{ "id": 257175, "name": "SHEILA JONES, Indiv. and as Mother and Next Friend of Shawndale Jones, a Minor, Plaintiff-Appellant, v. CHICAGO HMO LTD. OF ILLINOIS et al., Defendants-Appellees", "name_abbreviation": "Jones v. Chicago HMO Ltd.", "decision_date": "1998-11-12", "docket_number": "No. 1\u201497\u20143821", "first_page": "103", "last_page": "115", "citations": [ { "type": "official", "cite": "301 Ill. App. 3d 103" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "623 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "251 Ill. App. 3d 897", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2960992 ], "year": 1993, "pin_cites": [ { "page": "900" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0897-01" ] }, { "cite": "299 Ill. App. 3d 627", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221469 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0627-01" ] }, { "cite": "692 N.E.2d 1303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 770", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45706 ], "year": 1998, "pin_cites": [ { "page": "776-77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0770-01" ] }, { "cite": "622 N.E.2d 788", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777551 ], "weight": 7, "year": 1993, "pin_cites": [ { "page": "523" }, { "page": "523" }, { "page": "525" }, { "page": "525" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0511-01" ] }, { "cite": "560 N.E.2d 1113", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2582593 ], "year": 1990, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0181-01" ] }, { "cite": "688 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847526 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "729" }, { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0720-01" ] }, { "cite": "781 S.W.2d 58", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9992162 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/sw2d/781/0058-01" ] }, { "cite": "413 Pa. Super. 128", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 907979 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/pa-super/413/0128-01" ] }, { "cite": "617 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5387111 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "750" }, { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0746-01" ] }, { "cite": "112 Md. App. 251", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2347755 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "259" }, { "page": "908" }, { "page": "259" }, { "page": "908" }, { "page": "259" }, { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/md-app/112/0251-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "179 Ill. 2d 616", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "696 N.E.2d 356", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "296 Ill. App. 3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222577 ], "weight": 6, "year": 1998, "pin_cites": [ { "page": "855" }, { "page": "852" }, { "page": "855" }, { "page": "861" }, { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0849-01" ] }, { "cite": "595 N.E.2d 153", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5211853 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "646" }, { "page": "646" }, { "page": "648" }, { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0642-01" ] } ], "analysis": { "cardinality": 1210, "char_count": 30481, "ocr_confidence": 0.793, "pagerank": { "raw": 5.540078528172933e-08, "percentile": 0.3490848308144606 }, "sha256": "9b34ebe9333a58579b9f6fd3d4533c28e8b3291022d0bae9efa1f74b86215884", "simhash": "1:3a7d7568f86df1b9", "word_count": 4934 }, "last_updated": "2023-07-14T19:13:21.929948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHEILA JONES, Indiv. and as Mother and Next Friend of Shawndale Jones, a Minor, Plaintiff-Appellant, v. CHICAGO HMO LTD. OF ILLINOIS et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nGiven the expanding role of managed health care, the issues raised in this medical negligence lawsuit were bound to reach the courts.\nSheila Jones (Jones), individually and as mother of Shawndale Jones (Shawndale), presents three separate legal theories in her effort to hold Chicago HMO liable for the negligent acts of one of its contract doctors. The trial court granted summary judgment to the defendant, rejecting all three theories. We agree there was. no fact issue meriting a trial on two of those theories, but we find summary judgment was erroneously granted on a third.