2019 IL App (1st) 18-2433-U

 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

 SECOND DIVISION

December 17, 2019 

No. 1-18-2433 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

JENNIFER DeANGELO, as Plenary Guardian of 

ANTONIO DeANGELO, a currently disabled adult, 

 Plaintiff-Appellant, 

v. 

JAMES A. WILCOX, D.O.; ADVOCATE 

HEALTH PARTNERS, d/b/a ADVOCATE 

PHYSICIANS PARTNERS, a not-for-profit 

corporation, O. BARTOLOMEO, M.D., S.C., d/b/a 

BARRINGTON FAMILY MEDICINE, S.C., a 

corporation; ADVOCATE GOOD SHEPHERD 

HEALTH PARTNERS, LTD., d/b/a ADVOCATE 

GOOD SHEPHERD PHYSICIAN PARTNERS, 

LTD., a corp., and JAMES A. WILCOX, P.C., a 

professional corporation, 

 Defendants, 

and 

ADVOCATE HEALTH AND HOSPITALS 

CORPORATION d/b/a ADVOCATE GOOD 

SHEPHERD HOSPITAL, a Corporation, 

 Defendant-Appellant. 

)

) Appeal from the Circuit Court of 

) Cook County, Illinois, 

) County Department, 

) Law Division

) 

) 

) 

) 

) 

) No. 1-18-2433 

) 

) 

) 

) 

) 

) 

) The Honorable 

) Patricia O’Brien Sheahan,

) Judge Presiding. 

) 

) 

) 

) 

) 

) 

)

 PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the 

 court. 

Justices Lavin and Coghlan concurred in the judgment.
No. 1-18-2433 

2 

ORDER

¶ 1 Held: The trial court properly granted summary judgment in favor of the defendant on the 

issue of actual agency but erred when it granted summary judgment on the issue of apparent 

agency. There remain genuine issues of material fact as to whether the defendant created the 

appearance that the physician whose alleged medical malpractice caused the plaintiff’s injury 

was its agent, and whether the plaintiff reasonably relied on this apparent agency to his own 

detriment. 

¶ 2 This cause of action arises from a medical malpractice action filed by the plaintiff, Jennifer 

DeAngelo (Jennifer), as plenary guardian on behalf of her currently disabled husband, Antonio 

DeAngelo (Antonio), stemming from Antonio’s single visit to his treating physician, Dr. James 

A. Wilcox (Dr. Wilcox) at his office located inside O. Bartolomeo, M.D., S.C., d/b/a Barrington 

Family Medicine (Barrington FM) on January 29, 2015. The plaintiff’s medical malpractice 

action against Dr. Wilcox and his practice, James A. Wilcox P.C., a professional corporation 

(Wilcox P.C.) is premised on Dr. Wilcox’s failure to appreciate 37-year-old Antonio’s 

hypertension during that appointment and his failure to admit him to the hospital even though he 

suspected a pulmonary embolism. As a result, Antonio suffered a debilitating stroke on March 

11, 2015. As part of her medical malpractice action, the plaintiff also sought to hold the 

following four entities vicariously liable for Dr. Wilcox’s medical negligence: (1) Barrington 

FM; (2) Advocate Health Partners d/b/a Advocate Physician Partners, a not-for-profit 

corporation and physicians group (Advocate Physician group); (3) Advocate Good Shephard 

Health Partners, Ltd., d/b/a Advocate Good Shepherd Physicians Partners, Ltd., a corporation 

(Advocate GS Physician group); and (4) the instant appellee, Advocate Health and Hospitals 

Corporation d/b/a Advocate Good Shepherd Hospital, a corporation (Advocate or Advocate GS 

Hospital). 

¶ 3 In this appeal, the plaintiff asks that we reverse the circuit court’s order reconsidering its 
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prior partial denial of summary judgment in favor of Advocate, ultimately dismissing it from the 

case. The plaintiff contends that the trial court erred when it found that, as a matter of law, 

Advocate could not be held vicariously liable for the negligence of Antonio’s treating physician 

under either actual or apparent agency theories. For the reasons that follow, we affirm in part 

and reverse in part. 

¶ 4 I. BACKGROUND

¶ 5 The record before us reveals the following relevant facts and procedural history. 

¶ 6 A. The Pleadings 

¶ 7 The plaintiff filed her complaint on April 25, 2016. Therein she alleged that on June 14, 

2014, her 37-year-old husband, Antonio sought treatment at a Walgreens HealthCare Clinic 

(Walgreens clinic) in Arlington Heights, complaining of a cough with mucus that had persisted 

for over a week. Antonio’s blood pressure was measured at 132/82, leading to a diagnosis of 

elevated blood pressure. The Walgreens clinic recommended that the plaintiff follow up with his 

family care physician to rule out hypertension. 

¶ 8 On January 29, 2015, Antonio was treated by Dr. Wilcox in his office at Barrington FM. 

Antonio complained about his persistent cough and difficulty breathing. Dr. Wilcox measured 

Antonio’s blood pressure at 190/102. According to the complaint, Dr. Wilcox’s differential 

diagnosis included acute bronchitis, elevated blood pressure, tachycardia, and morbid obesity. 

Dr. Wilcox documented his concern that Antonio was possibly suffering from a pulmonary 

embolism and discussed a possible CT scan with Antonio but agreed that such a test was not 

necessary at this point. Dr. Wilcox released Antonio from his care, only prescribing medication 

to treat the acute bronchitis. 

¶ 9 According to the complaint, on February 6, 2015, Antonio called Dr. Wilcox’s office and 
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4 

spoke to Katie Miller, complaining of “a sore throat, earache, running nose, etc.” Dr. Wilcox 

refilled Antonio’s Zithromax Z-Pack prescription but did not reevaluate him. 

¶ 10 The complaint further alleged that on March 11, 2015, the Franklin Park District Fire 

Department responded to an emergency call to find Antonio in his car, non-verbal and in 

respiratory distress, attempting to move his right arm with his left. Antonio was transported to 

Loyola University Health System Hospital (Loyola Hospital) where he underwent a CT scan 

which confirmed that he had suffered a hemorrhagic stroke. Since then, Antonio has undergone 

numerous medical procedures and remains physically and mentally disabled. 

¶ 11 According to the complaint, Antonio’s condition was directly and proximately caused by Dr. 

Wilcox’s failure to: (1) appreciate Antonio’s apparent hypertension, and other risk factors 

(including his morbid obesity, shortness of breath and tachycardia); (2) order an appropriate 

diagnostic test (such as a CT scan); and (3) admit Antonio to the emergency room, when he 

believed that there was a possibility of a pulmonary embolism. 

