April 2012 Newsletter 
President's Report
Dear CHRMS Members:
How quickly a year passes as we are on the eve of our 2012 Annual Meeting. We are reminded that this has been a very busy year for all of us, personally, professionally and for the health care industry as a whole. Just last week our Governor introduced a further variable into the sustainability of the delivery of effective and available health care in Illinois. With further legislative roll-outs under Health Care Reform ahead and impending budget cuts to State-funded health care programs, including Medicaid, the health care provider continues to face an ever-increasing burden for the delivery of services. When combined with the desire to minimize error, deliver care and treatment that is compliant with the standard of care and increase patient/customer satisfaction, it is even more purposeful that CHRMS continues to deliver the high-quality, relevant programming that has occurred throughout the 2011-2012 year. Further, the need for collaboration and access to learned colleagues appears evident by our growing ranks and record-setting membership. I want to thank a very dedicated and diligent Board and very hard-working committee members for all of their efforts this year to help CHRMS achieve another year of excellence.
A complete summary of the accomplishments of this past year will be provided at our annual meeting on April 27, 2012. If you have not already registered please take a moment to do so today. If you have not already renewed your membership for next year please do so and tell a friend, coworker or colleague about the benefits of CHRMS.
I look forward to seeing all of you at the Annual Meeting.
Jim Bream
President, CHRMS
Featured Spotlight Member
Lisa Jaimovich
Client Service Specialist
Willis Group Health Care Practice
How did you get into healthcare?
I started at Willis in their analyst training program which was divided between healthcare and large accounts. I had training in risk management and insurance specific to hospitals and healthcare systems and I became interested in the unique risk profile of hospitals. It has provided mewith many opportunities for growth and education in the field.
Why did you join CHRMS?
I had been working at Willis for about a week and colleagues told me it was a good way to meet and network with others in the industry. I've been a member since the Fall of 2010.
Do you have any interest in volunteering for a CHRMS committee?
Yes. I'd like to learn more about each committee but I definitely would like to volunteer.
What are you looking forward to during your CHRMS membership?
I'd like to attend more educational offerings because the quality of speakers and topics are excellent! I attended Law Day, the networking boat cruises and the event at Pinstripes last year and they were all a lot of fun.
Member News
Jennifer Stuart was recently made partner at SmithAmundsen, LLC; Jim Bream has joined Lowis & Gellen; Brad Norrick has joined Willis-Chicago as Healthcare Practice Leader. Brad previously worked in the Willis-London office.
New Members
Welcome New CHRMS Members:
Linda Barraza (Zurich NA), Kathleen Barton (Linden Oaks Hospital at Edward), Jenna Bishop (ISMIE), Mark Brennan (Cassiday Schade LLP), Jarek Chmielowski (Zurich NA), Dawn Clark (Edward Hospital & Health Services), Vito Favia (Rush Oak Park Hospital), Christine Ferrari (Edward Hospital & Health Services), Richard Frese (Milliman, Inc.) Catherine Garvey (Cassiday schade LLP), Christopher Gentile (CAG Claims and Litigation Management Consulting), Jennifer Green (Fireman's Fund Insurance Company), David Hall (Hall, Prangle & Schoonveld, LLC), Lizbeth Jelesky (Linden Oaks Hospital at Edward), Lynn Keedy (Edward Hospital & Health Services), Justin Ketih (Ironshore), Christine Koman (Edward Hospital & Health Services), Andrew Kovarik (Johnson & Bell, Ltd.), Tim Moran (ISMIE), Karen Vivian Nathan (Querrey & Harrow, Ltd.), Mary Nielsen (Hall, Prangle & Schoonveld, LLC), Donna Regan (Integro Insurance Brokers), Debra Richey (Advocate Good Samaritan Hospital), Felicia Shapiro (Methodist Hospital), Stephanie Urbanek (Ruff, Weidenaar & Reidy, Ltd.), Johanna Zandstra (Providence Life Services).
If we have overlooked your recent membership, we apologize. Please contact us so that we can recognize you!!
Upcoming Events
CHRMS Annual Meeting - April 27, 2012
Please join us for CHRMS Annual Meeting being held Friday, April 27, 2012 from 8:00am-4:15pm at Maggiano's-Oak Brook. The day will begin with Frank Bucaro, our keynote speaker, providing an informative and entertaining presentation on "Trust and Transparency: Building an Environment of Trust". The day will focus on relationships in healthcare and managing their risk. Our annual business meeting will also be held including the induction of our new 2012-2013 Officers and Board Members.
Go to www.chrmschicago.org for more information and to register. CHRMS Members: $75 and Guests/Non-Members: $100. Parking is free.
Past Event(s)
CHRMS Annual Half-Day Event was held January 27, 2012 at the Hotel Allegro in Chicago. An ASHRM Update was provided by Kimberly Hoarle, the Executive Director of ASHRM followed by an informative presentation by William Bower, JD on Obstetric Liability. Bonnie Macius and Susan Wood-O'Leary provided a presentation on the Use of New Technology in Medicine and the challenges of moving into a new facility. The afternoon continued with Mary Lynn Curran speaking on Senior Living and Long Term Care Risks and the day concluded with Dr. Jerome Taxy providing an informative presentation on Risk Management in Pathology and Autopsies.
