Fese v. Presence Cent. & Suburban Hosp. Network

232 N.E.3d 50

2023 IL App (2d) 220273

Pamela FESE, Individually and as Administrator of the Estate of Joseph Fese, Deceased, Plaintiff-Appellant,

v.PRESENCE CENTRAL AND SUBURBAN HOSPITALS NETWORK, d/b/a Presence Mercy Medical Center; CEP America, LLC; and Daniel J. Irving, Defendants

(Presence Central and Suburban Hospitals Network, d/b/a Mercy Medical Center, Defendant-Appellee).

No. 2-22-0273

Appellate Court of Illinois, Second District.

Filed May 1, 2023

Appeal from the Circuit Court of Kane County. No. 19-L-167, Honorable Susan Clancy Boles, Judge, Presiding.

Michael W. Rathsack, of Park Ridge, and Charles L. Cannon III, and Daniel K. Cetina, of Walsh, Knippen & Cetina Chtrd., of Wheaton, for appellant.

Daniel P. Slayden, Charles A. Egner, and Steven P. Slayden, of Lewis Brisbois

Bisgaard & Smith, LLP, of Chicago, for appellee.

OPINION

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 After her husband, Joseph Fese, died, plaintiff, Pamela Fese, individually and as administrator of his estate, sued defendants, Presence Central and Suburban Hospitals Network, doing business as Presence Mercy Medical Center (Presence), the hospital to which Joseph was transported after he had trouble breathing; Dr. Daniel J. Irving, the attending physician; and Dr. Irving’s employer, CEP America-Illinois, PC (CEP). Pamela alleged that Dr. Irving—who diagnosed Joseph with epiglottitis, a swelling of the epiglottis that covers the opening of the trachea, which, if not resolved, cuts off the windpipe—negligently waited 52 minutes to attempt a cricothyrotomy to open an airway, the attempt was unsuccessful, Joseph died as a result. She further argued that Dr. Irving was Presence’s apparent or implied actual agent and that Presence and CEP were vicariously liable for Dr. Irving’s negligence. The trial court granted Presence’s motion for summary judgment, and Pamela appeals, challenging aspects of the consent form she signed at the hospital and arguing that there were material factual questions concerning whether Dr. Irving was Presence’s apparent or implied agent. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 On April 5, 2019, Pamela sued defendants. In an amended complaint, she alleged that, on April 9, 2017, Joseph was transported via ambulance to Presence’s emergency department and treated by Dr. Irving (Presence’s apparent or actual agent). During two hours of care in the emergency room, the doctor’s negligent delay in diagnosing Joseph, paging an otolaryngology or ear, nose, and throat specialist (ENT); and providing proper treatment caused Joseph’s epiglottis to swell and slowly close off his throat until it suffocated him. She further alleged that defendants were negligently late in attempting an emergency cricothyrotomy to open Joseph’s airway, they negligently failed to establish an airway, and Joseph died as a result.

¶ 4 A. Consent Form

¶ 5 At the hospital, Pamela signed Presence’s consent form, titled "Consent to Treatment and Other Acknowledgements." The two-page document addressed several topics: consent to treatment, practitioner employment status, financial agreement, assignment of insurance benefits, notification concerning out of network providers, personal possessions, patient’s rights and responsibilities, use and disclosure of health information, maintenance of a safe environment, and acceptance and signature. Each of the foregoing topics was preceded by a topic header, printed in all capital letters. The paragraph addressing practitioner employment status stated:

"I understand that all Practitioners who provide care, treatment, and other related services to me are INDEPENDENT PRACTITIONERS and not employees or agents of a Presence Health entity, except for those Practitioners who clearly and explicitly identify themselves as facility employees by wearing an identification badge with the facility name. I understand that each Practitioner is solely and exclusively responsible for the exercise of his or her own independent medical judgment and is solely responsible for the care, treatment, and services that they order, request, direct, or provide. I acknowledge that the employment or agency status of Practition-ers who treat me is not relevant to my selection of Presence Health for my care, and I neither require nor is it my expectation that any Practitioner providing me with Practitioner services be an employee of Presence Health. I also understand that I will receive, and am solely responsible for payment of, a separate bill from each of these independent Practitioners, or groups of Practitioners, for care, treatment, or services provided. By signing on the line immediately below, I acknowledge that I fully read and understood this paragraph and have had all of my questions or concerns regarding the employment status of my Practitioners satisfactorily answered by Presence Health."