¶ 12 The complaint further alleged that all the defendants were vicariously liable for Dr. Wilcox’s 

professional negligence. Relevant to this appeal, the complaint alleged that Antonio never chose 

Dr. Wilcox as his treating physician. Rather, through his HMO plan, Advocate assigned Dr. 

Wilcox as Antonio’s primary care physician responsible for directing all his health care needs. 

The complaint further alleged that at all relevant times, Dr. Wilcox and his practice, Wilcox P.C., 

acted as agents of Barrington FM, and that in turn, Barrington FM was an agent of the Advocate 

Physician and Advocate GS Physician groups. The complaint alleged that both physician groups 

were themselves agents of the instant appellee, Advocate. According to the complaint, Advocate 

never directly informed Antonio, nor gave him any reason to suspect, that it was not in an agency 

relationship with Dr. Wilcox. Accordingly, Antonio neither knew of should have known that 
No. 1-18-2433 

5 

there was no agency relationship, and instead reasonably believed that Dr. Wilcox was an 

employee of Advocate. 

¶ 13 Advocate filed its answer, denying any agency relationship with Dr. Wilcox and with any of 

the other defendants in this case. Dr. Wilcox filed his answer, inter alia, denying that he was 

ever “an employee, agent, servant, shareholder or partner of” any of the defendants, including 

Advocate. 

¶ 14 B. Discovery 

¶ 15 During discovery the following relevant witnesses were deposed: (1) Dr. Wilcox; (2) 

 Antonio; and (3) Jennifer. 

¶ 16 In his deposition, among other things, Dr. Wilcox attested that in 2003 he started his own 

medical practice, Wilcox, P.C. Beginning in October 2003, he shared an office space with Dr. 

O. Bartolomeo, who owns Barrington FM, and they split the overhead, including telephone bills, 

staff, and supplies. According to Dr. Wilcox, Dr. Bartolomeo and his wife, who acts as the 

office manager, were entirely responsible for staffing and supplying the office, and he merely 

provided half the funds. In addition, because the two physicians were competitors, as a rule, they 

did not see each other’s patients, although over the years they have made a few exceptions. 

¶ 17 Dr. Wilcox averred that, when he initially opened his medical practice, he saw patients both 

in his office and at Advocate GS Hospital. He explained, however, that his hospital visits were 

terminated in 2008 when the HMO (Tri-Country Physicians Association and

BlueCross/BlueShield) mandated that he use “hospitalists.” Dr. Wilcox stated that since 2008, 

he has not treated any patient at Advocate GS Hospital. As such, he explained that when 

Antonio was hospitalized in 2015, he would not have visited him there. 

¶ 18 Dr. Wilcox nonetheless admitted that in 2015 he continued to have general privileges to 
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practice at several Advocate hospitals, including Advocate GS Hospital and Advocate Sherman

Hospital, as well as at Northwest Community Hospital. In his response to the plaintiff’s first 

supplemental request to produce, Dr. Wilcox further attested that he was provided with an 

Advocate GS Hospital ID badge, when he treated patients there. Correspondingly, in its 

responses to the plaintiff’s interrogatories, Advocate admitted that it provided Dr. Wilcox with 

such a badge which bore the name “Advocate Health and Hospitals Corporation d/b/a Advocate 

Good Shepherd Hospital,” but indicated that it was to be worn only when Dr. Wilcox was

treating patients at Advocate GS Hospital. 

¶ 19 In his deposition, Dr. Wilcox also admitted that since 2003 he has been affiliated with 

the Advocate Physician group and that since 2015 he has had a written contract with them. He 

explained, however, that he is not an employee of that group, but rather only a member. To the 

best of his knowledge, Advocate Physician group does not actually have any physician 

employees. Dr. Wilcox could not recall whether he had contracts with any of the other 

defendants in this case, including the instant appellee, Advocate. In addition, he did not know 

whether the Advocate Physician group and the Advocate GS Physician group were the same 

entity. It was his understanding that Advocate Physician was the broader physicians’ group with 

which he had contracted, and that Advocate GS Physician was his “home base” group by virtue 

of his location and his privileges to practice at Advocate GS Hospital. 

¶ 20 During his deposition, Dr. Wilcox was presented with a welcoming letter that was sent to 

Jennifer and Antonio at their home and which stated, “Welcome to Advocate Good Shepherd 

Physician Partners, the physician’s group you have chosen to coordinate your medical services 

under your HMO plan.” Dr. Wilcox acknowledged the letter but stated that he had nothing to do 
No. 1-18-2433 

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with its writing and that he had never received a copy of it as the physician assigned to treating 

Antonio. 

¶ 21 Dr. Wilcox acknowledged that he received annual bonuses (ranging between $25,000 and 

$30,000) from the Advocate Physician group based on certain quality initiatives (i.e., end points 

based on the number of patients he would refer to Advocate hospitals for preventative procedures 

such as colonoscopies, mammograms, pap smears, diabetic eye exams, children’s vaccines and 

the like). He admitted that as part of these quality initiatives, once a year, he attended a clinical 

integration meeting at Advocate GS Hospital where he was instructed on that year’s quality 

initiatives. Dr. Wilcox acknowledged that at these meetings he was counseled as to what 

medications were recommended for certain ailments. In addition, he was advised that he would 

be penalized if he sent patients “outside of the Advocate network.” Specifically, Dr. Wilcox 

recalled that whenever he referred a patient out-of-network, he would receive a telephone call 

from Dr. Bob Belter “of the Good Shepherd branch of the Advocate Physician group” and would 

be asked to explain his reasons for the referral. The two would then work together to find a way 

to return the patient to a specialist within the Advocate network. 

¶ 22 In addition, Dr. Wilcox acknowledged that an “Advocate” entity, which to the best of his 

understanding was the Advocate Physician group, employed a registered Advocate nurse at his 

and Dr. Bartolomeo’s shared Barrington FM offices. Dr. Wilcox explained that the nurse was 

not part of the Advocate Physician group’s quality initiative program. Instead, she was

responsible for reducing the cost of medical care for high-risk patients. Specifically, she was to

identify and manage higher utilization patients, i.e., those who cost the Advocate system more

money with their frequent emergency room (ER) visits, and re-admissions to the hospital. The 

goal was to provide these patients with better care and avoid their readmission to the hospital. 
No. 1-18-2433 

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Although the nurse occupied Dr. Wilcox’s and Dr. Bartolomeo’s Barrington FM offices, she 

brought her own computer and asked Dr. Wilcox for his permission to use his patient charts. 

