After the Supreme Court’s
recent decision in York v. Rush, (York
v. Rush-Presbyterian-St. Luke's, 2006 Ill. Lexis 1092), hospitals will have an even
tougher time prevailing on an apparent agency defense.To have the best chance of success, hospitals should
take multiple active steps to inform their patients that
non-employee ancillary staff and physicians are not agents or
employees of the hospital.The presumption by the courts is to make the hospital
liable for all actions of anyone providing care in their
explicit notification to the patient that the alleged apparent
agent is not employed by the hospital, trial judges will
likely deny any motion for summary judgment as to apparent
that hospitals may take to notify patients of the employment
status of their non-employee ancillary staff and physicians
1.Have patients sign consent forms with simple and
explicit language stating that the physician/ancillary staff
is not an employee of the hospital.The consent form should also state that the
physician/ancillary staff are not working under the direction
of the hospital but rather are independent contractors making
2.Have all non-employee staff wear lab coats and name
tags that identify their actual employer.Do not allow non-employee staff to wear hospital
uniforms which may be construed by the patient to mean that
they are hospital employees.
3.Instruct non-employee staff to introduce themselves to
patients using the name of their actual employer making it
clear that they are not hospital employees.
4.Post signs in the hospital stating that certain staff
are not employees of the hospital but rather are independent
contractors making independent judgments.
5.Insist that non-employee physicians advise patients in
writing, prior to admission to the hospital, of the fact that
they are not employees of the hospital and that they are not
acting at the direction of the hospital.
case, Rush was held vicariously liable for the negligence of
an independent contractor anesthesiologist.This case made an already difficult defense harder to
prove by finding that physicians offering support services
within a hospital may still be found to be the apparent agent
of the hospital.At
issue in York was whether plaintiff (himself a
physician/independent contractor on staff at a New Jersey
hospital) presented sufficient evidence to bring the apparent
agency question to the jury where it was clear from the
testimony that he (with input from his son, a Rush anesthesia
resident) selected a specific orthopedic surgeon to operate on
patient knows, or should have known, that the supporting
physician was an independent contractor and not the
hospital’s employee or agent, vicarious liability can attach
to a hospital under a theory of apparent agency.
Court focused on what Rush had done (and not done) to notify
the patient of the employment status of the anesthesiologist
in reaching the conclusion that the physician was the apparent
agent of the hospital:
•Rush failed to place plaintiff on notice that the
anesthesiologist was an independent contractor, and not an
employee of Rush;
•The anesthesiologist, during his encounters with
plaintiff, wore scrubs with the Rush logo and/or a lab coat
with the Rush emblem;
•Nothing in the treatment form drafted by Rush and
signed by plaintiff alerted plaintiff to the fact that the
anesthesiologist was an independent contractor;
•The treatment consent form contained no language that
said plaintiff would be treated by independent contractors;
Plaintiff did not know, and had no reason to know, the
employment status of the anesthesiologist.
York decision did not completely eliminate the agency
defense as it made it clear that if a patient is explicitly
placed on notice of the independent status of the physician,
then the patient would “generally be foreclosed” from
arguing that there was the appearance of agency between them.Thus, it is now even more important for hospitals to
make sure that patients are explicitly placed on notice of the
independent status of non-employee staff and physicians in
order to succeed with an apparent agency defense.
though more and more records are being saved electronically,
physicians and hospitals are still faced with the dilemma of how
long to save a patient’s medical records.In a dream world, storage space would be unlimited and
records kept forever.However,
this is not reality, and keeping records can be a daunting task.
long should you keep your records?A good rule of thumb is 10 years, however, in the legal
world there are always exceptions. Factors to consider include:
state and federal regulations, your managed care contract, and
whether the patient’s treatment is currently the subject of an
ongoing legal case, or you suspect it might be in the future.
allegedly injured patient must bring a lawsuit against a
physician for malpractice before the statute of limitations
expires. In Illinois, the statute of limitations is 2 years from
the date the plaintiff “knew or should have known” of the
injury or death.735
ILCS 5/13-212(a). This discovery rule is a very fluid
concept, and the time period can be “tolled” or suspended if
the patient was a minor,
if the patient is incompetent,
or if the patient alleges the physician prevented the patient
from learning of the malpractice and concealed it.
“tolling” for incompetence or a legal disability continues
until the patient is no longer disabled,
which may never occur. Therefore, when faced with a disabled
patient, keep the records forever.Along the same line, if the birth of a child involved
trauma or neurological deficits, it is wisest keep the records
rules apply if the records are kept by a hospital. Under the
Hospital Licensing Act, hospitals in Illinois must keep medical
records for at least 10 years. 210
ILCS 85/6.17(c). Under the X-ray Retention Act, x-rays must
be kept for a minimum of five years. 210
ILCS 90/1. However, if litigation is pending, both should be
kept until the end of the litigation.
this decision tree to help you determine how long to retain the
patient’s records. When calculating years, always measure from
the last date of professional contact with the patient.Also, if two categories apply, always retain for the
for 10 years after your last visit, or until the patient
turns 22, which ever is longer.
• If there was trauma at birth or neurological
deficits, keep forever!
Keep for 10 years after your last visit.
Incompetent, or Patient with Neurological Deficits
Maintain until 2 years after the patient is no
longer incompetent or disabled.
• If still disabled, or incompetent, keep forever!
until the probate estate is closed, at least 5 years after
the date of death.
liability is admitted, the story doesn’t end there.In any medical malpractice case, the plaintiff has the
burden of proving four things: (1) a duty on the part of the
defendant to the plaintiff, (2) breach of that duty, (3) that
the breach proximately caused the plaintiff’s injuries, and
(4) what damages or injuries the plaintiff has.
liability does not mean it’s a slam-dunk for the plaintiff.Recent amendments to the standard jury instructions on
admitted liability now provide a distinction between admitting
just liability (parts 1 and 2) or admitting both liability and
causation (parts 1, 2, and 3).The Illinois Supreme Court Committee on Jury Instructions
replaced the former version of Illinois Pattern Jury Instruction
23.01 because the concept of admitted liability “…can mean
different things to different people. Unless the instructions
clearly state what is admitted and what must be proved, there is
a potential for confusion.” (Official comment to IPI 23.01A
and 23.01B, 2005).
plaintiffs' attorneys would argue that any admission of
liability meant all the jury had to do was decide the dollar
amount of the plaintiff’s injuries and award that to the
plaintiff. That is no longer the case.The new standard instructions give you a choice.(see chart) When you admit only liability, the plaintiff
still has to prove causation, which can be harder than proving
you still have the defense that your negligence did not cause
all or any of the plaintiff’s injuries, and bring
plaintiff’s other conditions or contacts into play.
concept also applies in a case where the court orders a retrial
on damages alone.Illinois
caselaw supports the proposition that the plaintiff is required
to prove proximate causation in addition to the amount of
damages under such circumstances.In Cancio
v. White, the First District Appellate Court held that,
during a new trial on the issue of damages, the plaintiff must
prove both injury and proximate cause.Another appellate court in the 4th District
concurred with the Cancio holding in the medical malpractice
case of Snelson
the rule in Illinois is that “the plaintiff still has the
burden of proving causation, and the nature and extent of [the]
alleged injuries, even though liability was established as a
matter of law.” Cancio.This distinction is crucial, allowing you to go from
admitting liability in the beginning to being found not liable
for damages in the end.