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Petrovich v. Share Health Plan of Illinois Inc.

May 22, 1998

INGA PETROVICH AND VUKASIN PETROVICH, PLAINTIFFS-APPELLANTS,
v.
SHARE HEALTH PLAN OF ILLINOIS, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, Law Division 93 L 6622 The Honorable Julia M. Nowicki, judge Presiding.

The opinion of the court was delivered by: Justice Quinn

Modified Opinion Upon Denial of Reharing

This case is brought on appeal from the trial court's grant of defendant's motion for summary judgment. The issue on appeal is whether there is a genuine issue of material fact regarding whether plaintiff- appellant's treating doctors were Share Health Plan's (Share) apparent agents. For the reasons which follow, we reverse the grant of summary judgment.

Statement of Facts

In 1989, plaintiff's employer, the Chicago Federation of Musicians (CFM), enrolled in the Share health insurance plan. In August, 1989, plaintiff, a retired member of the CFM, began seeing Dr. Marie Kowalski (Dr. Kowalski) at the Illinois Masonic Medical Center (Illinois Masonic) as her primary care physician. Plaintiff selected Dr. Kowalski from Share's list of participating physicians. To be covered under the plan, plaintiff was required to receive primary medical care from Share's list of participating physicians.

In September, 1990, plaintiff went to Dr. Kowalski because she was experiencing persistent pain in the right side of her mouth, tongue, throat and face. Dr. Kowalski was employed at a satellite facility of Illinois Masonic. Illinois Masonic was under contract with Share.

In October, 1990, Dr. Kowalski referred plaintiff to two other Share physicians, Dr. Slavick, a neurologist, and Dr. Friedman, an independent ear, nose and throat specialist. Both Dr. Slavick and Dr. Friedman had contracts with Share.

Dr. Friedman recommended that plaintiff have a magnetic resonance imaging test (MRI) or computed tomography (CT) scan done on the base of her skull. Plaintiff testified that Dr. Kowalski said that Share would not allow new scans. Plaintiff did not call Share, as she did not know at that time that Share had a grievance procedure. Dr. Kowalski gave Dr. Friedman a copy of an old MRI test result. Apparently, sometime later, Dr. Kowalski ordered an updated MRI. The MRI was performed on October 31, 1990. On November 19, 1990, plaintiff had a follow-up visit with Dr. Kowalski during which they discussed the results of the MRI. Plaintiff testified that Dr. Kowalski told her nothing was there.

In May, 1991, Dr. Kowalski again referred plaintiff to Dr. Friedman. This was plaintiff's third visit to Dr. Friedman. On this visit, Dr. Friedman examined plaintiff and observed that plaintiff's tongue was tender, and plaintiff informed him that there was pus in her mouth. On June 7, 1991, Dr. Friedman performed multiple biopsies on the right side of the base of plaintiff's tongue. The biopsy results showed squamous cell carcinoma in the base of plaintiff's tongue, and in the surrounding tissues of the pharynx. Dr. Kowalski had never told plaintiff that she suspected cancer.

On June 25, 1991, Dr. Friedman operated on plaintiff and removed a six-centimeter portion of the base of plaintiff's tongue, part of her palate, and a portion of her pharynx and jaw bone. After the surgery, plaintiff underwent radiation treatments and rehabilitation.

Plaintiff alleges that Share's physicians, Dr. Kowalski and Dr. Friedman, negligently failed to diagnose the cancer sooner, and that Share is vicariously liable under an apparent agency theory.

On appeal, the arguments of both defendant and plaintiff rely on Share's organization and structure, and certain representations made in the materials Share allegedly provided to plaintiff. These facts are briefly summarized here.

The Illinois Health Maintenance Organization Act (HMO Act) provides for two types of health maintenance organizations (HMOs): (1) staff model HMOs, which are physician-sponsored and provide care directly through salaried physicians in medical centers run by the HMO; and (2) independent practice association (IPA) model HMOs, which arrange for health care by contracting with independent medical groups and paying them. 215 ILCS 125/1-2(7) (West 1994). Share is an IPA model HMO, meaning that Share contracts with independent medical groups, rather than directly employing them.

Share provides a list of participating physicians to its members. Each member then selects a primary care physician, who is responsible for the overall care of each patient, and makes referrals when necessary. Each primary care physician must go through an application procedure to join Share.

The Share member handbook specifically states to its members that the primary care physician is "your health care manager" who "makes the decisions" about the member's care. The member handbook also stated that Share would provide "all your healthcare needs" and "comprehensive quality services."

The subscriber certificate, or "benefits contract," section 8.5, states that Share's physicians are independent contractors and that "SHARE Plan Providers and Enrolling Groups are not agents or employees of SHARE nor is SHARE or any employee of SHARE an agent or employee of SHARE Plan Providers or Enrolling Groups." The subscriber certificate further provided the following:

"The relationship between a SHARE Plan Provider and any Member is that of provider and patient. The SHARE Plan Physician is solely responsible for the medical servies provided to any member. The SHARE Plan Hospital is solely responsible for the Hospital services provided to any Member."

Plaintiff testified at her evidence deposition that she received and read portions of the member handbook but did not remember receiving the subscriber certificate.

Both the contract between Illinois Masonic and Share and the contract between Dr. Friedman and Share contained a disclaimer that Illinois Masonic's physicians were not agents of Share. The contracts stated the following: "It is understood and agreed that [Illinois Masonic] and primary care physicians are independent contractors and not employees or agents of Share." However, plaintiff testified in her ...


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