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Scardina v. Alexian Brothers Medical Center

October 20, 1999


The opinion of the court was delivered by: Justice Cerda

Appeal from the Circuit Court of Cook County. Honorable Stephen Schiller, Judge Presiding.

In September 1995, plaintiff, William Scardina, filed an amended medical malpractice action against defendant, Alexian Brothers Medical Center (Alexian Brothers), and certain other medical groups and practitioners not part of this appeal ("the defendants"), for injuries allegedly sustained as a result of the defendants' untimely diagnosis and mistreatment of an abdominal condition. Plaintiff asserts Alexian Brothers was vicariously liable under a theory of apparent agency for the purported negligence of Dr. S. Eugene Nam, a member of the hospital's independent medical staff. The circuit court granted summary judgment in favor of Alexian Brothers pursuant to section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 1996)). Upon the court's finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) of no just reason to delay the enforcement or appeal of its ruling, plaintiff now seeks review in this court.


The following material facts, which are not in dispute, are derived from the parties' pleadings, answers to interrogatories, affidavits, and depositions considered by the circuit court in ruling on Alexian Brothers' motion and made part of the record on appeal.

In the latter part of August 1994, plaintiff experienced chronic stomach pain, diarrhea, and a fever. On August 31, 1994, plaintiff sought treatment for his condition from his family physician, Dr. Carlotta Rinke. Because Dr. Rinke was unavailable, plaintiff met with Dr. Rinke's associate, Dr. Ronald Ledvora. Following an examination, Dr. Ledvora informed plaintiff that he had a possible slight inflammation of the intestine. Dr. Ledvora prescribed an antibiotic and instructed plaintiff to schedule a follow-up visit with Dr. Rinke.

Plaintiff's condition improved slightly over the next few days. However, by the end of the week, his condition began to worsen, and plaintiff returned to Dr. Rinke's office on September 8, 1994.

Dr. Rinke examined plaintiff and told him that he needed to be hospitalized and seen by a surgeon immediately. Dr. Rinke called Alexian Brothers, where she enjoyed privileges, to inform the emergency room personnel that plaintiff would be arriving with a stomach condition that needed immediate attention.

When plaintiff arrived at the emergency room, he was seen by Dr. Phillip Cacioppo, a surgeon on Alexian Brothers' independent medical staff, who administered a series of X-rays. After reviewing the X-rays, Dr. Cacioppo informed plaintiff that he had developed an abscess in his abdomen due to a hole in the intestine, and that he needed immediate surgery. However, because plaintiff was taking Coumadin, a blood thinner, Dr. Cacioppo postponed the surgery, and plaintiff was hospitalized. Dr. Cacioppo consulted Dr. S. Eugene Nam, who at the time was a radiologist employed by Behinfar Associates in Radiology (Behinfar Associates) and a member of the hospital's medical staff, concerning plaintiff's X-rays and the most appropriate course of treatment. Drs. Cacioppo and Nam elected against immediate surgery, and instead decided to first drain the abscess nonsurgically. While the abscess drained over the course of the next several days, plaintiff was given medication to reduce his Coumadin levels. Surgery was ultimately performed by Dr. Cacioppo on September 15, 1994.

Despite Dr. Cacioppo's assurances that the abscess had been removed successfully, plaintiff continued to register a fever. In response, Dr. Cacioppo ordered additional CT scans. Dr. Nam, who believed plaintiff's fever was caused by another abscess, performed a fluoroscopy, which confirmed the presence of a second hole in plaintiff's intestine. Dr. Cacioppo performed a second surgery on September 23, 1994.

Plaintiff again developed a fever following his surgery. Dr. Cacioppo believed that an infection had entered plaintiff's bloodstream during the second procedure, and contacted an infectious disease specialist to evaluate plaintiff's condition. In the meantime, plaintiff went into septic shock. Plaintiff survived, but as a result sustained damage to his cardiac arteries. To reverse the damage, plaintiff was required to undergo triple by-pass surgery.

Plaintiff subsequently filed a medical malpractice lawsuit against Alexian Brothers, Drs. Ledvora and Rinke, their employer Suburban Health Care Medical Associates, Dr. Cacioppo, Dr. Nam, and Behinfar Associates. Plaintiff's claim against Alexian Brothers seeks to impose liability for the purported negligence of Dr. Nam while he allegedly acted as the hospital's apparent agent. The complaint does not allege that Dr. Nam was an employee of Alexian Brothers, and it contains no independent averments of negligence directed against the hospital itself.

According to the complaint's allegations, plaintiff did not select Dr. Nam to provide radiological services while at Alexian Brothers, and was not aware at that time of Dr. Nam's employment status with the hospital. Further, Alexian Brothers allegedly held out the services of Dr. Nam in such a manner to lead plaintiff to believe that Dr. Nam was its agent, servant or employee.

At his deposition, plaintiff stated he went to Alexian Brothers on September 8, 1994, at the direction of his family physician, Dr. Rinke. According to plaintiff, he was not given a choice of hospitals to visit. Plaintiff acknowledged knowing that Drs. Rinke, Ledvora, and Cacioppo were not employees of Alexian Brothers, but were rather independent contractors who enjoyed staff privileges at the hospital. Plaintiff, however, maintained he believed Dr. Nam was an Alexian Brothers' employee, explaining that Dr. Nam "just acted like he was an employee," and that "he runs the department." Plaintiff further indicated he understood Dr. Nam's employer, Behinfar Associates, to be an outside service that simply evaluated Dr. Nam's work "as a back up." Plaintiff stated he had not seen Dr. Nam for any medical treatment before his hospitalization on September 8, and indicated that Dr. Nam never disclosed his employment status with the hospital to him at any time during his treatment.

Alexian Brothers moved for summary judgment on the ground that plaintiff could not show that Dr. Nam was acting as Alexian Brothers' apparent agent during the medical treatment at issue. The circuit court agreed and granted ...

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