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Butkiewicz v. Loyola University Medical Center

February 07, 2000

RONALD R. BUTKIEWICZ, SPECIAL ADM'R OF THE ESTATE OF ROBERT BUTKIEWICZ, DECEASED,
PLAINTIFF-APPELLANT,
V.
LOYOLA UNIVERSITY MEDICAL CENTER, A NOT-FOR-PROFIT ILLINOIS CORPORATION, DR. JAMES STANKIEWICZ, M.D., LITTLE COMPANY OF MARY HOSPITAL AND HEALTHCARE CENTER, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, RADIOLOGY IMAGING SPECIALISTS, LTD., AN ILLINOIS CORPORATION, DR., IRVING FULD, M.D., DR. SHEILAH M. O'CONNOR, M.D., DR. ROY RAMSEY, M.D., DR. SHIVAJI BASU, M.D., DR. JOHN G. KELSEY, M.D., EVANGELICAL HOSPITALS CORPORATION, AN ILLINOIS NOT-FOR-PROFIT CORPORATION D/B/A EHS CHRIST HOSPITAL AND MEDICAL CENTER, AND DR. WILLIAM RAMANAUSKAS, M.D.,
DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Gallagher delivered the opinion of the court:

Appeal from the Circuit Court of Cook County Honorable Michael J. Hogan, Judge Presiding.

Plaintiff Ronald R. Butkiewicz (plaintiff), as special administrator of the estate of Robert Butkiewicz (Mr. Butkiewicz), deceased, filed a wrongful death and survival action alleging medical malpractice against EHS Christ Hospital and Medical Center (Christ Hospital) and Dr. William Ramanauskas for failure to diagnose Mr. Butkiewicz' lung cancer. Finding that plaintiff failed to prove the reliance element of apparent agency, the trial court granted summary judgment to Christ Hospital. Plaintiff appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d 304(a)) and argues that the trial court erred in granting Christ Hospital's motion for summary judgment because there was sufficient evidence to present a genuine issue of material fact regarding the apparent agency relationship between Christ Hospital and hospital staff radiologist Dr. Ramanauskas. We affirm.

After open heart surgery in 1979, Mr. Butkiewicz started seeing his cardiologist, Dr. Shivarji Basu, as his regular internist. Mr. Butkiewicz saw Dr. Basu once a month for his heart condition and on an as-needed basis for any other ailments. Mr. Butkiewicz liked and respected Dr. Basu. Mr. Butkiewicz' family testified that he held Dr. Basu in such high regard that he would follow Dr. Basu's recommendations religiously. Over the years, on Dr. Basu's recommendation and based on where Dr. Basu had staff privileges, Mr. Butkiewicz had obtained medical care and X rays at Mercy Hospital, Little Company of Mary Hospital, Loyola Hospital, South Suburban Hospital, and Christ Hospital.

In 1991, Mr. Butkiewicz started to suffer from chest pains and coughing fits, and, on occasion, he coughed up blood. On July 17, 1992, Mr. Butkiewicz began experiencing severe stomach and chest pains. He called Dr. Basu, who ordered him to go to the emergency room at Christ Hospital, where Dr. Basu was on staff. Mr. Butkiewicz was admitted to the coronary care unit at Christ Hospital on July 18, 1992, under Dr. Basu's care. Dr. Basu ordered an X ray of Mr. Butkiewicz' chest on July 21, 1992. Hospital staff radiologist Dr. Ramanauskas, who was employed by Oak Lawn Radiologists, interpreted the X rays. He wrote up a report stating that no infiltrates were noted in Mr. Butkiewicz' lungs and sent the report to Dr. Basu. Dr. Basu reported the results to Mr. Butkiewicz and his family as being "fine."

Mr. Butkiewicz' pain and coughing symptoms continued and he was finally diagnosed with lung cancer in November 1994 by Dr. Bugno of Little Company of Mary Hospital. Dr. Bugno noted that the mass had been present for 2½ to 3½ years prior to diagnosis. After the diagnosis, Mr. Butkiewicz' family took his X rays to thoracic surgeon Dr. Faber at Rush-Presbyterian-St. Luke's Hospital. Dr. Faber advised the family that the tumor had existed for at least five years, that it was too extensive to operate on, and that Mr. Butkiewicz would definitely lose his entire lung and could not survive.

