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Kane v. Doctors Hospital

January 28, 1999

EDWARD T. KANE, PLAINTIFF-APPELLANT,
v.
DOCTORS HOSPITAL, DEFENDANT-APPELLEE, AND SPRINGFIELD CLINIC, HENRY ROHS, M.D., AND SUNG-HO SONG, M.D., DEFENDANTS.



Appeal from Circuit Court of Sangamon County No. 94L0459 Honorable Stuart H. Shiffman, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

In April 1996, plaintiff, Edward T. Kane, brought this medical malpractice action against defendants Doctors Hospital (the Hospital) and Dr. Sung-Ho-Song, a radiologist who worked for the Hospital as an independent contractor. Kane alleged that in February 1992, Dr. Song committed malpractice while acting as the Hospital's apparent agent. In April 1998, following discovery, the trial court concluded that Dr. Song was not the Hospital's apparent agent as a matter of law and entered summary judgment for the Hospital. Kane appeals, arguing that the court erred because genuine issues of material fact exist as to whether Dr. Song was the Hospital's apparent agent. We reverse and remand.

I. BACKGROUND

The following facts appear from the complaint, depositions, affidavits, and attached documents. Kane suffers from hemochromatosis-- excessive iron in his blood--which can cause damage to various internal organs. At the time of the events giving rise to this litigation, Kane's condition had not been diagnosed despite his examination and treatment by numerous doctors in various branches of the medical arts.

In 1992, Kane was under the care of several doctors who were attempting to diagnose and treat his symptoms. Dr. Reddy, a psychia- trist, suggested electroconvulsive shock therapy because some of Kane's symptoms appeared psychosomatic. Unhappy with this possibility, Kane went to Dr. Juranek, one of his primary care physicians, and asked him to approve an abdominal computerized tomography (CT) scan to search for another cause for his continuing abdominal pain. Dr. Juranek was skep- tical because Kane had previously undergone several CT scans, which were normal. Kane persuaded Dr. Juranek to order the procedure by suggesting that if this CT scan also came back normal, Kane would undergo any treatment Dr. Reddy suggested.

Dr. Juranek then scheduled the CT scan at the Hospital for the same day. Dr. Juranek did not discuss with Kane where the CT scan would be performed or why Dr. Juranek chose the Hospital.

Kane went to the Hospital's admissions office and signed two consent forms, neither of which indicated in any way whether physicians working at the Hospital were Hospital employees or independent contrac- tors. A Hospital employee then led Kane to the radiology department, where he signed a third consent form. After Kane changed his clothes, another technician escorted him to the CT suite, where he underwent the abdominal CT scan. Dr. Song read the CT scan film and concluded Kane's abdomen was normal. Dr. Song sent a report containing his Conclusion to Dr. Juranek on stationery bearing the Hospital's logo.

Kane stated in his deposition that prior to the CT scan, he did nothing to determine whether the radiologist who was going to read his scan film was the Hospital's employee or agent. He also did not notice any signs in the radiology department disclosing the radiologists' relationship with the Hospital. Kane had no conversation with Dr. Song and did not recall ever seeing him.

During his deposition, Kane testified about his general knowledge of business relationships in the medical care industry. From 1983 to 1990, he worked as a sales representative for American Hospital Supply, which was later absorbed by Baxter Healthline. In that capacity, Kane spend 95% or more of his time selling supplies to hospitals and surgeons. The Hospital's attorney questioned Kane about the understanding he acquired of surgeons' business relations with hospitals and elicited the following testimony from Kane:

"Q. [Hospital's attorney:] All right. When Baxter was American, for that five per cent of your business, when you were selling directly to surgeons, did you have an understanding at that time that those surgeons were not necessarily employees of the hospital?

A. Yes.

Q. In some cases, those surgeons probably had professional corporations set up?

A. Yes.

Q. Or were members of a partnership or some other legal ...


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