Illinois Official Reports 

Appellate Court

Magnini v. Centegra Health System, 2015 IL App (1st) 133451

Appellate Court 

Caption

JULIE MAGNINI and MARTIN MAGNINI, Plaintiffs-Appellants, v. 

CENTEGRA HEALTH SYSTEM, a Corporation, DefendantsAppellees (John Alverdy, University of Chicago Hospitals, a 

Corporation, Amir Heydari, Aaron Schwaab, Richard E. Lind, M.D., 

S.C. d/b/a Surgical Associates of Fox Valley, S.C., a Corporation, and 

BMI Weight Busters Weight Loss Center Inc., a Corporation, 

Defendants).

District & No. First District, Third Division

Docket No. 1-13-3451

Filed June 10, 2015

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 10-L-9361; the 

Hon. John P. Kirby, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Clifford Law Offices, P.C., of Chicago (Keith A. Hebeisen, Susan A. 

Capra, and Sara F. King, of counsel), for appellants.

Swanson, Martin & Bell, LLP, of Chicago (Kay L. Schichtel, 

Catherine Basque Weiler, and Megan E. Schneider, of counsel), for 

appellees.

Panel JUSTICE MASON delivered the judgment of the court, with opinion.

Presiding Justice Pucinski and Justice Hyman concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 Plaintiff Julie Magnini brought a medical malpractice suit against Centegra Health System, 

Dr. Amir Heydari, Dr. Aaron Schwaab, Dr. Richard Lind (collectively, the doctors), and 

various other defendants not relevant to this appeal. She alleged that she was injured as a result 

of gastric bypass surgery performed at Centegra Hospital in 2007, as well as later surgeries to 

treat complications arising out of the original surgery. Additionally, Julie’s husband, Martin 

Magnini, sought damages for loss of consortium. 

¶ 2 The Magninis sought recovery against Centegra on a theory of vicarious liability, alleging 

that the doctors were “agents and employees” of Centegra. The trial court granted summary 

judgment for Centegra, finding that the doctors were independent contractors, not agents, since 

Centegra did not control the manner in which they rendered care to patients. The Magninis 

appeal, arguing that there is an issue of material fact as to whether Centegra retained sufficient 

control over the doctors to negate their status as independent contractors. Finding no error, we 

affirm. 

¶ 3 BACKGROUND 

¶ 4 The Magninis’ fourth amended complaint, which frames the issues in this appeal, alleges 

that on October 30, 2007, Julie underwent Roux-en-Y gastric bypass surgery for obesity at 

Centegra Hospital. The procedure was performed by Drs. Heydari and Schwaab. Following the 

operation, Julie experienced persistent abdominal pain, inability to eat, excessive weight loss, 

and malnourishment. She was repeatedly hospitalized at Centegra Hospital for continuing 

treatment of her complications. Drs. Heydari, Schwaab, Lind, and Eugene Lee all played roles 

in her treatment and care. 

¶ 5 In its count against Centegra, the complaint alleges that Drs. Heydari, Schwaab, Lind, and 

Lee were all agents and employees of Centegra. The complaint further alleges that Drs. 

Heydari and Schwaab negligently performed the initial gastric bypass surgery on Julie, and all 

four doctors improperly treated her resulting complications, causing her to sustain various 

injuries. The complaint therefore seeks relief against Centegra for the doctors’ alleged 

negligence. 

¶ 6 Centegra moved for summary judgment. In its motion, Centegra argued that the Magninis 

raised no allegations of direct or institutional negligence against Centegra; their sole theory of 

liability was that Centegra was vicariously liable for the actions of the doctors. However, 

according to Centegra, none of the doctors was its actual or apparent agent. Dr. Heydari was an 

“independent member of the medical staff at Centegra.” Centegra further stated that Drs. 

Schwaab, Lind, and Lee were all employees of Surgical Associates of Fox Valley (SAFV), a 

medical services corporation, and they were not employees of Centegra. 

¶ 7 In support of its summary judgment motion, Centegra attached the deposition testimony of 

the four doctors. Dr. Heydari testified that he had both administrative and clinical 

responsibilities at Centegra Hospital. On the administrative side, he was the director of 

bariatric health services at Centegra. He explained that bariatrics is a branch of medicine 

dealing with weight loss. As director, he would meet with nurses, dieticians, secretaries, and 

patients on a regular basis, and he was available to answer any questions that people might 
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have about the program. Additionally, he stated that he was tasked with “[b]eing an advisor, 

giving direction which way our bariatric program is going.”

