{ "id": 5294655, "name": "TULLY HEUBNER, Plaintiff-Appellant, v. GALESBURG COTTAGE HOSPITAL et al., Defendants (Michael S. Sidell et al., Defendants-Appellees)", "name_abbreviation": "Heubner v. Galesburg Cottage Hospital", "decision_date": "1991-06-04", "docket_number": "No. 3-90-0423", "first_page": "129", "last_page": "134", "citations": [ { "type": "official", "cite": "215 Ill. App. 3d 129" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "435 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 734", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3035844 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0734-01" ] }, { "cite": "399 N.E.2d 198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 709", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5607546 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0709-01" ] }, { "cite": "240 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 146", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5323744 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0146-01" ] }, { "cite": "498 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "870" }, { "page": "871" } ], "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3603506 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "1014" }, { "page": "1014" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/1009-01" ] }, { "cite": "513 N.E.2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "151" }, { "page": "151" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 173", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649771 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "176" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0173-01" ] }, { "cite": "520 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201319 ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0188-01" ] } ], "analysis": { "cardinality": 600, "char_count": 12172, "ocr_confidence": 0.773, "pagerank": { "raw": 5.4539755055023084e-08, "percentile": 0.3427064666704507 }, "sha256": "f5b4159fab6fa959d4344c29d16055eeaa2a66e3dda1860a5216451ca0b94419", "simhash": "1:3ef27726ab02a7d4", "word_count": 1944 }, "last_updated": "2023-07-14T22:48:50.210219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TULLY HEUBNER, Plaintiff-Appellant, v. GALESBURG COTTAGE HOSPITAL et al., Defendants (Michael S. Sidell et al., Defendants-Appellees)." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nPlaintiff Tully Heubner brings this interlocutory appeal from an order of the circuit court of Knox County granting a motion of defendant radiologists Michael S. Sidell and Subbia G. Jagannathan for summary judgment. This is our second opportunity to review this cause of action, the first arising on interlocutory appeal from the dismissal of the medical malpractice complaint against Galesburg Cottage Hospital and these defendants. In our earlier unpublished order, we held pursuant to McCastle v. Mitchell B. Sheinkop, M.D., Ltd. (1987), 121 Ill. 2d 188, 520 N.E.2d 293, that the complaint need not have been dismissed for failure to attach a report from a radiologist.\nDefendant Cassandra P. Perkins has never been served and is not a party to this appeal. For purposes of this decision, our reference hereafter to \u201cdefendants\u201d or \u201cparties\u201d is not meant to include Perkins.\nOn remand from the earlier appeal, defendants\u2019 renewed motion to dismiss was denied, and they answered the complaint. The parties proceeded with discovery, and defendants moved for summary judgment. On May 22, 1990, the trial court granted summary judgment in defendants\u2019 favor on grounds that Ms. Perkins was neither retained nor under the control of these defendants, and that any malpractice on her part, as a matter of law, did not impose vicarious liability on the other named defendants. This appeal was perfected pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) from the order granting summary judgment in favor of defendant radiologists. Plaintiff has not appealed from the order granting summary judgment in favor of Galesburg Cottage Hospital. We affirm.\nUnderlying this cause of action in medical malpractice are two injuries to plaintiff\u2019s left wrist. Plaintiff reported to defendant hospital on May 4, 1985, for treatment and X rays following the initial injury. He was reinjured on September 7, 1985, and again received treatment and X rays at defendant hospital on September 8. On that date Dr. Cassandra Perkins was the only radiologist on duty. Dr. Perkins interpreted the wrist X rays as normal and signed her name to the \u201cDiagnostic Radiology Consultation\u201d form under the preprinted names of Drs. Michael S. Sidell and Subbia G. Jagannathan. According to the complaint, the September 8 X rays disclosed a subluxation or dislocation of the lunate bone of the left wrist, but the condition was not diagnosed at that time by the defendant radiologists. Plaintiff did not learn of the condition until he consulted with an orthopedic surgeon about persistent pain in the wrist on July 16, 1986. Plaintiff brought suit against the hospital; Dr. Perkins; and Drs. Sidell and Jagannathan, licensed diagnostic radiologists and shareholders of a small professional corporation known as Galesburg Radiology Associates (GRA) which provided radiology services for the hospital.