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Dahan v. Uhs of Bethesda Inc.

March 24, 1998

EDGARDO Q. DAHAN AND RUBY DAHAN, PLAINTIFFS-APPELLEES,
v.
UHS OF BETHESDA, INC., D/B/A MOUNT SINAI HOSPITAL-NORTH; MOUNT SINAI MEDICAL CENTER; AND CHARLES SCHIKMAN. DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT COOK COUNTY. No. 90 L 411 THE HONORABLE JAMES J. HEYDA JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Cousins

Plaintiffs Edgardo Q. Dahan and Ruby Dahan brought this action for medical malpractice alleging that Dr. Charles Schikman was negligent when rendering treatment to Edgardo. The Dahans also sued Mount Sinai Hospital-North (Mount Sinai), the hospital in which Dr. Schikman operated a diabetes clinic, UHS of Bethesda, Inc. (UHS), and Mount Sinai Medical Center. After a trial, the jury returned a verdict for the Dahans and against the defendants in the amount of $11,962,390. The trial court granted a directed verdict in favor of Mount Sinai Medical Center and, thereafter, reduced the itemized damages awarded to Ruby Dahan for loss of Edgardo's services from $500,000 to $200,000, thereby reducing the Judgement to $11,662,390.

On appeal, defendants UHS and Mount Sinai contend that: (1) Dr. Schikman was not an agent of the hospital and the jury instructions on agency were insufficient; (2) the jury instructions on proximate cause were erroneous and prejudicial; (3) the trial court erroneously permitted improper testimony by an expert witness; and (4) the damages award was excessive. Defendant Dr. Schikman argues that: (1) the jury instructions on proximate cause were erroneous; (2) the trial court improperly allowed expert testimony that was cumulative to other expert testimony; and (3) the damages award was excessive. Plaintiffs cross-appeal and argue that the trial court abused its discretion in exercising remittitur and reducing the jury's award.

BACKGROUND

Mount Sinai was operated as a joint venture of UHS and Mount Sinai Medical Center. Mount Sinai granted staff privileges to more than a dozen physicians, but only three, including Dr. Charles Schikman, had the use of offices at the hospital. Dr. Schikman served as the director of the hospital*s diabetes clinic, which was located on the fifth floor of the hospital.

Plaintiff Edgardo Dahan was an employee of Mount Sinai, serving as the head of the supply department. In May 1988, Edgardo saw Dr. Paul Parmet, an opthamologist on staff at Mount Sinai, because of vision problems possibly associated with migraine headaches he had been having. Dr. Parmet referred Edgardo to Dr. Schikman.

On May 18, 1988, Dr. Schikman saw Edgardo in his office at Mount Sinai. After taking his medical history and examining him, Dr. Schikman prescribed medication for Edgardo's migraines and ordered an EEG and cervical spine Xray. A follow-up visit was scheduled for one week later. On May 25, 1988, Edgardo returned and told Dr. Schikman that his migraines were better but that his blurred vision had become worse. Dr. Schikman ordered a carotid ultrasound examination to monitor blood flow through the carotid arteries to the brain. He then instructed Edgardo to return for a follow-up visit in two weeks.

On June 2, 1988, Edgardo had a stroke. Thereafter he was diagnosed with polycythemia rubra vera, which is an increased amount of red blood cells. In his complaint, plaintiffs alleged that Dr. Schikman failed to diagnose polycythemia rubra vera and was negligent in failing to perform a CBC, which is a blood test that is used to diagnose polycythemia rubra vera. Plaintiffs argued that, had a CBC been obtained, the condition of polycythemia rubra vera would have been diagnosed, treatment would have been instituted and Edgardo would not have suffered a stroke.

Since the stroke, Edgardo's father has moved into Edgardo's home to take care of him. As a result of the stroke, Edgardo has, inter alia, difficulty speaking, lacks full use of one of his arms and communicates by gesturing, writing and by using a communication device. He uses a cane and a motorized scooter-type vehicle.