¶ 23 Dr. Wilcox further averred that in 2011, Barrington FM switched to using electronic medical 

records, in part based on its involvement with “Advocate.” Since then, new quality initiatives 

that were added to the computer were serviced by an information technology (IT) specialist paid 

by the Advocate Physician group. This individual was not responsible for fixing Dr. Wilcox’s 

computer, and instead merely serviced the applications relevant to Advocate’s network. 

¶ 24 In addition, Dr. Wilcox acknowledged that he utilized an after-hours answering service 

called Perfect Serve because the Advocate Physician group had obtained it at a discount rate for 

its physicians. 

¶ 25 On cross-examination, Dr. Wilcox admitted that Advocate GS Hospital did not provide him 

with any IT support and has never sent any nurses or staff to his office. In addition, Dr. Wilcox 

attested that he never treated Antonio at Advocate GS Hospital, and never referred him for any 

type of treatment there. 

¶ 26 In his deposition, Antonio, who was clearly disabled and had a difficult time answering, 

averred that in 2014 he weighed about 400 pounds, but that to his knowledge he had no chronic 

medical conditions, high blood pressure, or diabetes. He recalled that in June 2014, he went to 

the Walgreens clinic complaining of a bad cough that had lasted a few months. Between June 

2014 and January 29, 2015, when he first saw Dr. Wilcox, he did not seek medical attention or 

treatment elsewhere. Antonio was insured through his wife’s health insurance, which was a 

BlueCross/BlueShield HMO. Antonio stated that his wife Jennifer chose Dr. Wilcox from a list. 

Antonio admitted that he never saw Dr. Wilcox at Advocate GS Hospital and was never treated 

there. He further acknowledged that no one from Advocate GS Hospital ever told him to go see 
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Dr. Wilcox, referred him to Dr. Wilcox or provided him with any documentation or pamphlet 

advising him to be treated by Dr. Wilcox. 

¶ 27 In her deposition, Jennifer averred that she has known Antonio since 1998 and they have 

 been married since 2004. At the time of Antonio’s stroke, Jennifer was pregnant with their second 

 child. 

¶ 28 Jennifer stated that at all relevant times she was employed as a teacher by Bensenville School 

District 2. She, Antonio and their children were all insured through the school district. From the 

health insurance options provided by her employer, Jennifer chose the Blue Cross/Blue Shield

HMO. Jennifer averred that the HMO required her to first select a medical group based on a 

hospital affiliation. Jennifer had seen many advertisements about Advocate GS Hospital in the 

Barrington Magazine, on television, and in pamphlets mailed to her home publicizing the 

hospital’s excellent physicians and Advocate’s premium level of medical care provided to its

patients. Because of its good reputation in the community and because she had a wonderful 

experience delivering her first child there, Jennifer trusted Advocate GS Hospital, and therefore 

chose the one available HMO medical group affiliated with Advocate GS Hospital--Advocate 

Good Shepherd Group 331 (Advocate GS Group 331). Her insurance card identified her medical 

provider as: “BlueCross/BlueShield HMO” and underneath “331 Advocate GD SHEP.” 

¶ 29 Jennifer explained that when you have an HMO, there is only a limited number of physicians 

you can choose from to stay within the medical group. Once she chose Advocate GS Group 331, 

she was provided with an online member directory of about five physicians from which she 

could choose. She could not recall whether any of these physicians were affiliated with the 

Advocate Physician or Advocate GS Physician groups but stated that they all had either 

“Advocate Good Shepherd” or “Advocate” listed next to their names. After consulting with 
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Antonio, and adhering to his preference for a male physician, from the list on the HMO

Advocate GS Group 331 website Jennifer chose Dr. Wilcox. 

¶ 30 Before making this choice, Jennifer stated that she looked up Dr. Wilcox’s website. She 

averred that the top of the physician’s website had a very large banner with the logo “Advocate 

Healthcare.” While the website nowhere stated that Dr. Wilcox was an employee of Advocate, 

under his biography it noted his hospital affiliation with Advocate GS Hospital.

¶ 31 While Jennifer agreed that no one from Advocate GS Hospital explicitly “assigned” Dr. 

Wilcox to be Antonio’s physician, she stated that when she received the list of physicians within 

her HMO Advocate group form which she could choose, it was her understanding that Dr. 

Wilcox, just as all the other physicians on that list, was “an employee” of Advocate GS Hospital. 

She explained that the only reason Antonio and she chose Dr. Wilcox was because they believed 

that he was an employee of Advocate GS Hospital and they had decided that this was the 

institution from which they wanted to receive their medical care. She trusted Advocate GS 

Hospital and relied on it to provide Antonio with a physician. 

¶ 32 Jennifer admitted that prior to choosing Dr. Wilcox, she never searched for Dr. Wilcox on the 

Advocate GS Hospital or Advocate Healthcare websites, and that any information she obtained 

about him was from his own website, and that of her HMO provider. She never spoke to anyone 

at Advocate GS Hospital to confirm that Dr. Wilcox was one of the hospital’s physicians; nor did 

she receive any documentation from the hospital about Dr. Wilcox that would lead her to this 

conclusion. She also never saw any Advocate GS Hospital advertisements that involved Dr. 

Wilcox specifically. 

¶ 33 Jennifer also admitted that prior to January 29, 2015, Antonio never received any treatment 
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of any kind from any physician at Advocate GS Hospital. In addition, on January 29, 2015, 

Antonio was seen by Dr. Wilcox at his own office at Barrington FM and not at Advocate GS 

Hospital. 

¶ 34 C. Summary Judgment 

¶ 35 On December 5, 2017, Advocate filed a motion for summary judgment, arguing that as a 

matter of law the plaintiff had failed to establish either actual or apparent agency, so as to be 

permitted to proceed against it under a vicarious liability theory. With respect to actual agency, 

Advocate argued that it neither employed Dr. Wilcox nor directed or controlled the care and 

treatment he rendered to Antonio. With respect to apparent agency, Advocate asserted that 

Antonio was never treated at Advocate GS Hospital, and that the plaintiff presented no evidence 

that the hospital ever “held out” Dr. Wilcox as its agent. Advocate further argued that there was 

no evidence that Antonio relied on any conduct by the hospital in choosing Dr. Wilcox as his 

treating physician. 

¶ 36 On August 22, 2018, the trial court granted in part and denied in part Advocate’s motion for 

summary judgment. The trial court granted the motion as to actual agency finding that there was 

no question of material fact as to whether Advocate had any control over Dr. Wilcox. In this 

respect, the court found that there was no evidence that Advocate set Dr. Wilcox’s hours, paid 

him, had a right to discharge him, gave him any administrative responsibilities, or directed his 

treatment of patients, and that “simply being provided a nurse by Advocate Good Shepherd” did 

not indicate that Dr. Wilcox’s behavior was “somehow controlled by them.” 