\nAccording to the pleadings, affidavits and discovery materials of record, GRA needed another radiologist for a short term in 1985. (The record on appeal does not conclusively establish the existence of the small professional corporation at the time of the malpractice complained of. Therefore, for purposes of this opinion, the liability of GRA is deemed the same as that of the individual defendant doctors.) They contacted International Placement & Recruiting (IPR) to obtain a locum tenens physician to work at Galesburg Cottage Hospital for the period September 7 through September 13, 1985. IPR provided Dr. Perkins, a licensed radiologist, for this purpose. The contract signed by Dr. Sidell for GRA stated that GRA would pay IPR for the radiologist\u2019s services and IPR would provide physician\u2019s benefits, malpractice insurance, etc. GRA furnished Perkins with the schedule of her required services for the hospital. In the event the physician was not acceptable to GRA, it was Sidell\u2019s understanding that he was to report his complaint to IPR, not the physician, and IPR would replace her. IPR is not a party to this suit.\nThe issue in this appeal is whether a genuine issue of material fact precludes the entry of summary judgment. While plaintiff is not required to prove his case in response to defendants\u2019 motion for summary judgment, he is required to present sufficient factual basis to entitle him to a judgment under applicable law. (Johnson v. Sumner (1987), 160 Ill. App. 3d 173, 513 N.E.2d 149.) \u201cA triable issue precluding summary judgment exists where there is a dispute as to material facts, or where, the material facts being undisputed, reasonable persons might draw different inferences from the facts.\u201d Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1014, 498 N.E.2d 867, 870, citing Ruby v. Wayman (1968), 99 Ill. App. 2d 146, 240 N.E.2d 699.\nThe trial court in this case found as a matter of law that the defendant doctors \u201cdid not retain or exercise any control over [Dr.] Perkins\u2019 *** professional discretion and conduct\u201d; they did not \u201cengage in conduct sufficient to hold them vicariously liable for the conduct of [Dr.] Perkins\u201d; and that neither defendant doctor \u201cfailed to diagnose a dislocation of Plaintiff\u2019s left wrist and failed to select qualified persons to perform radiological duties at Galesburg Cottage Hospital.\u201d The issue plaintiff seeks to try is whether Drs. Sidell and Jagannathan exercised control over Dr. Perkins which would subject them to malpractice liability.\nIn support of plaintiff's argument that the doctors of GRA may be liable for what plaintiff concedes to have been Dr. Perkins\u2019 primary negligence, plaintiff cites Greene v. Rogers and Johnson v. Sumner. We have reviewed both cases and find them factually inapposite.\nIn Greene, plaintiff brought a medical malpractice suit against a consulting doctor and hospital for the alleged wrongful death of his wife. According to the complaint, the emergency room physician, Dr. D\u2019Arcy, negligently admitted Mrs. Greene to a regular hospital ward instead of the coronary care ward and failed to diagnose her heart condition and put her through a series of physical tests while she was suffering from myocardial infarction. In one count plaintiff sued the hospital based on a respondeat superior theory, asserting that D\u2019Arcy was an agent of the hospital. The trial court granted summary judgment for the hospital on this count, and the jury returned verdicts for both defendants on the remaining counts. Plaintiff raised several issues on appeal, including a challenge to the trial court\u2019s grant of summary judgment for the hospital which is relevant to this case. We noted in Greene that the two dominant factors in determining whether an agency relationship existed between the emergency room physician and the hospital were \u201ccontrol retained by the principle and the method of payment.\u201d (147 Ill. App. 3d at 1014, 498 N.E.2d at 871.) The facts of Greene demonstrated that the hospital there did not control the initial treatment and diagnosis of patients in the emergency room and that, inasmuch as Dr. D\u2019Arcy was employed and paid by an entity known as \u201cScott Emergency Medical Services, Ltd.,\u201d which was under contract to furnish emergency physician services to the hospital, D\u2019Arcy could not be considered an agent of the hospital by the manner of payment either.