¶ 8 Dr. Heydari testified that in addition to his administrative role, he also had a clinical role as 

an independent surgeon practicing medicine. Dr. Heydari’s administrative and clinical roles 

were “two different hats.” When Dr. Heydari made decisions about what kind of surgery 

would be best for Julie, or what actions to take during surgery, those decisions were 

independent decisions that he made based upon his own expertise as an independent member 

of the medical staff. When Dr. Heydari performed surgery, he was not acting as an employee of 

Centegra. 

¶ 9 Dr. Schwaab testified that he had never been an employee of Centegra. He stated that he 

was the medical director of the breast program at Centegra, as well as the director of the wound 

and hyperbaric center, but he did not see Julie in connection with either of those programs. 

¶ 10 Dr. Lind was the founding member of SAFV and Drs. Heydari, Schwaab, and Lee were all 

hired by SAFV. He stated that he was not employed by Centegra at the time he provided health 

care services to Julie, and his provision of such services was based upon his independent 

judgment as an independent contractor. Similarly, Dr. Lee testified that he was not an 

employee of Centegra, and he was acting as an employee of SAFV when he provided care to 

Julie. 

¶ 11 The Magninis filed a response to Centegra’s summary judgment motion in which they 

argued that a genuine issue of material fact existed as to whether Centegra controlled the 

manner in which its doctors provided medical care services to patients. They argued that such 

control was evidenced by the 2004 medical director services agreement, whereby Dr. Heydari 

became the director of bariatric health services at Centegra; the 2009 bariatric services 

agreement, whereby SAFV became the exclusive provider of bariatric surgery services at 

Centegra; and Centegra’s medical staff bylaws. All three documents were attached to the 

response. 

¶ 12 The medical director services agreement between Centegra and Dr. Heydari was entered 

into on October 1, 2004. Under that agreement, Dr. Heydari accepted the administrative 

position of director of bariatric health services at Centegra. The agreement states that, as 

director, Dr. Heydari would make efforts to improve the quality of care and reduce the cost of 

care. He was also required to work with the site administrator on an annual program evaluation 

to assess evidence of the program’s improvement and its need for further improvement. The 

agreement states that these administrative services are “distinct and separate from any general 

patient care services the Director should assume.” The agreement stipulates that Dr. Heydari 

was not to spend more than 10 hours per month on these administrative services, and he was 

paid for the time he spent. It also provides: 

“5.3 Independent Contractor–Nothing contained in the Agreement shall constitute 

or be construed to create a partnership, joint venture, employment, or agency 

relationship between the parties and/or their respective successors and assigns, it being 

mutually understood and agreed that the parties shall provide the services and fulfill all 

other obligations hereunder as independent contractors. [Centegra] shall neither have, 

nor exercise any control, over the methods by which Director shall perform 

responsibilities.”

¶ 13 The bariatric services agreement, entered into by Centegra, SAFV, and Dr. Heydari on 

May 27, 2009, provides that SAFV will be the exclusive provider of bariatric surgery services 
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at Centegra. The agreement lists a surgeon roster of five doctors, including Drs. Heydari, 

Schwaab, Lind, and Lee, and states that changes to the roster may only be made with prior 

approval by Centegra. It further provides that SAFV will work with Centegra on “cost 

reduction initiatives” and will work with Centegra’s director of surgical services to prepare an 

annual report. Regarding this report, the agreement states that “[a]ll parties shall mutually

agree upon findings and recommendations and shall use best efforts to implement 

recommendations over the next calendar year.” The agreement further provides that Centegra 

will review Dr. Heydari’s performance as director of bariatric health services at least once a 

year and can terminate him from that position if he materially breaches the agreement in any 

way, including failing to provide services in accordance with the standards required by the 

agreement. 

¶ 14 As to SAFV’s and Dr. Heydari’s status vis-à-vis Centegra, the agreement states: 

“7.3 Independent Contractors.