¶ 37 The trial court, nonetheless, denied Advocate’s motion for summary judgment on apparent 
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agency grounds, finding that there remained genuine issues of material fact as to whether 

Advocate had held out Dr. Wilcox as its agent and whether Antonio had relied on this in 

choosing Dr. Wilcox as his treating physician. As the court stated:

“Based on the testimony of having had great experience with Advocate doctors, there is 

evidence that Advocate was the driver in plaintiff’s making the decision to use Wilcox and 

the only reason they chose Dr. Wilcox was because of his affiliation with Advocate Good 

Shepherd.” 

In coming to its decision, the trial court distinguished the present situation from the facts in the 

recently decided Illinois Supreme Court’s decision in Yarborough v. Northwestern Memorial 

Hospital, 2017 IL 121367, finding that the “driver” for the plaintiff in that case had been finding 

a clinic that would administer a pregnancy test without requiring her to have insurance, whereas 

in this case, the plaintiff’s insurance card presented to Dr. Wilcox clearly displayed Advocate’s 

name. The court therefore concluded that in the present case there was nothing that affirmatively 

put the plaintiff on notice of Dr. Wilcox’s independent status. 

¶ 38 On September 17, 2018, Advocate filed a motion to reconsider arguing that the trial court 

had misapplied the analytical framework of Gilbert v. Sycamore, 156 Ill. 2d 511 (1993) with 

respect to the “holding out” element of apparent agency. In addition, Advocate contended that 

the trial court disregarded the limitations set forth on the apparent agency doctrine by the 

decision in Yarborough, where medical care occurs outside of the hospital and at an independent 

clinic. 

¶ 39 On December 5, 2018, the trial court reassessed its application of Illinois apparent 

agency law to the facts of the case and reversed its initial decision denying Advocate’s motion 

for summary judgment on apparent agency grounds. The trial court now held that the plaintiff 
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had not presented sufficient evidence to create a question of fact as to whether Dr. Wilcox was 

an apparent agent of Advocate because: (1) none of Antonio’s treatment was received at 

Advocate GS Hospital and instead occurred at Dr. Wilcox’s private unaffiliated office; and (2) 

the hospital did nothing to hold Dr. Wilcox out as its agent. The trial court therefore granted 

Advocate’s motion for summary judgment in full and dismissed it from the case. The court 

further found there was no just reason to delay enforcement or appeal of its order pursuant to 

Illinois Supreme Court Rule 304(a) (eff. March 8, 2016). The plaintiff now appeals. 

¶ 40 II. ANALYSIS

¶ 41 On appeal, the plaintiff contends that the trial court erred when it granted Advocate’s motion 

for summary judgment both on the basis of actual and apparent agency. Summary judgment is a 

drastic measure and should not be granted unless the movant’s right to judgment is clear and free 

from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 

(1992). Summary judgment is proper only where “the pleadings, depositions, and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) 

(West 2018); see also Epple v. LQ Management, LLC, 2019 IL App (1st) 180853, ¶ 14; Carlson 

v. Chicago Transit Authority, 2014 IL App (1st) 122463, ¶ 21; Virginia Surety Co. v. Northern 

Insurance Co. of New York, 224 Ill. 2d 550, 556 (2007). In determining whether the moving 

party is entitled to summary judgment, the court must construe the pleadings and evidentiary 

material in the record in the light most favorable to the nonmoving party and strictly against the 

moving party. Epple, 2019 IL App (1st) 180853, ¶ 14; see also Happel v. Wal-Mart Stores, Inc., 

199 Ill. 2d 179, 186 (2002). A genuine issue of material fact exists where the facts are in dispute 

or where reasonable minds could draw different inferences from the undisputed facts. Morrissey 
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v. Arlington Park Racecourse, LLC, 404 Ill. App. 3d 711, 724 (2010); see also Espinoza v. Elgin, 

Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995). The party moving for summary judgment 

bears the initial burden of proof and may meet it either “by affirmatively showing that some 

element of the case must be resolved in [its] favor or by establishing that there is an absence of 

evidence to support the nonmoving party’s case.” (Internal quotation marks omitted.) Epple, 

2019 IL App (1st) 180853, ¶ 15. Our review of the trial court’s entry of summary judgment is 

de novo, and we may affirm on any basis appearing in the record, whether or not the trial court 

relied on that basis or its reasoning was correct. See Epple, 2019 IL App (1st) 180853, ¶¶ 14-15; 

see also Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349 (1998). 

¶ 42 In the present case, the plaintiff alleged that Advocate should be held liable for the 

negligence of Dr. Wilcox based on an agency theory. “Agency is a fiduciary relationship in 

which the principal controls the agent’s conduct and the agent has authority to act on the 

principal’s behalf.” Harris v. Symphony Countryside, L.L.C., 2019 IL App (1st) 180160, ¶ 17. If 

a principal-agent relationship exists between Advocate and Dr. Wilcox, Advocate may be held 

vicariously liable for the physician’s alleged negligence. Id. 

¶ 43 A. Actual Agency

¶ 44 The plaintiff first argues the existence of actual agency. Actual agency may be either express 

or implied. C.A.M. Affiliates Inc. v. First American Title Insurance Co., 306 Ill. App. 3d 1015, 

1021 (1999). “An agent has express authority when the principal explicitly grants the agent the 

authority to perform a particular act.” Id. Implied authority is actual authority established 

through circumstantial evidence. Buckholtz v. MacNeal Hospital, 337 Ill. App. 3d 163, 172 

(2003); Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 43 (1999). To prevail on 

either type of actual agency, the plaintiff must establish that: (1) a principal-agent relationship 
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existed between the parties; (2) the principal controlled or had the right to control the conduct of 

the alleged agent; and (3) the alleged conduct fell within the scope of the agency. Hammer v. 

Barth, 2016 IL 143066, ¶ 15. 

¶ 45 The hallmark of actual agency is the principal’s right to control the manner in which the 

agent performs the work. Magnini v. Centegra Health Systems, 2015 IL 133451, ¶ 25 (quoting 

Simich v. Edgewater Beach Apartments Corp., 368 Ill. App. 3d 394, 402 (2006) (quoting 

Kaporovskiy v. Grecian Delight Foods, Inc., 338 Ill. App. 3d 206, 210 (2003)). As such, a 

principal is generally not liable for the acts of an independent contractor. Petrovich, 188 Ill. 2d 

at 31. The rationale is that an independent contractor undertakes to produce a given result but is 

neither supervised nor controlled by the principal in the manner in which that result is achieved. 

