719 N.E.2d 756 (1999) 188 Ill.2d 17 241 Ill.Dec. 627
William PETROVICH, Adm'r of the Estate of Inga Petrovich, et al., Appellees,
v.
SHARE HEALTH PLAN OF ILLINOIS, INC., Appellant.
No. 85726.
Supreme Court of Illinois.
September 30, 1999.
Hinshaw & Culbertson, Chicago (Peter A. Walsh, Joshua G. Vincent,
Timothy G. Shelton, of counsel), for Appellant.
Robert J. Napleton, Motherway, Glenn & Napleton (Lynn D. Dowd, of
counsel), Chicago, for Appellees.
Thaddeus J. Nodenski, Mark D. Deaton, Naperville, for amicus curiae Illinois
Hospital & HealthSystems Association.
Robert S. Baker, Baker & Enright, Chicago, for amicus curiae Metropolitan
Chicago Healthcare Council.
Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., Ottawa (Michael
T. Reagan, of counsel), for amicus curiae Illinois Association of Health
Maintenance Organizations.
John L. Nisivaco, Terrence J. Lavin & Associates, Chicago, for amicus
curiae Illinois Trial Lawyers Association.
Justice BILANDIC delivered the opinion of the court:
The plaintiff brought this medical malpractice action against a physician
and others for their alleged negligence in failing to diagnose her oral
cancer in a timely manner. The plaintiff also named her health maintenance
organization (HMO) as a defendant. The central issue here is whether
the plaintiff's HMO may be held vicariously liable for the negligence
of its independent-contractor physicians under agency law. The plaintiff
contends that the HMO is vicariously liable under both the doctrines
of apparent authority and implied authority.
The circuit court of Cook County awarded summary judgment in favor of
the HMO, Share Health Plan of Illinois, Inc. (Share), and against the
plaintiff, Inga Petrovich, as well as her husband and coplaintiff, Vukasin
Petrovich. The circuit court held that Share cannot be held vicariously
liable for the negligence of its physicians who are independent contractors.
The plaintiffs appealed to the appellate court pursuant to Supreme Court
Rule 304(a) (155 Ill.2d R. 304(a)). The appellate court reversed and
remanded for further proceedings. 296 Ill.App.3d 849, 231 Ill. Dec. 364,
696 N.E.2d 356. We allowed Share's petition for leave to appeal (177
Ill.2d R. 315) and now affirm the judgment of the appellate court. We
hold that the plaintiff has presented sufficient evidence to entitle
her to a trial on whether Share is vicariously liable under the doctrines
of apparent and implied authority.
Four amicus curiae briefs were filed with the permission of this
court. See 155 Ill.2d R. 345. The Illinois Association of Health Maintenance
Organizations filed a brief in support of Share. The Illinois Hospital & Healthsystems
Association and the Metropolitan Chicago Healthcare Council filed a joint
brief in support of Share. The Illinois Trial Lawyers Association filed
a brief in support of the plaintiff. The Illinois State Medical Society,
a physicians group, also filed a brief in support of the plaintiff.
The plaintiff died during the pendency of this appeal. Substituted in
her place as appellee is William Petrovich, the administrator of her
estate. For ease of discussion, we refer to both the plaintiff and appellee
as "plaintiff."
FACTS
In 1989, plaintiff's employer, the Chicago Federation of Musicians, provided
health care coverage to all of its employees by selecting Share and enrolling
its employees therein. Share is an HMO and pays only for medical care
that is obtained within its network of physicians. In order to qualify
for benefits, a Share member must select from the network a primary care
physician who will provide that member's overall care and authorize referrals
when necessary. Share gives its members a list of participating physicians
from which to choose. Share has about 500 primary care physicians covering
Share's service area, which includes the counties of Cook, Du Page, Lake,
McHenry and Will. Plaintiff selected Dr. Marie Kowalski from Share's
list, and began seeing Dr. Kowalski as her primary care physician in
August of 1989. Dr. Kowalski was employed at a satellite facility of
Illinois Masonic Medical Center (Illinois Masonic), which had a contract
with Share to provide medical services to Share members.
In September of 1990, plaintiff saw Dr. Kowalski because she was experiencing
persistent pain in the right sides of her mouth, tongue, throat and face.
Plaintiff also complained of a foul mucus in her mouth. Dr. Kowalski
referred plaintiff to two other physicians who had contracts with Share:
Dr. Slavick, a neurologist, and Dr. Friedman, an ear, nose and throat
specialist.
Plaintiff informed Dr. Friedman of her pain. Dr. Friedman observed redness
or marked erythema alongside plaintiff's gums on the right side of her
mouth. He recommended that plaintiff have a magnetic resonance imaging
(MRI) test or a computed tomography (CT) scan performed on the base of
her skull. According to plaintiff's testimony at her evidence deposition,
Dr. Kowalski informed her that Share would not allow new tests as recommended
by Dr. Friedman. Plaintiff did not consult with Share about the test
refusals because she was not aware of Share's grievance procedure. Dr.
Kowalski gave Dr. Friedman a copy of an old MRI test result at that time.
The record offers no further information about this old MRI test.
Nonetheless, Dr. Kowalski later ordered an updated MRI of plaintiff's
brain, which was performed on October 31, 1990. Inconsistent with Dr.
Friedman's directions, however, this MRI failed to image the right base
of the tongue area where redness existed. Plaintiff and Dr. Kowalski
discussed the results of this MRI test on November 19, 1990, during a
follow-up visit. Plaintiff testified that Dr. Kowalski told her that
the MRI revealed no abnormality.
Plaintiff's pain persisted. In April or May of 1991, Dr. Kowalski again
referred plaintiff to Dr. Friedman. This was plaintiff's third visit
to Dr. Friedman. Dr. Friedman examined plaintiff and observed that plaintiff's
tongue was tender. Also, plaintiff reported that she had a foul odor
in her mouth and was experiencing discomfort. On June 7, 1991, Dr. Friedman
performed multiple biopsies on the right side of the base of plaintiff's
tongue and surrounding tissues. The biopsy results revealed squamous
cell carcinoma, a cancer, in the base of plaintiff's tongue and the surrounding
tissues of the pharynx. Later that month, Dr. Friedman operated on plaintiff
to remove the cancer. He removed part of the base of plaintiff's tongue,
and portions of her palate, pharynx and jaw bone. After the surgery,
plaintiff underwent radiation treatments and rehabilitation.
Plaintiff subsequently brought this medical malpractice action against
Share, Dr. Kowalski and others. Dr. Friedman was not named a party defendant.
Plaintiff's complaint, though, alleges that both Drs. Kowalski and Friedman
were negligent in failing to diagnose plaintiff's cancer in a timely
manner, and that Share is vicariously liable for their negligence under
agency principles. Share filed a motion for summary judgment, arguing
that it cannot be held liable for the negligence of Dr. Kowalski or Friedman
because they were acting as independent contractors in their treatment
of plaintiff, not as Share's agents. Plaintiff countered that Share is
not entitled to summary judgment because Drs. Kowalski and Friedman were
Share's agents. The parties submitted various depositions, affidavits
and exhibits in support of their respective positions.
