Illinois Appellate Court Decision Discusses Issues of Apparent Agency and Admissibility of Practice Algorithms
In a medical liability case tried in Cook County, the issues of apparent agency between a physician and hospital and the admissibility of medical literature at trial were reviewed by the First District Appellate Court. The case, Fragogiannis v. Sisters of St. Francis Health Services Inc., 2015 IL App (1st) 141788, involved an emergency room patient who was intubated following an extreme attack of asthma. During the initial intubation attempt, the patient vomited. Despite efforts to re-intubate, the patient ultimately suffered cerebral hypoxia and brain death. A $4.7 million verdict was returned by the jury in favor of the patient’s estate.
The plaintiff claim that the emergency room physician, who was an independent contractor, acted as an “apparent agent” of the hospital. The appellate court examined the language in the patient consent where it was acknowledged that all medical decisions were those of the physician, an independent contractor, and not the hospital. Despite this language, the court concluded that an executed consent, signed by a family member, was insufficient to serve as a basis to dismiss the legal claim that the emergency room physician was an “apparent agent” of the hospital. In cases where apparent agency is alleged, courts look to factors such as the posting of signs alerting patients to the fact that physicians working in the hospital are not hospital employees, patient acknowledgment of such relationships in written consent documents and the absence of any other evidence suggesting that a physician is an agent or employee of the hospital. In Fragogiannis, the court focused upon the fact that the consent was not only signed by the decedent’s son but was executed after the patient was apparently brain dead. The court noted that “a third party signing a consent form after the negligence has occurred and after the patient is brain dead would not inform any unsuspecting patient that the four doctors that treated the individual were independent contractors.” Fragogiannis, 2015 IL App (1st) 141788, ¶22.
The second issue on appeal was the admissibility of excerpts from the Manual of Emergency Airway Management. At trial, it was admitted that the manual was “’standard,’ ‘well-respected,’ ‘a very good book,’ ‘a standard book’ and ‘a good source.’” Id. ¶28. However, there was no admission that the manual was “authoritative.” In fact, language from the manual itself stated that an intubation algorithm recommended to practitioners “cannot be considered to be scientifically proven as the only or even necessarily the best way to approach any one clinical problem or patient.” Id. ¶33. Despite such language, the court concluded that it was appropriate to read from the manual at trial, for purposes of cross examining defense experts and not for the purpose of expressing the applicable standard of care. Both the hospital and the emergency room physician objected at trial because plaintiffs’ counsel read the algorithm, verbatim, as if it was an expression of the appropriate standard of care for emergent intubation when the Manual itself made no such claim.
As of the writing of this article, the defendants have filed a Petition for Leave to Appeal with the Illinois Supreme Court.