\nJones\u2019 second amended complaint against Chicago HMO consists of three counts. Count I is entitled \u201cInstitutional Negligence,\u201d another way of referring to independent corporate negligence. Count II is entitled \u201cVicarious Liability\u201d and contends Chicago HMO, as principal, is liable for the negligent acts of its agent, Dr. Robert A. Jordan (Dr. Jordan). Count III, referred to as \u201cContract Liability,\u201d contends Chicago HMO breached its contractual obligations to the plaintiff.\nThus far, two Illinois decisions have dealt with the question of whether a health maintenance organization (HMO) may be held liable for the negligence of a contract physician.\nThe first was Raglin v. HMO Illinois, Inc., 230 Ill. App. 3d 642, 595 N.E.2d 153 (1992). The second was Petrovich v. Share Health Plan of Illinois, Inc., 296 Ill. App. 3d 849, 696 N.E.2d 356 (1998), appeal allowed, 179 Ill. 2d 616 (1998).\nBoth cases observed that a potential exists for HMOs to be held liable for medical malpractice under more than one theory. Raglin held, and Petrovich agreed, the theories include:\n\u201c(1) vicarious liability on the basis of respondeat superior or ostensible agency; (2) corporate negligence based upon negligent selection and negligent control of the physician; and (3) corporate negligence based upon the corporation\u2019s independent acts of negligence, e.g., in the management of utilization control systems. Contract law might also be utilized to hold HMOs liable for malpractice based on breach of contract or breach of warranty.\u201d Raglin, 230 Ill. App. 3d at 646.\nAccord Petrovich, 296 Ill. App. 3d at 855.\nRaglin cited an article in the American Bar Association\u2019s Tort and Insurance Law Journal as the sole support for its summary of available theories. Petrovich cited Raglin. The only issues actually decided in those cases had to do with vicarious liability. Until now, no Illinois medical malpractice case has dealt with claims of HMO independent corporate negligence and breach of contract with covered patients.\nRaglin and Petrovich stand for the proposition that while HMOs are not immune from civil prosecution for malpractice, some recognized legal theory must be satisfied before liability can attach.\nWith that background, we turn to the facts necessary for consideration of the issues in this case.\nFACTS\nThere are two contracts to examine in this case. One is the 1990 \u201cAGREEMENT FOR FURNISHING HEALTH SERVICES\u201d between Chicago HMO and the Illinois Department of Public Aid (IDPA) to provide health care' services to Medicaid recipients (Beneficiaries). Jones, a Medicaid recipient, and her children fall under the agreement\u2019s definition of beneficiaries.\nThe second contract is the 1990 agreement between Chicago HMO and Dr. Jordan, the pediatrician charged with negligence in this case.\nThe preamble to the agreement between Chicago HMO and IDEA said: \u201c[Chicago HMO] meets the State Plan definition of an HMO, namely that [Chicago HMO] *** is organized primarily for the purpose of providing health care services ***.\u201d The preamble continued: \u201c[Chicago HMO] warrants that it is able to provide the medical care and services required under this Agreement in accordance with prevailing community standards, and is able to provide these services promptly, efficiently, and economically ***.\u201d\nArticle V of this agreement also described Chicago HMO\u2019s duties. In article V section (b), Chicago HMO agreed to \u201cprovide or arrange to have provided all covered services to all Beneficiaries under this Agreement.\u201d In article V section (m), Chicago HMO further agreed to \u201cprovide all Beneficiaries with medical care consistent with prevailing community standards\u201d and to implement a quality control program in compliance with federal regulations. In article V section (n), Chicago HMO agreed to afford each Beneficiary a primary care physician (PCP) to supervise and coordinate medical care. Section (n) of the agreement provided:\n\u201cThere shall be at least one full-time equivalent, board eligible physician to every 1,200 [Beneficiaries], including one full-time equivalent, board certified primary care physician for each 2,000 [Beneficiaries]: *** There shall be *** one pediatrician for each 2,000 [Beneficiaries] under age 17.