Illinois Appellate Court Reverses Trial Court’s Dismissal Order That Revives Birth Injury Claims Against Hospital

The Illinois Appellate Court has ruled a woman may be able to hold the hospital liable for injuries her child sustained during labor and delivery.

The Illinois Appellate Court for the 5th District reversed a trial judge’s decision that the patient should have known the doctor who delivered her twins was independent from the hospital.

The appeals panel wrote that there were still questions as to whether the physician and the hospital made it appear the doctor was an agent of the institution rather than a contractor.

Although the plaintiff, Crystal Williams, signed forms acknowledging doctors such as Dr. Bradley Tissier, her obstetrician-gynecologist, were independent contractors rather than employees of the hospital, the language stating that fact was buried among other sections and written in small, 8-point type.

That disclosure from St. Elizabeth’s Hospital which was then in Belleville, Ill., and is now in O’Fallon, Ill., “is not printed in bold type and capital letters and is not plainly visible.”

“The St. Elizabeth’s [c]onsent for [t]reatment form is printed entirely in small (type), making it difficult to read. The independent contractor disclosure is set forth in the medical consent section, nestled between the authorization for treatment and a disclaimer of the results of that treatment.”

The plaintiff, Crystal Williams, individually, and in her capacity as parent and next friend of Jerrin K. Williams, a disabled minor, filed this lawsuit against the defendants, Bradley J. Tissier, M.D. and OB GYN Care LLC, alleging that Dr. Tissier was negligent in performing a vaginal breech delivery of her son, Jerrin. Williams subsequently added St. Elizabeth’s Hospital of the Hospitals Sister of Third Order of St. Francis (St. Elizabeth’s) and Hospitals Sisters Health Systems as defendants, alleging that St. Elizabeth’s was liable for Dr. Tissier’s negligence under theories of actual or apparent agency.

The circuit court judge granted summary judgment for St. Elizabeth’s. On appeal, Williams claimed that the circuit court was wrong in granting summary judgment for St. Elizabeth’s on the issue of apparent agency. The plaintiff contended that questions of material fact exist as to whether St. Elizabeth’s held out Dr. Tissier as its agent and whether Williams reasonably relied on a purported agency relationship between St. Elizabeth’s and Dr. Tissier during the period he provided medical care to Ms. Williams and her son, Jerrin.

On June 3, 2017, Williams, then 26 and pregnant with twins, began having contractions. She telephoned the office of her doctor, Dr. Tissier, and received a return call from Dr. Steven Mathus. Williams had never been seen by Dr. Mathus, and she did not know him. Dr. Mathus instructed Williams to go to St. Elizabeth’s Hospital. Upon arrival, Williams was admitted and taken to the operating room for a “double set-up” (twin) delivery. The twins were delivered on June 4, 2017, by Dr. Tissier at St. Elizabeth’s.

The first delivered twin had no difficulty. Jerrin, the second twin, was in a persistent transverse lie. Dr. Tissier attempted to rotate Jerrin in utero into the vertex position, without success. Eventually, Dr. Tissier performed a vaginal footling breech extraction.

During the delivery procedure, Jerrin’s umbilical cord became compressed and Jerrin sustained brain damage among other serious injuries. It was alleged that Jerrin sustained permanent cognitive and physical deficits, seizure disorders, and hearing and vision loss as a result of the umbilical cord becoming compressed during the extraction. Williams later added the hospital as defendant under the theories of actual and apparent agency.

In the summary judgment motion, the hospital argued that Williams signed 13 consent forms in the years preceding the birth of her children that “clearly and unequivocally” advise that the physicians at the hospital were independent contractors.

The trial judge determined that Williams relied upon the doctor, not the hospital, for treatment. At the trial court level, it was determined that the independent contractor language was “clear and unambiguous.”

But on appeal, the 5th District appeals panel determined the language itself was not clear and concise, noting it doesn’t expressly say that the patient’s personal physician is an independent contractor.

“In the first paragraph of the St. Elizabeth’s form, the patient authorizes ‘my physician’ and ‘any other physicians who may attend me’ to provide treatment. The second paragraphs contain the independent contractor disclosure, stating that ‘attending physicians’ are independent contractors and are not employees and that ‘physicians on staff’ are not employees of the hospital.”

“There is no reference to ‘my physician’ in the second paragraph.”

The appeals panel also pointed to other evidence, such as fax cover sheets and billing statements that listed the doctor’s address and hospital’s suite of offices, and an external sign at the hospital identified Dr. Tissier as a provider there.

“After reviewing the record, we (appellate court) find that there are genuine issues of material fact concerning whether St. Elizabeth’s held out Dr. Tissier as its apparent agent in providing quality maternity and delivery care to plaintiff.”

The court also ruled there were still questions as to whether Williams relied upon the hospital for care in addition to just the physician. That determination is the third component necessary to establish vicarious liability under the doctrine of apparent agency. Those components stem from the 1993 Illinois Supreme Court ruling in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993).

Before the Gilbert decision, hospitals could only be held responsible for the actions of their agents. But in 1993, as the business of health care continued to expand, the Illinois Supreme Court ruled that hospitals could be responsible for actions by independent contractors as well.

A plaintiff was only required to show the hospital or individual acted in ways that would make a reasonable person believe he or she was an employee; that, to the extent those actions created the appearance of authority, the hospital had knowledge of them; and the plaintiff relied upon the hospital as well as the individual.

Those first two elements together are the “holding out” elements of apparent agency; the third is the “justifiable reliance” element.

Williams and family were represented by Timothy S. Tomasik of Tomasik, Kotin, Kasserman LLC.

Williams v. Tissier, et al., 2019 IL App (5th) 180046.

Kreisman Law Offices has been handling hospital negligence lawsuits, labor and delivery negligence cases, birth trauma injury lawsuits and medical malpractice cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Gurnee, Cary, Bensenville, Bolingbrook, Waukegan, Zion, River Grove, Elmhurst, Elmwood Park, Melrose Park, Hickory Hills, Chicago (Roscoe Village, Wicker Park, West Rogers Park, Lincoln Square, Old Town, Hyde Park, Wrigleyville, Greek Town, West Loop, Austin, Beverly, Bronzeville), Libertyville, Lake Zurich, Inverness, Bloomingdale, Olympia Fields, Hoffman Estates and Tinley Park, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.