Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williams v. Tissier

Court of Appeals of Illinois, Fifth District

December 19, 2019

CRYSTAL M. WILLIAMS, Individually, and as Parent and Next Friend of JERRIN K. WILLIAMS, a Disabled Minor, Plaintiff-Appellant,
v.
BRADLEY J. TISSIER, M.D., OB GYN CARE, LLC; ST. ELIZABETH'S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS; and HOSPITAL SISTERS HEALTH SYSTEM, Defendants (St. Elizabeth's Hospital of the Hospital Sisters of the Third Order of St. Francis, Defendant-Appellee).

          Appeal from the Circuit Court of St. Clair County. No. 09-L-526. Honorable Vincent J. Lopinot, Judge, presiding.

          Attorneys for Appellant Timothy S. Tomasik, Robert F. Geimer, Patrick J. Giese, Tomasik Kotin Kasserman, LLC, James R. Williams, Williams, Caponi, Foley & Eckert, P.C.

          Attorneys for Appellee Michael J. Nester, Chi-Yong Throckmartin, Jason M. Gourley, Donovan Rose Nester, P.C.

          JUSTICE CATES delivered the judgment of the court, with opinion. Justices Barberis and Wharton [*] concurred in the judgment and opinion.

          OPINION

          CATES JUSTICE.

         ¶ 1 Plaintiff, Crystal Williams, individually, and in her capacity as parent and next friend of Jerrin K. Williams, a disabled minor, filed an action against defendants, Bradley J. Tissier, M.D., and OB GYN Care, LLC, alleging that Dr. Tissier was negligent in performing a vaginal breech delivery of her son. Plaintiff subsequently added St. Elizabeth's Hospital of the Hospital Sisters of the Third Order of St. Francis (St. Elizabeth's) and Hospital Sisters Health System as defendants, alleging that St. Elizabeth's was liable for Dr. Tissier's negligence under theories of actual or apparent agency. The circuit court granted summary judgment for St. Elizabeth's. On appeal, plaintiff claims that the circuit court erred in granting summary judgment for St. Elizabeth's on the issue of apparent agency. Plaintiff contends that questions of material fact exist as to whether St. Elizabeth's held out Dr. Tissier as its agent and whether plaintiff reasonably relied on a purported agency relationship between St. Elizabeth's and Dr. Tissier during the period he provided medical care to plaintiff and her son. For reasons that follow, we reverse the circuit court's order granting summary judgment in favor of St. Elizabeth's on the issue of apparent agency and remand the case for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 On June 3, 2007, plaintiff, then 26 years old and pregnant with twins, began having contractions. She phoned the office of her physician, Dr. Tissier, and received a return call from Dr. Steven Mathus. Plaintiff had never been seen by Dr. Mathus, and she did not know him. Dr. Mathus instructed plaintiff to go to St. Elizabeth's Hospital. Upon arrival, plaintiff was admitted and taken to the operating room for a "double set-up" (twin) delivery. The twins were delivered on June 4, 2007, by Dr. Tissier at St. Elizabeth's. Twin A was delivered without difficulty. Twin B (Jerrin) was in a persistent transverse lie. Dr. Tissier attempted to rotate Jerrin in utero into the vertex position, without success. Eventually, Dr. Tissier performed a vaginal footling breech extraction. During the delivery procedure, Jerrin's umbilical cord became compressed and Jerrin sustained serious injuries.

         ¶ 4 On October 2, 2009, plaintiff filed a medical negligence action on behalf of herself, and as parent and next friend of Jerrin, against Dr. Tissier and OB GYN Care, LLC. Plaintiff alleged that defendants were negligent in attempting and performing a vaginal breech delivery of Jerrin. Plaintiff further alleged that, as a result of defendants' negligence, Jerrin sustained permanent cognitive deficits, movement disorders, seizure disorders, dysarthria, visual loss, hearing loss, and disfigurement, leaving him unable to live on his own or manage his own affairs.

