A state appeals panel has agreed Northwest Community Hospital can’t be sued over open-heart surgery complications when the involved doctors weren’t employees or agents of the Arlington Heights medical facility.
Cook County Circuit Court Judge Rena Van Tine granted partial summary judgment to Northwest in a lawsuit from Josef Stelzer, who alleged negligent medical treatment on behalf of two doctors. Neither physician, according to Van Tine, was a hospital employee or agent. Stelzer challenged that opinion before the Illinois First District Appellate Court, arguing the status of doctors as hospital agents was a material factual question.
Justice Sanjay Tailor wrote the panel’s decision, issued June 2; Justices Mary Mikva and Carl Walker concurred. The order was issued under Supreme Court Rule 23, which may limit its use as precedent.
According to court records, Stelzer’s heart situation started with a Nov. 5, 2013, annual exam with his regular doctor, who practiced through NCH Medical Group. Abnormal electrocardiogram results quickly led to a recommendation for open-heart surgery at the hospital. Before the Nov. 15 procedure, Stelzer signed “universal consent” forms stipulating the following, in part:
“My care will be managed by physicians who are not employed by or acting as agents of NCH but have privileges at these facilities. My physician may decide to call in consultants who are also not employed by or agents of NCH and who practice in other specialties to provide care to me. To provide specialized services such as emergency medicine, radiology, radiation oncology, pathology and anesthesiology, NCH has entered into agreements with independent physician groups. The members of these groups are not employees or agents of NCH. I understand that NCH does not control physician’s professional judgment.”
Stelzer alleged an anesthesiologist perforated his esophagus during a diagnostic transesophageal echocardiography, which he linked to a septic infection that kept him hospitalized for an additional eight weeks.
The panel said neither the heart surgeon, Dr. David DeBoer, nor the anesthesiologist, Dr. Kathryn Podgorny, were hospital employees, but worked for Cardiac Surgery Associates and Midwest Anesthesia Partners, respectively. Stelzer also sued Physician Assistant Christine Gilbert, whose employee status the hospital didn’t dispute.
On appeal, Stelzer said “the consent forms he signed were vague, misleading and confusing, and thus insufficient to support the court’s grant of summary judgment,” Tailor wrote. He relied on a 2019 Illinois Fifth District Appellate Court opinion, Williams v. Tissier, where a plaintiff defeated summary judgment with arguments about the clarity of a hospital consent form.
The panel said that case is distinguishable, however, because “the independent contractor language was buried within a 16-paragraph, two-page document, ‘nestled between the authorization for treatment and a disclaimer of the results of that treatment,’ and noted that the language was not in bold or capital letters” but instead an 8-point font, as well as mingled with several other consent forms that never referenced independent contractors.
The NCH form, by comparison, had in its second paragraph, in bold capital letters, “MY PHYSICIANS, ALLIED PROFESSIONALS ARE NOT NCH EMPLOYEES/AGENTS.” He signed consent forms before a catheterization and the surgery, each with the same language, and a surgical consent form expressly naming DeBoer and stating “The above physician, the anesthesiologist, if applicable, their assistants, and their physician groups, are not employees or agents of the hospital, but are independent contractors.”
The panel rejected Stelzer’s arguments he didn’t fully understand the consent forms, that the forms are misleading or false and that his encounters with Gilbert and other hospital staff members — which happened after his surgery — colored his perceptions about his medical team’s employment relationships.
Tailor explained the panel further rejected an argument the first two paragraphs of the consent form are confusing in conjunction because Stelzer didn’t make that argument in his initial appellate brief, but nevertheless wrote “the first two paragraphs of the consent form are not contradictory.”
Stelzer also pointed to NCH marketing materials referencing a “medical staff of more than 1,000 physicians,” but the panel said the consent form is clear about doctors’ independent contractor status, as are reception area signs stating doctors on the medical staff “are independent practitioners and not (NCH) employees or agents.”
According to court records, Stelzer has been represented by attorneys from the firm of Power Rogers, of Chicago.