\u201d\nArticle V, section (q)(3), of the agreement said: \u201c[Chicago HMO] shall remain responsible for the performance of the subcontractor [physicians].\u201d Article EX, section (1), of the agreement said: \u201cThe relationship of [Chicago HMO] to the [IDPA] arising out of this Agreement shall be that of an Independent Contractor.\u201d\nA \u201cMEDICAL SERVICE GROUP AGREEMENT\u201d described the relationship between Chicago HMO and Dr. Jordan:\n\u201cThe [HMO] and the [physician] are separate and independent entities, and each is an independent contractor. Neither party is the partner, agent or representative of the other; neither shall have any direction or control over the manner in which the other performs its services and functions; each is free to enter into contracts with other entities ***.\u201d\nThis agreement also listed Dr. Jordan\u2019s duties in detail. Dr. Jordan would provide to Chicago HMO subscribers specified medical services \u201cof good quality and in accordance with accepted medical and hospital standards of the community\u201d; maintain medical records \u201cin such form as required by the medical director of [the HMO] and make these records available to the HMO for inspection\u201d; and \u201ccooperate with and participate in the Quality Assurance and Utilization Review Programs of the [HMO].\u201d Additionally, under a \u201cPUBLIC AID AMENDMENT TO THE MEDICAL GROUP SERVICE AGREEMENT,\u201d Dr. Jordan agreed \u201cto abide by any conditions imposed by the [HMO] as part of the [HMO\u2019s] agreement with the [IDPA].\u201d\nAccording to Dr. Jordan, Chicago HMO contract physicians would use their own medical judgment to decide on an HMO subscriber\u2019s course of treatment. However, under the agreement, this medical judgment was subject to review: if Chicago HMO disagreed with the physician about the medical necessity of certain treatment, an independent review physician, jointly selected by the subscriber, the contract physician, and Chicago HMO would determine medical necessity.\nIn his deposition, Dr. Jordan testified Chicago HMO representatives would periodically visit his office to conduct audits. Chicago HMO\u2019s medical director (or \u201cVice President of Medical Affairs\u201d) Mitchell Trubitt (Trubitt) acknowledged in his deposition, \u201cPart of our [Chicago HMO\u2019s] job is to review the quality of care given.\u201d Trubitt described Chicago HMO\u2019s \u201cTotal Quality Management Program\u201d as \u201ca new generation of our quality management program.\u201d Trubitt said \u201cthe concept is that there is a more organized way of reviewing quality issues, of identifying potential issues and creating interventions to allow improvement.\u201d If a physician did not comply with the conclusions of Chicago HMO\u2019s auditors, Trubitt said Chicago HMO could cancel the physician\u2019s contract.\nDr. Jordan testified Chicago HMO collected and allocated subscriber fees into different pools. Under the agreement, Chicago HMO would pay for Dr. Jordan\u2019s services from one of these pools by a monthly capitation system. The agreement detailed this system in an appendix: Dr. Jordan would receive a specified dollar amount for specified demographic groups per month, regardless of the services he rendered. For example, for each female patient under two years old, Dr. Jordan would receive $34.19 per month whether or not he treated these patients.\nDr. Jordan received additional compensation through a \u201cmedical incentive fund.\u201d Trubitt described the incentive fund in his deposition as a fund containing \u201cpremium revenues\u201d which covered: \u201cInpatient hospital costs. And other items such as home health costs, durable medical equipment costs. There are a variety of items that were allocated to that fund.\u201d \"When a patient required hospitalization, Chicago HMO would pay those costs from this fund. Trubitt testified physicians would receive 60% of the remaining, unused balance of the fund at the end of each year.\nDr. Jordan testified he was the PCP for 3,000 Chicago HMO subscribers and he contracted with 20 other HMOs to provide medical care for 1,500 other patients. Trubitt testified federal regulations limit HMO pediatricians to 3,500 patients. In 1990, Chicago HMO\u2019s records indicated Dr. Jordan was PCP for 4,527 Chicago HMO subscribers.