John B. Simon
A south suburban hospital cannot escape liability in a $4.7 million judgment by labeling a doctor involved as an independent contractor, a state appeals panel ruled Thursday.
The hospital pointed to a release form signed by the patient’s son while she was in a respiratory coma acknowledging the contractor relationship. But the 1st District Appellate Court’s ruling on Thursday rejected the hospital’s notion and affirmed the wrongful-death jury verdict in plaintiff Ted Fragogiannis’ case on behalf of his mother’s estate.
Sisters of St. Francis Health Services Inc. appealed the verdict, alleging the hospital could not be found liable in Fragogiannis’ mother’s death because he signed the form that recognized doctor Perry Marshall was an independent contractor.
However, the panel ruled the hospital should be liable because the plaintiff’s mother, Georgia Tagalos — who was in respiratory distress at the time her son signed the form — sought care from the hospital itself and had no way to choose her physician.
“What the court is recognizing is that there are many instances where hospitals will market themselves by talking about how great their doctors are, and then when the doctors fail to meet the standard of care, the hospitals distance themselves from this relationship,” said Christopher T. Hurley, a partner at Hurley, McKenna & Mertz P.C. who represented Fragogiannis. “The doctrine of apparent agency basically establishes a way for the jury to say, ‘No that’s not OK. You’re responsible for this doctor’s behavior because you made it look like he’s your employee.’”
Tagalos, a long-time asthma sufferer, began wheezing and gasping for air in July 2006 while she and Fragogiannis headed home from a friend’s house in Bourbonnais.
Tagalos was transported by ambulance to St. James Hospital in Olympia Fields after attempts to improve her condition with two different rescue inhalers failed.
Tagalos could not speak but was responsive upon her arrival, and a nurse began caring for her while Marshall, the emergency room’s attending physician, headed to the respiratory emergency.
Upon his arrival, Marshall indicated to a resident that Tagalos might require intubation, and Tagalos became unresponsive while the resident prepared for the procedure 11 minutes after she arrived to the ER.
Tagalos vomited when the resident attempted the intubation, so Marshall requested an anesthesiologist’s help to establish her airway. She vomited again during a second intubation attempt, and several subsequent attempts also failed.
Marshall then ordered an airway be established through surgical procedure, which was completed about 25 minutes after she arrived to the hospital.
By that time, however, Tagalos’ brain suffered a complete deprivation of oxygen, and she had effectively become brain dead by the time the procedure was performed. She was taken off of life support and died three days later.
Fragogiannis sued Marshall and the hospital in 2006 alleging the parties were negligent for taking nearly 25 minutes to establish an airway for Tagalos despite arriving to the hospital with a respiratory emergency. He argued he could recover damages from Marshall for his alleged negligence either individually or as the hospital’s apparent agent.
The defendants denied the allegations and instead contended they complied with the standard of care in such situations.
A jury awarded Fragogiannis $4.7 million after a week of trial before Circuit Judge Lorna E. Propes.
On appeal, St. James Hospital contended it shouldn’t be held liable for Marshall’s actions because he was not an agent but rather an independent contractor — which Fragogiannis recognized by signing a consent form for his mother.
Apparent agency is a question of fact left for a jury to determine. And in a 16-page opinion authored by Justice John B. Simon, the panel held Fragogiannis’ jury correctly found Marshall to be St. James Hospital’s apparent agent.
While consent forms are an important factor in determining whether a hospital held a physician out as its agent, the panel held, it is not a dispositive piece of evidence and has no bearing on Tagalos’ case.
“Tagalos did not sign the form and never knew of its existence,” Simon wrote. “In fact, Tagalos was already brain dead, hypoxic, by the time her son signed the document. By the time the form was signed, the negligent acts had already occurred.”
The panel also noted that no evidence was offered to prove Fragogiannis could have legally bound his mother to the document with his signature.
“Suffice to say that a third party signing a consent form after the negligence has occurred and after the patient is brain dead would not inform any unsuspecting patient that the four doctors that treated the individual were independent contractors,” Simon wrote.
Hurley said the panel’s opinion is a good and important one because it limits a hospital’s ability to escape liability when its apparent agents are negligent.
He said it’s common for patients not to completely read a consent form that slips in an independent-contractor provision at the bottom for the sake of receiving care.
“They just sign them because they want to get healthcare and they want to get treated,” he said. “So here’s a case where the woman who died was in a coma when they had her son sign one of those forms, and the hospital wanted that form to be a basis for the court to find them not liable. And the court said, ‘No way.’”
Mark R. McKenna, a partner at Hurley McKenna & Mertz, also represented Fragogiannis.
Dina L. Torrisi, a partner at Hughes, Socol, Piers, Resnick & Dym Ltd who represented the hospital, declined to comment.
Robert E. Elworth, a partner at HeplerBroom LLC who represented the hospital, could not be reached for comment.
Justices Daniel J. Pierce and Michael B. Hyman concurred in the opinion, Ted Fragogiannis v. Sisters of St. Francis Health Services, Inc., 2015 IL App (1st) 142706.