         ¶ 5 The parties engaged in a lengthy period of discovery, exchanging interrogatories and taking depositions. In June 2014, plaintiff was granted leave to file an amended complaint, adding St. Elizabeth's as a defendant.[1] In counts I and II of the first amended complaint, plaintiff reasserted her allegations of negligence against Dr. Tissier and OB GYN Care, LLC. In count III, plaintiff alleged that Dr. Tissier was acting as an "actual and/or apparent agent" of St. Elizabeth's at the time of Jerrin's delivery and that St. Elizabeth's was vicariously liable for Dr. Tissier's negligence.

         ¶ 6 On September 25, 2017, St. Elizabeth's filed a motion for summary judgment and supporting memorandum, asserting that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law on the issues of actual and apparent agency. St. Elizabeth's claimed that plaintiff could not establish actual agency because undisputed evidence showed that Dr. Tissier was a member of OB GYN Care, LLC, and was not an employee of the hospital. St. Elizabeth's further claimed that plaintiff could not satisfy the elements of apparent agency because she could not show that St. Elizabeth's "held out" Dr. Tissier as its agent or that she relied upon a purported agency relationship between the hospital and Dr. Tissier.

         ¶ 7 St. Elizabeth's argued that plaintiff could not satisfy the "holding out" element of apparent agency because plaintiff signed "thirteen Consent for Treatment forms over a seven-year period (including one form executed prior to the treatment at issue)," each of which "clearly and unequivocally" advised plaintiff that the physicians providing treatment at the hospital were independent contractors, not employees of the hospital. (Emphasis in original.) Copies of the 13 "Consent For Treatment/Guarantee And Assignment" (Consent for Treatment) forms, executed between August 9, 2000, and June 3, 2007, were attached in support of the summary judgment.[2]St. Elizabeth's noted that Dr. Tissier was not "a hospital based physician as that term is utilized in the medical profession, i.e., he was not an emergency room physician, radiologist, pathologist, or anesthesiologist," and it did not assign plaintiff to the care of Dr. Tissier.

         ¶ 8 St. Elizabeth's further argued that plaintiff could not satisfy the "reliance" element of apparent agency where the record showed that plaintiff specifically intended for Dr. Tissier, not St. Elizabeth's, to deliver her twins. St. Elizabeth's attached snippets from the discovery depositions of plaintiff and Dr. Tissier in support of its contention. St. Elizabeth's pointed to plaintiffs deposition in which she stated that Dr. Tissier had been her doctor for many years; that Dr. Tissier provided prenatal care to her during two prior pregnancies and delivered one of her children; that she scheduled appointments by calling Dr. Tissier's office; that she attended her appointments at Dr. Tissier's office; and that she went to the hospital to which she was directed by her doctor's office. St. Elizabeth's noted that Dr. Tissier testified he saw the plaintiff at his office and not on the grounds of the hospital. St. Elizabeth's concluded that plaintiff was concerned with who would deliver her children, not where they would be delivered.

         ¶ 9 Plaintiff filed a response in opposition to St. Elizabeth's motion for summary judgment. Plaintiff did not challenge the assertion that she could not establish an actual agency relationship between St. Elizabeth's and Dr. Tissier. She stated that she intended to proceed against St. Elizabeth's on the theory of apparent agency. Plaintiff asserted that the pleadings, depositions, and other materials in the record demonstrated that there were genuine issues of material fact as to whether St. Elizabeth's acted in a manner that would lead a reasonable person to conclude that Dr. Tissier was an agent or employee of the hospital. She also claimed that the record demonstrated the existence of genuine issues of material fact as to whether St. Elizabeth's held itself out as providing "a comprehensive array of healthcare services" and "quality care to pregnant women and their families throughout the birthing process" and whether she reasonably relied upon St. Elizabeth's and its agent, Dr. Tissier, to deliver her twins. Plaintiff attached the complete transcript of her discovery deposition, five additional consent forms from her hospital admission in June 2007, and marketing materials from St. Elizabeth's website in support of her contention that there were material issues of fact on the issue of apparent agency.