Share is a for-profit corporation. At all relevant times, Share was organized
as an "independent practice association-model" HMO under the
Illinois Health Maintenance Organization Act (Ill.Rev.Stat.1991, ch.
111 ½, par. 1401 et seq.). This means that Share is a financing
entity that arranges and pays for health care by contracting with independent
medical groups and practitioners. See Ill.Rev.Stat.1991, ch. 111 ½, par.
1402(7). Share does not employ physicians directly, nor does it own,
operate, maintain or supervise the offices where medical care is provided
to its members. Rather, Share contracts with independent medical groups
and physicians that have the facilities, equipment and professional skills
necessary to render medical care. Physicians desiring to join Share's
network are required to complete an application procedure and meet with
Share's approval.
Share utilizes a method of compensation called "capitation" to
pay its medical groups. Share also maintains a "quality assurance
program." Share's capitation method of compensation and "quality
assurance program" are more fully described later in this opinion.
Share provides a member handbook to each of its members, including plaintiff.
The handbook states to its members that Share will provide "all
your healthcare needs" and "comprehensive high quality services." The
handbook also states that the primary care physician is "your health
care manager" and "makes the decisions" about the member's
care. The handbook further states that Share is a "good partner
in sickness and in health." Unlike the master agreements and benefits
contract discussed below, the member handbook which plaintiff received
does not contain any provision that identifies Share physicians as independent
contractors or nonemployees of Share. Rather, the handbook describes
the physicians as "your Share physician," "Share physicians" and "our
staff." Furthermore, Share refers to the physicians' offices as "Your
Share physician's office" and states: "All of the Share staff
and Medical Offices look forward to serving you * * *."
Plaintiff confirmed that she received the member handbook. Plaintiff did
not read the handbook in its entirety, but read portions of it as she
needed the information. She relied on the information contained in the
handbook while Drs. Kowalski and Friedman treated her.
The record also contains a "Health Care Services Master Agreement," entered
into by Share and Illinois Masonic. Dr. Kowalski is a signatory of this
agreement. The agreement states, "It is understood and agreed that
[Illinois Masonic] and [primary care physicians] are independent contractors
and not employees or agents of SHARE." A separate agreement between
Share and Dr. Friedman contains similar language. Plaintiff did not receive
these agreements.
Share's primary care physicians, under their agreements with Share, are
required to approve patients' medical requests and make referrals to
specialists. These physicians use Share's standard referral forms to
indicate their approval of the referral. Dr. Kowalski testified at an
evidence deposition that she did not feel constrained by Share in making
medical decisions regarding her patients, including whether to order
tests or make referrals to specialists.
Another document in the record is Share's benefits contract. The benefits
contract contains a subscriber certificate. The subscriber certificate
sets forth a member's rights and obligations with respect to Share. Additionally,
the subscriber certificate states that Share's physicians are independent
contractors and that "SHARE Plan Providers and Enrolling Groups
are not agents or employees of SHARE nor is SHARE or any employee of
SHARE an agent or employee of SHARE Plan Providers or Enrolling Groups." The
certificate elaborates: "The relationship between a SHARE Plan Provider
and any Member is that of provider and patient. The SHARE Plan Physician
is solely responsible for the medical services provided to any Member.
The SHARE Plan Hospital is solely responsible for the Hospital services
provided to any Member."
Plaintiff testified that she did not recall receiving the subscriber certificate.
In response, Share stated that Share customarily provides members with
this information. Share does not claim to know whether Share actually
provided plaintiff with this information. Plaintiff acknowledged that
she received a "whole stack" of information from Share upon
her enrollment.
Plaintiff was not aware of the type of relationship that her physicians
had with Share. At the time she received treatment, plaintiff believed
that her physicians were employees of Share.
In the circuit court, Share argued that it was entitled to summary judgment
because the independent-contractor provision in the benefits contract
established, as a matter of law, that Drs. Kowalski and Friedman were
not acting as Share's agents in their treatment of plaintiff. The circuit
court agreed and entered summary judgment for Share.
The appellate court reversed, holding that a genuine issue of material
fact is presented as to whether plaintiff's treating physicians are Share's
apparent agents. 296 Ill.App.3d 849, 231 Ill.Dec. 364, 696 N.E.2d 356.
The appellate court stated that a number of factors support plaintiff's
apparent agency claim, including plaintiff's testimony, Share's member
handbook, Share's quality assessment program and Share's capitation method
of compensation. The appellate court therefore remanded the cause for
trial. The appellate court did not address the theory of implied authority.
ANALYSIS
This appeal comes before us amidst great changes to the relationships
among physicians, patients and those entities paying for medical care.
Traditionally, physicians treated patients on demand, while insurers
merely paid the physicians their fee for the services provided. Today,
managed care organizations (MCOs) have stepped into the insurer's shoes,
and often attempt to reduce the price and quantity of health care services
provided to patients through a system of health care cost containment.
MCOs may, for example, use prearranged fee structures for compensating
physicians. MCOs may also use utilization-review procedures, which are
procedures designed to determine whether the use and volume of particular
health care services are appropriate. MCOs have developed in response
to rapid increases in health care costs.
HMOs, i.e., health maintenance organizations, are a type of MCO.
HMOs are subject to both state and federal laws. See generally 215 ILCS
125/1-1 et seq. (West 1998) (containing the Illinois Health
Maintenance Organization Act); 42 U.S.C. § 300e et seq. (West
1994 & Supp.1997) (containing the federal Health Maintenance Organization
Act of 1973). Under Illinois law, an HMO is defined as "any organization
formed under the laws of this or another state to provide or arrange
for one or more health care plans under a system which causes any part
of the risk of health care delivery to be borne by the organization or
its providers." Ill.Rev. Stat.1991, ch. 111 ½, par. 1402(9), now
215 ILCS 125/1-2(9) (West 1998). Because HMOs may differ in their structures
and the cost-containment practices that they employ, a court must discern
the nature of the organization before it, where relevant to the issues.
As earlier noted, Share is organized as an independent practice association
(IPA)-model HMO. IPA-model HMOs are financing entities that arrange and
pay for health care by contracting with independent medical groups and
practitioners. See 215 ILCS 125/1-2(7) (West 1998).
This court has never addressed a question of whether an HMO may be held
liable for medical malpractice. Share asserts that holding HMOs liable
for medical malpractice will cause health care costs to increase and
make health care inaccessible to large numbers of people. Share suggests
that, with this consideration in mind, this court should impose only
narrow, or limited, forms of liability on HMOs. We disagree with Share
that the cost-containment role of HMOs entitles them to special consideration.
