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Illinois’ First District Appellate Court recently examined the nuances of crucial elements of apparent agency claims in medical malpractice cases. In doing so, the Court addressed an issue of first impression: When does a consent form have to be given to a patient by a hospital for the consent to be effective? As part of its decision in Brayboy v. Advoc. Health & Hosp. Corp., 2024 IL App (1st) 221846, for the first time the Court’s analysis also included discharge instructions given to the patient.

Case Background

Plaintiff, Christina Brayboy, filed a wrongful death and survival action on behalf of the Estate of her deceased son, Benjamin Mathis, against Advocate Good Samaritan Hospital (“Advocate”), Dr. Michael Antoniolli, and DuPage Emergency Physicians.

Plaintiff brought her two young children to the emergency room at Advocate after three-year-old Benjamin exhibited a fever, drowsiness, and stiffness. Approximately five hours later, the child was discharged. Several days later Plaintiff’s son collapsed at home, was transported to Advocate, and pronounced dead. The cause of death was later determined to be an untreated bacterial infection.

Plaintiff alleged, among other things, that Dr. Antoniolli, her son’s emergency room physician, was the apparent agent of Advocate. Advocate moved for summary judgement on the issue of apparent agency, relying primarily on the consent form signed by Plaintiff at the hospital that stated Dr. Antoniolli was an independent contractor. The Circuit Court entered summary judgment in the hospital’s favor. The Appellate court reversed, holding there was a genuine issue of material fact as to the “holding out” and “reliance” elements of Plaintiff’s apparent agency claim. The crux of the Court’s reasoning related to the context and timing of the Plaintiff signing the consent form.

Analysis of the Court’s Decision

For over three decades, the law in Illinois has been well settled that in order for a plaintiff to prevail on a claim for apparent agency, plaintiff must prove that:

1. the hospital or its agent acted in a manner that would lead a reasonable person to conclude that the alleged tortfeasor was an employee or agent of the hospital
2. where the acts of the agent create the appearance of authority, the hospital had knowledge of and acquiesced in them
3. the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence

Gilbert v. v. Sycamore Municipal Hosp., 156 Ill. 2d 511, 524 (1993). The first two elements are known as “holding out,” and the last is referred to as “justifiable reliance.”

The Brayboy Court found that a genuine issue of material fact existed on both the holding out and reliance elements of Plaintiff’s apparent agency claim. In doing so, the Court stressed that the mere existence of a consent form does not automatically shield a hospital from vicarious liability for its independent contractor physicians. Instead, the Court emphasized the importance of evaluating additional facts that could create a triable issue of fact as to whether the hospital held the defendant physician out as its agent. As part of this evaluation, the Court addressed an issue of first impression raised by the Plaintiff: When does a notice or consent form have to be given to a patient by the hospital for the consent to be effective?

Case Law from Outside Jurisdictions

Because the issue raised by Plaintiff on appeal was one of first impression, the Court looked to case law from jurisdictions beyond its borders. The Court discussed apparent agency case law from the Supreme Courts of Ohio, South Carolina, Indiana, and Tennessee as well as an appellate decision from Maryland. The Court agreed with and adopted the reasoning used in each of those cases: whether a notice or consent form is effective depends on whether it provides meaningful notice at a meaningful time to the plaintiff. In other words, for a consent form to be effective, it must be given when the patient still has a reasonable opportunity to obtain treatment elsewhere if he or she chooses not to sign the form.

Emphasis on Context: Timing and Discharge Instructions

This conclusion is particularly problematic in cases involving treatment in an emergency department or during medical emergencies. The Brayboy Court noted that Plaintiff was presented with a consent form two hours after she arrived at the Emergency Department and after her son had already received some medical treatment. Additionally, she was told she had to sign the document in order for her son to continue to receive treatment. Plaintiff signed the three-page single-spaced form without being provided any explanation or having any portions read to her. She was also not given a copy of the form after she signed it.

The Court did note, however, that Plaintiff was given a copy of the discharge instructions. The Court found that the discharge instructions largely contradicted the consent form. For example, while the consent form notified Plaintiff of non-employed physicians, including those practicing emergency medicine, the discharge instructions identified Dr. Antoniolli by name and did not indicate that he was an independent contractor rather than an employee of the hospital. The discharge instructions from Advocate also stated, “We sincerely hope that we were able to provide you or your family member with VERY GOOD care. Our physicians and clinical staff are committed to quality and service.” [emphasis part of original discharge instructions]

Ultimately, the Court concluded that although the Plaintiff signed a consent form, additional facts existed that created a triable issue of fact as to whether Advocate held out Dr. Antoniolli as its agent and whether Plaintiff relied on Advocate rather than Dr. Antoniolli to provide emergency room care.

Conclusion

Brayboy carries implications for the defense of apparent agency claims in medical malpractice cases, especially those involving medical emergencies and emergency room treatment. In the face of an unambiguous consent form containing an independent contractor disclaimer, courts have considered evidence of advertisements, signage in the hospital, and hospital logos on scrubs, lab coats, or badges when considering whether there is any holding out by the hospital. After Brayboy, it seems courts may also now consider the timing and circumstances surrounding the hospital’s presentation of the consent form to the patient.

Defense attorneys should be mindful of these nuanced factors, including the timing of consent form presentation. By proactively addressing these considerations, defense strategies can be fortified to mitigate the risks associated with apparent agency claims.