¶ 6 Immediately under this paragraph was a signature line for the patient or the patient’s representative. Pamela’s signature appeared on this line, and she also signed at the end of the document. At the end of the document, the paragraph addressing acceptance and signature stated:

"I represent that I have read and understand, and am duly authorized to accept and execute, these terms and conditions, and have signed the above paragraph regarding Practitioner employment status. Any questions I have had have been satisfactorily answered. I hereby accept and agree to be bound by all of the above terms and conditions and I agree that a copy of this document may be used in the place of the original in enforcing any rights hereunder."

¶ 7 B. Professional Services Agreement

¶ 8 CEP provides emergency medical and related administrative services at Presence. The terms and conditions of CEP providing these services are set forth in the professional services agreement between Presence and CEP (agreement). The agreement also provides that a practitioner’s relationship with Presence is as an independent contractor and that Presence does not have control or direction over the manner or method by which CEP, through the practitioners, performs services under the agreement, provided that CEP ensures that services are performed in a manner consistent with Presence’s policies, applicable law, and accreditation standards.

¶ 9 In a section addressing the removal of a practitioner, the agreement states that, within 30 days of Presence’s written request to remove a practitioner from the delivery of services, CEP "will voluntarily remove, replace and thereafter no longer assign" that practitioner to provide services. Notwithstanding this provision, upon Presence’s request, CEP "will immediately remove, replace, and no longer assign" a practitioner to provide services if the practitioner terminates association with CEP for any reason or no reason; fails to meet professional qualifications; dies or is permanently disabled; is charged with, indicted, or arrested for certain offenses; materially breaches patient information confidentiality; becomes uninsurable or uninsured; engages in fraudulent, unethical, or disruptive behavior; is under investigation by a regulatory agency concerning his or her provision of care; is suspended, debarred, or excluded from participation in Medicare, Medicaid, or any other government-funded health care program; acts unprofessionally toward patients or Presence personnel; places patient health or safety in imminent and serious danger; or materially deviates from Presence’s policies or applicable professional standards, including billing or ethics standards, that may result in scandal or adversely affect the identity or reputation of Presence.

¶ 10 As relevant to Dr. Irving, an addendum provides that CEP will provide a physician to serve as medical director of the emergency department and that any physician assigned as medical director is subject to Presence’s prior approval. The medical director must keep a record of time allocated to the performance of medical director services. The medical director’s duties include participating as department representative in medical staff committees; assisting Presence in the development and implementation of its administrative policies, protocols, and procedures relating to the department’s operation; providing medical supervision over and direction of special medical and technical procedures to be performed by those delivering services; supporting Presence in the delivery of quality assurance and patient care evaluation activities of the department; supporting Presence in insuring the department’s professional personnel meet regulatory and accreditation requirements; conducting educational seminars; assisting Presence in developing new departmental services to meet the needs of the medical staff and patients; assisting Presence in establishing patient satisfaction standards and improvement strategies to achieve acute care targets; assisting with the preparation of annual operating and capital budgets for the department; Scheduling adequate coverage in the department; and assisting in the preparation of all reports of activities from the department.

¶ 11 C. Presence’s Bylaws

¶ 12 Presence’s medical staff bylaws provide that Presence’s medical director is, as relevant here, a physician "who is responsible for monitoring medical care provided at the Hospital, and who has general supervisory responsibility over practitioners providing medical care in a given area, Section or Department." However, in a section addressing the nature of medical staff membership and clinical privileges, the bylaws state that the membership and/or clinical privileges of practitioners engaged under a contractual agreement are subject to the terms of their contractual agreement, which governs over the bylaws. Further, an article addressing clinical departments and setting forth the organization of such states that each department shall have a...