 The parties expressly acknowledge and agree that as to any general medical duties 

performed by SAFV or [Dr. Heydari] during the term of this Agreement, including but 

not limited to provision of direct care of patients, which duties are separate and distinct 

from the obligations of Bariatric Medical Director specified in this Agreement, SAFV 

and [Dr. Heydari] are independent contractors. The parties expressly acknowledge and 

agree that Centegra shall neither have nor exercise any control over the methods by 

which SAFV or [Dr. Heydari] shall carry out his general medical duties, and Centegra 

shall assume no responsibility or liability associated with such conduct by SAFV or 

[Dr. Heydari].”

¶ 15 Attached to the bariatric services agreement is a document that describes Dr. Heydari’s 

duties as director of bariatric services. Many of the provisions of that document mirror the 

provisions of the medical director services agreement, as described above, but some are new: 

according to the document, Dr. Heydari is required to coordinate with Centegra management 

concerning quality control of all procedures that impact the provision of bariatric services at 

the hospital. He must also monitor and evaluate the professional performance of individuals 

providing bariatric services and make recommendations for action, including disciplinary 

action. He must monitor the financial impact of the bariatric services program and assist 

Centegra in achieving its financial objectives. Finally, he must direct all aspects of the 

maintenance and development of the bariatric services program, including “oversight of the 

appropriateness of care.” The document states that these obligations are “separate and distinct” 

from Dr. Heydari’s general medical duties. 

¶ 16 Finally, the Magninis relied on Centegra’s medical staff bylaws. All physicians with staff 

privileges at Centegra are required to comply with these bylaws. Because the bylaws are 

lengthy, we summarize briefly only those portions that are cited by the Magninis as evidence 

of Centegra’s control over the doctors.

¶ 17 The bylaws provide that physicians may only exercise those clinical privileges that have 

been specifically granted to them by Centegra’s board of directors. Physicians may be granted 

temporary privileges for up to three months by Centegra’s chief executive officer, upon 

consultation with the president of the staff or the appropriate department chair. Physicians with 

temporary privileges shall act under the supervision of the department chair, and privileges 

will be withdrawn if either the chief executive officer withdraws the appointment or the 

president or department chair withdraws the recommendation. 
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¶ 18 With regard to medical records, the bylaws state that attending practitioners are responsible 

for preparation of a complete medical record for each patient. Medical records must be 

completed “in a timely and legible manner.” If a patient’s medical record is not completed 

within 30 days of discharge, the physician’s clinical privileges will be suspended until the 

record at issue is completed. 

¶ 19 With regard to surgery, the bylaws provide: “Surgeons must be in the Operating Room and 

ready to scrub at the time scheduled.” The bylaws state that if a surgeon fails to comply with 

this regulation, the surgery will be rescheduled to the end of that day. Additionally, if a surgeon 

fails to comply more than three times in a three-month period, the surgeon’s privileges may be 

curtailed for one month. 

¶ 20 Finally, the bylaws state the following regarding consultations: 

“When, in the judgment of the attending practitioner, a consultation or 

consultations will benefit the patient, he shall request consultation with an approved 

consultant of the Medical Staff in the following patient care areas: 

 A. All major medical and surgical cases in which the patient is not a good risk; 

 B. In which the diagnosis is obscure; 

 C. Where there is an unusually complicated situation where specific skill of 

another practitioner is needed; 

 D. Where the patient exhibits severe psychiatric symptoms; 

E. Other operations which may interrupt a known or suspected pregnancy.”

¶ 21 On October 2, 2013, the trial court granted Centegra’s motion for summary judgment, 

finding that the Magninis could not establish that the doctors were agents of Centegra. The trial 

court also entered a finding pursuant to Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. 

Feb. 26, 2010)) that there was no just reason to delay enforcement of the order. The Magninis 

appealed. 

¶ 22 ANALYSIS 

¶ 23 The Magninis argue that the trial court erred in finding that the doctors were not agents of 

Centegra, since the medical director services agreement, the bariatric services agreement, and 

Centegra’s bylaws create issues of material fact as to whether Centegra retained control over 

the doctors’ actions. The Magninis therefore contend that the trial court erred in granting 

summary judgment to Centegra. We review the trial court’s grant of summary judgment 

de novo (Williams v. Manchester, 228 Ill. 2d 404, 417 (2008)), keeping in mind that summary 

judgment is only appropriate where “there is no genuine issue as to any material fact and *** 

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

2012). We must construe the record strictly against the movant and liberally in favor of the 

nonmoving party. Williams, 228 Ill. 2d at 417. In order to prevail, the nonmoving party must 

present some evidence that would arguably entitle that party to recover at trial. Keating v. 68th 

& Paxton, L.L.C., 401 Ill. App. 3d 456, 472 (2010). 

