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                                                                                                   Fall 2006


Agency defense more difficult after York v. Rush
By Sammi L. Renken and Matthew L. Johnson

Matthew L. JohnsonSammi L. RenkenAfter 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 facility.  Without 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 agency.   

Steps that hospitals may take to notify patients of the employment status of their non-employee ancillary staff and physicians include: 

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 independent judgments.

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. 

In the York 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 him.  Unless the 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.  

The 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 true
            employment status of the anesthesiologist. 

The 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.  

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Reminder on Record Retention
By Kristin A. Ahmadian

Kristin A. AhmadianEven 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.  

How 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. 

An 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[1], if the patient is incompetent[2], or if the patient alleges the physician prevented the patient from learning of the malpractice and concealed it[3].   

The “tolling” for incompetence or a legal disability continues until the patient is no longer disabled[4], 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 forever. 

Different 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. 

Use 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 longer period.



Keep 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.

Disabled, 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!


Keep until the probate estate is closed, at least 5 years after the date of death.

[1] 735 ILCS 5/13-211 and 735 ILCS 5/13-212(b).
735 ILCS 5/13-211 and 735 ILCS 5/13-212(c).
735 ILCS 5/13-215.
735 ILCS 5/13-212(c).

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Admitted Liability: It's Not Your Fault
By Kristin A. Ahmadian and Carl M. Schultz
Carl M. SchultzKristin A. Ahmadian

When 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.  

Admitting 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).   

Formerly, 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 negligence.  Therefore, 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. 

This 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 v. Kamm.

Therefore, 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.

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Healthcare Law Alert is a periodic publication of Johnson & Bell, Ltd. and should not be used or relied upon as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only and you are encouraged to consult with one of the attorneys listed above concerning this newsletter or your situation on any specific legal questions you may have. © 2006 Johnson & Bell, Ltd.