Thank you to all members (both old and new) who attended the Spring Networking and Membership Drive held March 22, 2012 at Goose Island-Chicago. Those in attendance were able to enjoy a variety of local Goose Island brews and some of their favorite menu items. In addition, some members took advantage of the private tour of the brewery. With the help of our general membership and the networking event, our membership now surpasses the 300 mark! We look forward to seeing everyone at our next networking event which will be held in August….stay tuned for details!
Feature Article
DEFEATING APPARENT AGENCY CLAIMS WITH CONSENT FORMS
Susan M. Hannigan, Esq.
Albert C. Lee, Esq.
Anderson, Rasor & Partners,LLP
In 1993, the Illinois Supreme Court decided Gilbert v. Sycamore Municipal Hospital, which established that, under certain circumstances, a hospital may be subject to liability for negligent medical treatment provided by physicians that were apparent agents, even if they were independent contractors.1Under Gilbert, a plaintiff must establish that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the physician alleged to be negligent was an employee or agent of the hospital; (2) that the hospital had knowledge of acts of the agent which created the appearance of authority, where there were such acts, and acquiesced in them; and (3) the plaintiff acted in reliance on the conduct of the hospital or its agent, consistent with ordinary care and prudence.2
The first two Gilbert factors are often referred to as the “holding out” factor, with the relevant inquiry being whether the patient knows, or should have known, that the physician is an independent contractor.3Several cases following Gilbert examined patient signed consent forms that attempted to disclaim physician agency by explicitly informing patients that the physicians providing medical services at the hospital were independent contractors. The first case analyzing such a disclaimer in a consent form was James v. Ingalls Memorial Hospital, a First District decision, which held that a signed consent form is an ‘important factor”(although not a dispositive one), in the “holding out” analysis.4
The cases that first discussed consent forms and physician agency disclaimers did not go into detail and only generally explained that the forms should be “clear.”5Later cases, however, elaborated that consent forms may be confusing or misleading, and thus ineffective, if the consent form has a generic title, contains unrelated disclosures, or places disclaimer language away from the signature line.6 For example, in Spiegelman v. Victory Memorial Hospital, a consent form was deemed confusing where it was titled “Consent for Emergency Treatment,” utilized a “multi-part format” containing various unrelated provisions, and the paragraph above the signature line was a paragraph regarding the release of property.7The physician disclaimer was essentially lost within the consent form.
Furthermore, it has been held that a consent form may be too ambiguous if it attempts to differentiate between independent physicians and other staff who might be hospital employees.8For example, consent form language providing that: “I am aware that during my visit to the Emergency Department...hospital employees will attend to my medical needs as may be necessary,” along with a subsequent physician agency disclaimer was held to be ambiguous and confusing.9To further avoid ambiguity, courts have noted the importance of using explicit terms, such as “independent contractors” or “independent physicians,” as well as including language confirming the patient read the form and had an opportunity to ask questions regarding the form.10
A recent First District Appellate Court opinion, Lamb-Rosenfeldt v. Burke Medical Group, Ltd., has further clarified what the courts look to when examining consent forms.11 In Lamb-Rosenfeldt, the decedent was a patient who received medical care from a defendant doctor at two locations: the doctor’s private office and a defendant hospital, where the decedent had signed consent forms with physician disclaimers. The consent form used in Lamb-Rosenfeldt utilized a multi-part format and contained a number of disclosures. However, unlike the multi-part consent form in Schroeder, the form in Lamb-Rosenfeldt was not held to be confusing. Significantly, the physician disclaimer section was the largest section, was located directly above the signature line, and explicitly stated physicians were independent contractors without attempting to differentiate between physicians and ancillary staff employed by the hospital.12 The consent form also explained that the hospital’s billing practices were separate and distinct from the physicians’ billing, further setting out the independent status of the physicians.13Finally, the opinion noted that the patient had previously signed nine forms that contained the relevant physician disclaimer statement, seven of which were the same consent form.14
A review of the recent Lamb-Rosenfeldt decision and the cases preceding it reveals certain favored characteristics of a consent form. Consent forms should contain plain language, simple sentences, and be easy to read. The forms should expressly state that physicians are “independent contractors,” and must not attempt to explain the difference between hospital employees and physicians. Ideally, an agency disclaimer would be set forth in a separate, and appropriately titled, consent form. However, where the disclaimer is included in a multi-part consent form, the disclaimer should be made more conspicuous than all other paragraphs, and be placed directly above the signature line. It may also be beneficial to include language confirming that the patient read and understood the form and had the opportunity to ask questions about the form, to include disclaimer language on other documents a patient signs, and to have the patient sign consent forms as often as possible.
Courts have yet to analyze a consent form that includes a health system name or logo used by both the hospital and members of its medical staff. However, with the increasing corporate affiliation between hospitals, physician groups and other health care entities, it could be alleged that the appearance of a shared name or logo on a hospital consent demonstrates a relationship between the hospital and its physicians, making the consent ambiguous, even if it contains an explicit agency disclaimer. Consideration should be given to excluding from consent forms any names or logos that might link the hospital to any medical group providing services at the hospital.