The jury returned a verdict in favor of the plaintiffs and answered special interrogatories finding that Dr. Schikman was both an actual and apparent agent of the hospital and not an independent contractor. The jury awarded plaintiffs $5,500,000 for disability and disfigurement, $2 million for past and future pain and suffering, $2,062,390 for future medical and caretaking expenses and $900,000 for lost earnings. The jury also awarded Ruby Dahan $500,000 for loss of Edgardo's services and $1 million for loss of his society, companionship and sexual relationship. Thereafter, the trial court reduced the jury's award for loss of services by $300,000. Mount Sinai, UHS and Dr. Schikman appeal from the jury verdict and the trial court's denial of their posttrial motions.

We affirm in part, reverse in part and vacate in part.

ANALYSIS

I

UHS and Mount Sinai first contend that the trial court erred in denying their request for Judgement notwithstanding the verdict because Dr. Schikman was not an actual or apparent agent of Mount Sinai. They argue that the contract between Dr. Schikman and Mount Sinai and the common-law test for agency established that Dr. Schikman worked for the hospital as an independent contractor and not an actual agent. UHS and Mount Sinai further argue that Dr. Schikman was not an apparent agent of Mount Sinai. Plaintiffs contend that the facts do not overwhelmingly favor the defendants' assertions and that the jury's general verdict and specific findings should be allowed to stand. We agree with plaintiffs' contention.

The standard of review for denial of a motion for judgment notwithstanding the verdict is well established. A judgment notwithstanding the verdict can only be granted where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E. 2d 504 (1967); Schumacher v. Continental Air Transport Co., 204 Ill. App. 3d 432, 444, 562 N.E.2d 300 (1990). A hospital may be vicariously liable based upon a principal-agent relationship between the hospital and the physician. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518, 622 N.E.2d 788 (1993). Generally, one who engages the services of an independent contractor is not liable for the acts or omissions of that contractor. Letsos v. Century 21-New West Realty, 285 Ill. App. 3d 1056, 1065, 675 N.E. 2d 217 (1996). Whether the parties' relationship is that of principal and agent, or owner and independent contractor, is a question of fact unless the relationship is so clear that it is indisputable. Letsos, 285 Ill. App. 3d at 1065. However, specific conduct can inferentially demonstrate the existence of a principal-agency relationship, despite evidence that the parties intended an independent contractor relationship. Letsos, 285 Ill. App. 3d at 1065.

Prior to the Illinois Supreme Court*s decision in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), Illinois courts held that a hospital could only be vicariously liable through an agency relationship if the physician was an actual agent of the hospital. See Johnson v. Sumner, 160 Ill. App. 3d 173, 175, 513 N.E.2d 149 (1987); Greene v. Rogers, 147 Ill. App. 3d 1009, 1015-16, 498 N.E.2d 867 (1986). In Johnson v. Sumner, 160 Ill. App. 3d 173, and Greene v. Rogers, 147 Ill. App. 3d 1009, cases cited by UHS and Mount Sinai, Illinois appellate courts held that control retained by the principal and method of payment are the two dominant factors in determining whether a physician is an agent or independent contractor. However, in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), the supreme court criticized the decisions in Greene and Johnson. The Gilbert court did not overrule Greene and Johnson, but it did note that these cases overlooked the "realities of modern hospital care." 156 Ill. 2d at 520. The overlooked realities include the current business and marketing practices of modern hospitals. Gilbert, 156 Ill. 2d at 520. The supreme court quoted the Wisconsin Supreme Court in Kashishian v. Port, 167 Wis. 2d 24, 481 N.W.2d 277 (1992), which observed that hospitals spent billions of dollars to persuade those in need of medical services to obtain those services at a specific hospital. Gilbert, 156 Ill. 2d at 520. The court concluded that, in light of the realities of modern hospital care, "liability attaches to the hospital only where the treating physician is the apparent or ostensible agent of the hospital. If a patient knows, or should have known, that the treating physician is an independent contractor, then the hospital will not be liable." Gilbert, 156 Ill. 2d at 522. In a separate Discussion on apparent authority, the Gilbert court extended the same principle of "patient knowledge" to the doctrine of apparent authority and set forth the elements of a cause of action under a theory of apparent authority as follows:

"For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (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 ...


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