The principle that organizations are accountable for their tortious actions
and those of their agents is fundamental to our justice system. There
is no exception to this principle for HMOs. Moreover, HMO accountability
is essential to counterbalance the HMO goal of cost-containment. To the
extent that HMOs are profit-making entities, accountability is also needed
to counterbalance the inherent drive to achieve a large and ever-increasing
profit margin. Market forces alone "are insufficient to cure the
deleterious [e]ffects of managed care on the health care industry." Herdrich
v. Pegram, 154 F.3d 362, 374-75 (7th Cir.1998), cert. granted, ___
U.S. ___, 120 S.Ct. 10, 144 L.Ed.2d 841 (1999). Courts, therefore, should
not be hesitant to apply well-settled legal theories of liability to
HMOs where the facts so warrant and where justice so requires.
Indeed, the national trend of courts is to hold HMOs accountable for medical
malpractice under a variety of legal theories, including vicarious liability
on the basis of apparent authority, vicarious liability on the basis
of respondeat superior, direct corporate negligence, breach
of contract and breach of warranty. See generally Annotation, Liability
of Health Maintenance Organizations (HMOs) for Negligence of Member Physicians, 51
A.L.R.5th 271 (1997) (collecting cases); D. DiCicco, HMO Liability
for the Medical Negligence of Member Physicians, 43 Vill. L.Rev.
499 (1998) (discussing trend). Our appellate court has also expressed
the view that HMOs are subject to liability under the five legal theories
listed above. Raglin v. HMO Illinois, Inc., 230 Ill.App.3d 642,
646, 172 Ill.Dec. 90, 595 N.E.2d 153 (1992). Share concedes that HMOs
may be held liable for medical malpractice under these five theories.
This appeal concerns whether Share may be held vicariously liable under
agency law for the negligence of its independent-contractor physicians.
We must determine whether Share was properly awarded summary judgment
on the ground that Drs. Kowalski and Friedman were not acting as Share's
agents in their treatment of plaintiff. Plaintiff argues that Share is
not entitled to summary judgment on this record. Plaintiff asserts that
genuine issues of material fact exist as to whether Drs. Kowalski and
Friedman were acting within Share's apparent authority, implied authority
or both.
We conduct de novo review of the summary judgment granted to
Share. See Busch v. Graphic Color Corp., 169 Ill.2d 325, 333,
214 Ill.Dec. 831, 662 N.E.2d 397 (1996). Summary judgment is proper where
the pleadings, depositions, admissions, affidavits and exhibits on file,
when viewed in the light most favorable to the nonmoving party, show
that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Busch, 169
Ill.2d at 333, 214 Ill.Dec. 831, 662 N.E.2d 397. A triable issue of fact
exists where there is a dispute as to a material fact or where, although
the facts are not in dispute, reasonable minds might differ in drawing
inferences from those facts. Although summary judgment is an expeditious
method of disposing of a lawsuit, it is a drastic remedy and should be
allowed only when the right of the moving party is free and clear from
doubt. Colvin v. Hobart Brothers, 156 Ill.2d 166, 169-70, 189
Ill.Dec. 407, 620 N.E.2d 375 (1993).
As a general rule, no vicarious liability exists for the actions of independent
contractors. Vicarious liability may nevertheless be imposed for the
actions of independent contractors where an agency relationship is established
under either the doctrine of apparent authority (Gilbert v. Sycamore
Municipal Hospital, 156 Ill.2d 511, 524, 190 Ill.Dec. 758, 622 N.E.2d
788 (1993)) or the doctrine of implied authority (see HPI Health
Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill.2d 145,
163, 137 Ill.Dec. 19, 545 N.E.2d 672 (1989)).
I. Apparent Authority
Apparent authority, also known as ostensible authority, has been a part
of Illinois jurisprudence for more than 140 years. See Ill. L. & Prac. Agency §
112, at 734 (1953), citing Doan v. Duncan, 17 Ill. 272 (1855).
Under the doctrine, a principal will be bound not only by the authority
that it actually gives to another, but also by the authority that it
appears to give. Gilbert, 156 Ill.2d at 523, 190 Ill.Dec. 758,
622 N.E.2d 788. The doctrine functions like an estoppel. O'Banner
v. McDonald's Corp., 173 Ill.2d 208, 213, 218 Ill.Dec. 910, 670
N.E.2d 632 (1996). Where the principal creates the appearance of authority,
a court will not hear the principal's denials of agency to the prejudice
of an innocent third party, who has been led to reasonably rely upon
the agency and is harmed as a result. O'Banner, 173 Ill.2d at
213, 218 Ill.Dec. 910, 670 N.E.2d 632; Gilbert, 156 Ill.2d at
524, 190 Ill.Dec. 758, 622 N.E.2d 788.
This court first applied the apparent authority doctrine in a medical
malpractice context in Gilbert v. Sycamore Municipal Hospital, 156
Ill.2d 511, 190 Ill.Dec. 758, 622 N.E.2d 788 (1993). In Gilbert, a
patient suffered a heart attack after being treated and released by a
physician at a hospital emergency room. The patient brought an action
against the hospital, charging that the hospital was vicariously liable
for the physician's negligence in failing to diagnose the patient's heart
problem. The trial court awarded summary judgment to the hospital, holding
that the hospital could not be held vicariously liable because the emergency
room physician was an independent contractor. This court reversed. We
held that a genuine issue of material fact existed as to whether the
physician was acting as the hospital's apparent agent. Gilbert, 156
Ill.2d 511, 190 Ill.Dec. 758, 622 N.E.2d 788.
The Gilbert decision was grounded in "two realities of modern
hospital care." Gilbert, 156 Ill.2d at 520, 190 Ill.Dec.
758, 622 N.E.2d 788. First, hospitals, in essence, have become "`big
business.'" Gilbert, 156 Ill.2d at 520, 190 Ill.Dec. 758,
622 N.E.2d 788, quoting Kashishian v. Port, 167 Wis.2d 24, 38,
481 N.W.2d 277, 282 (1992). Hospitals increasingly hold themselves out
to the public as the providers of health care, particularly in their
marketing. Hospitals also benefit financially from the health care delivered
in their emergency rooms. Gilbert, 156 Ill.2d at 520-21, 190
Ill.Dec. 758, 622 N.E.2d 788. Second, the reasonable expectations of
the public have changed. Patients have come to rely on the reputation
of the hospital in seeking out emergency care. These patients would naturally
assume that the physicians attending the emergency room are employees
of the hospital, unless put on notice otherwise. Consequently, Gilbert held
that, unless the patient knows or should have known that the physician
providing treatment is an independent contractor, vicarious liability
can attach to a hospital for the medical malpractice of its physicians
under the apparent authority doctrine. Gilbert, 156 Ill.2d at
524, 190 Ill.Dec. 758, 622 N.E.2d 788.
