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Kaepplinger v. Michelotti

United States District Court, N.D. Illinois, Eastern Division

July 9, 2019

ANGELA KAEPPLINGER and BRIAN KAEPPLINGER, Plaintiffs,
v.
MICHAEL MICHELOTTI, M.D., MARK ZARNKE, M.D., SURGICAL ASSOCIATES OF NORTHERN ILLINOIS, LLC, ROCKFORD MEMORIAL HOSPITAL, and ROCKFORD HEALTH PHYSICIANS, Defendants.

          MEMORANDUM OPINION AND ORDER [1]

          Sidney I. Schenkier United States Magistrate Judge.

         Plaintiffs Angela and Brian Kaepplinger have sued defendants Michael Michelotti, M.D., Mark Zarnke, M.D., Surgical Associates of Northern Illinois, LLC ("SANI"), Rockford Memorial Hospital ("Rockford Hospital"), and Rockford Health Physicians ("Rockford Physicians") (doc. # 130: Second Am. Compl.).[2] Ms. Kaepplinger brings claims of medical negligence against Dr. Michelotti, Dr. Zarnke, SANI, and Rockford Physicians, and she brings claims of medical and nursing negligence against Rockford Hospital (Id., Counts I, III-VII). Mr. Kaepplinger brings claims for loss of consortium against all defendants (Id. Counts VIII, X-XIII).

         Rockford Hospital and Rockford Physicians (collectively, the "Rockford defendants") have filed a motion for partial summary judgment, seeking a finding that there is no actual or apparent agency relationship between them and either Dr. Michelotti or Dr. Zarnke (doc. # 144). The motion is now fully briefed. For the reasons set forth below, we grant in part and deny in part the Rockford defendants' motion.

         I.

         A party may seek partial summary judgment as to a claim or defense. See Hotel 71 Mezz Lender LLC v. Nat'l Ret Fund, 778 F.3d 593, 606 (7th Cir. 2015). Summary judgment on a claim is appropriate where the moving party establishes "that there is no genuine dispute as to any material fact" and it "is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A genuine factual dispute exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248 (1986). Where a nonmoving party "bears the ultimate burden of persuasion on a particular issue," the moving party discharges its initial burden on summary judgment by pointing out the lack of evidence supporting the nonmoving party's case. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). If the moving party does so, the nonmoving party must then "go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories or admissions on file), to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in [its] favor." Id. at 1168-69 (internal citations and quotations omitted).

         In deciding a motion for summary judgment, "we must view the facts and make all reasonable inferences that favor them in the light most favorable to the party opposing summary judgment." Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). We do not "assess the credibility of witnesses, choose between competing reasonable inferences, or balance the relative weight of conflicting evidence." Stokes v. Bd. of Educ. of Chi, 599 F.3d 617, 619 (7th Cir. 2010).

         A court will deny summary judgment if the opposing party submits admissible evidence that creates a genuine dispute of material fact for trial. See Johnson, 892 F.3d at 893-94; Luster v. III. Dept. of Corrections, 652 F.3d 726, 731 (7th Cir. 2011). That standard does not change even if the only evidence submitted on a fact is the "self-serving" testimony of the opposing party in affidavits or depositions. See Johnson, 892 F.3d at 901; see also Widmar v. Sun Chem. Corp., 772 F.3d 457, 459-60 (7th Cir. 2014) ("[s]elf-serving affidavits can indeed be a legitimate method of introducing facts on summary judgment"). "[A] district court may consider any evidence that would be admissible at trial. The evidence need not be admissible in form, but must be admissible in content, such that, for instance, affidavits may be considered if the substitution of oral testimony for the affidavit statements would make the evidence admissible at trial." Wheatley v. Factory Card & Party Outlet, 826 F.3d 412, 420 (7th Cir. 2016) (internal citations omitted); see also Fed. R. Civ. P. 56(c)(4) ("[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated").

         That said, we must be mindful that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. "[M]ere speculation or conjecture" is also insufficient to defeat a summary judgment motion. Sybron Transition Corp. v. Sec. Ins. Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997). Likewise, a "mere scintilla of evidence" is insufficient-on its own-to prove a genuine issue of material fact. Nat'l Inspection & Repairs, Inc. v. George S. May Int'l Co., 600 F.3d 878, 882 (7th Cir. 2010). As the Seventh Circuit has admonished, summary judgment is the "put up or shut up" stage in litigation, Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003), when a party opposing summary judgment must "wheel out all its artillery" to show there is a viable case that should proceed to trial. Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).