Following the above guidelines in creating and using a physician agency disclaimer is a simple, but important, step in reducing a hospital’s vicarious liability exposure for non-hospital employed physicians.
3Id. at 524
4James v. Ingalls Memorial Hospital, 299 Ill. App. 3d 627, 633 (1st Dist. 1998)
5 See James, 299 Ill. App. 3d at 633 (apparent agency claim could not succeed where independent contractor status was “clearly set out” in the consent form); Churkey v. Rustia, 329 Ill. App. 3d 239, 245 (2nd Dist. 2002) (no apparent agency where there were lack of facts showing hospital held out a physician as an agent, coupled with a signed consent form “clearly indicating” physicians were not employees of the hospital)
6Spiegelman v. Victory Memorial Hospital, 392 Ill. App. 3d 826, 837 (1st Dist. 2009); see Schroeder v. Northwest Community Hospital, 371 Ill. App. 3d 584 (1st Dist. 2006)
7 392 Ill. App. 3d at 837.
8Spiegelman, 392 Ill. App. 3d at 837; see also Schroeder, 371 Ill. App. 3d at 587 (“Your physician’s care is support by a variety of individuals employed by [the hospital], including nurses, technicians and ancillary staff”)
9Spiegelman, 392 Ill. App. 3d at 837
10Wallace v. Alexian Brothers Medical Center, 389 Ill. App. 3d 1081, 1088 (1st Dist. 2009)
11Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st) 101558
12Id. at ¶ 30
13Id.
14Id.
Please click on PDF below to view the court’s decision
Special Report
Illinois Supreme Court - Rule 243
DIRECT EXAM, CROSS EXAM AND JURY EXAM?
At least 12 states allow some form of questioning of witnesses to be conducted by jurors with various restrictions and discretion imposed. Beginning July 1, 2012, Illinois will join the ranks of those states. Illinois Supreme Court Rule 243 will permit jurors to submit questions to the Court directed to witnesses. Key features of Rule 243 are as follows:
- No restriction as to type of witness.
- The Court has discretion following questioning by counsel to determine if the jury can submit questions.
- Questions are to be submitted in writing, are to be reviewed by counsel with the opportunity to state objections outside of the presence of the jury and will be ruled upon by the Court.
- The Court may admit, modify or exclude juror questions.
- Questions will be asked by the Court.
- The witness is to answer the question directly and not exceed the scope of the question.
- Counsel may then ask follow-up questions within the scope of additional testimony.
Of course it remains to be seen how restrictive or liberal the various trial judges will be and the utility of such questions. Additionally, the ability of a juror-based question to impact upon a very narrowly presented scope of direct examination will be another issue to be addressed before the Court. With an implementation date of July 1, 2012, look for further discussion of this new Rule at an upcoming CHRMS event or in a future newsletter as our attorney members gain experience with the new Rule during the summer and early fall.
Submitted by,
Jim Bream
Lowis & Gellen, LLP
Special Announcement
Call for Presentations
CHRMS invites you and your colleagues to submit your application for consideration as a Content Expert and/or Speaker! CHRMS Content Expert Database seeks to compile content experts in the following categories:
Risk Management, Patient Safety, Quality & Operations, Accreditation & Regulatory Compliance, Claims & Litigation, Risk Financing, Insurance, Health Information & Technology, and Lessons Learned.
CHRMS programs and webinars provide a great venue/opportunity for you to represent your employer, disseminate your lessons learned, and network with local healthcare professionals in the risk management field. Please share this colleagues!
Additional information and the applicaiton is available on our website, Quick Links tab, Connections.
Website Feature
Webinars:
As a member, you have access to our recorded webinars. If you missed the webinar, this is the perfect opportunity to take advantage of the free webinar and utilize your membership benefits! Please access the main page www.chrmschicago.org for the link to the recording and PowerPoint slides.
Job Postings:
Members have access to job postings on our website. Please log in http://chrmschicago.org/members.php and select the Classifieds tab to view job opportunities!
Your Memberhip Profile:
CHRMS website (www.chrmschicago.org) offers the ability for you to update your information as it changes. CHRMS members can update their personal and professional information as well as change their password by logging in and selecting "Member Area-My Account Info." From here you can update your information and change your password. Select "Update" at the bottom of the screen to save the changes.
Communication Committee
We occasionally hear from members that emails are not getting through so we suggest that you contact your IT department and ask that CHRMS emails be marked as "Safe" so they can get past your firewalls. Please inform your IT department that the emails generated by CHRMS actually come from StarChapter's server which is the company that manages our website.
CHRMS Newsletter Submissions
The Communication Committee welcomes submissions for our newsletter! Please feel free to submit newsworthy articles, accomplishments, or announcements to [email protected]. Submissions will be considered for publication based on content, subject matter, and value to our members. Our publication can be mechanism for sharing relevant information to CHRMS members.
