Illinois law provides that every health care professional and health care provider that “renders any service in the treatment, care, or maintenance of an injured person,” the care provider may assert a lien against “all claims and causes of action” of the injured person up to the amount of the care provider’s charges.

In the closing days of its November term, the Illinois Supreme Court allowed a petition for leave to appeal in Manago v. County of Cook, a decision from Division Five of the First District which poses several interesting questions for the operation of the Health Care Services Lien Act: (1) does the care provider have to intervene in the personal injury action in order to assert the lien; (2) may a hospital lien be enforced against a minor; and (3) may the lien attach to a judgment that doesn’t include an award for medical expenses?

Manago arises from an accident in August 2005 when the plaintiff – who was at the time a minor – was injured in an elevator accident.  Plaintiff sued various defendants, alleging that they had negligently failed to inspect and maintain the elevator, which was a direct and proximate cause of his injuries.  Subsequently, the plaintiff alleged in his second amended complaint that the defendants had negligently failed to ensure that persons, including the plaintiff himself, would not have access to the elevator roof.

The County mailed a notice of lien to the plaintiff’s attorney in 2009, but the County never formally intervened in the personal injury action.  The action was tried without a jury.  The plaintiff requested various categories of damages, including just under $80,000 to the plaintiff’s mother for “medical bills.”  Ultimately, the trial court declined to award anything to the plaintiff for present or future medical expenses on the grounds that plaintiff’s mother had failed to show that she had any expectation of having to pay any of the plaintiff’s expenses.

In early 2012, the minor plaintiff filed a petition to strike and extinguish the County’s lien.  After hearing argument, the court granted the motion to strike, holding that there was no case law permitting a lien holder to recover after not appearing to protect the lien at trial.

The Appellate Court began by concluding that a lien holder was not required to formally intervene in the personal injury action in order to protect its lien.  The lien holder had served notice on the plaintiff’s attorney, and the tortfeasors had notice of the lien (to the extent that they were entitled to notice) by virtue of their attorneys’ appearance at the hearing on the petition.

The Court then turned to the question of whether a lien could be enforced against a minor.  The court noted that the Act merely refers to an “injured person,” without distinguishing between minors and adults.  The plaintiff argued that as a minor, he could not incur a debt for the medical expenses.  The Appellate Court disagreed, noting that the Supreme Court has held a number of times that a minor’s estate may incur debt or other obligations by operation of law.

But there was a related problem: the Rights of Married Persons Act.  According to Section 15(a)(1) of the Act, “the expenses of the family” are chargeable to the two spouses, not to the children.  Further, it was well established, according to the court, that the relevant “expenses of the family” included the children’s medical expenses.  Accordingly, any cause of action to recover for medical expenses was that of the parent, not the child.  For that reason, the courts have held that an insurer may not enforce a subrogation lien against a minor’s recovery – the minor is not the party who owes the debt.

The Court then turned to the question of whether a lien could attach to a judgment where there was no award of medical expenses.  The Court pointed out that the phrase in the statute “all claims and causes of action of the injured person” is modified and limited by the language “for the amount of the health care professional’s or health care provider’s reasonable charges up to the date of payment of damages to the injured person.”  That language did not merely describe the amount of the lien; it also describes the nature of the claim triggering the creation of the lien.  Since the minor plaintiff’s mother did not assign her cause of action for medical expenses to him, and since the plaintiff was awarded nothing for medical expenses, there was nothing for the lien to attach to.

Justice Gordon specially concurred, arguing that the lien attached to the entire judgment, not just monies awarded for medical expenses, but concluding that the statute was contrary to public policy.  Justice Lampkin dissented, concluding that the defendant had a valid lien.

We expect Manago to be decided in the fall of 2017.

Image courtesy of Flickr by Gideon Tsang (no changes).

Can a hospital be held vicariously liable under the doctrine of apparent agency set forth in Gilbert v. Sycamore Municipal Hospital and its progeny for the acts of the employees of an unrelated, independent clinic that is not a party to the present litigation? The Illinois Supreme Court agreed to decide that issue in the closing days of the November term, allowing a petition for leave to appeal in a certified question appeal from Division Five of the First District, Yarbrough v. Northwestern Memorial Hospital.

Yarbrough began in 2005 when the plaintiff appeared at a federally funded, not-for-profit clinic seeking pregnancy testing. After receiving a positive pregnancy test, the plaintiff was allegedly told that if she received prenatal care at the clinic, she would deliver and receive additional testing and care at the defendant hospital, including ultrasounds. She later received an ultrasound at the clinic and one at the plaintiff hospital, but in neither case was she advised of a malformation which made her pregnancy high risk. As a result, she ultimately delivered at 26 weeks, and the baby suffered numerous medical complications.

The plaintiff filed a two count complaint, alleging malpractice against the defendant hospital in connection with the ultrasound, as well as vicarious liability for malpractice at the clinic based on actual or apparent agency. The trial court granted the hospital’s motion for summary judgment on the vicarious liability claims, but the plaintiff then filed an amended complaint, restating her claims relating to the treatment at the clinic based on allegations of apparent authority.

