Health Law Update By: Roger R. Clayton, Mark D. Hansen, and J. Matthew Thompson Heyl, Royster, Voelker & Allen, P.C., Peoria

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1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 24, Number 1 ( ) Health Law Update By: Roger R. Clayton, Mark D. Hansen, and J. Matthew Thompson Heyl, Royster, Voelker & Allen, P.C., Peoria Drafting a Consent to Treatment Form? Defending an Apparent Agency Claim? Consider the Appellate Court Third District s Decision in Steele v. Provena Hospitals Dede Zupanci has written about the importance of a hospital s consent to treatment forms in her article, When Does a Consent Form Defeat Apparent Agency for Hospitals?, 23 IDC Quarterly, no. 2, 2013, at 38. After that article was published, the Illinois Appellate Court Third District decided the case of Steele v. Provena Hospitals, 2013 IL App (3d) , which should be considered along with those cases discussed in Ms. Zupanci s article. Plaintiffs often sue hospitals or other institutions based upon an apparent agency relationship with an independent physician to maximize their potential for recovery from the most or the deepest pockets. Steele, 2013 IL App (3d) , 117. In turn, hospitals and other institutions regularly look for ways to limit their exposure to liability for such claims. Id. One of the most effective ways to limit such claims is a well-written consent to treatment that patients must execute prior to treatment. All defense attorneys should familiarize themselves with Steele, because it addresses several issues that regularly arise in the defense of a medical negligence claim. Here, however, we focus on the portion of the opinion relating to the plaintiff s apparent agency claim against Provena Hospitals ( Provena ), and the appellate court s finding that judgment n.o.v. should have been entered in Provena s favor. Any attorney who advises institutions in drafting consents to treatment or who regularly defends hospitals or other institutions with independent contractors should carefully consider the language of the consent to treatment in this case and the appellate court s interpretation and application of that language. Background The facts of Steele are extensive and intricate. But, a more concise set of facts relating only to the apparent agency claim are considered here. Michelle Koenig experienced difficulty speaking and paralysis, for which she was seen by her primarycare physician and several specialists, treated, and released. Steele, 2013 IL App (3d) , 5. Approximately one week later, she presented to the emergency department at the defendant St. Mary s Hospital ( Provena ). Id. 6. When she arrived, Koenig was given a consent to treatment form to sign. Id.. 112,6Koenig did not read the form, nor did her mother, Rita Steele. Id. Nonetheless, Steele printed Koenig s Page 1 of 5

2 name on the consent form and directed Koenig to sign it, which she did. Id. The consent form signed by Koenig stated, in part: I acknowledge and understand that most physicians who provide physician services at Provena Health are not employees or agents of Provena Health, but instead are independent medical practitioners and independent contractors. I understand that each of these medical practitioners exercises 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 these practitioners are not subject to the supervision or control of Provena Health and that the employment or agency status of physicians who treat me is not relevant to my selection of Provena Health for my care..... I represent that I, as either the person identified above or such person s legal representative, have read and understand, and am duly authorized to accept and execute, these terms and conditions. Any questions that I ve had have been satisfactorily answered. Steele, 2013 IL App (3d) ,. 113 The consent form also contained two lines below the signature line for any explanation as to why the patient was unable to sign, but those lines were left blank, presumably because Koenig was able to sign. Id. At trial, however, there was no evidence that either Koenig or her mother read the consent form, asked any questions, or had knowledge of the contents of the consent form. Id Instead, Steele testified that neither she nor Koenig read the consent form. Id. After signing the consent form, Koenig was treated by Dr. Timothy Moran, an independent contractor in the emergency department at Provena. Id.. 7 Koenig was able to provide Dr. Moran with a medical history, including her recent treatment from the prior week. Steele, 2013 IL App (3d) , 7. Koenig died two days later of systemic failure caused by disseminated varicella zoster infection, which was not diagnosed by Dr. Moran. Id.. 20 Koenig s mother instituted the civil action as special administrator of her daughter s estate. Id. 22. The plaintiff also sued Provena, alleging an apparent agency relationship with Dr. Moran. Id. 24. The trial court made several key rulings relating to the apparent agency claim. The trial court instructed the jury that the plaintiff only had to prove what Steele knew or should have known about Dr. Moran s relationship with Provena, rather than what Koenig knew or should have known. Id The trial court also allowed plaintiff s counsel to argue that the jury simply could disregard the consent form. Steele, 2013 IL App (3d) , 129. The jury rendered a verdict in favor of the plaintiff and against Dr. Moran and Provena for $1,500,000. Id. 30. The trial court denied Provena s motion for judgment n.o.v., and this appeal followed. Id On appeal, the court addressed several issues relating to the apparent agency claim, including the following: whether the consent was negated because it was not read; whether the trial court erred in directing the jury to consider what Steele, rather than Koenig, knew from signing the consent form; and whether Provena was entitled to judgment n.o.v. based upon the signed consent. Failure to Read the Consent to Treatment Form Does Not Avoid Its Legal Effect The Third District first addressed whether Koenig s failure to read the consent to treatment form negated its legal effect. Id The court quickly disposed of this issue, finding that Illinois has long recognized the Page 2 of 5