Magnini, 2015 IL 13341, ¶ 25. Accordingly, the principal is not in a good position to prevent 

negligent performance. Id. However, if the principal retains sufficient control over the 

independent contractor’s work, his status is negated and the principal is vicariously liable for the 

contractor’s negligence under implied authority. Id. 

¶ 46 There is no precise formula for deciding when a person’s status as an independent contractor 

is negated. Petrovich, 188 Ill. 2d at 42. Instead, “the determination of whether a person is an 

agent or an independent contractor rests upon the facts and circumstances of each case.” Id. As 

noted, the primary consideration is the degree of control that the principal retains over the 

performance of the contractor’s work. Id. Facts bearing on this question, include: (1) the 

question of hiring; (2) the right to discharge; (3) the manner of direction of the servant; (4) the 

right to terminate the relationship; and (4) the character of the supervision of the work done. Id. 

In the healthcare context, the primary issue is whether the hospital had the right to control the 

physician’s exercise of medical judgment in delivering care to patients. Id. 
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¶ 47 While agency itself is a legal concept, “the existence and scope of an agency relationship is a 

fact-intensive inquiry” generally reserved for the trier of fact, “unless the parties’ relationship is 

so clear so as to be undisputed.” Zahl v. Krupa, 365 Ill. App. 3d 653, 661 (2006); McNamee v. 

Sandore, 373 Ill. App. 3d 636, 651 (2007); Gilbert, 156 Ill. 2d at 524 (“Whether an agent is 

authorized to act is a question of fact.”) 

¶ 48 In the present case, the plaintiff concedes that Dr. Wilcox testified in his deposition that he is 

neither an employee nor an agent of Advocate. Nonetheless, the plaintiff argues that there 

remains a genuine issue of material fact as to the amount of control that Advocate exercised over 

Dr. Wilcox’s medical decisions, so as to negate his independent contractor status. In this respect, 

the plaintiff points out that Advocate granted Dr. Wilcox general practicing privileges at 

Advocate GS Hospital and provided him with an ID badge with the Advocate logo to be worn 

while on site. Correspondingly, Dr. Wilcox’s website contained Advocate’s logo and advertised 

his affiliation with the hospital. In addition, the plaintiff points out that through the Advocate 

Physicians’ group, which bears Advocate’s logo, Dr. Wilcox was: (1) required to provide 

referrals within the “Advocate” network; (2) coached on quality initiatives and given annual 

bonuses for completing them by referring patients to certain testing procedures within that 

network; (3) instructed on what medications to prescribe; (4) given IT support when using the 

“Advocate” computer systems; and (5) provided with an on-site nurse whose job it was to save 

the “system” money by reducing the number of patients returning to the hospital. Based on this 

record, the plaintiff argues that the trial court erred when it concluded that there was no genuine 

issue of material fact as to whether Dr. Wilcox was an implied agent of Advocate. For the 

reasons that follow, we disagree. 

¶ 49 Contrary to the plaintiff’s position, a thorough review of Dr. Wilcox’s testimony establishes 
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that aside from providing him with an ID badge, and granting him privileges to practice there, 

which he had not exercised since 2008, Advocate had no meaningful control over Dr. Wilcox’s 

treatment decisions or his private medical practice. Dr. Wilcox unequivocally testified that his 

medical decisions were made independently and based upon his own medical expertise. 

Advocate neither employed Dr. Wilcox nor could discharge him. In addition, it provided no 

clinical oversight or management of his private practice. Instead, Dr. Wilcox rented his office 

space from Barrington FM, which was owned and operated by Dr. Bartolomeo. Dr. Wilcox 

shared the financial burden of overhead costs (including phone bills, paper, staff and supplies) 

with Dr. Bartolomeo and not Advocate. 

¶ 50 The plaintiff’s attempt to attribute to Advocate certain perks provided to Dr. Wilcox as part 

of his membership with Advocate Physician’s group is unavailing. When directly asked whether 

Advocate GS Hospital, rather than the Advocate Physician’s group, had ever provided him with 

any support staff (nurse, IT, or the like) Dr. Wilcox unequivocally testified that it had not. 

¶ 51 Nonetheless, even if we were to agree with the plaintiff that despite this testimony, 

Dr. Wilcox’s earlier deposition statement that he was unsure which “Advocate entity” had 

provided his practice with an on-site nurse, whose responsibility it was to lower the health care 

costs of the Advocate system by decreasing the number of patients readmitted to the hospital, 

creates an issue of fact, we would nonetheless find that employing such an Advocate nurse 

would be insufficient to establish the requisite control. Our courts have repeatedly held that 

supplying a physician with personnel or equipment alone is insufficient to establish the requisite 

control over the physician’s medical decisions so as to create implied agency. See e.g., Barton v. 

Evanston Hospital, 159 Ill App. 3d 970, 974 (1987) (holding that “[m]erely supplying the doctor 

with equipment and personnel does not evidence a right to govern his conduct.”); Malanowski v. 
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18 

Jabamoni, 293 Ill. App. 3d 720, 725 (1997) (holding that a physician who allegedly committed 

malpractice at the university’s outpatient clinic was not an agent of the university, but rather an 

independent contractor, even though the university supplied personnel and equipment to the 

physician’s practice because the university was only the administrative manager of the facility 

and had no say about how the individual physician practiced medicine there); see also Buckholtz, 

337 Ill. app. 3d at 173 (holding that the plaintiff failed to establish that anesthesia physician and 

nurse were actual agents of the hospital where the evidence established that both were employees 

of the anesthesia associates and not the hospital itself and the only evidence of implied agency 

was that the nurse and physician were present in the hospital and wore hospital badges). 

Accordingly, under this record, we hold that as a matter of law Dr. Wilcox was not an implied 

agent of Advocate. 

¶ 52 In coming to this conclusion, we find the decision in Lawlor v. North American Corp. of 

Illinois, 2012 IL 112530, relied on by the plaintiff unavailing. In that case, the plaintiff a 

salesperson sued her former employer on invasion of privacy grounds. Lawlor, 2012 IL 112530, 

¶ 112530. The plaintiff claimed that the employer, through its counsel had retained 

investigators, who acquired her mobile and home phone records in an effort to prove that she had 

breached the employer’s noncompete agreement. Id. at ¶ 4. The plaintiff sought to hold the 

employer vicariously liable for the conduct of the investigators in violating her privacy by 

establishing that the investigators had acted as the employer’s agents. Id. The plaintiff provided 

evidence that her former employer had requested that the investigators obtain her phone records 

and that it provided the investigators with her information in order to carry out their 

investigation. Id. at ¶ 46. Our supreme court found that the employer had set into motion the 

process of obtaining the investigative materials and that its president had assigned personnel to 
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direct and oversee the investigation. Id. at ¶ 46. The court therefore held that there was a

sufficient basis for the jury to conclude that the employer had directed, controlled or authorized 

the methods by which the investigators performed their work and therefore sufficient facts from 

which to infer the existence of an agency relationship. Id. at ¶ 51. 

