A recent flurry of amended complaints in medical malpractice cases suggests that the plaintiffs’ bar seeks to extend the reptile strategy¹ to hospitals and private practice groups of physicians. These pleadings attempt to impose a duty upon hospitals and practices to promulgate by-laws, rules and regulations, policies and procedures and guidelines (i.e. safety rules) to ensure that physicians act in the best interests of their patients at all times. If such allegations are sustained by the courts, the practical effect will be to place a duty on a corporation to tell non-employed and employed physicians how to practice medicine.
Illinois has recognized that hospitals may be held liable for institutional negligence under a theory that hospitals have an independent duty to assume responsibility for the care of a patient. Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965). The liability is predicated on the hospital’s own negligence and not the negligence of the physician. Jones v. Chicago HMO Ltd., 191 Ill. 2d 278, 291-292 (2000) (also holding that a HMO may be liable for institutional negligence.) However, we have found no Illinois case holding that a practice group may be liable for non-vicarious, “institutional” negligence.
The current attacks are occurring in cases where the actions of one or more physicians are the focus of the plaintiff’s complaint. Plaintiffs are now releasing their venom toward corporations asserting that they have a duty to direct, supervise, and regulate the actions of doctors practicing at their institutions irrespective of the employment/agency status of the physician. The allegations are made as to private practices even where the group has admitted an employment relationship with the defendant physician.
The decision to treat a patient in a particular manner is a medical question entirely within the discretion of the treating physician, not the hospital. Negligence cannot be imputed to the hospital where the physician is not the agent or under the direction of the hospital. Johnson v. St. Bernard Hospital, 399 NE 2d 198 ( 1st Dist. 1979). Extension of the reptile strategy to require corporate defendants to devise “safety rules” to guide and regulate the decisions of physicians would substitute the judgment of the corporation for that of the independent health practitioner and would establish a new and more extreme standard of care for all involved defendants.
WAYS TO SKIN THE REPTILE:
Claims against the group or hospital for failure to publish guidelines dictating how to practice medicine will be extremely prejudicial to all defendants in a medical malpractice case and could pit the physician against the hospital or his own group in their respective defense of the case. The reptilian theory that hospitals and physician practice groups must protect the public by promulgating guidelines to control physicians’ actions is inconsistent with the manner in which modern medicine is practiced. As delineated below, several bases exist to shield defendants against these new attacks.
Since many of the current amendments are made more than 2 years from the event, defendants should bring a motion to dismiss based upon the statute of limitations (735 ILCS 5/13-212). In the event plaintiffs argue that the pleading relates back, defendants should assert that new allegations of negligence are not similar in character or subject matter (to those timely pled) and alter the nature of proof required to defend the case. See Grove v. Carle Foundation Hospital, 364 Ill. App. 3d 412 (4th Dist. 2006) and Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939 (1st Dist. 1998). If the amendment is not supported by a 2-622 report as required, defendants have another basis for a motion to dismiss. Winters v. Podamsky, 252 Ill App. 3d 821, 822 (3d Dist. 1993).
Limitations and 2-622 aside, a motion to strike should be directed at those portions of a complaint which seek to impose a new duty upon hospitals and practice groups. The private practice group owes no duty to the patient apart from that found in the physician-patient relationship its employee has with the plaintiff. Nor does a corporate medical group practice medicine. The existence of a duty is a question of law to be determined by the court. Garrett v. Grant School District, 139 Ill App 3d 569 (2nd Dist. 1985).
A proximate cause argument may also be advanced in a motion to strike or dismiss on behalf of the corporate defendant: “if Dr. X treated the plaintiff in accordance with the standard of care, then no negligence on the part of the corporation caused injury.” Claims made for institutional negligence are derivative of claims made against Dr. X. In a case against a hospital (or group) it is not sufficient to show that the defendant breached its duty to the plaintiff but said breach must have caused injury to the patient. Andrews v. Northwestern Memorial Hospital, 184 Ill App 3d 486, 493 (1st Dist. 1989). Compliance with the standard of care by co-defendant physician breaks the causal link.
Moreover, in those cases where the hospital or group concedes agency of the co-defendant physician, evidence of negligent supervision, regulation and guidance is duplicative and unnecessary. Gant v. L. U. Transport, Inc., 331 Ill App 3d 924, 928 (1st Dist. 2002) (borrowing from the law of negligent entrustment)².
Hopefully, well-reasoned motions to dismiss will relegate this new reptilian theory to becoming past hiss-tory.
¹“Reptile Strategy” makes an appeal to that instinct in human nature thought to be shared with reptiles: a desire to seek safety and survival when threatened. The syllogism is: Safety rules are designed to protect the community. A physician’s violation of a safety rule threatens the patient’s safety and that of the community.
²Our thanks to Carrie Vine of the Rockford Office for this argument.
Richard A. Barrett, Jr. is a partner in the firm's Chicago office. Mr. Barrett has been affiliated with Cassiday Schade LLP since 1980, where his primary focus has been the trial of a wide variety of civil lawsuits.
Jacquelyn M. Hill is an associate in the firm's Chicago office. Ms. Hill has dedicated her practice to defending health care providers of all types against claims of medical negligence.