         ¶ 10 In her response, plaintiff also challenged St. Elizabeth's reliance on an "ambiguous" Consent for Treatment form to support its contention that plaintiff knew or should have known that Dr. Tissier was an independent contractor. Plaintiff inserted the first two paragraphs of the St. Elizabeth's Consent for Treatment form, containing "independent contractor disclosure," and noted it was the actual size, approximately 8-point font:

         (Image Omitted)

         ¶ 11 Plaintiff also asserted that the independent contractor disclosure was vague and confusing. She noted that the document was entitled, "Consent for Treatment/Guarantee and Assignment," and argued that a patient reading that title would have no notice that an independent contractor disclosure would be included in the document. Plaintiff also argued that the independent contractor disclosure was "buried" within a 16-paragraph, two-page document. She noted that the document contained several other subjects, including a consent for treatment, release of information, waiver of responsibility for valuables, and assurances of payment. Plaintiff also noted that the specific specialties, such as emergency medicine physicians, radiologists, and anesthesiologists were identified as independent contractors, but obstetricians were not included within those specialties. Plaintiff argued that the St. Elizabeth's Consent for Treatment form contained no provisions that clearly and unequivocally identified Dr. Tissier as an independent contractor, and not an employee of St. Elizabeth's. No provision in the form explained his relationship to the hospital.

         ¶ 12 During her deposition, plaintiff testified that when she arrived at the hospital, she was presented with this Consent for Treatment form. It was a St. Elizabeth's form, and it identified Dr. Mathus as the physician. Plaintiff thought she was signing the Consent for Treatment form in case Dr. Mathus had to deliver the babies. At that time, plaintiff was in labor and experiencing contractions. She did her best, under those circumstances, to read the form before she signed it.

         ¶ 13 Plaintiff also testified that during her hospital stay in June 2007, she was presented with several other consent forms to sign, including forms authorizing Dr. Tissier to induce labor and to perform a cesarean section. She attached these forms in support of her pleadings. Each of these forms was a St. Elizabeth's form and a part of a patient's permanent chart. None of the forms included an "independent contractor" disclosure. There were no provisions identifying Dr. Tissier as independent contractor.

         ¶ 14 Plaintiff testified that Dr. Tissier told her that he wanted her to deliver at St. Elizabeth's.[3]Dr. Tissier explained that he did his work and delivered babies at St. Elizabeth's. Dr. Tissier assured plaintiff that St. Elizabeth's was a good hospital, had a good birthing center, and was a good place to deliver her babies. Plaintiff was aware of St. Elizabeth's as a hospital in the local community. When she learned Dr. Tissier wanted her to deliver at St. Elizabeth's, she conducted an Internet search of the hospital. Based on her review of the website, she thought it appeared to be a good hospital. She noted that Dr. Tissier was listed as one of the doctors on St. Elizabeth's website. Dr. Tissier never informed her that he was not employed by the hospital, and none of the St. Elizabeth's employees informed her that Dr. Tissier was not an employee or agent of the hospital. She testified that she believed Dr. Tissier was an employee of the hospital. Plaintiff also noted that there was no evidence that St. Elizabeth's posted placards or signs in the hospital to inform patients that physicians working in the hospital were independent contractors.

         ¶ 15 Multiple consent forms described by plaintiff were attached as exhibits to her deposition. Exhibit B included the Consent for Treatment form, with its 8-point font. Notably, in the lower right-hand corner of the document, the following appears: "St. Elizabeth's Hospital Consent Form-Form, #121-Page 1." On page two of the form, where plaintiff signed her name, the same notation appears, making it very clear that this form was generated by St. Elizabeth's. In addition to the Consent for Treatment form plaintiff signed on the date of her admission, there were several other St. Elizabeth's Consent for Treatment forms attached, signed by plaintiff during prior admissions. All of the forms, regardless of the date executed, were generated and prepared by St. Elizabeth's. Based upon our review of the forms, some appear to be printed in a font size even smaller than 8-point font.