\nJones testified in her deposition she did not pursue Chicago HMO to provide her medical care. Instead, in 1986, she received a house call in Park Forest from a Chicago HMO representative. According to Jones, the Chicago HMO representative:\n\u201cwas telling me what it [managed care] was all about, that [Chicago] HMO is better than a regular medical card and everything so I am just listening to him and signing my name and stuff on the papers.\n* * *\nI asked him what kind of benefits you get out of it and stuff, and he was telling me that it is better than a regular [Medicaid] card.\u201d\nThe \u201cHMO ENROLLMENT UNDERSTANDING\u201d signed by Jones in 1987 provided, \u201cI [Jones] understand that all my medical care will be provided through the Health Plan once my application becomes effective.\u201d\nJones testified that somehow Chicago HMO knew when she moved to Chicago Heights in 1990: \u201c[T]hey [Chicago HMO representative Edwardo Feliciano] came to my house, and I signed it [a 1990 subscription agreement].\u201d Neither Chicago HMO \u00f1or Jones arranged this meeting in advance, although Jones said she may have completed a change-of-address form. Instead, \u201cthey [Chicago HMO] would be in the building knocking from door to door.\u201d\nJones also testified she did not select Dr. Jordan as her PCP when she moved from Park Forest to Chicago Heights:\n\u201cDr. Jordan\u2019s name got mentioned when I first got on [Chicago] HMO [in Chicago Heights]. They gave me \u2014 that\u2019s who they gave me, Dr. Jordan. They didn\u2019t ask me if I wanted a doctor. They gave me him.\n* * *\n*** They told me that he was a good doctor, and they was like \u2014 I was like who is he, and they told me he was a good doctor for the kids because I didn\u2019t know what doctor to take my kids to because I was staying in Chicago Heights so they gave me him so I started taking my kids there to him.\u201d\nAccording to Trubitt, Dr. Jordan was the only Chicago HMO PCP in Chicago Heights willing to accept Medicaid recipients: \u201cAt that point in that area there was no choice.\u201d\nJones knew of Dr. Jordan only through Chicago HMO and did not ask about other pediatricians in the area because \u201cthey gave me him.\u201d Jones also did not ask about the legal relationship between Chicago HMO and Dr. Jordan, although in its answers to Jones\u2019 interrogatories, Chicago HMO asserted: \u201cPlaintiff had the option of inquiring of either Dr. Jordan or Chicago HMO, Ltd. as to the relationship between the two.\u201d When asked whether she knew Dr. Jordan treated subscribers to other HMOs, Jones replied: \u201cNo. I just thought it was one HMO. I don\u2019t know.\u201d\nDr. Jordan testified he had no Chicago HMO insignia in his office and did not wear Chicago HMO identification when treating patients. Dr. Jordan and Jones both testified she did not ask about his educational background, his board certification, or his experience with malpractice allegations when she first visited his office. Although Jones never saw any Chicago HMO insignia or identification around Dr. Jordan\u2019s office, she said she did notice Chicago HMO literature in his office: \u201cI seen something in there with [Chicago] HMO on it. I knew that they deal with [Chicago] HMO.\u201d\nJones testified she did not remember receiving Chicago HMO literature, but she conceded that, if she received any literature, she could not remember reading it. In his deposition, Trubitt said he accepted that subscribers could not assimilate the information in Chicago HMO\u2019s literature.\nChicago HMO\u2019s \u201cMember\u2019s Handbook\u201d told new subscribers:\n\u201cThe Chicago HMO staff and doctors want to serve your health care needs and make your relationship with us a good one. Please read this booklet. It tells you how to get benefits and services from [Chicago HMO].\nChicago HMO provides complete medical care when you are sick. But that is not all. We offer many important services in our effort to help you protect your health and your family\u2019s health.\u201d\nThe handbook contained certain procedures, including telephoning \u201cyour Chicago HMO personal doctor\u201d before seeking medical care, except in \u201csevere emergencies.\u201d The handbook referred to subscriber PCPs as \u201cyour Chicago HMO personal doctor,\u201d \u201cyour own Chicago HMO doctor,\u201d \u201cyour Chicago HMO doctor,\u201d and \u201cChicago HMO primary care physician.