CRYSTAL M. WILLIAMS, Individually, and as Parent and Next Friend of JERRIN K. WILLIAMS, a Disabled Minor, Plaintiff-Appellant,
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).
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.
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. 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.
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.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:
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
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.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
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
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, ...