3 principle that a competent adult is charged with knowledge of and assent to any document he or she signs, and ignorance of the contents of the document does not avoid its legal effect. Id. 121 (citing Black v. Wabash, St. Louis & Pac. Ry., 111 Ill. 351, 358 (1884)). Thus, the terms of the consent to treatment and Koenig s assent were not negated simply because she failed to read the consent form. Steele, 2013 IL App (3d) , 121. The Decedent s Assent to the Consent Terms Is Controlling, and Not the Decedent s Parent s Observations and Reliance Next, the appellate court considered whether Koenig s assent to the terms of the consent were controlling, or whether the observations and reliance of her mother, Steele, were controlling. Id In concluding that Koenig s assent was controlling, the court considered several key facts. The court noted that Koenig was 20 years old, that she was conscious and able to sign the consent form, and coherent when discussing her symptoms with the treating physician. Id The court further recognized that Steele did not sign the consent form for Koenig or write any reason on the consent form why Koenig could not sign it. Id As such, the court found no legal basis for supplanting Koenig s acknowledgments and understandings set forth in the signed consent form with those of her mother, Steele. Id The appellate court held that the trial court erred by instructing the jury that the plaintiff had to prove only what Steele, rather than Koenig, knew or should have known about the physician s relationship with the hospital. Steele, 2013 IL App (3d) , 129. The court found that such error alone was sufficient to entitle Provena to a new trial, but it went on to determine whether other facts entitled Provena to outright judgment in its favor. Id Whether Provena Was Entitled to Judgment n.o.v. Based upon the Signed Consent Form For a hospital to be liable based on the doctrine of apparent agency, a plaintiff must prove that: (1) the action of the hospital or its agent would lead a reasonable person to conclude that the allegedly negligent individual was an employee or agent of the hospital; (2) when the agent s actions create the appearance of authority, the plaintiff must also prove that the hospital had known of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent. Id. 115 (citing Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511, (1993)). On appeal, Provena argued that it was entitled to judgment in its favor because the consent to treatment defeated two necessary elements of the apparent agency claim: the holding out element and the reliance element. Id Provena argued that, because the consent form stated that most physicians... are not employees, Koenig was aware that Dr. Moran was not an employee, and the holding out element was defeated. Id The appellate court also argued that the reliance element was defeated because the consent form stated that the employment or agency status of physicians who treat me is not relevant to my selection of Provena Health. Id. The Jury Must Decide the Holding Out Element of Apparent Agency Where the Consent to Treatment Form Provides that Most Physicians Are Independent Contractors, Rather than Employees The appellate court acknowledged that a hospital must prevail on the holding out element of the apparent agency test if the patient is in some manner put on notice of the independent status of the professionals with whom he might be expected to come into contact. Steele, 2013 IL App (3d) , (quoting York v. Rush-Presbyterian-St. Luke s Med. Ctr., 222 Ill. 2d 147, 182 (2006) (internal quotation marks omitted)). Given the high standard for judgment n.o.v., however, the court found that it would Page 3 of 5