In support of their theory, the plaintiffs alleged that the hospital held out the clinic as its agent in published materials, including annual and community service reports, as well as on its website, which listed the clinic as one of “our health partners.” The clinic’s website stated that all clinic doctors had faculty status at the defendant hospital’s school of medicine.

The defendant hospital moved for summary judgment on all apparent authority claims, arguing that the clinic was an independent, federally funded community health center, it had not been named as a defendant, and that all its employees were working onsite within the scope of their employment with the clinic. The defendant argued that the plaintiff had never been told that the defendant and the clinic were the same entity, and the mere fact that she was informed that she would likely deliver at the defendant hospital was insufficient to establish apparent agency. After hearing argument on the motion for summary judgment, the trial court certified the question above under Supreme Court Rule 308.

The parties in Yarbrough agreed that a hospital may be vicariously liable for the acts of a independent contractor physician under the doctrine of apparent authority pursuant to Gilbert. Gilbert required plaintiffs to show three factors: (1) the hospital or its agent acted in a way which would lead a reasonable person to conclude that the negligent individual was an employee or agent of the hospital; (2) the hospital had knowledge of and acquiesced in any acts of its agent which created the appearance of authority; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent.

On appeal, the defendant in Yarbrough argued that Gilbert was limited to the four walls of the hospital itself – nothing in the decision suggested it could extend to a physically separate clinic. The Appellate Court disagreed, holding that the important factor was not the geographic location of the challenged events, but rather whether the hospital had somehow caused the plaintiff to rely on the hospital for treatment rather than the individual physician. The defendant also argued that the hospital could not be sued as principal when the alleged agent – the clinic – had not been sued, but the Court concluded that Gilbert contained no such requirement.

The Appellate Court held that the plaintiff had produced sufficient evidence to raise a genuine dispute of fact for the jury on whether a reasonable person would believe that an agency relationship existed. The Court pointed to the defendant hospital’s holding itself out as a community-oriented “full service hospital,” and noted the entities’ affiliation agreement, which provided that the hospital would be the primary site for acute and specialized hospital care for the clinic’s patients. It made no difference whether or not the plaintiff had actually seen the written materials or website of the defendant hospital; the standard for “holding out” was objective. Accordingly, the Appellate Court answered the certified question with which we began this post in the affirmative.

We expect Yarbrough to be decided in the fall of 2017.

Image courtesy of Flickr by Metro Centric (no changes).

While participating in a social event at a college fraternity, a young man becomes intoxicated, loses consciousness, and ultimately dies. Is there any theory pursuant to which the officers, pledge board members or even the fraternity itself might be liable to the young man’s estate in tort? The Illinois Supreme Court agreed to decide these issues in the closing days of its September term, allowing a petition for leave to appeal in Bogenberger v. Pi Kappa Alpha Corporation, a decision from Division One of the First District.

According to the plaintiffs’ fifth amended complaint, the executive officers and various pledge board members of the defendant fraternity decided to hold a “Mom and Dad’s Night” pledge event at their fraternity on November 1, 2012. Pledges were allegedly told that participation in the event was mandatory. The complaint alleged that the fraternity stationed two or three “Greek couples” in each room of the fraternity. When the pledges entered each room, they were allegedly asked certain questions, and regardless of their answers, pressured to consume vodka given by the active members. After progressing through all seven members, a pledge would have allegedly consumed between three and five glasses of vodka within an hour and a half. When the pledges could no longer walk on their own, they were allegedly taken to the basement of the fraternity house. Several lost consciousness. Officers and active members allegedly checked on the pledges occasionally and adjusted their positions so they would not choke, but the complaint alleged that active members and officers decided to instruct members not to call 911 or otherwise seek medical care for them. The decedent died with a blood alcohol level of 0.43.

The complaint named a host of defendants, including the fraternity, the executive officers and pledge board members, certain additional active members, and various nonmembers. The defendants filed a motion to dismiss. The trial court granted the motion. The court acknowledged that Quinn v. Sigma Rho Chapter, 155 Ill. App.3d 231 (1987) and Haben v. Anderson, 232 Ill. App.3d 260 (1992) stand for the proposition that a cause of action can be stated in tort when conduct violates the Hazing Act, and the plaintiff is required to drink to intoxication to become a member. However, the court questioned the continuing vitality of Quinn and Haben given the Supreme Court’s subsequent decision in Charles v. Siegfried, 165 Ill.2d 482 (1995). The First District reversed in part.

The fundamental common law rule in Illinois has been that no cause of action arises out of the sale or gift of alcoholic beverages, because the law views the cause of the injury as being the consumption rather than the sale/gift of the beverage. The Illinois legislature long ago created an exception to this proposition by enacting the Dramshop Act in 1872. But less than 20 years after the Dramshop Act, the Supreme Court flatly refused to extend the principle to social hosts – a principle which it has reaffirmed many times since. Most recently in Charles, the Supreme Court refused to adopt a limited duty for knowingly serving alcohol to minors who become intoxicated and suffer serious injury or death, reiterating the no social host liability exists in Illinois.