¶ 24 In Illinois, a hospital may be liable in a medical malpractice action in two circumstances: 

directly, when the hospital owes the plaintiff an independent duty to review and supervise the 

plaintiff’s medical care, or vicariously, when there exists a principal-agent relationship 

between the hospital and the physician accused of malpractice. Gilbert v. Sycamore Municipal 

Hospital, 156 Ill. 2d 511, 518 (1993). In this case, the Magninis’ claims against Centegra are 
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premised solely upon a theory of vicarious liability. Specifically, they argue that Centegra is 

vicariously liable for the doctors’ alleged negligence under a theory of actual agency.1

¶ 25 To prevail on a claim for actual agency, or respondeat superior, a plaintiff must establish 

that (1) a principal-agent relationship existed between the defendant and the actor, (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. Wilson v. Edward Hospital, 2012 IL 

112898, ¶ 18. The “ ‘hallmark of agency’ ” is the principal’s right to control the manner in 

which the agent performs the work. 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)). By contrast, an independent contractor undertakes to produce a given result 

but is not controlled with regard to how that result is achieved. Id. A principal will generally 

not be held vicariously liable for the acts of an independent contractor. Petrovich v. Share 

Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). The reason for this limitation on liability 

is that “by definition of the relationship between a principal and an independent contractor, the 

principal does not supervise the details of the independent contractor’s work and therefore is 

not in a good position to prevent negligent performance.” (Internal quotation marks omitted.) 

Horwitz v. Holabird & Root, 212 Ill. 2d 1, 11 (2004). For this reason, a hospital is generally not 

liable for the actions of one who provides medical care as an independent agent outside the 

hospital’s control. Wogelius v. Dallas, 152 Ill. App. 3d 614, 621 (1987); see also Buckholtz v. 

MacNeal Hospital, 337 Ill. App. 3d 163, 172 (2003) (noting that “the decision to treat a patient 

in a particular manner is generally a medical question entirely within the discretion of the 

treating physician and not the hospital”).

¶ 26 In determining whether an actor is an agent or an independent contractor, the primary 

consideration is whether the principal retains the right to control the manner in which the work 

is performed. Petrovich, 188 Ill. 2d at 42; see Horwitz, 212 Ill. 2d at 13 (“An independent 

contractor is defined by the level of control over the manner of work performance.”). Where 

the principal retains a sufficient right of control, the actor’s status as an independent contractor 

is negated and the principal is subject to liability for the actor’s tortious actions under the 

doctrine of respondeat superior. Petrovich, 188 Ill. 2d at 42. The intent of the parties is not 

dispositive if the conduct of the parties demonstrates the existence of an agency relationship. 

Oliveira-Brooks v. Re/Max International, Inc., 372 Ill. App. 3d 127, 134 (2007). 

¶ 27 Here, Centegra argues, and the trial court found, that the doctors are independent 

contractors, and therefore Centegra cannot be held vicariously liable for any negligence in 

connection with their treatment of Julie. We agree. 

 

1

The Magninis also argued the issue of apparent agency before the trial court, but they explicitly 

disavow any such claim in their briefs on appeal, and it is therefore abandoned. See People v. Dabbs, 

239 Ill. 2d 277, 294 (2010). In any event, an apparent agency claim would be unavailing. A hospital 

may only be held liable on a theory of apparent agency where the treating physician is held out as an 

agent of the hospital. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 522 (1993). In this case, 

it is undisputed that over the course of her treatment with SAFV, Julie signed 82 consent forms which 

stated that her physicians were independent contractors and not agents of Centegra. Based upon these 

forms, it is clear that Julie knew or should have known that her physicians were not being held out as 

agents of Centegra. 
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¶ 28 Initially, we observe that Drs. Heydari, Schwaab, Lind, and Lee all testified in their 

depositions that they are not employees of Centegra. The doctors also testified about their 

independence in making patient care decisions. Dr. Heydari stated that his decisions about 

what surgery would be best for Julie or what actions to take during surgery were independent 

decisions that he made based upon his own expertise as an independent member of the medical 

staff. Dr. Lind likewise testified that his provision of health care services was up to his 

independent judgment as an independent contractor. 

