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The Utility of Medical Consent Forms in Apparent Agency Cases After Terry v. OSF Healthcare Systems, et. al.

A signed medical consent form is one of the few pieces of evidence a hospital can utilize to refute that it is vicariously liable for the negligence of a treating physician. However, as Illinois case law has evolved, the utility of these consent forms is limited.  In the most recent case, Terry v. OSF Healthcare Systems, et. al., the Third District analyzed OSF Healthcare System’s medical consent form signed by the plaintiff, found that the language as to the independence of treating physicians was ambiguous, and found other facts and circumstances existed to support plaintiff’s belief her treating physicians were hospital employees. 2018 IL App (3d) 160143-U. 

In Terry, the plaintiffs Heather and Justin Terry, sued OSF Healthcare Systems and various physicians for alleged negligent medical care provided to their newborn daughter that resulted in vision loss following her premature birth.  Id. Heather Terry was admitted to OSF on August 5, 2005 for premature birth of her daughter Falon, and she claimed she went to OSF because her baby would need specialized neonatal care that OSF could provide.  Id. at ¶ 7-8. She delivered her daughter, Falon, five days later on August 10, 2005, and Falon was immediately transferred to the NICU.  Id. at ¶ 8.  Upon her daughter’s admission to the NICU, Heather signed a consent form which read:

“Consent for Treatment

By my signature, I hereby present for admission to and/or treatment at OSF Saint Francis Medical Center and do hereby voluntarily consent to and authorize OSF Saint Francis Medical Center to render such care, examination, diagnosis, and treatment, as may be ordered or requested by the physician in charge or by authorized agents, employees or members of the staff of OSF Saint Francis Medical Center, as they may, in their professional judgement, deem necessary or beneficial. I acknowledge that no guarantees have been made to me as to the effect of such care, examination or treatment. I realize that among those who attend patients in this hospital are medical, nursing and other health care personnel in training who, unless requested otherwise, may be present during patient care as part of their education.

PHYSICIAN INDEPENDENCE I recognize that certain physicians and allied professionals on the medical staff at the hospital, including my attending physician, physicians performing or interpreting tests, and other physicians such as consultants, Radiologists, Pathologist, Anesthesiologists, etc. are independent contractors and not employees of the hospital; that the hospital is not legally responsible for them as such, and their practice of medicine is independent from hospital management. I also understand that I will be billed separately by them for their services. My decision to consent to treatment is based upon my understanding that OSF Saint Francis Medical Center does not employ all of the physicians who treat me.

The undersigned certified that he/she has read and understand this agreement and is the patient or legal representative of the patient who is authorized to agree to the above terms and to sign this agreement.”

2018 IL App (3d) 160143-U, ¶ 8. 

During the admission, Falon was treated by Dr. James Hocker and Dr. Kamlesh Macwan, employees of a medical group called Neonatology Associates, and by Dr. Chittaranjah Reddy, employed by Retina Consultants.  Heather Terry never met or heard of these physicians prior to her daughter’s admission to OSF.  Id. at ¶ 9, 11.

Shortly after birth, Falon developed retinopathy after prematurity (ROP), and she was treated by Drs. Hocker, Macwan and Reddy until she was discharged home on December 12, 2005.  Id. Two weeks after her discharge, Dr. Michael Shapiro examined Falon and found she had retinal detachment in both eyes requiring immediate surgery. Id. Falon subsequently lost all vision in her left eye and the vision in her right eye was severely impaired. 2018 IL App (3d) 160143-U, ¶ 11. 

Plaintiffs sued OSF and the physicians under an actual and apparent agency theory alleging the hospital’s and the individual physicians’ negligent treatment and their failure to timely treat Falon’s condition caused her vision loss.  Id. at ¶ 12. The plaintiffs subsequently appealed to the Third District when the hospital was granted summary judgment by the trial court as to its liability for the treating physicians. 

Focusing on the apparent agency arguments for purposes of this article, the Third District reiterated that “[u]nder the doctrine of apparent authority, a hospital can be held vicariously liable for a physician’s negligence in providing care at the hospital, regardless of whether the physician is an independent contractor.” Id. at ¶ 32.   Plaintiffs need only show : “(1) that the hospital held itself out as the provider of medical care without informing the patient that the care was given by independent contractors, and (2) the patient justifiably relied upon the hospital’s conduct by looking to the hospital to provide medical services, rather than on a specific physician.”  Id. at ¶ 33.

OSF argued the consent form signed by Heather Terry containing the language “certain physicians and allied professionals on the medical staff at the hospital, including my attending physician, physicians performing or interpreting tests, and other physicians such as consultants, Radiologists, Pathologist, Anesthesiologists, etc. are independent contractors and  not employees of the hospital” informed her the physicians caring for her daughter were independent contractors.  2018 IL App (3d) 160143-U, ¶ 35.Therefore, OSF argued plaintiffs could not demonstrate OSF held out the defendant physicians as its own employees based on the signed consent form. 