Gilbert sets forth and explains the elements necessary to prove
apparent agency against a hospital. These elements are a "holding
out" by the hospital and "justifiable reliance" by the
plaintiff. Gilbert, 156 Ill.2d at 525, 190 Ill.Dec. 758, 622
N.E.2d 788.
Joint amici the Illinois Hospital & Healthsystems Association
and the Metropolitan Chicago Healthcare Council suggest that Gilbert should
be overruled because it is unfair to hospitals. We are not persuaded
by amici's argument. Gilbert fairly imposes vicarious
liability upon hospitals under the same doctrine of apparent authority
that applies to other principals. We therefore reaffirm Gilbert.
We now hold that the apparent authority doctrine may also be used to impose
vicarious liability on HMOs. Even before Gilbert was decided,
our appellate court in Raglin v. HMO Illinois, Inc., 230 Ill.App.3d
642, 172 Ill.Dec. 90, 595 N.E.2d 153 (1992), expressed the view that
the apparent authority doctrine applies to HMOs. Raglin, 230
Ill.App.3d at 646, 172 Ill.Dec. 90, 595 N.E.2d 153. Since Gilbert, our
appellate court in the instant case and in Jones v. Chicago HMO Ltd., 301
Ill. App.3d 103, 234 Ill.Dec. 641, 703 N.E.2d 502 (1998), appeal
allowed, 183 Ill.2d 569, 238 Ill.Dec. 714, 712 N.E.2d 818 (1999),
held that the apparent authority doctrine as espoused in Gilbert applies
to HMOs. 296 Ill.App.3d at 855, 860-61, 231 Ill.Dec. 364, 696 N.E.2d
356; Jones, 301 Ill.App.3d at 113, 234 Ill.Dec. 641, 703 N.E.2d
502. Courts in other jurisdictions have likewise concluded that HMOs
are subject to this form of vicarious liability. Boyd v. Albert Einstein
Medical Center, 377 Pa.Super. 609, 547 A.2d 1229 (1988); Chase
v. Independent Practice Ass'n, 31 Mass.App. 661, 583 N.E.2d 251
(1991). Both Share and its amicus the Illinois Association of
HMOs concede that apparent agency principles apply to HMOs.
To establish apparent authority against an HMO for physician malpractice,
the patient must prove (1) that the HMO held itself out as the provider
of health care, without informing the patient that the care is given
by independent contractors, and (2) that the patient justifiably relied
upon the conduct of the HMO by looking to the HMO to provide health care
services, rather than to a specific physician. Apparent agency is a question
of fact. Gilbert, 156 Ill.2d at 524, 190 Ill.Dec. 758, 622 N.E.2d
788.
A. Holding Out
The element of "holding out" means that the HMO, or its agent,
acted in a manner that would lead a reasonable person to conclude that
the physician who was alleged to be negligent was an agent or employee
of the HMO. See Gilbert, 156 Ill.2d at 525, 190 Ill.Dec. 758,
622 N.E.2d 788, quoting Pamperin v. Trinity Memorial Hospital, 144
Wis.2d 188, 207-08, 423 N.W.2d 848, 855-56 (1988). Where the acts of
the agent create the appearance of authority, a plaintiff must also prove
that the HMO had knowledge of and acquiesced in those acts. See Gilbert, 156
Ill.2d at 525, 190 Ill.Dec. 758, 622 N.E.2d 788, quoting Pamperin, 144
Wis.2d at 207-08, 423 N.W.2d at 855-56. Significantly, the holding-out
element does not require the HMO to make an express representation that
the physician alleged to be negligent is its agent or employee. Rather,
this element is met where the HMO holds itself out as the provider of
health care without informing the patient that the care is given by independent
contractors. See Gilbert, 156 Ill.2d at 525, 190 Ill.Dec. 758,
622 N.E.2d 788 (determining, in the context of the hospital emergency
room, that the holding-out element is met where the hospital holds itself
out as the "provider of emergency room care" without informing
the patient that the care is given by independent contractors). Vicarious
liability under the apparent authority doctrine will not attach, however,
if the patient knew or should have known that the physician providing
treatment is an independent contractor. See Gilbert, 156 Ill.2d
at 522, 524, 190 Ill.Dec. 758, 622 N.E.2d 788.
Here, Share contends that the independent-contractor provisions in the
two master agreements and the benefits contract conclusively establish,
as a matter of law, that Share did not hold out Drs. Kowalski and Friedman
to be Share's agents. Although all three of these contracts clearly express
that the physicians are independent contractors and not agents of Share,
we disagree with Share's contention for the reasons explained below.
First, the two master agreements at issue are private contractual agreements
between Share and Illinois Masonic, with Dr. Kowalski as a signatory,
and between Share and Dr. Friedman. The record contains no indication
that plaintiff knew or should have known of these private contractual
agreements between Share and its physicians. Gilbert expressly
rejected the notion that such private contractual agreements can control
a claim of apparent agency. Gilbert, 156 Ill.2d at 521, 190
Ill.Dec. 758, 622 N.E.2d 788. As explained there, "`[A]ppearances
speak much louder than the words of whatever private contractual arrangements
the physicians and the hospital may have entered into, unbeknownst to
the public, in an attempt to insulate the hospital from liability for
the negligence, if any, of the physicians.'" Gilbert, 156
Ill.2d at 521, 190 Ill.Dec. 758, 622 N.E.2d 788, quoting Brown v.
Coastal Emergency Services, Inc., 181 Ga.App. 893, 898, 354 S.E.2d
632, 637 (1987), aff'd, 257 Ga. 507, 361 S.E.2d 164 (1987).
We hold that this same rationale applies to private contractual agreements
between physicians and an HMO. See also 2A C.J.S. Agency § 165,
at 805 (1972) (noting the general rule that apparent authority is not
affected by private instructions or limitations). Because there is no
dispute that the master agreements at bar were unknown to plaintiff,
they cannot be used to defeat her apparent agency claim.
Share also relies on the benefits contract. Plaintiff was not a party
or a signatory to this contract. The benefits contract contains a subscriber
certificate, which states that Share physicians are independent contractors.
Share claims that this language alone conclusively overcomes plaintiff's
apparent agency claim. We do not agree.
Whether a person has notice of a physician's status as an independent
contractor, or is put on notice by the circumstances, is a question of
fact. See Gilbert, 156 Ill.2d at 524, 190 Ill.Dec. 758, 622
N.E.2d 788. In this case, plaintiff testified at her evidence deposition
that she did not recall receiving the subscriber certificate. Share responded
only that it customarily provides members with this information. Share
has never claimed to know whether Share actually provided plaintiff with
this information. Thus, a question of fact exists as to whether Share
gave this information to plaintiff. If this information was not provided
to plaintiff, it cannot be used to defeat her apparent agency claim.