¶ 29 The doctors’ testimony in this regard is corroborated by the bariatric services agreement 

and the medical director services agreement, both of which provide that physicians retain 

exclusive control over treatment decisions. The bariatric services agreement, under the 

heading “Independent Contractors,” explicitly states that “Centegra shall neither have nor 

exercise any control over the methods by which SAFV or [Dr. Heydari] shall carry out his 

general medical duties, and Centegra shall assume no responsibility or liability associated with 

such conduct by SAFV or [Dr. Heydari].” Similarly, the medical director services agreement 

states: “[It is] mutually understood and agreed that the parties shall provide the services and 

fulfill all other obligations hereunder as independent contractors. [Centegra] shall neither have, 

nor exercise any control, over the methods by which Director shall perform responsibilities.”

¶ 30 The Magninis nevertheless argue that even though the parties may have intended to create 

an independent contractor relationship, that intent is not dispositive in light of other evidence 

which demonstrates the existence of an agency relationship. See Oliveira-Brooks, 372 Ill. App. 

3d at 134. We turn now to examine that evidence. 

¶ 31 The Magninis first argue that Centegra’s bylaws constitute evidence of Centegra’s control 

over the physicians that practice there. All physicians with privileges at Centegra must comply 

with the policies and procedures set forth in the bylaws, including preparing medical records 

for patients, being in the operating room at the time scheduled for surgery, and requesting 

consultations in certain patient care areas “[w]hen, in the judgment of the attending 

practitioner, a consultation or consultations will benefit the patient.” Additionally, the bylaws 

provide that physicians may be granted temporary privileges for up to three months by 

Centegra’s chief executive officer.

¶ 32 All of these policies concern matters that are collateral to patient care decisions, which 

remain in the exclusive control of physicians. For instance, although the bylaws direct 

surgeons to be in the operating room at the time scheduled for surgery, they do not purport to 

direct the actions taken by surgeons during surgery, nor do they restrict what forms of surgery 

that surgeons may recommend to their patients. Consultation decisions are explicitly left up to 

“the judgment of the attending practitioner.” Thus, the bylaws do not interfere with 

practitioners’ exercise of independent medical judgment and, correspondingly, do not negate 

the doctors’ status as independent contractors. As this court has previously observed, the 

relationship between a hospital and staff members who are not regular hospital employees “has 

traditionally been an independent relationship even though both parties must cooperate for the 

purposes of hospitalization to succeed. The necessity for co-operation neither authorizes [n]or 

requires a change or an abandonment of the independent roles of each.” Hundt v. Proctor 

Community Hospital, 5 Ill. App. 3d 987, 990 (1972). 

¶ 33 Consistent with Hundt, this court has held on multiple occasions that requiring an 

independent contractor to follow certain policies and procedures does not, standing alone, 

constitute sufficient control to create an agency relationship. In Oliveira-Brooks, 372 Ill. App. 
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3d at 128, plaintiff sued a franchisor, Re/Max International, alleging that it was vicariously 

liable for the negligence of a franchise employee. As evidence of Re/Max’s control over its 

franchisees, plaintiff cited the testimony of the franchise owner, who stated that Re/Max 

required her to attend a training course and to abide by the Re/Max system of operating her 

franchise. Id. at 131-32. Nevertheless, the Oliveira-Brooks court held that Re/Max was entitled 

to summary judgment, explaining: “Although there is evidence that Re/Max International 

promulgated policies and procedures intended for franchisees, there is no evidence that it 

retained the right to control the specific means and manner by which [franchisee] sales 

associates conduct their day-to-day real estate activities so as to negate Re/Max International’s 

intent.” Id. at 135. Likewise, in Salisbury v. Chapman Realty, 124 Ill. App. 3d 1057, 1061 

(1984), a franchisee agreed to conduct its business in accordance with the franchisor’s 

operations manual, but the franchisor did not hire or fix the compensation of the franchisee’s 

employees, nor did it control the franchise’s day-to-day operation. Under these facts, the court 

found that the franchisor did not exercise the requisite control over the franchisee to create an 

agency relationship. Id.

¶ 34 A similar result was reached in Slates v. International House of Pancakes, Inc., 90 Ill. App. 

3d 716, 727 (1980), where the court held that a franchisee was not an agent of its franchisor. 

