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Blaine Lamb-Rosenfeldt, Individually and As Special Administrator of the Estate of Lee Lamb, Decedent v. Burke Medical Group

March 22, 2012

BLAINE LAMB-ROSENFELDT, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LEE LAMB, DECEDENT, PLAINTIFF-APPELLANT,
v.
BURKE MEDICAL GROUP, LTD., KATHRYN BURKE, D.O., AND ST. JAMES HOSPITAL AND HEALTH CENTER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 08 L 9866 The Honorable Drella C. Savage, Judge Presiding.

The opinion of the court was delivered by: Justice Pucinski

JUSTICE PUCINSKI delivered the judgment of the court, with opinion Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Blaine-Lamb Rosenfeldt, daughter of decedent Lee Lamb and special administrator of Lamb's estate, appeals an order of the circuit court awarding summary judgment in favor of defendant St. James Hospital and Health Centers (St. James) on plaintiff's medical malpractice and wrongful death action. On appeal, plaintiff maintains that the circuit court's order was entered in error because genuine issues of material fact exist as to whether St. James can be held vicariously liable for the alleged negligent acts of Lamb's treating physician. For the reasons explained herein, we affirm the judgment of the circuit court.

¶2 BACKGROUND

¶3 Decedent Lee Lamb was a patient of Doctor Kathryn Burke from November 2004 to January 2006. In 1996, prior to becoming Doctor Burke's patient, Lamb was diagnosed with, and treated for, lung cancer. During the time that Doctor Burke was Lamb's primary care physician, she was aware of Lamb's prior history of lung cancer. Lamb obtained medical care from Doctor Burke at two locations: Burke Medical Group, Ltd. (Burke Medical), and St. James.

¶4 Prior to obtaining treatment at St. James, Lamb was required to sign a one-page "Consent For Medical Treatment Form." The one-page document contained four sections including a consent for diagnosis and treatment, an authorization for release of information, a waiver of liability regarding personal valuables and an independent contractor physician disclosure statement. In pertinent part, the disclosure statement provided:

"STATEMENT OF UNDERSTANDING: PHYSICIANS ARE NOT EMPLOYEES OF THE MEDICAL CENTER: I understand that St. James Hospital utilizes independent physicians and consultants to perform services for patients at its hospitals. These physicians may include my private physician, a physician from a physician group who has agreed to treat me because I do not have a physician on staff or a consultant. With the exception of some anesthesiologists who might provide anesthesia to some patient in the hospital, NONE OF THE PHYSICIANS WHO ATTEND TO ME AT THE HOSPITAL ARE AGENTS OR EMPLOYEES OF THE HOSPITAL and therefore, they, and not the hospitals, are legally liable for the physicians' acts. I further understand that one (1) or more of these physicians might be involved in my care, for example, through reading of x-rays, interpreting laboratory tests, providing emergency medical care or performing surgery. In most cases, I can expect to receive a separate bill from my private physician, a member(s) of the physician group or consultant who has treated me. However, in some cases, third party payers, such as an insurance company, may require certain independent physician charges to be included as part of the total hospital billings. In these cases the hospital may be required to bill me for physician services although the physician IS NOT AN EMPLOYEE OR AGENT OF THE HOSPITAL."

¶5 At the bottom of the page, after the disclosure statement and before the signature line was the following statement: "I CERTIFY THAT I HAVE READ AND UNDERSTAND THIS CONSENT AND THAT NO GUARANTEE OR ASSURANCE HAS BEEN MADE AS TO THE RESULTS OR OTHER ASPECT OF ANY TREATMENT, PROCEDURE, OR TEST AUTHORIZED HEREUNDER."

¶6 Decedent signed the hospital's consent for medical treatment form containing the aforementioned disclaimer on seven occasions: January 20, 2005; January 24, 2005; June 10, 2005; August 23, 2005; November 21, 2005; January 10, 2006; and January 14, 2006.

Lamb also signed another form entitled "Authorization for Payment/Release of Responsibility" on two occasions: January 20, 2005, and January 14, 2006. This form contained the same physician disclosure statement that was contained in the aforementioned consent for medical treatment form.

¶7 In February 2006, Lamb was once again diagnosed with lung cancer. Starting on March 29, 2006, Lamb commenced treatment with an oncologist and continued treatment with him until September 2006. Lamb ultimately died on October 23, 2006, as a result of complications from her second bout of lung cancer.

¶8 On September 5, 2008, plaintiff, as special administrator of her mother's estate, filed a multiple-count complaint naming Doctor Burke, Burke Medical, and St. James as defendants. The crux of plaintiff's malpractice claim was the allegation that Doctor Burke was negligent in failing to diagnose a recurrence of decedent's lung cancer between November 2004 and January 2006, which impaired Lamb's chance for survival and shortened her life. Specifically, the complaint alleged that Doctor Burke failed to properly screen Lamb for the recurrence of her cancer after Lamb developed symptoms indicative of recurrent lung cancer including weight loss, fatigue, frequent coughs, difficulty swallowing and aspiration of food. The complaint further alleged that Doctor Burke was an employee or agent of both Burke Medical and St. James when she provided care and treatment to Lamb and that Doctor Burke was acting within the scope of her employment and/or agency when she rendered negligent medical treatment to decedent. In accordance with the pleading requirements for medical malpractice cases set forth in section 2-622 of the Illinois Code of Civil Procedure (735 ILCS 5/2-622 (West 2008)) plaintiff attached a "Certificate of Merit in Medical Malpractice" completed by Doctor Erin Egan to her complaint.

¶9 Plaintiff subsequently filed an amended complaint on November 21, 2008. The amended complaint advanced the same allegations of medical negligence against Doctor Burke as well as the same purported employee and/or agent relationship between Doctor Burke and co-defendants Burke Medical and St. James. The amended complaint contained a new "Certificate of Merit in Medical Malpractice" completed by Doctor Egan that set forth a more comprehensive and detailed critique of the care that Doctor Burke provided to Lamb.

¶10 The parties proceeded with discovery. Both Doctor Burke and St. James filed answers to interrogatories submitted by plaintiff. In pertinent part, in response to plaintiff's question regarding Doctor Burke's employment relationship with St. James, both parties denied that she was ever an employee of the hospital. Instead, Doctor Burke indicated that she was incorporated as a professional corporation and was an employee and agent of Burke Medical at the time that she provided treatment to Lamb. Although she was never an employee of St. James, Doctor Burke detailed her affiliation with St. James over the years in the curriculum vitae that she attached to her answer to plaintiff's interrogatories. In pertinent part, Doctor Burke indicated that she was an attending physician at St. James since 1988, chief of staff of St. James from 1996-2001 and vice president of the medical staff of St. James from 2003-07.

ΒΆ11 Doctor Burke and plaintiff were subsequently deposed. In her discovery deposition, Doctor Burke indicated that she first met decedent at Doyle's Designs, the hair salon where decedent worked. The owner of the salon was one of Doctor Burke's patients and Lamb subsequently learned that Doctor Burke was a physician. On several occasions when Doctor Burke came to the salon to get her hair done, decedent would ask Doctor Burke medical questions pertaining to her health and inquire about her lab results. Decedent indicated that she no longer wished to continue treatment with her current physician. In November 2004, in response to decedent's questioning, Doctor Burke suggested that decedent schedule a formal appointment at her office at Burke Medical Group. Doctor Burke saw Lamb for the first time at her office on November 9, 2004. Following her initial visit, Lamb came to ...


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