4 be for a jury to decide whether such language in the consent put the plaintiff on notice that Dr. Moran was an independent contractor. Id The Plaintiff Cannot Prove the Reliance Element Where the Consent to Treatment Form States that the Employment or Agency Status of Physicians Is Irrelevant to the Patient s Selection of the Hospital The appellate court also found that Provena was entitled to judgment n.o.v. because the plaintiff could not prove the reliance element of the apparent agency test. Id The consent form signed by Koenig stated, I acknowledge... that the employment or agency status of physicians who treat me is not relevant to my selection of Provena Health for my care. Id The court found this language to constitute a clear disclaimer of [Koenig s] reliance on the hospital for her medical care. Id. The court was further convinced by the additional provision that most of the physicians were independent contractors, and the provision that any questions that I ve had have been satisfactorily answered. Steele, 2013 IL App (3d) , 141. The appellate court determined that all of these provisions, considered together, constituted definitive indicators that Koenig was not relying on Provena or the employment status of any of the physicians in seeking care. Id. Therefore, the court held that judgment n.o.v. should have been entered in Provena s favor. Id. Conclusion The Steele court somewhat limits the reach of its decision by stating a determination of whether the doctrine of apparent agency renders a hospital vicariously liable for the malpractice of an independent contractor appears to demand a fact-specific inquiry. Id Still, hospitals or other healthcare institutions and their attorneys should carefully read and apply Steele when drafting consents to treatment or defending against apparent agency claims. By carefully drafting a consent to treatment, an institution may avoid some future suits being filed. Additionally, if suit is filed, the institution may create strong support for a dispositive motion with a well-drafted consent. Furthermore, for any pending apparent agency claims an institution might have, Steele could support dispositive motions or favorable in limine rulings at trial. About the Authors Roger R. Clayton is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., where he chairs the firm s healthcare practice group. He also regularly defends physicians and hospitals in medical malpractice litigation. Mr. Clayton is a frequent national speaker on healthcare issues, medical malpractice, and risk prevention. He received his undergraduate degree from Bradley University and law degree from Southern Illinois University in He is a member of the Illinois Association of Defense Trial Counsel (IDC), the Illinois State Bar Association, past president of the Abraham Lincoln Inn of Court, president and board member of the Illinois Association of Healthcare Attorneys, and past president and board member of the Illinois Society of Healthcare Risk Management. He co-authored the Chapter on Trials in the IICLE Medical Malpractice Handbook. Mark D. Hansen is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He has been involved in the defense of cases involving catastrophic injury, including the defense of complex cases in the areas of medical malpractice, products liability, and professional liability. Mark has defended doctors, nurses, hospitals, clinics, dentists, and nursing homes in healthcare malpractice cases. He received his undergraduate degree from Northern Illinois University and law degree from University of Illinois College of Law. Mark is a member of the Illinois Association of Defense Trial Counsel and is a former co-chair of the Young Lawyers Committee, former ex officio member of the Board of Directors, and has served as chair for various seminars hosted by the IDC. He is also a member of the Illinois Society of Healthcare Risk Management, the Abraham Lincoln American Inn of Court, and the Defense Research Institute. J. Matthew Thompson is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices primarily in the area of general tort defense. He received his B.S. in Accounting from Culver-Stockton College in 2005 and his J.D. cum laude from Southern Illinois University School of Law in Page 4 of 5

5 About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 24, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL , , , Page 5 of 5

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