         II.

         In support of their motion for summary judgment, the Rockford defendants submitted a Local Rule 56.1(a)(3) statement of material facts (doc. # 146: Defs.' Statement of Facts ("DSOF")). Plaintiffs responded to the Rockford defendants' statement of material facts (doc. # 170, at 3-12: Pis.' Resp. to DSOF) and filed a Local Rule 56.1(b)(3)(C) statement of additional facts (doc. # 170, at 12-17: Pis.' Statement of Facts ("PSOF")). The Rockford defendants have responded to plaintiffs' statement of additional facts (doc. # 175: Defs.' Resp. to PSOF).[3] The following facts are undisputed unless otherwise indicated.

         The Kaepplingers are residents of St. John, Indiana (Pis.' Resp. to DSOF ¶ 1). They allege that they were married prior to the medical care at issue in this lawsuit (Second Am. Compl. ¶¶ 136, 140).[4] Ms. Kaepplinger is a high school graduate who has three associate degrees from Elgin Community College in arts, science, and applied science (Pis.' Resp. to DSOF ¶ 42). She has been a licensed registered nurse in Illinois since 2004 (Id. ¶ 43).

         Rockford Hospital provided health care services in Rockford, Illinois (Pis.' Resp. to DSOF ¶ 2). Rockford Physicians offered health care services in Rockford, Illinois, as did SANI, which was a general surgery practice (Id. ¶¶ 3, 4). Drs. Zarnke and Michelotti are physicians licensed by Illinois as general surgeons (Id. ¶¶ 5, 7). In 1990, Dr. Zarnke formed SANI with two other general surgeons (Id. ¶ 15). Dr. Michelotti joined and became an equal owner of SANI in 2008 (Id. ¶ 17).

         Dr. Zarnke and Dr. Michelotti were not employed by Rockford Physicians, and neither doctor would have told a patient that he was so employed (Pis.' Resp. to DSOF ¶¶ 20, 22, 25, 27).[5]Similarly, Dr. Zarnke and Dr. Michelotti were not employed by Rockford Hospital, and neither doctor would have told a patient that he was so employed (Id.). Nonetheless, Dr. Zarnke and Dr. Michelotti both had privileges to perform surgery at Rockford Hospital in 2015 (Id. ¶¶ 19, 24). Rockford Hospital provided Drs. Zarnke and Michelotti with a space to work with nursing staff, but did not control the way in which these doctors treated the patients they saw at the hospital (Id. ¶¶23, 28).

         On July 28, 2007, Ms. Kaepplinger was treated at Rockford Hospital (Pis.' Resp. to DSOF ¶ 30). At this time, she signed a two-page document titled "CONSENT FOR TREATMENT/ASSIGNMENT OF BENEFITS/RECEIPT OF JOINT PRIVACY NOTICE" (Id; DSOF Ex. D: A. Kaepplinger Dep., Ex. 2). This consent form included, in a section titled "CONSENT FOR MEDICAL TREATMENT," the following language:

I understand the physicians and their assistants who work with RHS [Rockford Health System] may or may not be employees or agents of RHS. Many are independent practitioners who are permitted to use the facilities for the care and treatment of their patients. These practitioners may include my attending physician, a consulting physician and any practitioners associated with radiology and pathology services. I understand I may receive separate bills from these physicians and their assistants, and that they may not participate in the same insurance contracts as RHS. I may have a greater financial responsibility for services provided by physicians and providers not under contract with my health care plan.

(A. Kaepplinger Dep., Ex. 2, at 1). Ms. Kaepplinger does not remember whether she read the July 2007 consent form before signing it (Defs.' Resp. to PSOF ¶ 8).

         On August 12, 2015, Ms. Kaepplinger presented to an urgent care facility in Rockford, Illinois, complaining of left upper quadrant pain that had become worse after eating (Pis.' Resp. to DSOF ¶ 31). The urgent care physician examined Ms. Kaepplinger and advised her to go to the Emergency Department at Rockford Hospital to obtain a CT scan (Id. ¶ 32). When Ms. Kaepplinger called Mr. Kaepplinger to tell him about the urgent care visit, Mr. Kaepplinger similarly directed her "to go to Rockford Memorial right now and get a CT scan" (Id. ¶ 33). At 6:51 p.m. the same day, Ms. Kaepplinger presented to Rockford Hospital's Emergency Department (Id. ¶ 34). Ms. Kaepplinger went to Rockford Hospital (as opposed to another hospital) because she delivered her son there and she thought it was a good hospital (A. Kaepplinger Dep. at 223:23-224:4).

