Question

In 1989, William Petrovich’s employer, the Chicago Federation of Musicians, provided health care coverage to all of its employees by enrolling them all in Share Health Plan of Illinois. Share is an HMO and pays only for medical care that is obtained within its network of physicians. To qualify for benefits, a Share member must select a primary care physician, who will provide that member’s overall care and authorize referrals when necessary. Share gives its members a list of participating physicians from which to choose. Inga Petrovich, William’s wife, selected Dr. Marie Kowalski from Share’s list and began seeing Kowalski as her primary care physician. In September 1990, Mrs. Petrovich saw Kowalski because she was experiencing persistent pain in her mouth, tongue, throat, and face. She also complained of a foul mucus in her mouth. Kowalski referred her to Dr. Friedman, an ear, nose, and throat specialist who had a contract with Share. When Friedman ordered that an MRI be done, Kowalski refused and instead sent a copy of an old MRI. In June 1991, after Mrs. Petrovich had made multiple visits to both doctors, Friedman found cancerous growths in Mrs. Petrovich’s mouth. He performed surgery to remove the cancer later that month. Petrovich subsequently sued Share for medical malpractice. The complaint alleges that both Kowalski and Friedman were negligent in failing to diagnose Inga Petrovich’s cancer in a timely manner and that Share is vicariously liable for their negligence. Share filed a motion for summary judgment, arguing that it cannot be held liable for the negligence of Kowalski or Friedman because they were acting as independent contractors, not as Share’s agents. How should the court decide? What reasons should it give? [ Petrovich v. Share Health Plan of Illinois, 719 N. E. 2d 756 ( 1999).]

Answer 1

In this case, the plaintiff died from mouth cancer. Plaintiff had alleged that defendants, Kowalski and Share HMO, were negligent in her diagnosis, which alleviated her cancer. She sued them under the theory of vicarious liability. The Share HMO claimed that the doctor was not their employee but an independent contractor, therefore the HMO could not be held accountable in this case.

The court, as per the general rule of vicarious liability, suggested that the HMO could not be held responsible for the independent contractors. However, after deep study, they came up with a clause of vicarious liability. This clause states that vicarious liability can be imposed on the HMO for the actions of independent contractors if there is an agency relationship between the entities. The agency relationship may exist as per doctrine of apparent authority or doctrine of implied authority.