United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. Schenkier United States Magistrate Judge.
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.). 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,
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'
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
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).
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").
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
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). The following facts are undisputed
unless otherwise indicated.
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). 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. ¶
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).
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).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).
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
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).
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).
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
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
(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).
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,
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). 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
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. ¶ 5). And