\u201d The handbook also noted, \u201cChicago HMO has a contract with the [IDPA] to provide service to beneficiaries of the Medical Assistance Programs under the AFDC-MAG Program\u201d and listed the services Chicago HMO provided and did not provide. The handbook did not address the legal relationship between Chicago HMO and its contract physicians and did not mention Chicago HMO\u2019s quality management program.\nOn January 18, 1991, Jones\u2019 three-month-old daughter Shawndale became sick. Her symptoms included a loss of appetite, constipation, excessive crying, abnormal sleep patterns, and a fever. Following Chicago HMO\u2019s instructions \u2014 \u201cHMO told me I had to call the office before I had to go\u201d \u2014 Jones telephoned Dr. Jordan\u2019s office, but Dr. Jordan was not available. A nurse advised her to give Shawndale some castor oil, and Jones left a message for Dr. Jordan. Dr. Jordan returned Jones\u2019 message and echoed the nurse\u2019s castor oil suggestion.\nOn January 19, 1991, Jones took Shawndale to the emergency room when her condition did not improve. Shawndale was admitted and later was diagnosed with bacterial meningitis. As a result of this meningitis, Shawndale became permanently brain damaged.\nOn October 28, 1992, Jones filed a medical malpractice complaint against, among others, Chicago HMO. After several pleading attempts, Jones filed her second amended complaint.\nDiscovery revealed a single criticism of Dr. Jordan. The plaintiffs\u2019 expert, Dr. Richard Pawl, said Dr. Jordan deviated from the standard of care when he did not schedule an immediate appointment for Shawndale on being advised of a history of a three-month-old infant who was warm, irritable, and constipated.\nChicago HMO filed a summary judgment motion, and on October 7, 1997, the trial court granted summary judgment to Chicago HMO on all three counts. The trial court also granted Chicago HMO\u2019s request for a Rule 304(a) finding. See 155 Ill. 2d R. 304(a). This appeal followed.\nDECISION\n1. Standard of Review\nBecause we consider a grant of summary judgment we conduct a de novo review of the facts and law to determine whether any material issue of fact exists as to any of the counts of the plaintiffs complaint. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).\n2. Nature of the HMO\nWhile there are several HMO models, both sides agree Chicago HMO is an independent practice association (IPA) model HMO. An IPA HMO is one of two models provided for in the Illinois Health Maintenance Act. See 215 ILCS 125/1 \u2014 2(7) (West 1994). Briefly put, an IPA HMO contracts with independent medical groups or individuals, \u201crather than directly employing them.\u201d Petrovich, 296 Ill. App. 3d at 852.\nIPA model HMOs bring together providers (physicians) and subscribers (patients): \u201cAn HMO is a facilitator. It arranges for medical services.\u201d Patel v. Healthplus, Inc., 112 Md. App. 251, 259, 684 A.2d 904, 908 (1996).\nBecause the HMO is a facilitator, as Chicago HMO is in this case, two distinct contracts are required \u2014 here, the Chicago HMO-IDPA contract, in which Chicago HMO agreed to provide specified health care services to Medicaid Beneficiaries in return for a fixed payment, and the Chicago HMO-Dr. Jordan contract, where Chicago HMO agreed to pay Dr. Jordan a monthly, named dollar amount for specified demographic groups, regardless of the amount of services rendered or number of patients actually treated. See Patel, 112 Md. App. at 259, 684 A.2d at 908.\nAn HMO contract is not a contract for the direct furnishing of medical services but is, instead, \u201cmerely a contract for the administration of an employee health care program.\u201d Compass Health Care Plans v. Board of Education, 246 Ill. App. 3d 746, 750, 617 N.E.2d 6 (1992).\nBy assigning large numbers of subscribers to providers \u2014 through \u201cbulk buying power\u201d \u2014 HMOs can procure health care services below market prices. Patel, 112 Md. App. at 259, 684 A.2d at 908. In this case Jones was not an employee. She was a Medicaid recipient who signed on with Chicago HMO. But the description holds.\nOrdinarily, as is true here, IPA model HMO contract physicians use their own offices and equipment, keep their own records, and often maintain their own independent practices. See Comment, A \u201cNew\u201d Approach to Medical Malpractice: The Liability of HMOs for Member Physician Negligence, 1994 Det. C.L. Rev. 1263, 1265.\nWe now examine the three counts of Jones\u2019 second amended complaint.