The plaintiffs argued that their complaint did not allege a social host theory, but rather a Hazing Act theory under Quinn and Haben. The Appellate Court agreed, holding that where a person is required to consume excessive amounts of alcohol in order to become a member of an exclusive, valued organization, such allegations no longer describe a mere social host situation. The Appellate Court analyzed the Supreme Court’s social host cases in detail, concluding that none of them had swept so broadly as to eliminate the limited liability established in Quinn and Haben.

The Appellate Court found that the complaint sufficiently alleged facts to support liability on the theory that the decedent had been required to drink to extreme intoxication in violation of the Hazing Act. The Court further held that the complaint sufficiently alleged a cause of action against several defendants based on a voluntary undertaking theory, since several members had allegedly conducted the pledges to the basement. The complaint further sufficiently pled a cause of action against the fraternity chapter, since the elected officers and pledge board members had allegedly been acting within the scope of their authority in planning and executing the event.

The Court affirmed dismissal as to the parent corporations of the fraternity, holding that recognition of a tort duty would represent an unrealistic burden on the parent. The Court also affirmed dismissal as to the nonmember defendants, since they had no authority to determine who would become members of the fraternity under Quinn and Haben. Finally, the Court affirmed dismissal as to the landlord of the fraternity house, finding that the plaintiffs had failed to allege sufficient facts to support its conclusory allegations that the landlord knew what kinds of events were occurring at the house.

Justice Connors specially concurred in the unanimous decision.

We expect Bogenberger to be decided in summer or early fall 2017.

Image courtesy of Flickr by PhotographerPandora (no changes).

Illinois law provides that any owner, lessor, occupant or other person in charge of residential property who “removes or attempts to remove snow or ice” from sidewalks is immunized from negligence claims arising from his or her acts or omissions absent a showing of willful or wanton conduct. 745 ILCS 75/0.01. So does that mean that property owners are immunized from liability for unnatural conditions of snow and ice created by the design or conditions of the property? In early December, the Illinois Supreme Court held that the answer was “no,” affirming in Murphy-Hylton v. Lieberman Management Services, Inc. Our summary of the facts and underlying court decisions is here.

The defendants were the owner and manager of a condominium development. In February 2011, a heavy snow struck northern Illinois. The snow removal and landscaping service hired by the condominium association cleared snow and ice from the sidewalks in the complex on February 7. On the morning of February 18, the plaintiff slipped and fell on a sidewalk in the development, sustaining serious injuries. In her operative complaint, she alleged that the defendants were negligent in failing to properly direct the drainage of water and melted snow, failing to repair defective sidewalks, and failing to repair downspouts to prevent an unnatural accumulation of ice on the sidewalk. She also alleged that the defendants had failed to comply with various building construction and maintenance codes. During discovery, the plaintiff testified that she believed that water would run from the downspouts on either side of the building onto the grass and collect on the sidewalk, where it would freeze instead of draining onto the sidewalk.

Defendants filed a joint motion for summary judgment, arguing that plaintiff’s claim was barred by the Snow and Ice Removal Act. Citing Ryan v. Glen Ellyn Raintree Condominium Association, the trial court construed the immunity to apply any and all claims for negligence arising out of a defective condition on the property or negligent maintenance of the premises. Division One of the First District reversed the summary judgment on the basis that the immunity did not extend to the plaintiff’s claims.

In an opinion by Justice Theis, a unanimous Supreme Court affirmed the Appellate Court. The Court began by outlining the original state of the common law, before the passage of the Snow and Ice Removal Act. The common law rule is that landowners owe no duty to remove natural accumulations of snow and ice, but do owe a duty to prevent unnatural accumulations where they have actual or constructive knowledge of the condition. The problem with such liability, however, was that it encouraged inaction – just leaving all the snow exactly where it fell. In 1979, the General Assembly addressed that problem by passing the Act. The legislature declared the public policy of Illinois to be that “it is undesirable for any person to be found liable for damages due to his or her efforts in the removal of snow or ice from such sidewalks, except for acts which amount to clear wrongdoing.”

The court held that nothing in the plain language of the Act suggested an intent to immunize liability for accumulations of ice resulting from “circumstances unrelated to negligent snow and ice removal efforts.” The broad construction of the Act urged the defendants, on the other hand, “would reward a landowner’s passivity in failing to exercise due care in maintaining his property in a reasonably safe condition.” Because the plaintiffs were not alleging that the defendants negligently undertook to remove a natural accumulation of snow, the Act did not apply. The defendants argued that a contract for snow and ice removal was by itself prima facie evidence of having undertaken efforts to clear snow and ice, but the Court disagreed. The plaintiffs alleged that the defendants had negligently maintained the premises due to a defective condition on the property.

Since the Snow and Ice Removal Act wasn’t applicable, the Court found that there was no basis for barring the plaintiff’s claim. Accordingly, the lower court was affirmed.

Image courtesy of Flickr by Eneko Muino (no changes).