Share nonetheless maintains that plaintiff's testimony that she received
a "whole stack" of information from Share upon her enrollment
proves that plaintiff received the subscriber certificate. Share is not
entitled to summary judgment on the basis of this testimony. Even if
Share did send this single disclaimer of an agency relationship to plaintiff
within a "whole stack" of information, this fact would not
conclusively resolve plaintiff's claim. As we discuss below, the record
contains evidence that Share held itself out as the provider of health
care without informing plaintiff that the care was given by independent
contractors. A trier of fact must therefore be permitted to weigh the
conflicting evidence and decide this issue based on the totality of the
circumstances. Only a trier of fact can properly determine whether plaintiff
had notice of the physicians' status as independent contractors, or was
put on notice by the circumstances.
Evidence in the record supports plaintiff's contentions that Share held
itself out to its members as the provider of health care, and that plaintiff
was not aware that her physicians were independent contractors. Notably,
plaintiff stated that, at the time that she received treatment, plaintiff
believed that Drs. Kowalski and Friedman were Share employees. Plaintiff
was not aware of the type of relationship that her physicians had with
Share.
Moreover, Share's member handbook contains evidence that Share held itself
out to plaintiff as the provider of her health care. The handbook stated
to Share members that Share will provide "all your healthcare needs" and "comprehensive
high quality services." The handbook did not contain any provision
that identified Share physicians as independent contractors or nonemployees
of Share. Instead, the handbook referred to the physicians as "your
Share physician," "Share physicians" and "our staff." Share
also referred to the physicians' offices as "Your Share physician's
office." The record shows that Share provided this handbook to each
of its enrolled members, including plaintiff. Representations made in
the handbook are thus directly attributable to Share and were intended
by Share to be communicated to its members.
Share argues that plaintiff is not entitled to rely on any statements
made in the member handbook because, according to Share, plaintiff admitted
that she never read that handbook. Share contends that plaintiff cannot
justifiably rely on something of which she was not even aware. Share
misrepresents plaintiff's testimony. Although plaintiff admitted that
she did not read the member handbook from cover to cover, she testified
that she read portions of the handbook as she needed the information.
Plaintiff also stated that she relied on the information contained in
the handbook while Drs. Kowalski and Friedman treated her, and she believed
those physicians to be employees of Share. Consequently, Share's contention
fails.
We hold that the above testimony by plaintiff and Share's member handbook
support the conclusion that Share held itself out to plaintiff as the
provider of her health care, without informing her that the care was
actually provided by independent contractors. Therefore, a triable issue
of fact exists as to the holding-out element. We need not resolve whether
any other evidence in the record also supports plaintiff's claim. Our
task here is to review whether Share is entitled to summary judgment
on this element. We hold that Share is not.
B. Justifiable Reliance
A plaintiff must also prove the element of "justifiable reliance" to
establish apparent authority against an HMO for physician malpractice.
This means that the plaintiff acted in reliance upon the conduct of the
HMO or its agent, consistent with ordinary care and prudence. See Gilbert, 156
Ill.2d at 525-26, 190 Ill. Dec. 758, 622 N.E.2d 788, quoting Pamperin, 144
Wis.2d at 211-12, 423 N.W.2d at 857.
The element of justifiable reliance is met where the plaintiff relies
upon the HMO to provide health care services, and does not rely upon
a specific physician. This element is not met if the plaintiff selects
his or her own personal physician and merely looks to the HMO as a conduit
through which the plaintiff receives medical care. See Gilbert, 156
Ill.2d at 525, 190 Ill.Dec. 758, 622 N.E.2d 788.
Concerning the element of justifiable reliance in the hospital context, Gilbert explained
that the critical distinction is whether the plaintiff sought care from
the hospital itself or from a personal physician.
"`Except for one who seeks care from a specific physician,
if a person voluntarily enters a hospital without objecting to his or
her admission to the hospital, then that person is seeking care from
the hospital itself. An individual who seeks care from a hospital itself,
as opposed to care from his or her personal physician, accepts care from
the hospital in reliance upon the fact that complete emergency room care
* * * will be provided by the hospital through its staff.'" Gilbert, 156
Ill.2d at 525, 190 Ill.Dec. 758, 622 N.E.2d 788, quoting Pamperin, 144
Wis.2d at 211-12, 423 N.W.2d at 857. This rationale applies even more
forcefully in the context of an HMO that restricts its members to the
HMO's chosen physicians. Accordingly, unless a person seeks care from
a personal physician, that person is seeking care from the HMO itself.
A person who seeks care from the HMO itself accepts that care in reliance
upon the HMO's holding itself out as the provider of care.
Share maintains that plaintiff cannot establish the justifiable reliance
element because she did not select Share. Share argues that, unless the
plaintiff actually selects the HMO, there is no reliance upon the HMO
and thus no nexus between the HMO's alleged wrongful conduct and the
plaintiff's injury. Share takes the position that, if a person did not
select the HMO, then that person can never claim apparent agency, regardless
of what the HMO does, says or leads the person to believe.
We reject Share's argument. It is true that, where a person selects the
HMO and does not rely upon a specific physician, then that person is
relying upon the HMO to provide health care. This principle, derived
directly from Gilbert, is set forth above. Equally true, however,
is that where a person has no choice but to enroll with a single HMO
and does not rely upon a specific physician, then that person is likewise
relying upon the HMO to provide health care.
In the present case, the record discloses that plaintiff did not select
Share. Plaintiff's employer selected Share for her. Plaintiff had no
choice of health plans whatsoever. Once Share became plaintiff's health
plan, Share required plaintiff to obtain her primary medical care from
one of its primary care physicians. If plaintiff did not do so, Share
did not cover plaintiff's medical costs. In accordance with Share's requirement,
plaintiff selected Dr. Kowalski from a list of physicians that Share
provided to her. Plaintiff had no prior relationship with Dr. Kowalski.
As to Dr. Kowalski's selection of Dr. Friedman for plaintiff, Share required
Dr. Kowalski to make referrals only to physicians approved by Share.
Plaintiff had no prior relationship with Dr. Friedman. We hold that these
facts are sufficient to raise the reasonable inference that plaintiff
relied upon Share to provide her health care services.
Were we to conclude that plaintiff was not relying upon Share for health
care, we would be denying the true nature of the relationship among plaintiff,
her HMO and the physicians. Share, like many HMOs, contracted with plaintiff's
employer to become plaintiff's sole provider of health care, to the exclusion
of all other providers. Share then restricted plaintiff to its chosen
physicians. Under these facts, plaintiff's reliance on Share as the provider
of her health care is shown not only to be compelling, but literally
compelled. Plaintiff's reliance upon Share was inherent in Share's method
of operation.
