the agency legally responsible to an injured patient for any negligent acts performed by the nurse at the hospital. We agree with the trial court.

FACTS

Thomas Hansen (Hansen) filed a medical malpractice complaint. He alleged that Andrina Hansen (Mrs. Hansen) entered Mount Sinai Hospital Medical Center (Mount Sinai) on March 5, 1991, for a surgical procedure, which was performed without incident. While recovering from surgery, however, on March 8, 1991, a central venous catheter (CVC) attached to Mrs. Hansen's jugular vein allegedly became disconnected when one of the nurses was assisting Mrs. Hansen to a sitting position in her hospital bed. As a result, plaintiff claimed, air entered Mrs. Hansen's bloodstream through the disconnected catheter and an air embolus traveled to her brain, causing severe brain damage and total disability. Plaintiff brought suit against the hospital, several doctors, and others.

Later, Hansen's Fourth Amended Complaint alleged that Eileen Fajardo-Furlin (Nurse Furlin) was one of the nurses who attended Mrs. Hansen during her stay at Mount Sinai, that Nurse Furlin worked at Mount Sinai on a temporary basis, and that she was referred to Mount Sinai by Caring Professionals, a nurse agency. Caring Professionals also was named as a party defendant. Caring Professionals liability was premised on the alleged negligent acts of Nurse Furlin, who, Hansen claimed, was the agent and employee of both Mount Sinai and Caring Professionals.

Caring Professionals moved for summary judgment, claiming that, as a matter of law, it could not be held vicariously liable for the negligent acts of Nurse Furlin because Nurse Furlin was not the agent of Caring Professionals. In support of its motion, Caring Professionals submitted for the court's review the deposition testimony of Nurse Furlin and the affidavit of Susan Kim, Caring Professionals' director and manager.

According to the deposition and affidavit, Caring Professionals, a nurse agency licensed under the Illinois Nurse Agency Licensing Act (225 ILCS 510/1, et seq. (West 1992)), functioned as a referral service for registered and licensed nurses. Hospitals and other health care facilities contracted with Caring Professionals to obtain qualified nurses to fill temporary vacancies. When Caring Professionals provided a nurse to a facility, such as Mount Sinai Hospital, the health care facility paid Caring Professionals an hourly fee based on the type of nursing services provided. Caring Professionals, in turn, paid the nurses a portion of that amount.

Nurse Furlin, in her deposition, testified that Caring Professionals had no control over the manner in which she performed her duties at Mount Sinai. Mount Sinai, she said, supplied the equipment she used in the performance of her duties, including the catheter, tubing, and connectors attached to Mrs. Hansen, and directed her usage of this equipment.

In addition, Nurse Furlin's contract with Caring Professionals, like all of the agency's contracts with nurses, specifically stated that her relationship with Caring Professionals was that of "independent contractor, not employer-employee." According to the contract, Nurse Furlin was responsible for obtaining her own Worker's Compensation, Liability, and General Property Damage Insurance. She also was responsible for paying her own income and social security taxes. These taxes were not withheld from Nurse Furlin's paycheck by Caring Professionals. For tax purposes, Caring Professionals did not provide any of its nurses with W-2 forms, but, rather, provided them with 1099 independent contractor forms.

In response to Caring Professionals' motion for summary judgment, Hansen contended that the Illinois Nurse Agency Licensing Act specifically defined the relationship between nurse agencies and the nurses it referred as that of employer-employee. Alternatively, Hansen contended that Caring Professionals was not entitled to summary judgment because the facts created a material issue of fact whether Nurse Furlin was the agent of Caring Professionals.

The trial court rejected both of Hansen's contentions. Summary judgment was granted to Caring Professionals. This appeal followed. Our review is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 131-32, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). Our goal is to determine from the record whether there is any material issue of fact that must be resolved at trial. In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d 736, 185 Ill. Dec. 866 (1993).

1. Liability under common law.

To determine whether there are any material facts supporting the existence of a master-servant relationship we examine the form and substance of the relationship between Caring Professionals and Nurse Furlin. Absent a master-servant relationship, Caring Professionals cannot be liable for any acts of negligence that might have been committed by Nurse Furlin. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 533, 513 N.E.2d 387, 111 Ill. Dec. 944 (1987).

First, the form.

The contract between the two defined Nurse Furlin as an "independent contractor." Caring Professionals did not withhold any income or social security taxes for Nurse Furlin. Instead, she received a form 1099. Caring Professionals provided no malpractice or other insurance, nor did it provide any employee benefits, insurance, or expenses. Nurse Furlin paid for her own ...


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