         At 8:41 p.m. on August 12, 2015, a patient signed a two-page document titled "Consent for Treatment/Assignment of Benefits/Receipt of Joint Privacy Notice - Episodic," with the subtitle "(ADMISSIONS AND INTENSIVE OUTPATIENT SERVICES)" (DSOF Ex. G). This consent form identifies Ms. Kaepplinger in the top right corner of the first page (Id. at 1). On the same page, in a section titled "CONSENT FOR MEDICAL TREATMENT," was the following language:

I understand the physicians and their assistants who work with RHS [Rockford Health System] may or may not be employees or agents of RHS. Many are independent practitioners who choose to use Rockford Memorial Hospital or RHS for the care and treatment of their patients. These practitioners may include my attending physician, a consulting physician and includes all practitioners associated with radiology and pathology services. I understand I may receive separate bills from these physicians and their assistants, and that they may not participate in the same insurance contracts as RHS. I may have a greater financial responsibility for services provided by physicians and providers not under contract with my health care plan.

(Id.). The August 2015 consent form also included, on the second page, the statement that "I acknowledge that I have read this document (or a large print version) and have had the opportunity to ask questions," followed by a line for the patient's signature (Id. at 2; Defs.' Resp. to PSOF ¶ 31). Ms. Kaepplinger does not recall reviewing a document like the August 2015 consent form (Defs.' Resp. to PSOF ¶ 10; A. Kaepplinger Dep. at 210:3-15). The parties dispute whether the signature on the August 2015 consent form is Ms. Kaepplinger's signature (Pis.' Resp. to DSOF ¶ 35).

         Nonetheless, it is undisputed that at approximately 1:19 a.m. on August 13, 2015, Ms. Kaepplinger was admitted to Rockford Hospital and was transferred to the medical telemetry floor for treatment of her abdominal complaints (Pis.' Resp. to DSOF ¶ 36). Upon Ms. Kaepplinger's admission, a Rockford Hospital employee, Dr. Olin, ordered an in-patient consultation from SANI (Defs.' Resp. to PSOF ¶ 2; DSOF Ex. B: Zarnke Dep. at 52:18-53:19). Dr. Zarnke was the on-call surgeon for SANI at the time Dr. Olin ordered the consultation (Defs.' Resp. to PSOF ¶ 2; Zarnke Dep. at 52:18-53:22). At approximately 1:17 p.m. on August 13, 2015, Dr. Zarnke provided his first surgical consultation to Ms. Kaepplinger (Pis.' Resp. to DSOF ¶ 37). Later that day, Dr. Zarnke operated on Ms. Kaepplinger (PSOF Ex. 5, at 11-13).

         On the evening of August 14, 2015, Dr. Michelotti provided his first surgical consultation to Ms. Kaepplinger (Pis.' Resp. to DSOF ¶ 38). Dr. Michelotti became involved with Ms. Kaepplinger's care at this time because Dr. Zarnke was out of town and he (Dr. Michelotti) was the on-call surgeon for SANI (Defs.' Resp. to PSOF ¶ 4; DSOF Ex. C: Michelotti Dep. at 42:24-43:20, 44:3-13). Dr. Michelotti thereafter operated on Ms. Kaepplinger on August 16, August 18, and August 24, 2015 (PSOF Ex. 5, at 2-4, 7-11).[6] Before her admission, Ms. Kaepplinger had never met or heard of either Dr. Zarnke or Dr. Michelotti, and during her stay, Ms. Kaepplinger was not given a choice as to who would treat her (Defs.' Resp. to PSOF ¶¶ 1, 18). Ms. Kaepplinger was discharged from Rockford Hospital on August 29, 2015 (Pis.' Resp. to DSOF ¶ 40).

         Ms. Kaepplinger testified that Drs. Zarnke and Michelotti "did not go out of their way to tell [her] that they were not" employees of Rockford Hospital (Defs.' Resp. to PSOF ¶ 29). Dr. Zarnke does not recall telling Ms. Kaepplinger that he was an independent contractor or that he was not an employee or agent of Rockford Hospital (Id., ¶ 3). Nor does Dr. Michelotti think he discussed with Ms. Kaepplinger the fact that he was not an employee of Rockford Hospital (Id. ΒΆ 5). And Ms. ...


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