Share relies on certain language of the appellate decision in Raglin to
support its position. The Raglin court, after noting that the
HMO there required the plaintiff to select a physician from a limited
list of physicians who contracted with the HMO, stated that this should
not be dispositive as to the reliance question because "this is
the manner in which all HMOs operate." Raglin, 230 Ill.App.3d
at 650, 172 Ill.Dec. 90, 595 N.E.2d 153. This language is of no assistance
to Share. Raglin was decided before Gilbert and, thus,
lacked the benefit of Gilbert's analysis. We follow Gilbert, which
clarified that the critical distinction as to the element of justifiable
reliance is whether the plaintiff sought care from the health care entity
itself or from a personal physician. To the extent that this language
in Raglin may be construed as conflicting with our decision
today, it is hereby overruled.
Share also attempts to analogize this case with O'Banner v. McDonald's
Corp., 173 Ill.2d 208, 218 Ill.Dec. 910, 670 N.E.2d 632 (1996).
In O'Banner, the plaintiff slipped and fell in the bathroom
of a restaurant owned by a franchisee and sought to impose liability
on the franchisor under the doctrine of apparent authority. The trial
court granted the franchisor's motion for summary judgment, and this
court affirmed. This court held that the plaintiff must suffer summary
judgment because the record was "devoid" of evidence regarding
reliance. The plaintiff's pleadings and affidavit gave "no indication
as to why he went to the restaurant in the first place." O'Banner, 173
Ill.2d at 214, 218 Ill.Dec. 910, 670 N.E.2d 632.
According to Share, this case is like O'Banner because plaintiff
here gave no indication as to why she chose Dr. Kowalski as her primary
care physician. Share is mistaken. The record is replete with evidence
explaining plaintiff's decisionmaking process regarding Dr. Kowalski.
As outlined above, plaintiff was enrolled in Share's health plan by her
employer. Plaintiff then selected Dr. Kowalski from a list of physicians
that Share provided to her. Plaintiff had no prior relationship with
Dr. Kowalski. She chose Dr. Kowalski because Share's health plan required
her to obtain her primary medical care from one of its primary care physicians,
if her care was to be covered. This case, therefore, is distinguishable
from O'Banner.
In conclusion, as set forth above, plaintiff has presented sufficient
evidence to support justifiable reliance, as well as a holding out by
Share. Share, therefore, is not entitled to summary judgment against
plaintiff's claim of apparent authority.
Share nonetheless contends that the appellate court erred in considering
as evidence of apparent authority (1) Share's "quality assurance
program" and (2) Share's capitation method of compensation, because
both items were unknown to plaintiff. We need not address this argument.
Our task here is to determine whether summary judgment was properly awarded
to Share. Even if these items are removed from consideration, Share is
not entitled to summary judgment. We therefore express no opinion regarding
this issue.
II. Implied Authority
Implied authority is actual authority, circumstantially proved. HPI
Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131
Ill.2d 145, 163, 137 Ill. Dec. 19, 545 N.E.2d 672 (1989). One context
in which implied authority arises is where the facts and circumstances
show that the defendant exerted sufficient control over the alleged
agent so as to negate that person's status as an independent contractor,
at least with respect to third parties. See John Gabel Manufacturing
Co. v. Murphy, 390 Ill. 455, 461, 62 N.E.2d 401 (1945); see
generally 41 Am.Jur.2d Independent Contractors §§ 9, 35,
at 404-06, 434-36 (1995) (setting forth rule); 2A C.J.S. Agency §
155, at 783-84 (1972) (same). The cardinal consideration for determining
the existence of implied authority is whether the alleged agent retains
the right to control the manner of doing the work. See John Gabel
Manufacturing Co., 390 Ill. at 461, 62 N.E.2d 401. Where a person's
status as an independent contractor is negated, liability may result
under the doctrine of respondeat superior.
Plaintiff contends that the facts and circumstances of this case show
that Share exerted sufficient control over Drs. Kowalski and Friedman
so as to negate their status as independent contractors. Share responds
that the act of providing medical care is peculiarly within a physician's
domain because it requires the exercise of independent medical judgment.
Share thus maintains that, because it cannot control a physician's exercise
of medical judgment, it cannot be subject to vicarious liability under
the doctrine of implied authority.
Amicus Illinois State Medical Society (Society), the physicians
group, supports imposing vicarious liability upon HMOs for the medical
malpractice of their physicians under the doctrine of implied authority.
The Society argues that Share is disingenuous in its claim that HMOs
cannot impact the medical care of its subscribers. The Society asserts
that HMOs throughout Illinois are in fact operating in a manner which
convolutes the decisionmaking process regarding health care. The Society
submits that HMOs should not be allowed to escape legal liability for
the medical malpractice of physicians whom the HMOs control.
Speaking in general terms, the Society argues that HMOs assert control
over physicians in a variety of ways. First, the Society discusses the
contracts that HMOs enter into with their physicians. According to the
Society, in these contracts, HMOs often require that they be given (1)
the right to make prospective decisions of medical necessity and (2)
the right to refuse to pay for health care that the HMO perceives to
be inappropriate or outside the scope of its policy. These contracts
may even bar a physician from providing medical care to a patient without
obtaining advance approval from the HMO. Second, the Society points to
HMO cost-containment practices. The Society claims that, although HMOs
perform some cost-containment practices themselves, they often delegate
cost-containment functions directly to physicians. The Society maintains
that HMOs should be held accountable for the cost-containment activities
that they delegate to others. The primary care physician in particular
is carrying out the HMO objective of providing care while containing
costs, the Society claims. Generally, the primary care physician is responsible
for providing basic care to the patient and for coordinating other care
for the patient. The primary care physician must approve all medical
requests and referrals, and thus acts as a "gatekeeper" for
the HMO in the HMO's effort to contain costs and utilization of medical
services. Third, the Society notes the HMO use of utilization-review
processes. According to the Society, where HMOs retain the right to make
decisions about what health care is "medically necessary" or "medically
appropriate," physicians are no longer in control of treatment.
The Society asserts that prospective utilization-review procedures are
the most harmful form of interference perpetrated by HMOs. In a typical
scenario, the physician recommends that certain care be provided to the
patient, but the HMO denies to provide the care finding that it is not
necessary or appropriate. Lastly, the Society warns that HMO control
is not always easy to discern. It explains that the complex relationships
involved "raise incredibly intricate fact patterns which limit
like the walls in a maze the ability of physicians or patients to freely
make decisions based upon their best judgment."
We now address whether the implied authority doctrine may be used against
HMOs to negate a physician's status as an independent contractor. Our
appellate court in Raglin suggested that it can. Raglin
v. HMO Illinois, Inc., 230 Ill.App.3d 642, 647, 172 Ill.Dec. 90,
595 N.E.2d 153 (1992). Case law from other jurisdictions lends support
to this view as well. Schleier v. Kaiser Foundation Health Plan of
the Mid-Atlantic States, Inc., 876 F.2d 174, 177 (D.C.Cir.1989)
(holding an HMO vicariously liable for the negligence of an independent-contractor
physician by applying the traditional test for whether a "master-servant" relationship
existed); cf. Sloan v. Metropolitan Health Council of Indianapolis,
Inc., 516 N.E.2d 1104, 1109 (Ind.App.1987) (holding that HMOs may
be held vicariously liable for the medical malpractice of employee-physicians,
where the usual requisites of an agency or employer-employee relationship
exist, but the case involved a physician who was an employee and not
an independent contractor).
