4-9-12; Can A Deep Pocket Always be Saved by Plain and Simple Language?

Do you remember the quote from Denzel Washington in the movie, Philadelphia in which Denzel asked a potential client to: Explain this to me like I am a two year old? In the movie, Denzel played a street-wise litigator who wanted to clarify a potential client’s story. So, he asked the client to use plain and simple language when describing what had cause his injury. Well, it turns out clear language is also important to the Appellate Court of Illinois when deciding an important medical malpractice ruling.

In fact, in the medical malpractice case of Lamb-Rosenfeldt v Burke Medical Group, our Appellate Court analyzed whether consent forms from St. James Hospital were clear enough so a decedent would have or should have understand a doctor was NOT an employee of the hospital. The underlying case had been filed by the family of a woman who had sadly died of lung cancer. Before her death, the decedent had obtained medical treatment from a physician named Dr. Kathryn Burke. Notably, the decedent and Dr. Burke had not met in the hospital. Instead, they had met in a beauty parlor. By talking to each other over haircuts and hair color, the decedent had learned of Dr. Burke’s occupation as a physician. Eventually, the decedent started seeing Dr. Burke as a patient.

The decedent first went to Dr. Burke’s private offices but later Dr. Burke later saw the decedent in an office inside of St. James Hospital. Over the course of their relationship, the decedent had to sign certain consent forms. Apparently, these forms contained the following words in bold face and capital letters: “PHYSICIANS ARE NOT EMPLOYEES OF THE MEDICAL CENTER” and “NONE OF THE PHYSICIANS WHO ATTEND ME AT THE HOSPITAL ARE AGENTS OR EMPLOYEES OF THE HOSPITAL.” Decedent ended up signing these forms no less than a total of nine times.

A fact which is well known in medical malpractice circles is hospitals are usually the defendant with the greatest insurance coverage. What this means in such cases is the hospital usually has the “deepest pocket” and are the focus of Plaintiff lawyers in this and most states. Because of the hospital’s generous insurance coverage, sometimes creative ideas are advanced by Plaintiff lawyers to include and keep a hospital in a case. This type of creativity came into play when Plaintiff sued St. James Hospital was included in the Lamb case even though Dr. Burke was not an employee of the hospital. Notably, St. James Hospital was included even though the ONLY CLAIM against it was it was vicariously responsible for Dr. Burke’s conduct. Trying to make St. James Hospital responsible for the conduct of Dr. Burke, Plaintiff asserted there was a relationship called an “agency relationship” or a “vicarious relationship” between Dr. Burke and the hospital. In plain language, this means St. James Hospital had allegedly made the decedent think it—the hospital-- was Dr. Burke’s employer.

During discovery in the case, Dr. Burke testified she was self-employed and was NOT an employee of St. James Hospital. However, Plaintiff latched on to the fact Dr. Burke was chief of staff at the hospital, but Dr. Burke clarified this was an administrative position and she had never seen the decedent as part of her chief of staff position. Allegedly, Dr. Burke's position as Chief of Staff would arguably make a patient think Dr. Burke was an employee of the hospital. What finally saved the day and got the hospital dismissed was the language in its consent forms stating in bold and capitalized letters, “PHYSICIANS ARE NOT EMPLOYEES OF THE HOSPITAL.”

Many arguments were advanced by Plaintiff in the Lamb case to support a claimed vicarious relationship between Dr. Burke and St. James Hospital. However, the Hospital ultimately won the appeal and summary disposition was affirmed in its favor. Notably, the argument-straw that broke the Lamb Court’s back causing it to rule in favor of the hospital was based on the utter clarity of disclaimer language in the hospital’s consent forms. In fact, in upholding the dismissal of the hospital, the Court emphasized the consent forms contained, “clear and unambiguous independent contractor disclaimer language.” Because of the clear disclaimer language in these forms, the Court decided it would be unlikely the decedent or, for that matter, any patient could or should have reasonably believed Dr. Burke was an agent or employee of St. James Hospital.

Some questions still exist after this decision. One of them is: If all hospitals copy/plagiarize the consent forms from St. James Hospital, will they be assured dismissal of any claim alleging a vicarious relationship between the hospital and an independent physician? Here’s our advice and response: There is no reason for Illinois defense attorneys to pack up their offices and retire as cases like this one will continue to be litigated. Frankly, there are still many questions left unanswered by this decision.

One important issue which remains is whether the Appellate Court will apply its own reasoning if consent forms containing the same disclaimer language are used to defend an alleged vicarious relationship between a hospital and a doctor in the specialties sometimes called the R.A.P.E. defendants. These four R.A.P.E. specialties include doctors who do not have private practices outside of the hospital, including, Radiologists, Anesthesiologists, Pathologists, and ER Specialists .Since the doctors in these four specialties usually do not practice outside the hospital, Plaintiffs frequently claim a vicarious relationship exists. The argument in those cases centers on Plaintiffs' claims indicating it "looked like' the doctor was an employee rather than an independent contractor.

Time will only tell if the Appellate Court will continue to enforce the crystal clear language of a consent form which says: NONE OF THE PHYSICIANS ARE EMPLOYED BY THE HOSPITAL if a “deep pocket” hospital gets sued for the conduct of one of the R.A.P.E. defendant-doctors.

This article was researched and written by our newest attorney, Ellen Keefe-Garner, JD, RN, BSN. Ellen is licensed in both Illinois and Michigan and has 26-years of defense legal experience in defense of malpractice, general liability, workers’ compensation and employment practices claims. She brings extensive and very successful jury experience to our team. Please do not hesitate to send her thoughts and comments at emkeefe@keefe-law.com.