The franchise agreement explicitly stated that the franchisee was an independent contractor. Id.

at 721. However, the franchisee was required to comply with the franchisor’s operational 

procedures manual, which covered a wide range of topics including training and supervision of 

franchisees and restaurant managers, recordkeeping, quality control, and standards for 

training, promotions, advertising, food preparation, and service. Id. at 727. The Slates court 

acknowledged that the franchisor retained a “high degree of supervision” over its franchisees 

but stated that “this control was not so all encompassing as to negate the express intention of 

the parties in the franchise agreement that no agency relationship was created.” Id.

¶ 35 The instant case is analogous to Oliveira-Brooks, Salisbury, and Slates. Although Centegra 

promulgated various policies and procedures via its bylaws, there is no evidence that it retained 

the right to control patient care decisions, decisions that are expressly committed to the 

individual doctors’ discretion and independent medical judgment. The degree of control 

expressed in the bylaws is therefore insufficient to negate the express intention of Centegra and 

SAFV that the doctors would remain independent contractors. 

¶ 36 Notwithstanding the foregoing, the Magninis argue that the control that Centegra exercises 

over its physicians is analogous to the control displayed in Petrovich, 188 Ill. 2d 17. The 

Petrovich plaintiff sued her health maintenance organization (HMO), alleging that it was 

vicariously liable for negligence of her treating physicians. The trial court granted summary 

judgment for the HMO, but the Petrovich court reversed, finding that there was an issue of 

material fact as to whether an agency relationship existed between the HMO and its physicians. 

Id. at 51. In reaching this decision, the court relied upon a number of facts not present here: 

First, the HMO’s method of compensating its medical groups provided financial disincentives 

for its physicians to order expensive treatments and tests, thus arguably interfering with the 

physicians’ professional judgment. Id. at 48. Second, the HMO had a “ ‘quality assurance 

review’ ” where it would review patients’ charts once a year to “ ‘make sure that the patients 

are cared for in an appropriate manner.’ ” Id. at 49. Physicians could be terminated for giving 

“ ‘inappropriate’ ” care. Id. Third, the HMO required each of its primary care physicians to 

fulfill a “ ‘gatekeeper’ ” role: without the approval of her primary care physician, a patient 
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could not see a specialist, and a specialist could not order procedures or tests. Id. at 50. From 

these facts, the Petrovich court held that “a trier of fact could reasonably infer that [the HMO] 

promulgated such a system of control over its physicians that [the HMO] effectively negated 

the exercise of their independent medical judgment, to plaintiff’s detriment.” Id. at 51. 

¶ 37 None of the facts cited by the Petrovich court as evidence of the hospital’s control have an 

analogue in the present case. The Magninis have not presented evidence to suggest that 

Centegra provides financial disincentives to physicians in ordering the care that they deem 

necessary for their patients. Nor have they shown that Centegra reviews the appropriateness of 

physicians’ care decisions. On the contrary, as discussed earlier, Centegra explicitly eschews 

control over the methods by which SAFV’s physicians carry out their general medical duties, 

and Drs. Heydari and Lind both testified that their patient care decisions were based upon their 

independent judgment as independent members of the medical staff. Finally, there is no 

evidence that Centegra limits availability of care through a “gatekeeper” system. Accordingly, 

Petrovich does not support the Magninis’ contention that the doctors are agents of Centegra.

¶ 38 The Magninis next argue that the bariatric services agreement is evidence of Centegra’s 

control over the doctors. As noted above, that agreement provides that SAFV, the medical 

services corporation that employs the doctors, is the exclusive provider of bariatric surgery 

services at Centegra. SAFV agrees to work with Centegra on “cost reduction initiatives” and 

work with Centegra’s director of surgical services to prepare annual reports with 

recommendations for improving the bariatric program. The Magninis argue that although this 

agreement is “nominally” between Centegra and SAFV, in practice it functions as nothing 

more than a dressed-up employment contract between Centegra and the doctors employed by 

SAFV. They further assert that SAFV “was merely an accommodation to pass monies from 

Centegra through to the Defendant Doctors.”

¶ 39 The Magninis’ allegations in this regard are unsupported by the record. The record does not 

show that the contractual relationship between Centegra and SAFV was merely nominal, or 

that Centegra used SAFV as a means of controlling the doctors’ patient care decisions. 

