Chicago Personal Injury Lawyer Blog

When you go to the hospital for a surgery you are seen by a bevy of treaters- anesthesiologist, surgeon, attending physician, residents, etc. And all of them are employed by the hospital, right? Wrong. Many of the physicians that practice at a hospital are actually independent contractors and the hospital can argue that it has no liability for medical negligence these individuals commit- even while working on their property.

In order to bring a claim against a hospital for medical negligence in Illinois by a non-hospital employed physician who provided services at the hospital, there needs to be “apparent authority”. Apparent authority deals with whether the physician appears to be an agent/employee of the hospital or clinic and has the power to act on their behalf. So if a patient can prove that they thought their physician was employed by the hospital and that it was reasonable for them to do so, then the hospital is liable for the negligent physician.

The current case law relies on the decision in York, M.D. v. Rush Presbyterian St. Luke’s Medical Center, et al. (2006 WL 1702529), an Illinois case based locally in Chicago. York established that because a patient relies upon a hospital to provide services during the course of his or her stay then they make hold the hospital liable for negligence by those performing those services, even if they are not employed by the hospital.

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Patient responsibility is a common phrase bantered around in medical negligence cases. It refers to the patient’s obligation to accurately represent their symptoms and complaints. The main reason this is an issue hinges on the fact that a large part of what a treating physician relies on, at least in the initial contact with a patient, is the patient’s subjective telling of his or her complaints.

For example, if a patient presents with a persistent cough but isn’t sure for how long this makes a large difference in the initial work-up by the physician. A cough is not a red flag for a serious, life-threatening disease and oftentimes is indicative of nothing more than a common cold. However, when combined with other factors, such as a history of smoking, recent unexplained weight loss, or bloody phlegm, it can be a clue to a more serious problem.

Gone are the days when our local family doctor took care of us from childhood through adulthood and knew all our family’s medical history. Nowadays a yearly check-up with your primary physician is comprised of a quick interview with a nurse and then an even quicker visit with the doctor. Most physicians don’t spend a lot of time prodding and considering each individual question. They expect that you will tell them concisely what is wrong, give them all the relevant information, and then they will diagnose and treat you. But it really isn’t that straightforward. In order to ensure that you get the most out of any physician encounter, and are receiving proper treatment, you need to be your own advocate.

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A Lake County, Illinois circuit court presided over Muno v. Condell Medical Center, et al., (No. 2-06-0587), a medical negligence case where a minor died after the planned surgery failed with respect to the anesthesiology provided. In this case, the anesthesiologist and his group decided not to bill the family after this child died during surgery. When the family brought suit against the anesthesiologist for his anesthesiology error, the physicians argued that he should be immune from any legal action under the Good Samaritan Act because he did not bill for his services.

Good Samaritan Act Regarding Exemption from Civil Liability for Emergency Care

Any [physician] who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages. (745 ILCS 49/25)

At the bench trial the jury ruled in favor of the child’s family . But one of the defendants, an anesthesiologist, appealed the verdict stating that the court should rule in his favor because he didn’t bill the family for his services. The appellate court relied on Estate of Heanue v. Edgcomb for the proposition that a doctor cannot simply withhold a bill to the injured patient and stand behind the immunity provided by the Good Samaritan Act each time he/she choses not to diagnose, treat or simply errors causing injury or death to a patient.

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