The opinion of the court was delivered by: Justice Bilandic
This appeal asks whether a health maintenance organization (HMO) may be held liable for institutional negligence. We answer in the affirmative.
The plaintiff, Sheila Jones (Jones), individually and as the mother of the minor, Shawndale Jones, brought this medical malpractice action against the defendants, Chicago HMO Ltd. of Illinois (Chicago HMO), Dr. Robert A. Jordan and another party. The Joneses were members of Chicago HMO, an HMO. Dr. Jordan was a contract physician of Chicago HMO and the primary care physician of Shawndale.
The circuit court of Cook County awarded summary judgment in favor of Chicago HMO on all three counts of Jones' second amended complaint. Count I charges Chicago HMO with institutional negligence. Count II charges Chicago HMO with vicarious liability for Dr. Jordan's alleged negligence under the doctrine of apparent authority. Count III charges Chicago HMO with breach of contract. The circuit court also entered a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). On appeal, the appellate court affirmed the grant of summary judgment as to counts I and III, but reversed the grant of summary judgment as to count II, remanding that claim for further proceedings. 301 Ill. App. 3d 103. We allowed Jones' petition for leave to appeal (177 Ill. 2d R. 315). Because Chicago HMO does not challenge the appellate court's reversal of count II, only counts I and III are at issue in this appeal.
Two organizations filed amicus curiae briefs with the permission of this court. See 155 Ill. 2d R. 345. The Illinois Association of Health Maintenance Organizations filed a brief in support of Chicago HMO. The Illinois Trial Lawyers Association filed a brief in support of Jones. For the reasons explained below, we affirm the summary judgment as to count III, breach of contract, but we reverse the summary judgment as to count I, institutional negligence, and remand that claim for further proceedings.
In reviewing an award of summary judgment, we must view the facts in the light most favorable to the nonmoving party. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 30-31 (1999). The following facts thus emerge.
On January 18, 1991, Jones' three-month-old daughter Shawndale was ill. Jones called Dr. Jordan's office, as she had been instructed to do by Chicago HMO. Jones related Shawndale's symptoms, specifically that she was sick, was constipated, was crying a lot and felt very warm. An assistant advised Jones to give Shawndale some castor oil. When Jones insisted on speaking with Dr. Jordan, the assistant stated that Dr. Jordan was not available but would return her call. Dr. Jordan returned Jones' call late that evening. After Jones described the same symptoms to Dr. Jordan, he also advised Jones to give castor oil to Shawndale.
On January 19, 1991, Jones took Shawndale to a hospital emergency room because her condition had not improved. Chicago HMO authorized Shawndale's admission. Shawndale was diagnosed with bacterial meningitis, secondary to bilateral otitis media, an ear infection. As a result of the meningitis, Shawndale is permanently disabled.
The medical expert for the plaintiff, Dr. Richard Pawl, stated in his affidavit and deposition testimony that Dr. Jordan had deviated from the standard of care. In Dr. Pawl's opinion, upon being advised of a three- month-old infant who is warm, irritable and constipated, the standard of care requires a physician to schedule an immediate appointment to see the infant or, alternatively, to instruct the parent to obtain immediate medical care for the infant through another physician. Dr. Pawl gave no opinion regarding whether Chicago HMO was negligent.
Although Jones filed this action against Chicago HMO, Dr. Jordan and another party, this appeal concerns only counts I and III of Jones' second amended complaint, which are directed against Chicago HMO. Count I charges Chicago HMO with institutional negligence for, inter alia, (1) negligently assigning Dr. Jordan as Shawndale's primary care physician while he was serving an overloaded patient population, and (2) negligently adopting procedures that required Jones to call first for an appointment before visiting the doctor's office or obtaining emergency care. Count III charges Chicago HMO with breach of contract and is based solely on Chicago HMO's contract with the Department of Public Aid. Chicago HMO moved for summary judgment on both counts. Jones and Chicago HMO submitted various depositions, affidavits and exhibits in support of their positions.
Chicago HMO is a for-profit corporation. During all pertinent times, Chicago HMO was organized as an independent practice association model HMO under the Illinois Health Maintenance Organization Act (Ill. Rev. Stat. 1991, ch. 111½, par. 1401 et seq.).