Additionally, to the extent that the Magninis’ argument hinges upon the issue of payment, it is 

without merit, since the record does not reflect how the doctors were compensated for their 

services as physicians.2

Ahmed v. Pickwick Place Owners’ Ass’n, 385 Ill. App. 3d 874, 894 

(2008) (rejecting conclusory assertions that were not supported by the record on appeal). 

Consequently, the bariatric services agreement does not serve to negate the doctors’ status as 

independent contractors. 

¶ 40 Finally, the Magninis contend that the medical director services agreement creates a 

material issue of fact as to whether Dr. Heydari is an agent of Centegra by virtue of his position 

as Centegra’s director of bariatric health services. In support, they cite Barbour v. South 

Chicago Community Hospital, 156 Ill. App. 3d 324 (1987). In Barbour, the plaintiff’s treating 

physician, Dr. Harrod, performed an unauthorized tubal ligation on her. Plaintiff brought suit 

against Dr. Harrod and the hospital where the operation was performed. The Barbour court 

found that plaintiff’s claims against the hospital were time-barred. Id. at 331. However, in 

dicta, the court stated that a question of fact existed as to whether Dr. Harrod was an agent of 

 

2

The record does state that Centegra paid Dr. Heydari for his services as director of bariatric health 

services; however, as shall be discussed later, this is inapposite to the issue of his independence in his 

capacity as a physician, rather than as an administrator. 
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the hospital, based on the fact that he had an administrative position as chairman of the 

hospital’s obstetrics and gynecology department. Id. at 329-30. The court reasoned that Dr. 

Harrod had a “recognized and continuous association with the hospital itself” in that he acted 

pursuant to the orders of the hospital’s board of directors and could be removed if he failed to 

carry out those orders properly. Id. at 329. The court also observed that “any decision by the 

board to change policy or practice in the obstetrics and gynecology department would have to 

be implemented by the board through Harrod.” Id. 

¶ 41 The Magninis argue that Dr. Heydari, like Dr. Harrod, has a “recognized and continuous 

association” with the hospital, which creates an issue of fact as to whether he was an agent. We 

disagree. Barbour is distinguishable from the present case for two reasons. First, as noted 

earlier, the medical director services agreement explicitly states that, in his capacity as 

director, Dr. Heydari is an independent contractor. It further states that Centegra “shall neither 

have, nor exercise any control, over the methods by which Director shall perform 

responsibilities.” This language, which appears to have no parallel in Dr. Harrod’s contract in 

Barbour, indicates that Centegra did not retain the right to control the manner in which Dr. 

Heydari treated his patients, which is the hallmark of an independent contractor relationship. 

Petrovich, 188 Ill. 2d at 42; Simich, 368 Ill. App. 3d at 402. Significantly, nothing in either 

contract or in Centegra’s bylaws relied on by the Magninis allows Centegra to terminate Dr. 

Heydari’s hospital privileges for any claimed violation of his administrative duties. Thus, it is 

clear that Centegra’s control over Dr. Heydari is limited to the performance of his contractual 

duties and does not extend to his independent medical judgment in rendering care to patients. 

¶ 42 Second, the medical director services agreement provides that Dr. Heydari’s duties as 

director are “distinct and separate from any general patient care services the Director should 

assume.” Again, no such language was cited by the Barbour court. This is significant because 

the Magninis’ complaint does not allege that Dr. Heydari was negligent in the performance of 

his administrative duties. Rather, it alleges that he was negligent in providing patient care 

services to Julie–i.e., performing gastric bypass surgery on her and treating her resulting 

complications. Since the Magninis seek to hold Centegra vicariously liable for Dr. Heydari’s 

actions in his capacity as a physician and not an administrator, and since those duties are 

“distinct and separate,” the issue is the control that Centegra retains over Dr. Heydari’s acts as 

a physician. See Restatement (Third) of Agency § 7.03(2) (2006) (principal is only subject to 

vicarious liability under a theory of actual agency where employee’s tort is within the scope of 

his employment). For all the reasons discussed above, this control is insufficient to create an 

agency relationship between Dr. Heydari and Centegra or to give rise to any genuine issue of 

material fact that would preclude summary judgment in Centegra’s favor.

¶ 43 CONCLUSION 

¶ 44 The trial court did not err in granting summary judgment for Centegra based upon its 

finding that the allegedly negligent doctors were independent contractors and not agents of 

Centegra. Accordingly, we affirm the judgment of the trial court. 

¶ 45 Affirmed.