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McCorry v. Evangelical Hospitals Corp.

June 3, 2002

RICHARD MCCORRY AND BARBARA MCCORRY, PLAINTIFFS-APPELLANTS,
v.
EVANGELICAL HOSPITALS CORPORATION, F/K/A CHRIST HOSPITAL AND MEDICAL CENTER, DEFENDANT-APPELLEE
AND (THOMAS HURLEY, DEFENDANT).



Appeal from the Circuit Court of Cook County Honorable Mary Mulhern, Judge Presiding

The opinion of the court was delivered by: Justice McNULTY

After surgery left Richard McCorry paralyzed, he and his wife, Barbara McCorry, sued the surgeon, Dr. Thomas Hurley, and Christ Hospital, where Hurley performed the surgery. Plaintiffs asserted that the hospital had respondeat superior liability for Hurley's alleged medical malpractice. The court held that no evidence showed that Hurley acted as the hospital's actual or apparent agent, and therefore the court granted the hospital's motion for summary judgment. Plaintiffs now appeal.

Barbara McCorry worked for Christ Hospital, and her health plan provided insurance coverage for Richard. In 1993 Richard went to see Dr. Andrew Kazaniwskyj for a heart problem. Kazaniwskyj and a specialist at Christ Hospital successfully treated the problem.

Richard also had back pain that prevented him from sitting for prolonged periods. The pain steadily worsened through 1993 and early 1994, to the point that Richard could no longer drive. In June 1994 Kazaniwskyj admitted Richard to Christ Hospital for a neurosurgery consultation. CNS Neurological Surgery provided neurosurgery services at Christ Hospital. Hurley, a neurosurgeon with CNS Neurological Surgery, examined Richard and ordered a magnetic resonance imaging (MRI) test of the upper part of Richard's spine, the part in his neck.

Although Hurley recommended surgery, Richard preferred to try physical therapy and epidural injections to control the pain. Richard's condition steadily worsened over the following months. Richard finally agreed that he needed the surgery. For his last presurgery physical, on October 20, 1994, Richard came to Kazaniwskyj's office in a wheelchair.

Hurley performed the surgery on October 27, 1994. When Richard awoke after surgery Hurley tested his condition and found Richard unable to move his legs. Hurley ordered a new MRI. Although he discussed the possibility of further surgery with plaintiffs, he did not recommend surgery, as he had little hope of restoring any function to the legs. Richard remains paralyzed.

In their complaint plaintiffs alleged that Richard's paralysis resulted from Hurley's negligence, and plaintiffs sought to hold the hospital liable for Hurley's acts. The hospital, in a motion for summary judgment, claimed that Hurley was neither its actual nor its apparent agent. The hospital's director of risk management swore that Christ Hospital did not employ Hurley and paid him no wages or salary. Instead, Hurley maintained an independent medical practice, and the hospital granted him limited medical staff privileges allowing him to practice at Christ Hospital.

The hospital also attached to its summary judgment motion transcripts of the depositions of Richard McCorry and Dr. Kazaniwskyj. Richard said he first came in contact with Hurley through Kazaniwskyj's recommendation. Richard thought Hurley was on the hospital's staff. Kazaniwskyj testified that he did not remember exactly what he said when he referred Richard for the neurosurgery consultation, but he referred him either to Dr. Stavros Maltezos or to CNS Neurological Surgery. Maltezos worked for CNS Neurological Surgery. CNS Neurological Surgery had a policy of asking new patients if they would accept the next available neurosurgeon.

Plaintiffs submitted their affidavits and several hospital publications in response to the summary judgment motion. In the literature Christ Hospital claimed that it provided a hospital staff including hundreds of highly qualified physicians, and it referred to the doctors as "our physicians." The hospital's consent form for the operation included no indication that Christ Hospital did not employ the surgeons or other physicians working in the hospital. Richard swore that he saw Hurley only in the hospital and the office building at the hospital. He accepted Kazaniwskyj's referral to other doctors on Christ Hospital's staff, including Hurley, because of his confidence in Christ Hospital and the doctors on its staff. Barbara swore in an affidavit that she and Richard chose Christ Hospital for treatment both because of her insurance and because they had been satisfied with the care they received at the hospital.

The trial court granted Christ Hospital summary judgment and found no reason to delay enforcement or appeal of the judgment. The lawsuit remains viable against Hurley. Plaintiffs filed a timely notice of appeal, so that we have jurisdiction under Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a). We review the summary judgment de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995).

Plaintiffs contend that they presented sufficient evidence to support a finding that Hurley acted as the hospital's apparent agent. Our supreme court, in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d 788 (1993), adopted the Wisconsin Supreme Court's standards for finding that an allegedly negligent doctor acted as a hospital's apparent agent.

"'For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show 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, quoting Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188, 207-08, 423 N.W.2d 848, 855-56 (1988).

Here, the hospital published literature referring to physicians who work at the hospital as its physicians and claiming that the expertise of those physicians made the hospital a desirable place for medical care. CNS Neurological Surgery maintained an office on hospital grounds, in a building connected to the hospital. Nothing in Hurley's appearance or the forms the hospital presented to plaintiffs showed that Hurley did not act as the hospital's agent. The hospital advertised itself as a full-care facility supplying quality health care. The evidence could support a finding that the hospital held itself out as the principal for its agents, including the highly qualified physicians, who directly provided the advertised health care. See Gilbert, 156 Ill. 2d at 520; Sztorc v. Northwest Hospital, 146 Ill. App. 3d 275, 278, 496 N.E.2d 1200 (1986).

Christ Hospital argued principally that plaintiffs could not establish the third element of Gilbert's requirements for apparent agency. The trial court agreed, holding that no trier of fact could find on this ...


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