\nPlaintiff seeks to analogize the employer-employee relationship that we noted between D\u2019Arcy and Scott Emergency Medical Services, Ltd., in Greene with the relationship between Perkins and GRA here. Significantly, however, the record conclusively belies plaintiff\u2019s position since it is clear that Perkins\u2019 employee status was with IPR, not GRA. GRA had contracted to provide radiological services to the hospital here, and IPR contracted to provide GRA with a locum tenens physician for a week. IPR, not GRA, retained the right to control and to pay Perkins for her services.\nSimilarly, Johnson fails to support plaintiff\u2019s argument. In Johnson, plaintiff sued emergency, room doctors and a hospital for malpractice as a result of failure to diagnose an ectopic pregnancy which later ruptured and left her sterile. The emergency room doctors there were employed by Hospital Emergency Physicians, S.C. The small professional corporation was under a contract with the hospital to provide emergency room services, and was paid by the hospital for its physicians\u2019 services. The corporation, not the hospital, \u201cwas responsible for employment, retention, and supervision of emergency care physicians.\u201d (160 Ill. App. 3d at 176, 513 N.E.2d at 151.) In ruling that the trial court did not err in granting summary judgment for the hospital, we held that, as in Greene, no express agency existed between the hospital and the emergency room physician, and that the doctrine of apparent agency would not be extended to claims of medical malpractice to impose vicarious liability on the hospitals in this State. 160 Ill. App. 3d at 176, 513 N.E.2d at 151, citing Greene, 147 Ill. App. 3d 1009, 498 N.E.2d 867; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198; Pickle v. Curns (1982), 106 Ill. App. 3d 734, 435 N.E.2d 877.\nThere was no issue in Johnson as to the vicarious liability of Hospital Emergency Physicians, S.C., or the individual physician/shareholders of the small corporation. The only issue there addressed was whether the hospital could be held vicariously liable based on an agency relationship between the hospital and the individual physicians employed by the small corporation providing emergency room services. In this case, plaintiff raises no issue on appeal concerning the hospital\u2019s vicarious liability. Thus, although certain factual similarities may be identified, Johnson, like Greene, is too attenuated to lend any support to plaintiff\u2019s cause in this case.\nWe have considered other factors plaintiff suggests as determinative on the employer-employee issue and found them wanting. Plaintiff notes, for instance, that in his deposition Dr. Jagannathan alluded to \u201chiring\u201d Dr. Perkins and stated that she was allowed to use GRA\u2019s letterhead and report forms during her association with GRA. Technically, the defendant doctors \u201csubcontracted\u201d with IPR for a service, i.e., for a fee, IPR was to furnish GRA with a radiologist for a few days so that GRA could meet its contractual obligation with the hospital. The fact that Dr. Perkins was permitted to use GRA\u2019s stationery and report forms does not detract from the inescapable conclusion that she performed services as an agent of an independent contractor (IPR), and not as an employee of Drs. Siddell and Jagannathan. Plaintiff does not dispute the fact that Dr. Perkins was the only radiologist on duty on September 8, 1985, when plaintiff\u2019s X ray was interpreted. It is clear that her use of GRA\u2019s stationery was a mere convenience and did not prove a master/servant relationship between Dr. Perkins and Drs. Siddell and Jagannathan. Thus, the trial court did not err in finding as a matter of law that no agency relationship existed between Perkins and the shareholders of GRA.\nFrom the pleadings and other documentation before us, it is clear that Dr. Cassandra Perkins was an employee only of IPR. With respect to her, these defendant doctors stand in the same position as the hospitals in Greene and Johnson. Since they did not assume control over Perkins\u2019 employment, retention or supervision and she was paid by IPR for her services, there are no facts sufficient to raise a material dispute on the agency question, and the trial court did not err in granting summary judgment in favor of the doctors who contracted for IPR\u2019s service.\nThe judgment of the circuit court of Knox County is affirmed.\nAffirmed.\nSTOUDER, P.J., and GORMAN, J., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Law Offices of William W. Schooley, of Granite City (Floyd D. Peterson, Jr., of counsel), for appellant.", "Jeanne L. Wysocki, of Quinn, Johnston, Henderson & Pretorius, of Peoria (Murvel Pretorius, Jr., of counsel), for appellees." ], "corrections": "", "head_matter": "TULLY HEUBNER, Plaintiff-Appellant, v. GALESBURG COTTAGE HOSPITAL et al., Defendants (Michael S. Sidell et al., Defendants-Appellees).\nThird District\nNo. 3-90-0423\nOpinion filed June 4, 1991.\nLaw Offices of William W. Schooley, of Granite City (Floyd D. Peterson, Jr., of counsel), for appellant.\nJeanne L. Wysocki, of Quinn, Johnston, Henderson & Pretorius, of Peoria (Murvel Pretorius, Jr., of counsel), for appellees." }, "file_name": "0129-01", "first_page_order": 151, "last_page_order": 156 }