\n3. Count I \u2014 \u201cInstitutional Negligence\u201d\nThis count alleges independent corporate negligence by Chicago HMO. While several charges are made in the count, not all have factual support. None creates a material issue of fact.\nThere is some evidence Chicago HMO required subscribers to obtain telephone consultations with their designated doctor before scheduling an office visit. To that same end, Chicago HMO instructed its physicians to encourage subscribers to call in advance for appointments. This case, however, centers on what happened when Jones made the telephone call. It was the alleged conduct of Dr. Jordan, not any Chicago HMO policy or instruction, that delayed treatment of Shawndale\u2019s condition.\nIn addition, there is some evidence concerning the number of patients Dr. Jordan was treating.\nChicago HMO\u2019s Trubitt said federal regulations limited the number of subscribers per physician. According to Trubitt, each pediatrician should have no more than 3,500 patients. The Chicago HMOIDPA agreement limited Dr. Jordan, as a board-eligible physician, to 1,200 patients. But Chicago HMO assigned Dr. Jordan 4,527 patients in 1990. In addition, Dr. Jordan had 1,500 other patients through other HMOs.\nThere is no evidence in this record specifically linking the amount of patients Dr. Jordan had in January of 1991 to the alleged negligence in this case \u2014 the failure to schedule an immediate appointment to see Shawndale.\nNo Illinois case has held an HMO can be liable for an injury to the plan\u2019s patient on a theory of independent corporate negligence. Petrovich and Raglin make passing reference to the viability of such a theory, but they did not decide the question. The dicta in those cases indicates there may be two kinds of HMO corporate negligence: one is the negligent selection or negligent control of the physician; the other consists of independent acts of negligence, for example, in the management of utilization control systems. Raglin, 230 Ill. App. 3d at 646; Petrovich, 296 Ill. App. 3d at 855. No further explanation is offered.\nWe note the Superior Court of Pennsylvania has held there is such a cause of action against an HMO. See McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 604 A.2d 1053 (1992). And a Missouri Court of Appeals held an HMO has a duty to conduct a reasonable investigation of its listed doctor\u2019s competency. Had it done so, said the court, it would have discovered his extensive history of defending malpractice suits. See Harrell v. Total Health Care, Inc., No. WD 39809 (Mo. App. 1988), aff'd, 781 S.W.2d 58 (Mo. 1989).\nTo survive in this state, the HMO independent corporate negligence theory would have to be analogized to the existence of a direct negligence claim against a hospital.\nA hospital owes its patients an independent duty, administrative and managerial in nature, to review and supervise medical treatment. Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 729, 688 N.E.2d 732 (1997); Rohe v. Shivde, 203 Ill. App. 3d 181, 198, 560 N.E.2d 1113 (1990). But corporate responsibility to patients has never been extended in this state to a duty to supervise an independent physician contractor in his private office outside the hospital facility. See Malanowski, 293 Ill. App. 3d at 730. Dr. Jordan maintained his office at a location having nothing to do with Chicago HMO.\nJones has alleged, but offered no evidence of, Chicago HMO\u2019s failure to investigate Dr. Jordan\u2019s credentials and experience with malpractice allegations. There is no need, then, to determine whether factually supported allegations of negligence in the selection and retention of a contract physician would be sufficient to state a cause of action.\nWe have reviewed the record for evidence that Chicago HMO was guilty of a negligent act that proximately caused the injury in this case. We find none. Speculation cannot take the place of fact. We have found no reported case anywhere that creates HMO liability on facts similar to those developed in this case.\nWe have been especially cautious when treading through this new ground. While we believe there may be circumstances that establish the independent corporate negligence of an HMO, we also understand this territory is fraught with considerations of public interest, matters that courts are ill-equipped to determine. We note that two bills on managed care reform were considered, but not acted upon, by our legislature in 1998. See 90th Ill. Gen. Assem., Senate Bill 1904 (Managed Care Reform Act), 1998 Sess.; 90th Ill. Gen. Assem., House Bill 974, 1998 Sess. We presume the matter will again be addressed.