Share, however, relies on a select few of the many Illinois appellate
decisions available in the hospital context to support its contention
that it cannot control the medical judgment of physicians. Namely, Share
relies on Greene v. Rogers, 147 Ill. App.3d 1009, 101 Ill.Dec.
543, 498 N.E.2d 867 (1986); Johnson v. Sumner, 160 Ill. App.3d
173, 111 Ill.Dec. 903, 513 N.E.2d 149 (1987); and Northern Trust
Co. v. St. Francis Hospital, 168 Ill.App.3d 270, 119 Ill.Dec. 37,
522 N.E.2d 699 (1988), all of which have been overruled in part on other
grounds by Gilbert. Share also relies on Zajac v. St. Mary
of Nazareth Hospital Center, 212 Ill.App.3d 779, 156 Ill.Dec. 860,
571 N.E.2d 840 (1991). In each of the cases cited by Share, our appellate
court rejected a plaintiff's argument that an independent-contractor
physician was subject to the hospital's control so as to negate the physician's
status as an independent contractor. These decisions found it important
that the hospital did not control the physician's actions as to how medical
care was delivered and that the physician was not paid by the hospital. Zajac, 212
Ill.App.3d at 791-93, 156 Ill. Dec. 860, 571 N.E.2d 840; Northern
Trust Co., 168 Ill.App.3d at 275-77, 119 Ill.Dec. 37, 522 N.E.2d
699; Johnson, 160 Ill. App.3d at 175-77, 111 Ill.Dec. 903, 513
N.E.2d 149; Greene, 147 Ill.App.3d at 1014-16, 101 Ill.Dec.
543, 498 N.E.2d 867.
We do not find the above decisions rendered in the hospital context to
be dispositive of whether an HMO may exert such control over its physicians
so as to negate their status as independent contractors. We can readily
discern that the relationships between physicians and HMOs are often
much different than the traditional relationships between physicians
and hospitals. This reality is underscored by the amicus brief
filed by the physicians group. Therein, the Society describes in concrete
terms how many physicians in Illinois perceive their current relationships
with HMOs. The Society's description of that relationship does not resemble
the traditional relationship between physicians and hospitals. We reject
Share's claim that, for purposes of the implied authority doctrine, the
exercise of medical judgment by physicians can never be subject to control
by an HMO.
Physicians, of course, should not allow the exercise of their medical
judgment to be corrupted or controlled. Physicians have professional
ethical, moral and legal obligations to provide appropriate medical care
to their patients. These obligations on physicians, however, will not
act to relieve an HMO of its own legal responsibilities. Where an HMO
effectively controls a physician's exercise of medical judgment, and
that judgment is exercised negligently, the HMO cannot be allowed to
claim that the physician is solely responsible for the harm that results.
In such a circumstance, both the physician and the HMO are liable for
the harm that results. We therefore hold that the implied authority doctrine
may be used against an HMO to negate a physician's status as an independent
contractor. An implied agency exists where the facts and circumstances
show that an HMO exerted such sufficient control over a participating
physician so as to negate that physician's status as an independent contractor,
at least with respect to third parties. Raglin, 230 Ill. App.3d
at 647, 172 Ill.Dec. 90, 595 N.E.2d 153; see John Gabel Manufacturing
Co., 390 Ill. at 461, 62 N.E.2d 401.
No precise formula exists for deciding when a person's status as an independent
contractor is negated. Rather, the determination of whether a person
is an agent or an independent contractor rests upon the facts and circumstances
of each case. Merlo v. Public Service Co., 381 Ill. 300, 319,
45 N.E.2d 665 (1942). As noted, the cardinal consideration is whether
that person retains the right to control the manner of doing the work. John
Gabel Manufacturing Co., 390 Ill. at 461, 62 N.E.2d 401. Facts bearing
on the question of whether a person is an agent or an independent contractor
include "the question of the hiring, the right to discharge, the
manner of direction of the servant, the right to terminate the relationship,
and the character of the supervision of the work done." Merlo, 381
Ill. at 319, 45 N.E.2d 665. The presence of contractual provisions subjecting
the person to control over the manner of doing the work is a traditional indicia that
a person's status as an independent contractor should be negated. See
41 Am.Jur.2d Independent Contractors §§ 11, 13, at 407, 411
(1995). The presence of one or more of the above facts and indicia are
not necessarily conclusive of the issue. They merely serve as guides
to resolving the primary question of whether the alleged agent is truly
an independent contractor or is subject to control.
With these established principles in mind, we turn to the present case.
Plaintiff contends that her physicians' status as independent contractors
should be negated. Plaintiff asserts that Share actively interfered with
her physicians' medical decisionmaking by designing and executing its
capitation method of compensation and "quality assurance" programs.
Plaintiff also points to Share's referral system as evidence of control.
Plaintiff submits that Share's capitation method of compensating its medical
groups is a form of control because it financially punishes physicians
for ordering certain medical treatment. The record discloses that Share
utilizes a method of compensation called "capitation." See
Ill. Rev.Stat.1991, ch. 111 ½, par. 1402(14). Under capitation, Share
prepays contracting medical groups a fixed amount of money for each member
who enrolls with that group. In exchange, the medical groups agree to
render health care to their enrolled Share members in accordance with
the Share plan. Each medical group contracting with Share has its own
capitation account. Deducted from that capitation account are the costs
of any services provided by the primary care physician, the costs of
medical procedures and tests, and the fees of all consulting physicians.
The medical group then retains the surplus left in the capitation account.
The costs for hospitalizations and other services are charged against
a separate account. Reinsurance is provided for the capitation account
and the separate account for certain high cost claims. Share pays Illinois
Masonic in accordance with its capitation method of compensation. Dr.
Kowalski testified that Illinois Masonic pays her the same salary every
month. Plaintiff maintains that a reasonable inference to be drawn from
Share's capitation method of compensation is that Share provides financial
disincentives to its primary care physicians in order to discourage them
from ordering the medical care that they deem appropriate. Plaintiff
argues that this is an example of Share's influence and control over
the medical judgment of its physicians.
Share counters that its capitation method of compensation cannot be used
as evidence of control here because Dr. Kowalski is paid the same salary
every month. We disagree with Share that this fact makes Share's capitation
system irrelevant to our inquiry. Whether control was actually exercised
is not dispositive in this context. Rather, the right to control the
alleged agent is the proper query, even where that right is not exercised. Ross
v. Cummins, 7 Ill.2d 595, 600, 131 N.E.2d 521 (1956); see generally
41 Am.Jur.2d Independent Contractors § 10, at 406-07 (1995)
(noting rule).