In her deposition testimony, Jones described how she first enrolled in Chicago HMO while living in Park Forest. A Chicago HMO representative visited her home. According to Jones, he "was telling me what it was all about, that HMO is better than a regular medical card and everything so I am just listening to him and signing my name and stuff on the papers. *** I asked him what kind of benefits you get out of it and stuff, and he was telling me that it is better than a regular card."
The "HMO ENROLLMENT UNDERSTANDING" form signed by Jones in 1987 stated: "I understand that all my medical care will be provided through the Health Plan once my application becomes effective." Jones remembered that, at the time she signed this form, the Chicago HMO representative told her "you have got to call your doctor and stuff before you see your doctor; and before you go to the hospital, you have got to call."
Jones testified that when she later moved to Chicago Heights another Chicago HMO representative visited her home. This meeting was not arranged in advance. It occurred because the representative was "in the building knocking from door to door." Jones informed the representative that she was already a member.
When Jones moved to Chicago Heights, she did not select Dr. Jordan as Shawndale's primary care physician. Rather, Chicago HMO assigned Dr. Jordan to her. Jones explained:
"They gave me *** Dr. Jordan. They didn't ask me if I wanted a doctor. They gave me him.
*** They told me that he was a good doctor *** for the kids because I didn't know what doctor to take my kids to because I was staying in Chicago Heights so they gave me him so I started taking my kids there to him."
Dr. Mitchell J. Trubitt, Chicago HMO's medical director, testified at his deposition that Dr. Jordan was under contract with Chicago HMO for two sites, Homewood and Chicago Heights. The service agreement for the Homewood site was first entered into on May 5, 1987. The service agreement for the Chicago Heights site was first entered into on February 1, 1990. Dr. Jordan was serving both patient populations in January of 1991 when Shawndale became ill.
Dr. Trubitt stated that, before Chicago HMO and Dr. Jordan executed the Chicago Heights service agreement, another physician serviced that area. Chicago HMO terminated that physician for failing to provide covered immunizations. At the time that Chicago HMO terminated that physician, Dr. Jordan agreed "to go into the [Chicago Heights] area and serve the patients." Chicago HMO then assigned to Dr. Jordan all of the patients of that physician. Dr. Trubitt explained:
"Q. So then with the elimination of [the other physician], Dr.
Jordan then-were the members notified that Dr. Jordan would be
their [primary care physician] from that point on?
Q. They weren't given a choice?
A. At that point in the area there was no choice.
Q. So they weren't given a choice?
A. They were directed to Dr. Jordan."
Dr. Trubitt also explained that Dr. Jordan was Chicago HMO's only physician who was willing to serve the public aid membership in Chicago Heights. Dr. Trubitt characterized this lack of physicians as "a problem" for Chicago HMO.
Dr. Jordan testified at his deposition that, in January of 1991, he was a solo practitioner. He divided his time equally between his offices in Homewood and Chicago Heights. Dr. Jordan was under contract with Chicago HMO for both sites. In addition, Dr. Jordan was under contract with 20 other HMOs, and he maintained his own private practice of non- HMO patients. Dr. Jordan estimated that he was designated the primary care physician of 3,000 Chicago HMO members and 1,500 members of other HMOs. In contrast to Dr. Jordan's estimate, Chicago HMO's own "Provider Capitation Summary Reports" listed Dr. Jordan as being the primary care provider of 4,527 Chicago HMO patients as of December 1, 1990.
Jones' legal counsel and Dr. Trubitt engaged in the following colloquy concerning patient load:
"Q. In entering into an agreement with a provider, is any
consideration given to the number of patients to be designated as
the primary provider for?
A. Yes, there is consideration given to that element in terms of
volume of patients that he is capable of handling.
Q. And who determines the volume of patients he is capable of
handling? The Chicago HMO or the provider or-
A. There is some guidelines that HCFA provides.
A. HCFA. The Health [Care Finance Administration], the
governmental health and welfare.
Q. Do you happen to know what those limits are with respect to
A. I am going to say I believe they are 3,500 ...