The opinion of the court was delivered by: Justice Quinn
Appeal from the Circuit Court of Cook County
This appeal arises from a grant of summary judgment in favor of appellee, Ingalls Memorial Hospital (Ingalls), under section 2-1005 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1005 (West 1994). Appellant urges this court to reverse the grant of summary judgment and find that a question of fact exists as to whether appellant's treating physician was the apparent agent of appellee. For the following reasons, the grant of summary judgment is affirmed.
This medical malpractice action was brought on behalf of the minor plaintiff, Kayla James, who was born prematurely on August 13, 1992. Two counts in the complaint alleged vicarious liability of Ingalls based on the negligence of the physician who treated Lasonia James (James), Dr. Kim. The grant of summary judgment in Ingalls' favor was based on the following evidence adduced from the pleadings, depositions, and affidavits.
On August 4, 1992, James went to Ingalls' emergency room because she was 22 weeks pregnant and had not eaten in five or six days. James complained of abdominal pain and vomiting for several days.
James first saw a triage nurse, then a Doctor G. Doctor G. contacted James' physician, Dr. Egglesfield, to see if he wanted her transferred to the hospital where he had staff privileges, Olympia Fields Osteopathic Medical Center, or whether she should stay at Ingalls. Dr. Egglesfield gave approval for James to remain at Ingalls.
James was then admitted under the care of Dr. Kim, an obstetrician and gynecologist with staff privileges at Ingalls. The emergency room physician had called Dr. Kim, informing him that James had signs of urinary tract infection, nausea, vomiting and right lower quadrant pain.
Shortly after her admission, James signed an "Emergency Care/Hospitalization Consent, Authorization For Release of Information and Assignment of Benefits" form (consent form). This consent form stated the following:
"The physicians associated with SEA and the physicians on staff at this hospital are not employees or agents of the hospital, but independent medical practitioners who have been permitted to use its facilities for the care and treatment of their patients. *** I have had the opportunity to discuss [sic] this form, and I am satisfied I understand its contents and significance. I may withdraw my consent at any time."
James saw Dr. Kim at approximately 6:35 a.m. Dr. Kim was chosen to handle James' admission because he was on call on the "on call roster" of department members who are scheduled to care for patients admitted at Ingalls.
Dr. Kim attempted to transfer James to the University of Chicago, as she was leaking amniotic fluid, but the transfer was refused because the 22-week-old fetus was deemed not viable. James' medical history revealed two prior miscarriages. Dr. Kim hospitalized James for two days to provide intravenous (IV) therapy until she was able to eat.
Dr. Kim next saw James on August 6, 1992. He asked her if she was able to keep food down, and she replied, "yes." Dr. Kim then discharged James, telling her to get complete bedrest and follow up immediately with her own physician, Dr. Egglesfield. Dr. Kim told her that her leaking amniotic fluid meant that she would probably go into labor within the next 7 to 10 days. Dr. Kim advised James that if anything happened, to come immediately to the emergency room. James was given discharge instructions.
James saw Dr. Egglesfield the following day, on August 7, 1992. On August 13, 1992, James gave birth to appellant, Kayla James (Kayla), at the University of Illinois Hospital. Kayla weighed 1 pound 7 ounces, but survived. Kayla purportedly suffers from retinopathy of prematurity (resulting in blindness), and neurological impairment.
On January 26, 1995, appellant filed this cause of action against Dr. Kim and three suburban hospitals, including Ingalls, where James received care prior to Kayla's birth, for failure to transfer James to an appropriate care facility.
On April 28, 1997, the trial court entered summary judgment for Ingalls, finding as a matter of law that appellant could not establish vicarious liability based on the actual or apparent agency of Dr. Kim.
A motion for summary judgment should be granted only where the pleadings, depositions, admissions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law 735 ILCS 5/2-1005(c) (West 1994). In determining whether there is a genuine issue as to any material fact, courts must construe the pleadings, depositions, admissions, and affidavits strictly in favor of the movant and liberally in favor of the non-movant. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518, 622 N.E.2d 788 (1993). A triable issue exists where there is a dispute as to material facts or where, although the facts are not in dispute, reasonable minds might differ in drawing inferences from those facts. Raglin v. HMO Illinois, Inc., 230 ...