Many hospital emergency rooms utilize independent groups to staff and provide physician care services to the patients who seek care and assistance at their centers. This arrangement is typically based on a contract entered into by the hospital with the independent group. The contract usually clearly states that all physicians practicing in the E.R. are agreed to be independent contractors and not employees or agents of the hospital. The problem arises when a patient is unhappy with the care or result of the physician’s treatment and sues both the physician and the hospital, with the claim against the hospital based on vicarious liability due to an alleged “apparent agency” relationship between the hospital and the treating E.R. physician. 

Because the contract between the hospital and their E.R. physicians establish that the physicians are not actual agents or employees of the hospital, plaintiffs have only successfully sued hospitals in certain circumstances where they allege that the hospital “held out” or lead their patients to believe that the E.R. physicians were hospital employees or agents. This legal theory is called “apparent agency.” However, hospitals have been able to successfully defeat these claims when there was clear evidence that the patients were adequately informed that the physicians providing care were independent contractors and not employees of that hospital.

A string of three recent cases show what type of evidence was required for a hospital to defeat such a vicarious liability claim where the E.R. physician was, by written contract, clearly an independent contractor.

In Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) 121835, the evidence showed: 

• The “Consent for Treatment” form, signed by the patient, clearly stated, with no exceptions or contradictions, that the patient had been informed and he or she understood the
physicians in the E.R. were not employees or agents or apparent agents of the hospital but were independent medical practitioners.

• The signed “Consent for Treatment” form also noted that the E.R. physician would bill the patient separately for their services. 

• The hospital did not provide any compensation to those E.R. physicians.

• There were signs posted in the waiting rooms and all examination rooms at that hospital stating the E.R. physicians were not employees or agents of the hospital, but rather independent contractors who would bill separately from the hospital charges.

In Steele v. Provena Hospitals, 2013 IL App (3d) 110374, the evidence showed: 

• The “Consent for Treatment” form, signed by the patient, clearly stated, with no exceptions or contradictions, that the patient had been informed and he or she understood the
physicians in the E.R. were not employees or agents or apparent agents of the hospital but were independent medical practitioners.

• The signed “Consent for Treatment” form also stated that each physician was solely responsible for the care, treatment and services ordered, requested, directed or provided by
that physician; and that each physician was also not subject to the supervision or control of the hospital.

• The signed “Consent for Treatment” form was also witnessed by a relative. 

• The signed “Consent for Treatment” form noted the E.R. physicians would bill separately for their care and services.

• The signed “Consent for Treatment” form included a term confirming that “. . . any questions I’ve had have been satisfactorily answered.”

• There was no evidence the adult patient was unable to understand or assent to the terms in the consent form.

• There were no actions or statements made by the E.R. physician that he was, in any way, an employee or agent of the hospital.

Most recently in Gore v. Provena Hospital, 2015 IL App (3d) 130446, the evidence showed:

• The “Consent for Treatment” form, signed by the parent of a minor patient, clearly stated, with no exceptions or contradictions, that the parent had been informed and he or she understood the physicians in the E.R. were not employees or agents or apparent agents of the hospital but were independent medical practitioners.

• The signed “Consent for Treatment” form included a term confirming that “. . . I understand that professional personnel are available to explain the statements;” and the form was not misleading in any way.

• The parent signing the “Consent for Treatment” form was a capable adult.

• The fact that it was an emergency medical situation and that the EMS paramedics chose the hospital, and not the parent, did not render the disclaimers in the consent form void.

Each of these cases noted that the patient’s signature on the consent form was legally binding as to the patient’s knowledge of its contents, even when not read. A competent adult is charged with the knowledge of and agreement to a document that adult signs and ignorance of its content does not void its effect, and this principle has been consistently repeated by our Illinois courts.

It can be suggested that the best elements of each case and each consent form be adopted for future use. Some consent forms include other categories of physicians, such as radiologists and pathologists, as additional independent contractors in their disclaimers. These independent contractor “groups” and the necessity for such disclaimers in a consent form also extend to free-standing emergency care facilities, as well as to convenient care centers. A cautious and complete approach which is updated and evaluated on a periodic basis is the best guide to protecting all parties from unexpected liability where none was agreed to, nor anticipated.