We next evaluate the evidence that plaintiff labels Share's "quality
assurance program." It is important to note that two different sets
of facts are at issue here.
First, Susan Kirkwood, Share's quality assurance manager, testified that
Share performs medical record reviews pursuant to the regulations of
the Department of Public Health. Kirkwood explained that, once every
two years, Share randomly selects for retrospective review the medical
records of ten patients who had been seen or treated by each of its primary
care physicians. This review does not assess the diagnostic accuracy
or opinions of the treating physician, but rather looks for information
that Share expects the medical records to contain.
We find that the above testimony by Kirkwood is merely describing Share's
compliance with a "medical record review program," which is
required by regulation. The Department of Public Health requires all
HMOs to have a "medical record review program" that (1) establishes
the minimum charting standards for providers, (2) "provides for
a review and evaluation of the medical record documentation of each primary
care physician at least once every two years," and (3) "includes
a program of correction and education that will be implemented when deficiencies
relative to chart documentation are found." 77 Ill. Adm.Code § 240.60(c)(1)
(1991). The regulations also require that health care providers maintain
certain written medical records on patients, which shall be available
to the medical and administrative staff of the HMO and the Department.
77 Ill. Adm.Code §§ 240.60, 240.90 (1991). Share argues that this testimony
by Kirkwood does not assist plaintiff in establishing a claim of implied
agency. We agree. Share's action of complying with the above regulations
is not evidence of control by Share over its physicians.
The second set of facts is that a Share representative visits Dr. Kowalski's
office to review patients' charts at least once each year. Dr. Kowalski
called this "quality assurance review," and stated that the
Share representative would "make sure that the patients are cared
for in an appropriate manner." Dr. Kowalski is contractually required
to allow Share access to the medical records of its members. Susan Kirkwood
testified that a physician could be terminated from Share's network for
giving "inappropriate" care. Plaintiff argues that, from these
facts, a trier of fact could reasonably infer that Share conducts these
reviews in order to discourage its primary care physicians from giving "inappropriate" medical
care, which means medical care that is too expensive and thus not profitable
to Share.
Share responds that the "quality assurance review" referred
to in the above paragraph is completely retrospective in nature and resembles
the peer-review process in hospitals. As such, Share asserts, it should
not be considered as evidence of control. We cannot accept Share's interpretation
of the record. In reviewing whether summary judgment was properly awarded
to Share, we must view the evidence in the light most favorable to plaintiff.
The record does not explain how Share conducts this "quality assurance
review." Dr. Kowalski admitted that she was not certain how Share
conducts these reviews, and the record contains no indication that these
reviews resemble the hospital peer-review process. Kirkwood stated that
Share conducts both concurrent and retrospective reviews. Accordingly,
we reject Share's characterization of this evidence.
Plaintiff next points to Share's referral system as evidence of control.
The evidence noted in this regard also suggests that Dr. Kowalski's position
as a primary care physician requires her to fulfill a role as "gatekeeper" for
Share. The record discloses that each Share member selects a primary
care physician from the Share network who will provide that member's
overall care and authorize referrals when necessary. Share's primary
care physicians, pursuant to their contracts with Share, are then required
to approve all patient requests for care and all referrals to specialists.
In approving a referral, Share's primary care physicians use Share's
standard referral forms. Share specialists will not see a Share member
without a referral form.
We conclude that plaintiff has presented adequate evidence to entitle
her to a trial on the issue of implied authority. All the facts and circumstances
before us, if proven at trial, raise the reasonable inference that Share
exerted such sufficient control over Drs. Kowalski and Friedman so as
to negate their status as independent contractors. As discussed above,
plaintiff presents relevant evidence of Share's capitation method of
compensation, Share's "quality assurance review," Share's
referral system and Share's requirement that its primary care physicians
act as gatekeepers for Share. These facts support plaintiff's argument
that Share subjected its physicians to control over the manner in which
they did their work. The facts surrounding treatment also support plaintiff's
argument. According to plaintiff's evidence, Dr. Kowalski referred plaintiff
to Dr. Friedman. Dr. Friedman evaluated plaintiff and recommended that
plaintiff have either an MRI test or a CT scan performed on the base
of her skull. Dr. Friedman, however, did not order the test that he recommended
for plaintiff. Rather, he reported this information back to Dr. Kowalski
in her role as plaintiff's primary care physician. Dr. Kowalski initially
sent Dr. Friedman a copy of an old MRI test. Dr. Kowalski later ordered
that an updated MRI be taken. In doing so, she directed that the MRI
be taken of plaintiff's "brain." Hence, that MRI failed to
image the base of plaintiff's skull as recommended by Dr. Friedman. Dr.
Kowalski then reviewed the MRI test results herself and informed plaintiff
that the results revealed no abnormality. From all the above facts and
circumstances, a trier of fact could reasonably infer that Share promulgated
such a system of control over its physicians that Share effectively negated
the exercise of their independent medical judgment, to plaintiff's detriment.
We note that Dr. Kowalski testified at an evidence deposition that she
did not feel constrained by Share in making medical decisions regarding
her patients, including whether to order tests or make referrals to specialists.
This testimony is not controlling at the summary judgment stage. The
trier of fact is entitled to weigh all the conflicting evidence above
against Dr. Kowalski's testimony.
In conclusion, plaintiff has presented adequate evidence to support a
finding that Share exerted such sufficient control over its participating
physicians so as to negate their status as independent contractors. Share,
therefore, is not entitled to summary judgment against plaintiff's claim
of implied authority.
One final matter remains to be addressed with respect to implied authority.
Plaintiff also testified that, after Dr. Friedman recommended that plaintiff
have an MRI or CT scan performed on the base of her skull, Dr. Kowalski
told her that Share would not allow new tests. Plaintiff asserts that
this statement is compelling evidence that Share controlled the physicians'
exercise of medical judgment because it shows that Share would not allow
the care recommended by Dr. Friedman. Share counters that this testimony
cannot be considered as evidence against Share to establish the existence
of an agency relationship. We need not address this argument in this
appeal. As earlier noted, our task here is to determine whether summary
judgment was properly awarded to Share. Even if this testimony is removed
from consideration, Share is not entitled to summary judgment. Accordingly,
we express no opinion regarding this issue.
CONCLUSION
An HMO may be held vicariously liable for the negligence of its independent-contractor
physicians under both the doctrines of apparent authority and implied
authority. Plaintiff here is entitled to a trial on both doctrines. The
circuit court therefore erred in awarding summary judgment to Share.
The appellate court's judgment, which reversed the circuit court's judgment
and remanded the cause to the circuit court for further proceedings,
is affirmed.
Affirmed.
Justice RATHJE took no part in the consideration or decision of this case.