\nWe hold the trial judge correctly granted summary judgment on count I.\n4. Count II \u2014 \u201cVicarious Liability\u201d\nThe evidence clearly establishes Dr. Jordan was an independent contractor. While Chicago HMO did conduct some review of the quality of care given, Dr. Jordan used his own medical judgment to decide whether and how to treat a subscriber. He was not an employee of Chicago HMO.\nPlaintiff recognizes she cannot establish an actual agency. Instead, she contends she has created a fact issue on the question of apparent or ostensible agency.\nThere is Illinois authority on this issue. In Raglin the court assumed, without deciding, an HMO can be held liable for its contract physician\u2019s negligence on an apparent authority theory. It proceeded to apply apparent authority principles as they existed in 1992, finding the agency relationship between the HMO and the doctors was not established as a fact issue.\nIn 1998, Petrovich held the doctrine of apparent authority can be applied to an HMO. We agree with that holding.\nAgain, the analogy is to hospital negligence cases. The path was cleared by our supreme court in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d 788 (1993). Petrovich relied on Gilbert\u2019s analysis of the apparent or ostensible authority a hospital might give to an independent contractor physician. So do we.\nQuestions of fact arise in an apparent agency case: Was the agent authorized to act for the principal? Did the injured patient have notice of the lack of the agent\u2019s authority?\nThe word \u201capparent\u201d is the key to the inquiry. \u201cApparent authority in an agent is the authority which the principal knowingly permits the agent to assume, or the authority which the principal holds out the agent as possessing.\u201d Gilbert, 156 Ill. 2d at 523.\nApparent authority elements have little to do with actual control of the physician\u2019s conduct. Rather, \u201c[i]t is the authority which a reasonably prudent person [the patient], exercising diligence and discretion, in view of the principal\u2019s [the HMO\u2019s] conduct, would naturally suppose the agent to possess.\u201d Gilbert, 156 Ill. 2d at 523.\nThe inquiry focuses, then, on the principal\u2019s words and conduct made known to the patient. Appearances count. It does not matter that the doctor was in fact an independent contractor. Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 776-77, 692 N.E.2d 1303 (1998). It could matter very much when the patient is informed on a consent form that the treating doctor is an independent contractor. See James v. Ingalls Memorial Hospital, 299 Ill. App. 3d 627 (1998).\nApparent authority does not require that the hospital expressly tell the patient the physician is its employee. It is enough that the \u201chospital holds itself out as a provider of *** care without informing the patient that the care is provided by independent contractors.\u201d Gilbert, 156 Ill. 2d at 525.\nApplying the applicable elements of the apparent authority doctrine to the facts of this case, we look for the answers to two questions: Did the HMO act in a manner that would lead Jones, as a reasonable person, to conclude Dr. Jordan was an employee or agent of the HMO? And, did Jones act in reliance on the conduct of the HMO, consistent with ordinary care and prudence? See Gilbert, 156 Ill. 2d at 525. It is important to note the plaintiff\u2019s reliance had to be \u201cjustifiable\u201d (Gilbert, 156 Ill. 2d at 524; Grutzius v. Franciscan Sisters Health Care, 251 Ill. App. 3d 897, 900, 623 N.E.2d 853 (1993)), not the \u201cdetrimental\u201d reliance burden relied on in part by Raglin when it determined there was no showing of apparent agency by the plaintiff. See Raglin, 230 Ill. App. 3d at 648.\nGilbert looked to the \u201crealities of modern hospital care\u201d to measure the reasonable expectations of members of the public. Gilbert, 156 Ill. 2d 511, 622 N.E.2d 788. Petrovich applied that same public policy argument to HMOs, \u201cwhose aggressive advertising campaigns arguably create the expectations in the public that they are providers of health care.\u201d Petrovich, 296 Ill. App. 3d at 861.\nWe are, of course, constrained by the record in this case. While there is no evidence of an aggressive advertising campaign by Chicago HMO, there is evidence Chicago HMO engaged in an aggressive, door-to-door marketing campaign to enroll Medicaid recipients in its managed health care program.