¶ 53 In contrast, in the present case there is no evidence of any conduct, oversight, ratification or 

authorization of Dr. Wilcox’s practice of medicine either at his practice or at the hospital. 

Advocate did not supply Dr. Wilcox with any information concerning Antonio and did not 

request any of his records. Advocate did not make any recommendations as to Antonio’s care 

and did not collect any overhead. Accordingly, Lawlor is inapposite. 

¶ 54 B. Apparent Agency 

¶ 55 In the alternative, the plaintiff contends that the trial court erred when it found that there was 

no genuine issue of material fact as to whether there was apparent authority between Advocate 

and Dr. Wilcox. The plaintiff argues that the mere fact that the trial court reversed itself on this 

issue indicates the presence of a factual issue. More importantly, the plaintiff points out that

Antonio’s treatment by Dr. Wilcox was entirely predicated on his selection of Advocate GS 

Hospital as his medical provider, and his ability to choose Dr. Wilcox from a list of physicians in 

that Advocate hospital network. The plaintiff argues that he directly relied on Advocate to 

provide him with “great” physicians and “excellent health care” based upon Advocate’s own 

advertisements promoting such services and physicians that were sent to his home and which he 

and his wife repeatedly saw in magazines and on television in their community. In addition, the 

plaintiff argues that Dr. Wilcox’s website was ablaze with references to Advocate and 

Advocate’s logo and that Advocate itself provided Dr. Wilcox practicing privileges at the 

hospital, as well as an ID badge to be worn there. Under this record, the plaintiff points out that 
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20 

there can be no doubt that there remained genuine issues of material fact as to whether Advocate 

held out Dr. Wilcox as having authority to act on its behalf, or, in the alternative, whether it 

knowingly permitted Dr. Wilcox to assume such authority, upon which the plaintiff reasonably 

relied to his own detriment. For the reasons that follow, we agree. 

¶ 56 Apparent authority, or ostensible authority, has been part of Illinois jurisprudence for more 

than 140 years. Petrovich, 188 Ill. 2d at 31 (citing Ill. L. & Prac. Agency § 112, at 734 (1953)). 

Under this doctrine, a principal is not only be bound by the authority which it actually gives to 

another, but also “by the authority that [it] appears to give.” Gilbert, 156 Ill. 2d at 523. The 

doctrine functions like an estoppel. Id. Where the principal creates the appearance of authority, 

it will not be heard to deny the existence of the agency to the prejudice of an innocent third party 

who has been led to reasonably rely on it and is harmed as a result. Harris, 2019 IL App (1st) 

180160, ¶ 17. 

¶ 57 Our supreme court first applied the apparent authority doctrine in the medical malpractice 

context in Gilbert, 156 Ill. 2d 511. In that case, a patient suffered a heart attack after being 

treated and released by a physician at a hospital emergency room. After the patient died, his 

estate brought suit against the hospital, seeking to hold it vicariously liable for the physician’s 

negligence in failing to diagnose the patient’s heart problems. Id. at 517. The trial court 

awarded summary judgment to the hospital, holding that it could not be held vicariously liable 

because the emergency room physician was an independent contractor. Id. at 516-17. Our 

supreme court reversed, finding that an issue of fact existed as to whether the physician was 

acting as the hospital's apparent agent. Id. at 517. 

¶ 58 The Gilbert decision was based on “two realities of modern hospital care.” Id. at 520. First, 
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the court noted that hospitals have become “‘big business’ competing with each other for health 

care dollars.” (Internal citations omitted.) Id. The court pointed out that through expensive 

advertising campaigns hospitals increasingly hold themselves out to the public as providers of 

quality health care and benefit financially from the health care delivered in their emergency 

rooms. Id. As the court explained: 

“Modern hospitals have spent billions of dollars marketing themselves, nurturing the 

image with the consuming public that they are full-care modern health facilities. All of 

these expenditures have but one purpose: to persuade those in need of medical services 

to obtain those services at a specific hospital.” Id. 

Second, according to Gilbert the reasonable expectations of the public have changed, and 

patients have come to rely on the reputation of the hospital in seeking out emergency care. Id. at 

521. The court noted that it was natural for such patients to assume (correctly or not) that 

emergency room physicians are hospital employees, absent some manner of notice of their

independent status. Id. at 521. The court stated that “[s]uch appearances speak much louder 

than the words of whatever private contractual arrangements the physicians and the hospital may 

have entered into, unbeknownst to the public, in an attempt to insulate the hospital from liability 

for the negligence, of any of the physicians.” (Internal quotation marks omitted). Id. 

¶ 59 With these “modern realities” in mind, Gilbert held that a hospital may be vicariously liable 

under the doctrine of apparent authority for the negligent acts of a physician, regardless of 

whether the physician was an independent contractor, unless the patient knew or should have 

known of the physician’s independent status. Id. at 524. 

¶ 60 Gilbert then set forth three elements necessary to show a hospital liable under the doctrine of 
No. 1-18-2433 

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apparent authority: (1) the hospital, or its agent, acted in a manner that would lead a reasonable 

person to conclude that the individual who was alleged to be negligent was an employee or agent 

of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff 

must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff 

acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and 

prudence. Id. at 525. 

¶ 61 Subsequent to Gilbert, in Petrovich, our supreme court found that just like a hospital, a health 

maintenance organization (HMO) could be held vicariously liable for the negligence of its 

independent contractors under an apparent agency theory. Petrovich, 122 Ill. 2d 31-42. In that 

case, the plaintiff brought a medical malpractice action against a physician and others for their 

alleged negligence in failing to diagnose her cancer in a timely manner. Id. at 22. The plaintiff 

was a member of an HMO, which she named as a defendant. Id. She alleged that the HMO was 

vicariously liable for the conduct of the participating physicians who treated her. Id. at 25. The 

trial court granted summary judgment to the HMO, holding that it could not be held vicariously 

liable for the negligence of its physicians because they were independent contractors. Id at 22. 

Our supreme court reversed, holding that under its previous rationale in Gilbert, the HMO could 

be held vicariously liable under the doctrine of apparent authority. Id. 

