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08/01/97 DANIEL T. CASEY v. FOREST HEALTH SYSTEM

August 1, 1997

DANIEL T. CASEY, PLAINTIFF-APPELLANT,
v.
FOREST HEALTH SYSTEM, INC., OF ILLINOIS, DEFENDANT-APPELLEE (RALPH MENEZES AND KATHY PASIC, DEFENDANTS).



Appeal from the Circuit Court of Cook County. No. 92 L 09123. Honorable Barbara Disko, Judge Presiding.

Released for Publication September 11, 1997.

Presiding Justice Greiman delivered the opinion of the court. Theis and Zwick, JJ., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff Daniel Casey attempted to commit suicide by jumping in front of a Chicago Transit Authority train. Prior to his suicide attempt, plaintiff was a patient at defendant Forest Health System, Inc., a hospital that renders psychiatric and psychological services, and was treated by Dr. Ralph Menezes, the medical director of defendant, and Kathy Pasic, a psychologist. For injuries sustained in his suicide attempt, plaintiff filed a negligence action against defendant Forest Health System, Dr. Menezes and Pasic. Subsequently, the trial court granted summary judgment in favor of defendant.

On appeal, the sole issue presented by plaintiff is whether a genuine issue of fact existed to preclude summary judgment for defendant. The alleged genuine issue of fact on which plaintiff relies is whether liability could be imposed on defendant under the theories of respondeat superior or agency, either actual or apparent, arising from Dr. Menezes' relationship to defendant.

Although there may be an issue of fact as to the issue of apparent agency, we affirm the entry of summary judgment in favor of defendant because, under the Illinois Supreme Court's holding in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 528, 190 Ill. Dec. 758, 622 N.E.2d 788 (1993), any possible liability on the part of defendant was extinguished when plaintiff entered into a settlement agreement with Dr. Menezes.

From December 17, 1990, through January 15, 1991, plaintiff was treated as a patient in defendant Forest Health System. On March 6, 1991, plaintiff sustained personal injuries in a suicide attempt.

On July 23, 1992, plaintiff filed a three-count complaint against defendant, Dr. Menezes and Kathy Pasic. Count I was directed against defendant as an alleged principal through the negligence of Dr. Menezes as an employee or agent of defendant. Count II was directed against defendant as an alleged principal through the negligence of Pasic as an employee or agent of defendant. Count III, the only count directed solely against defendant, alleged that defendant knew plaintiff's insurance proceeds would cover 100% of in-hospital charges for only 30 days and that defendant was negligent in its discharge of plaintiff once the insurance proceeds had been exhausted. In its responses to plaintiff's complaint, defendant denied that Dr. Menezes and Pasic were agents of the hospital.

On January 10, 1996, the trial court granted summary judgment in favor of defendant. On August 21, 1996, the trial court approved a settlement between plaintiff and Dr. Menezes. On September 12, 1996, after a trial, the jury entered a verdict in favor of Pasic, specifically finding her not guilty of negligence.

In his appeal, plaintiff argues that Dr. Menezes failed to implement adequate discharge care for plaintiff and the inadequate discharge care was the proximate cause of plaintiff's injuries. To reach defendant, plaintiff contends that Dr. Menezes was the actual or apparent agent of defendant. Accordingly, plaintiff asserts that summary judgment in favor of defendant was not proper.

In reviewing a summary judgment order on appeal, this court applies a de novo standard of review (Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204 (1992)) and considers the record as it existed when the trial court issued its order ( Masciola v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 316, 195 Ill. Dec. 603, 628 N.E.2d 1067 (1993)).

We agree with plaintiff that the record, as it existed at the time the summary judgment order was entered, might well have been sufficient to withstand summary judgment under the theory of apparent agency. In addition, contrary to defendant's argument, the issue of apparent agency can be considered even if plaintiff simply pled in his complaint that Dr. Menezes was an agent or employee of defendant and did not specifically plead that Dr. Menezes was an apparent agent of defendant. Gilbert, 156 Ill. 2d at 527.

In the present case, however, even assuming that Dr. Menezes could be an agent of defendant, as plaintiff adamantly argues, the settlement agreement between plaintiff and Dr. Menezes extinguished any possible liability of defendant. In Gilbert, the Illinois Supreme Court clearly held that "'any settlement between the agent and the plaintiff must also extinguish the principal's vicarious liability.'" Gilbert, 156 Ill. 2d at 528, quoting American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 355, 181 Ill. Dec. 917, 609 N.E.2d 285 (1992). The supreme court further concluded that the settlement rule "shall apply prospectively from the date of the filing of this opinion." Gilbert, 156 Ill. 2d at 529. The supreme court filed the Gilbert decision in October 1993 and the trial court approved the settlement in the present case in August 1996, i.e., nearly three years after the Gilbert opinion was issued. Therefore, even if this court ruled in favor of plaintiff by finding that Dr. Menezes was or could be an agent of defendant for the purpose of withstanding a summary ...


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