Illinois Court Clarifies Scope of Apparent Agency

Typically, the traditional apparent agency theory advanced in a medical negligence case involves an independent contractor physician employed by a separate private medical group providing negligent care inside a hospital. The case of Yarbrough v. Northwestern Memorial Hospital, 2016 IL App (1st) 141585 (August 19, 2016), upends this classic scenario as it implicates a hospital for patient care outside of the hospital by an affiliated party not named in the lawsuit.

In Yarbrough, a patient initiated pre-natal treatment at Erie Health Center. Erie informed her that as an Erie patient she would deliver at NMH. Ultimately Erie misdiagnosed her condition resulting in a premature C-section delivery at NMH and personal injury to her child.

Dispositive motions revealed that NMH promoted itself as a community-oriented hospital that collaborates with neighborhood centers including Erie to make quality health care available to the underserved. It publicized the relationship on its website, in annual reports, community service reports and other press releases. NMH did even more when it promoted the percentage of babies delivered at NMH that had received prenatal care at Erie and stated 100% of Erie patients delivered at NMH. The NMH website linked to Erie’s and touted Erie as one of “Our Health Partners.” There were other references to the partnership as well as their longstanding affiliation and board representation on the Erie board. There was even testimony of collaboration and financial and other assistance. The court also found it significant that the parties were engaged in an affiliation agreement.  NMH’s advertisements further bolstered the plaintiff’s holding out argument supporting Erie acted as NMH’s apparent agent.

In the face of this compelling evidence, the court determined that a hospital might be held liable under apparent agency for the acts of an employee of an independent clinic that is not a party to the litigation. This case was before the Illinois Appellate for the sole purpose of answering this certified question. The court looked to a number of sources for guidance in rendering its decision, including the Illinois Pattern Jury Instructions (IPI). The court was careful to point out that all of the factors under the test for application of the apparent agency theory must be met in order to impose liability on the hospital. This decision ushers in a potential expansion of the apparent agency theory offering plaintiffs much-needed relief negotiating the maze of healthcare provider liability.

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