Dr. Yario, a surgeon at Little Company of Mary Hospital, also reviewed Mr. Butkiewicz' X rays and reports. He agreed with Dr. Faber that the tumor had been present for many years and was very serious. Dr. Yario did, however, agree to do the surgery. Mr. Butkiewicz underwent surgery on December 13, 1994, but died on December 21, 1994. Dr. Yario had removed a 16-inch tumor from Mr. Butkiewicz' lungs and described it as being two to three years old. If the tumor had been diagnosed two or three years earlier, Mr. Butkiewicz' prognosis would have been very good.

On March 25, 1996, plaintiff filed a two-count first amended complaint against Christ Hospital, among other defendants, alleging medical malpractice for failure to diagnose Mr. Butkiewicz' lung cancer. On November 6, 1997, Christ Hospital filed a motion for summary judgment asserting that Dr. Ramanauskas was not an employee of the hospital, that the case against the hospital was based upon the doctrine of apparent agency for the actions of Dr. Ramanauskas, and that plaintiff could not establish any of the elements of apparent agency. Plaintiff admitted in his response to the motion for summary judgment that Christ Hospital's only potential liability would be due to the conduct of Dr. Ramanauskas under an apparent agency theory.

The trial court held a hearing on the motion for summary judgment on June 25, 1998. On July 7, 1998, the trial court granted the motion for summary judgment. The court found that, as a matter of law, "Plaintiff did not rely on Defendant Christ Hospital but rather relied on Dr. Basu. Plaintiff has not submitted any evidence he relied on defendant Christ Hospital. Therefore, Plaintiff cannot satisfy the reliance element of apparent agency." On July 8, 1998, the trial court entered an additional order finding the order of July 7 final and appealable pursuant to Rule 304(a).

Our review of a grant of summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show 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). An order allowing summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material fact exists. Addison v. Whittenberg, 124 Ill. 2d 287, 294, 529 N.E.2d 552 (1988). Plaintiff argues that questions of fact exist as to Christ Hospital's vicarious liability for Dr. Ramanauskas' failure to diagnose Mr. Butkiewicz' lung cancer. We disagree.

The doctrine of apparent agency provides that a principal will be bound by both the authority that he actually gives another and the authority he appears to give to another. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 523, 622 N.E.2d 788, 795 (1993). Under the doctrine of apparent agency, a hospital may be held vicariously liable for the negligent acts of a staff physician, regardless of whether that physician is, as here, an independent contractor, unless the patient knows or should have known that the physician was an independent contractor. Gilbert, 156 Ill. 2d at 524, 622 N.E.2d at 795. In order to succeed on such a claim, the plaintiff must prove 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 reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.'" Gilbert, 156 Ill. 2d at 525, 622 N.E.2d at 795, quoting Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188, 207-08, 423 N.W.2d 848, 856 (1988).

The doctrine of apparent agency as stated in Gilbert is not limited to emergency room situations. Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 727, 688 N.E.2d 732, 737 (1997).

There is no question that plaintiff has proven the first two elements of apparent agency. The evidence showed that Dr. Ramanauskas was a radiologist employed by Oak Lawn Radiologists, a private group medical practice. Pursuant to a contract with Christ Hospital, Oak Lawn Radiologists provided the doctors for the hospital's radiology department. Oak Lawn Radiologists used 10,000 square feet of space within the hospital for the radiology department but did not lease or pay rent on that space. All of the equipment in the radiology department was owned by the hospital. Oak Lawn Radiologists did not lease or pay rent on the equipment. Although not an employee of the hospital, Dr. Ramanauskas was a member of Christ Hospital's medical staff with full privileges, was medical director of MRI services in the department of diagnostic radiology, taught at the hospital, and served on the quality assurance committee in the department of diagnostic radiology.

The first relevant inquiry under Gilbert is whether Mr. Butkiewicz knew that Dr. Ramanauskas was not employed by the hospital. James v. Ingalls Memorial Hospital, 299 Ill. App. 3d 627, 631, 701 N.E.2d 207, 209 (1998); Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 776, 692 N.E.2d 1303, 1308 (1998). Nothing would have alerted Mr. Butkiewicz to the fact that Dr. Ramanauskas was ...


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