The Third District acknowledged that signed consent forms with strongly-worded language are an important factor to consider, but they are not dispositive since “[t]here certainly could be situations in which a patient signs a consent form containing such a disclaimer but additional facts exist that would create a triable issue of fact as to whether the hospital held the defendant physician out as its agent.” Id. at ¶ 35, citing, Churkey v. Rustia, 329 Ill. App. 3d 239, 244-45 (2002). The Court noted the OSF consent form did not specifically mention the treating physicians, or the medical group to which they belonged, were independent contractors.  Id. at ¶ 36. The form merely stated that “certain physicians…are independent contractors and not employees,” but it did not state the defendant physicians fell into this category of “certain physicians.” Further, the language stating that OSF “does not employ all of the physicians” suggested that some of the physicians may be employees.  Id. Therefore, the Court concluded the consent form language was ambiguous as OSF patients may assume “some, all, or none of the treating physicians are independent contractors.”  2018 IL App (3d) 160143-U, ¶ 36. This ambiguity raised a question of fact as to whether the consent form adequately advised the plaintiffs that Drs. Hocker, Macwan and Reddy were independent contractors.

Additionally, the Court looked to other facts outside the consent form to determine whether OSF held out the physicians as its employees. Id. at ¶ 38-40. Plaintiff Heather Terry claimed she believed the physicians were hospital employees, and the physicians themselves testified that OSF provided lab coats with their names and the OSF logo on them.  Id. at ¶ 38. The physicians also wore name tags identifying them as OSF medical staff, and Drs. Hocker and Macwan had offices in the hospital near the NICU.  Id. Further, the Court noted OSF advertised itself as a “premier facility providing specialized care for neonatal concerns,” including ophthalmology and neonatology.  Id. at ¶ 39. These facts created a question of fact to be resolved by the jury as to whether OSF held these physicians out as its employees or not.

Further, Heather Terry testified she never heard of or met the defendant physicians prior to her daughter’s NICU admission, and she believed OSF arranged for Falon’s care and treatment. 2018 IL App (3d) 160143-U, ¶ 40. She sought treatment at OSF because she believed the hospital would provide the specialized care she and her daughter needed. Id. Therefore, the Court concluded she had demonstrated reliance on OSF to provide medical care, rather than on a specific physician. Because questions of fact existed as to whether OSF held out the defendant physicians as its employees and whether plaintiffs relied on OSF to provide medical care, the Court found the trial court erred in granting OSF summary judgment on the apparent agency claims and remanded the case to the trial court for further proceedings.

Practice Pointers

The takeaway from Terry v. OSF is that the language of a consent form needs to be unequivocal as to the independent status of a physician.  The use of phrases like “some physicians” or “certain physicians” may create ambiguity as to whether “some, all or none” of the physicians are employees.  2018 IL App (3d) 160143-U, ¶ 36.  It is better to state that none of the physicians are employees, or to specifically list out by name which physicians and medical groups are not employees to avoid any findings of ambiguity.  See  James v. Ingalls Memorial Hospital, 299 Ill.App.3d 627, (1998) (consent form stated none of the physicians were hospital employees); Churkey v. Rustia, 329 Ill.App.3d 239 (2002) (consent form identified specific specialty groups were independent contractors, which included the named defendant physician’s group); Frezados v. Ingalls Mem. Hosp.,  2013 IL App (1st) 121835, ¶ 5 (consent form stated none of the physicians were hospital employees).

Further, the consent form needs to be formatted in a manner so that the disclaimer is clear and unambiguous.  The title of the document must indicate that it is a medical treatment consent form, not a form concerning financial responsibility for payment.  If using a multi-part format, use clear sub-headings to signal to the patient what information is being conveyed in that paragraph.  A hospital may want to consider having the disclaimer initialized by the patient.  Further, the subparagraphs should be internally consistent and should avoid referring to physicians as hospital employees in some paragraphs and not others.  For example, in York v. El-Ganzouri, the hospital consent form did not identify the defendant physicians as independent contractors, and further, another section stated the hospital had the right to select physicians to assist in the plaintiff’s surgery, which led the First District to conclude the consent form was ambiguous. 353 Ill. App. 3d 1, 28 (2004).  See also Schroeder v. Northwest Community Hospital 371 Ill. App. 3d 584 (2006); Spiegelman v. Victor Memorial Hospital, 392 Ill. App. 3d 826 (2009).

            Also, it may be a good idea to have an employee witness the signing of the consent form to ensure the form is signed appropriately, and the employee should legibly print his/her name and sign the form.  While the consent form is usually part of the patient’s chart and foundation is usually not an issue, it may be necessary to disclose the employee who witnessed the signing of the consent form as a fact witness to testify in the event a plaintiff tries to deny receiving and signing the form.  The employee may be called to testify that the consent form was presented to the patient and that the employee witnessed the signing of the form evidenced by the employee’s signature.  The employee would not be testifying about the content of the form or whether the patient understood it. 

            While continually narrowing the circumstances under which a consent form will be dispositive in apparent agency cases, Illinois courts have set forth some guidelines to help hospitals develop a well-written, clear and unambiguous consent form to obtain summary judgment in these cases. If the right language is found, the effect of a signed consent form is usually to the benefit of the hospital as seen in some of the cases above, but if there is any ambiguity within the consent form language, the consequences can be significant and force a hospital to trial in a case that may have been disposed of in the summary judgment stage.