\nRepresentatives came to Jones\u2019 homes twice \u2014 in Park Forest and when she moved to Chicago Heights. She said the representative who visited her in Park Forest during a door-to-door campaign told her managed care was superior to Medicaid: \u201cI asked him what kind of benefits you get out of it and stuff, and he was telling me that it is better than a regular [Medicaid] card.\u201d\nJones signed an enrollment understanding in which Chicago HMO agreed to provide all her medical care. And she testified she saw some Chicago HMO literature in Dr. Jordan\u2019s office, although she could not say what it was.\nJones was given no choice of pediatrician. It was to be Dr. Jordan. She testified Chicago HMO \u201cgave\u201d her to Dr. Jordan with assurances he was a good pediatrician. She never was told, directly or indirectly, or in any literature, that Chicago HMO would not be responsible for Dr. Jordan\u2019s negligence.\nTrue, she said she never read the Chicago HMO handbook. But that fact is of no solace to Chicago HMO. If she had, she would have seen Dr. Jordan described as a \u201cChicago HMO personal doctor,\u201d and a \u201cChicago HMO primary care physician.\u201d She also would have read: \u201cChicago HMO provides complete medical care ***.\u201d She would not have seen any indication Dr. Jordan was an independent contractor. However, since the focus of our inquiry must be on Chicago HMO\u2019s words and conduct communicated to Jones, we do not rely on what was or was not in the handbook.\nWe conclude Chicago HMO\u2019s aggressive marketing techniques and its statements to Jones, through its representatives, create an issue of material fact concerning apparent authority of Dr. Jordan to act for Chicago HMO. It is for the jury to decide whether Chicago HMO is vicariously liable for the negligence, if proven, of Dr. Jordan. The grant of summary judgment on count II of the complaint is reversed and remanded for further proceedings.\n5. Count III \u2014 \u201cContract Liability\u201d\nThe plaintiff seeks to establish a contractual relationship between Chicago HMO and her that would support a claim for damages caused by Dr. Jordan\u2019s negligence. She expressly disavows any intent to rely on a third-party beneficiary theory. Instead, she seems to say she is an actual party to the agreement between Chicago HMO and IDEA. The short answer to that contention is that she is not a party to the contract. This is a contract for the administration of a health care program, not a contract for the direct furnishing of medical services. See Compass Health Care, 246 Ill. App. 3d at 750.\nDespite the Raglin and Petrovich dicta that \u201c[cjontract law might also be utilized to hold HMOs liable for malpractice based on breach of contract or breach of warranty,\u201d we find no case in Illinois so holding. Raglin, 230 Ill. App. 3d at 646; accord Petrovich, 296 Ill. App. 3d at 855. We decline to be the first, especially where the plaintiffs theory is murky at best.\nWe conclude the trial court did not err when it granted summary judgment on count III.\nCONCLUSION\nFor reasons we have set out above, we affirm the trial court\u2019s grant of summary judgment on counts I and III of the plaintiffs complaint, and we reverse summary judgment on count II, remanding that claim to the trial court for further proceedings.\nAffirmed in part, reversed and remanded in part.\nSOUTH, EJ., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "A. Denison Weaver, of A. Denison Weaver, Ltd., of Chicago, for appellant.", "Baker & McKenzie, of Chicago (Michael A. Pollard, Mark L. Karasik, and Patricia O\u2019Brien, of counsel), for appellee Chicago HMO Ltd. of Illinois." ], "corrections": "", "head_matter": "SHEILA JONES, Indiv. and as Mother and Next Friend of Shawndale Jones, a Minor, Plaintiff-Appellant, v. CHICAGO HMO LTD. OF ILLINOIS et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 1\u201497\u20143821\nOpinion filed November 12, 1998.\nRehearing denied December 10, 1998.\nA. Denison Weaver, of A. Denison Weaver, Ltd., of Chicago, for appellant.\nBaker & McKenzie, of Chicago (Michael A. Pollard, Mark L. Karasik, and Patricia O\u2019Brien, of counsel), for appellee Chicago HMO Ltd. of Illinois." }, "file_name": "0103-01", "first_page_order": 121, "last_page_order": 133 }