¶ 62 In coming to this conclusion, the court found that the plaintiff had met the “holding out” 

element of apparent agency because she had shown the following: (1) at the time she received 

her treatment she believed that her physicians were employees of the HMO; (2) the HMO 

handbook, which the plaintiff as an HMO member received, stated that the HMO would provide 

“all of your healthcare needs,” and “comprehensive high quality services,” and contained no 

provision identifying the HMO physicians as independent contractors; and (3) the plaintiff relied 
No. 1-18-2433 

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on the information in this handbook in believing that her treating physicians were employees of 

the HMO. Id. at 37. 

¶ 63 The court further found that the plaintiff had established her “justifiable reliance” on the 

representations of the HMO as the provider of care, because the “HMO restricts its members to 

the HMO’s chosen physicians.” Id. at 39. Agreeing with its prior rationale in Gilbert, the court 

explained that in establishing “justifiable reliance” the critical distinction is whether the plaintiff 

sought care form the health care entity or from a personal physician. Id. at 40. The court found 

that “where a person has no choice but to enroll with a single HMO and does not rely upon a 

specific physician, then that person is *** relying upon the HMO to provide health care.” Id at 

39. The court pointed out that the plaintiff had no choice of health plans because the HMO was 

selected by her employer and that once she became a member of that health plan, the HMO 

required her to obtain her primary medical care form one of its primary care physicians. Id. In 

accordance with this requirement, the plaintiff selected one of those physicians as her family 

practitioner, even though she had no prior relationship with him. Id. In turn, her family 

practitioner, who was required to make referrals only to physicians approved by the HMO, 

referred her to a specialist. The court held that these facts were sufficient or raise the reasonable 

inference that the plaintiff had relied upon the HMO to provide her health care services, and that 

the HMO could therefore be held vicariously liable for the negligence of both the family 

practitioner and the specialist. Id. at 39-40. As the court explained: 

 “Were we to conclude that plaintiff was not relying upon [the HMO] for health care, we 

would be denying the true nature of the relationship among plaintiff, her HMO and the 

physicians. [The defendant HMO], like many HMOs, contracted with plaintiff’s employer to 

become plaintiff’s sole provider of health care, to the exclusion of all other providers. [The 
No. 1-18-2433 

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HMO] then restricted the plaintiff to its chosen physicians. Under these fact, plaintiff’s 

reliance on [the HMO] as the provider of the health care is shown not only to be compelling, 

but literally compelled. Plaintiff’s reliance upon [the HMO] was inherent in [the HMO’s] 

method of operation.” Id. at 40. 

¶ 64 Since Petrovich our supreme court has twice reaffirmed its holding in Gilbert and continues 

to adhere to its principles today. See York, 222 Ill. 2d at 195; and Yarborough, 2017 IL 121367, 

¶¶ 37-38. 

¶ 65 Applying these principles to the evidence before us, and construing it as we must in the light 

most favorable to the plaintiff, we find that there remain genuine issues of material fact as to 

whether there was an apparent agency relationship between Dr. Wilcox and Advocate, which is 

best resolved by a jury. The record before us reveals that through its substantial promotional 

campaign, Advocate held itself out in the community as a provider of “great doctors” and 

“excellence” in the health care it offered to its patients, and that the plaintiff and her husband 

directly relied on this advertising campaign and Advocate’s reputation in the community in 

selecting Advocate GS Hospital as their health care provider. In this respect, the plaintiff 

testified that she and her husband received numerous mailings from Advocate at their home 

advertising the quality of Advocate’s physicians and health care. They also saw many similar 

Advocate commercials on television and in magazines and newspapers in the community. The 

plaintiff unambiguously testified that, aside from her own prior positive experience at Advocate, 

she and her husband “absolutely relied” on these mailings and advertisements promoting 

Advocate GS Hospital’s great physicians and excellent health care in deciding to continue 

receiving their health care from Advocate. 

¶ 66 The plaintiff further explained that as a result, when through her employer’s HMO she was 
No. 1-18-2433 

25 

asked to select a medical group affiliated with a hospital, she deliberately chose Advocate GS 

Hospital and was correspondingly assigned the only Advocate GS Hospital HMO group--

Advocate GS 331 medical group. Since then, her medical insurance card identified her medical 

provider as “BlueCross/BlueShield HMO *** 331 Advocate GD SHEP.” The plaintiff explained 

that within this Advocate HMO group, she was limited to about five physicians from which she 

could choose, all of whom had either “Advocate GS” or “Advocate” listed next to their names. 

Together with her husband, from this list, the plaintiff chose Dr. Wilcox after she looked up his 

personal website and found at the top a large “Advocate Healthcare” banner, as well as a 

notation in his biography affirming his affiliation with Advocate GS Hospital. The plaintiff 

further averred that it was her understanding that Dr. Wilcox, just as all of the other physicians 

on the list she obtained from Advocate GS 331 medical group, was “an employee” of Advocate 

GS Hospital. She explained that the only reason Antonio and she chose Dr. Wilcox was because 

they believed that he was an employee of Advocate GS Hospital and they had decided that this 

was the institution from which they wanted to receive their medical care. She affirmatively 

stated that she trusted Advocate GS Hospital and relied on it to provide Antonio with a 

physician. Under this record, we cannot state that all reasonable minds would agree that the 

relationship between Dr. Wilcox and Advocate was so tenuous that there was no evidence of 

“holding out” or “justifiable reliance,” so as to deny any apparent agency. Accordingly, we hold 

that the trial court got it right the first time when it denied Advocate’s motion for summary 

judgment on the basis of apparent authority. See, e.g., Malanowski, 293 Ill. App. 3d at 725-28 

(holding that where a university’s conduct led a patient at an outpatient clinic to rely for 

treatment on the university rather than on any particular physician, the patient could maintain a 

medical malpractice action against the university on the theory of apparent agency, even though 
No. 1-18-2433 

26 

the physicians maintained private practices at the clinic, and the patient had a prior and ongoing 

patient-doctor relationship with the physician against whom she alleged the malpractice). 

¶ 67 In coming to this decision, we find that the public policy concerns that drove our supreme 

court’s decisions in Gilbert and Petrovich are even more apparent here. As our supreme court 

most recently recognized in Yarborough: 

 “Our health care system has continued to evolve in the years since we decided Gilbert. 

The realities of modern hospital care that informed our decision then are even more true 

today. Hospitals across the country have consolidated to improve their finances in the health 

care industry and to attract more patients. [Citations]. Others have entered into ‘rebranding 

initiatives’ which have allowed more than one organization to use similar logos while 

continuing to retain their individual names. [Citation.].” Yarborough, 2017 IL 121367, ¶ 40. 