         ¶ 16 Another form marked Exhibit C, "CONSENT TO OPERATE AND/OR ANESTHETICS AND/OR MEDICAL TREATMENT," was also attached to plaintiffs deposition. This multi-faceted document was also generated by St. Elizabeth's. Paragraph one of Exhibit C authorized Dr. Tissier, and any assistants he chose, to perform a "primary cesarean section" on plaintiff. The second and third paragraphs dealt with the nature of the operation and the need for, perhaps, additional procedures. Paragraph four dealt with "intra-operative salvage or post-operative salvage" of plaintiff s blood. Paragraphs seven and eight specifically granted St. Elizabeth's the right to dispose of tissue products and even take photographs for use in "scientific journals by St. Elizabeth's." The same form was executed by plaintiff in order to perform the "labor epidural." No physician's name was identified in the "labor epidural" consent; the form referred simply to "DM Physicians, IL, LLC." None of these consent forms included the aforementioned "independent contractor disclosure." Although these forms were all created by St. Elizabeth's, for the benefit of the hospital, none of these forms made any mention of the relationship between the physician treatment provider and St. Elizabeth's, nor did they indicate that Dr. Tissier was not an employee or agent of St. Elizabeth's. The forms were silent as to this issue.

         ¶ 17 Plaintiff also appended to her responsive pleading the results of an Internet search of St. Elizabeth's archives for May 2007. Exhibit D, attached to plaintiffs deposition, illustrated that during May 2007, St. Elizabeth's had on its website a section entitled, "Obstetrics and Gynecology." Underneath that heading, St. Elizabeth's touted itself, generally, by stating that the hospital had been delivering babies for more than 125 years and was "the hospital of choice" for those who desire "a family-centered maternity experience with the added assurance of a specialized staff and advanced equipment for any special needs that may arise." The website went on to mention the "wide range of resources, services, and special touches" offered by the hospital to "celebrate" the delivery of a child. One of those services, "Labor and Delivery," was promoted as providing "quality care to pregnant women and their families throughout the birthing process." St. Elizabeth's further indicated that "our anesthesiologists are available 24 hours a day to provide epidural placement and other pain management, as needed." Additionally, St. Elizabeth's touted its "Special Care Nursery," as follows:

"Should your child require intensive care, St. Elizabeth's Hospital has a board-certified neonatologist on staff. As the only Level II (with exceptions) Special Care nursery between Springfield and Carbondale in Southern Illinois, we are equipped to care for infants as small as two pounds and who need breathing assistance."

         ¶ 18 In May 2007, St. Elizabeth's website also included a section of facts and statistics. The hospital indicated it offered "a comprehensive array of healthcare services to inpatients and outpatients." St. Elizabeth's also represented that its accredited programs consistently demonstrated "quality outcomes that positively impact our patients, their families and the entire community." St. Elizabeth's noted that more than 40 medical specialties were represented at its acute care hospital and that there were three additional St. Elizabeth's facilities, including a "Medical Building with UrgiCare Center" in O'Fallon, Illinois. Plaintiff concluded that the pleadings, depositions, consent forms, and marketing materials were sufficient to show the existence of genuine issues of material fact as to the "holding out" and the "reliance" elements of apparent agency.

         ¶ 19 On December 8, 2017, St. Elizabeth's summary judgment motion was called for hearing. During this hearing, St. Elizabeth's presented the court with approximately 350 pages of medical records from plaintiffs past office visits with Dr. Tissier. The records were marked as Exhibits S, T, and U and were placed under seal by the court. After hearing the arguments of counsel, the trial court took the motion under advisement and asked the parties to prepare proposed orders. Following the hearing, plaintiff filed a motion to supplement the record with an affidavit of plaintiffs counsel, which set forth additional facts and identified certain documents contained within Exhibits S, T, and U as they related to the issue of apparent agency. Plaintiffs motion was granted over St. Elizabeth's objection. In the affidavit, plaintiffs counsel noted that St. Elizabeth's had supplemented the record with 353 pages of medical records regarding Dr. Tissier's care and treatment of plaintiff. Included within plaintiffs medical records were return to work slips and fax cover sheets, to name but a few. All of the documents referenced by plaintiffs counsel indicated the following at the top of the page:

OB GYN CARE
Bradley J. Tissier, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.