Our supreme court further acknowledged that these changes in the health care industry mean that 

“many hospital networks” own and operate numerous facilities outside of the main hospital 

campus, including small clinics in various neighborhood locations, and that therefore, 

“depending on the circumstances” a plaintiff could argue apparent agency against such a hospital 

network arising out of the treatment “at one of those facilities.” Id. at ¶ 41. In the present case, 

Advocate is at the heart of just such a hospital network. 

¶ 68 Advocate nonetheless argues that despite our supreme court’s statements regarding the 

applicability of the apparent agency doctrine to hospital networks, in Yarborough the court 

ultimately held that the hospital network in that case could not be held vicariously liable for the 

acts of the employees of an unrelated, independent clinic. Yarborough 2019 IL App (1st) 

180160, ¶ 1. Advocate maintains that the facts in Yarborough are analogous to the facts in this 
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27 

case and that accordingly we must find that Dr. Wilcox was not an apparent agent of Advocate. 

Id. at ¶ 1. We disagree and find Yarborough distinguishable. 

¶ 69 In Yarborough, the plaintiff received prenatal care at the Erie Family Health Center (Erie) 

after she searched online and found a clinic that would administer a pregnancy test without 

requiring her to have insurance coverage. Id. at ¶ 3. After receiving a positive pregnancy result 

during her initial visit at Erie, the plaintiff was informed by staff members that she would likely 

deliver her baby at Northwestern Memorial Hospital (NMH) and was given information 

materials about NMH’s facilities and services. Id. at ¶ 6. As a result, the plaintiff incorrectly 

believed Erie and NMH to be the same entity. Id. After delivering her baby prematurely, the 

plaintiff brought a medical negligence suit against NMH, alleging that Erie’s employees, as the 

apparent agents of NMH, were negligent in providing prenatal care. Id. at ¶ 11. NMH moved 

for summary judgment on grounds that it neither owned not operated Erie, but that motion was 

denied by the trial court. Id. Upon NMH’s motion, the trial court subsequently certified the 

following question to our supreme court: “Can a hospital be held vicariously liable under the 

doctrine of apparent agency set forth in [Gilbert] and its progeny for acts of the employees of an 

unrelated independent clinic that is not a party to the present litigation?” Id. at ¶ 1. 

¶ 70 Our supreme court answered this question in the negative finding that the plaintiff’s situation 

did not implicate the policy considerations that informed Gilbert and Petrovich. Id. at ¶ 43. The 

court found that the specific circumstances of that case were in “marked contrast to the factual 

backdrop” that led it to extend the doctrine of apparent authority in Gilbert and its progeny. Id. 

at ¶ 44. Specifically, the court found: 

“Erie is neither owned nor operated by NMH. While Erie receives some charitable 

financial and technical assistance from NMH, Erie is a F[ederally] Q[ualified] H[ealth] 
No. 1-18-2433 

28 

C[enter] that relies heavily on federal grants and Medicaid reimbursements to provide 

underserved communities with primary and preventative care regardless of an individuals’ 

ability to pay. Eire’s employees are considered federal employees, and suits against Erie or 

its employees can only be maintained under the Federal Torts Claim Act. Erie does not 

utilize the Northwestern name. There is no Northwestern-related branding or the use of 

Northwester’s trademark purple color by Erie.” Id. at 44. 

Under these facts the court concluded that NMH could not be held vicariously liable for the care 

given by Erie’s employees. Id. at 47. 

¶ 71 Yarborough is clearly distinguishable from the instant facts. Unlike Yarborough, where Erie 

was not a defendant in the case, here Dr. Wilcox is a named defendant in the underlying 

malpractice action. In addition, in Yarborough the plaintiff sought treatment at Erie to avoid 

having to use insurance, and not because she believed that Erie was an affiliate of NMH or 

because she had relied on NMH’s reputation in the community or its advertisements regarding its 

excellent health care, and therefore wanted to be treated there. In contrast, in the present case,

the plaintiff’s treatment by Dr. Wilcox was directly related to her choice of Advocate as her 

primary healthcare provider as dictated by her HMO and premised on Advocate’s widespread 

promotional campaign. Moreover, unlike in Yarborough, where Erie presented absolutely no 

indicia of a relationship to Northwestern, Dr. Wilcox was surrounded by Advocate insignia, from 

the logo on his website, to the letter welcoming new clients to the Advocate GS Physician’s 

group. Accordingly, we find Yarborough inapplicable. 

¶ 72 We similarly reject Advocate’s contention that it cannot be held vicariously liable for Dr. 

Wilcox’s negligence because his entire treatment of Antonio occurred outside of Advocate GS 

Hospital and not in any other facility owned by Advocate. Contrary to Advocate’s position, our 
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29 

supreme court has never held that apparent authority principles apply strictly to treatment that 

occurs within the confines of a hospital or a treatment center owned by a hospital. In fact, in 

Yarborough our supreme court explicitly rejected this argument, citing to Petrovich and stating 

that “this court has already applied the rationale of Gilbert outside of treatment received at a 

hospital or facility owned by a hospital.” Id. at 42. As we have aptly explained in the past: 

“[W]e [can] discern nothing in the Gilbert opinion, which would bar a plaintiff who could 

otherwise satisfy the elements for a claim based on apparent agency from recovering against 

a hospital merely because the negligent conduct of the physician did not occur in the 

emergency room or some other area within the four walls of the hospital. If *** [the health 

care entity’s] conduct reasonably led [plaintiff] to rely upon [it] for treatment, rather than any 

particular physician then plaintiff should be allowed recovery for damages caused thereby.” 

Malanowski, 293 Ill. App. 3d at 727 

¶ 73 Advocate finally argues that there is no apparent agency here because Antonio relied on 

Dr. Wilcox for his treatment, rather than on Advocate GS Hospital. Contrary to this position, the 

record reveals that the plaintiff explicitly testified that she and Antonio relied on Advocate GS 

Hospital to be their healthcare provider and that they chose their HMO medical group based on 

Advocate’s reputation. Dr. Wilcox was just one of the few physicians available to them through 

the Advocate GS Hospital HMO medical group, and he himself was selected only after they 

reviewed his website and confirmed his apparent affiliation with Advocate. Accordingly, 

Antonio and Jennifer relied on Advocate and not on Dr. Wilcox alone. 

¶ 74 III. CONCLUSION

¶ 75 For the aforementioned reasons, we affirm the trial court’s grant of summary judgment in 
No. 1-18-2433 

30 

favor of Advocate on actual agency grounds but reverse its judgment on the issue of apparent 

agency and remand for further proceeding before the trial court. 

¶ 76 Affirmed in part; reversed in part.