Originally published in the March 18, 2014 edition of the Chicago Daily Law Bulletin.
From Hobson’s choice to happy ending: As the story turns out, the defendants may not impale the plaintiffs on their swords, after all.
You might remember the first installment of “Cogan’s Corner” which discussed the Hobson’s choice set up by Illinois courts through Hudson v. City of Chicago and its progeny (“Plaintiff attorneys face ‘a Hobson’s choice,’” Chicago Daily Law Bulletin, Feb. 22, 2012).
Hudson required the dismissal of refiled claims involving separate but related causes of action on res judicata grounds, resulting in anomalous and unfair dismissals of viable claims.
This issue came to a head when the 2nd District Appellate Court decided Wilson v Edward Hospital in favor of the defendant hospital on a medical-malpractice claim, reversing the trial court’s denial of a motion to dismiss. In so doing, the court ruled that actual and apparent agency in a medical-malpractice context constituted separate claims for res judicata purposes. The result would be the dismissal of a refiled action that had suffered partial summary judgment on the actual agency of the physicians but survived summary judgment on the apparent agency allegations.
The state high court’s reasoning hinged on its determination that without the underlying cause of action for negligence, the plaintiffs’ claims against the hospital could not legally exist. Vicarious liability by definition does not attack the conduct of the hospital for a direct role in the alleged negligence, rather it implicates the hospital as a principal through the actions of the physicians who serve as its agents.
The court held that the plaintiffs could not sue the hospital for vicarious liability in any of its forms because vicarious liability is not itself a claim or cause of action. To establish the relationship necessary to invoke vicarious liability, a plaintiff must prove certain facts similar to the elements of a cause of action for negligence, such as duty. The court ruled that actual and apparent agency are merely part of the duty analysis. It envisioned the pleading of duty in separate subparagraphs, just as plaintiffs plead a litany of conduct constituting breach of duty. While a court may strike and-or dismiss one of some of those subparagraphs, this does not warrant dismissal of the entire claim according to the court.
If it did so, an argument could be made that the logical result of partial summary judgment disposing of a separate branch of the controversy and dismissing only some allegations as to liability, i.e., three of five alternative allegations of negligent conduct, would be a final judgment for res judicata purposes. This would foreclose the plaintiff from proving liability based on the dismissed allegations.
Overruling the 1st District in Williams v Ingalls Memorial Hospital, the court refused to allow the defendant hospital to equate a “theory of recovery” with a “claim” or “cause of action.” The plaintiffs had one claim or cause of action against the hospital for negligence based upon the hospital’s responsibility for the alleged negligence of the defendant doctors.
When the trial court granted summary judgment based on actual agency, it simply removed some of the allegations against the hospital from the case. With the allegations of apparent agency remaining, the plaintiffs preserved their opportunity to prove the hospital’s negligence.
The Illinois Supreme Court’s decision significantly informs pleading practice in Illinois beyond the scope of preparing a medical-malpractice complaint. Consistent with the suggestions for pleading I advanced in my opening installment, the Wilson decision gives us a prescription for properly pleading any cause of action.
The first question in drafting each count of a complaint is: Do these facts constitute the elements of a legal cause of action? As an internal check, title each count of the complaint with the type of claim and the defendant named in that count, if there are multiple defendants. If you find that your counts are titled along the lines of “Apparent Agency” or “Vicarious Liability,” then you are probably veering off the track delineated by the Wilson court.
It may seem overly cumbersome at first to enumerate the elements of duty in multiple alternative paragraphs or subparagraphs, especially when you are anticipating a motion to dismiss on the agency theory, but this pleading practice maintains the integrity of the distinction made by the court between a “theory or recovery” and a “claim” or “cause of action.” It won the day in Wilson.
Both sides of the bar should embrace this landmark decision as motivation to streamline motion practice. Before Wilson, defendants were compelled to lay this trap for plaintiffs to discourage protracted litigation reinvigorated by voluntary dismissal and refiling under the Code of Civil Procedure. In light of this decision, defendants are free to take a more judicious approach to dispositive motions.
There may be circumstances where it makes more sense to rely on the evidence at trial to weed out the alternative claims of actual and apparent agency, just as most defendants allow the alternative allegations of negligent conduct to be decided on the proof. Wasteful and costly dispositive motions are the scourge of our judicial system. With the clarity delivered by the Illinois Supreme Court in Wilson we can all have a hand in slaying that beast.
If you have been injured in a personal injury or medical malpractice accident, do not hesitate to contact the Chicago accident and injury law firm of Cogan & Power at (312) 477-2500 to schedule a free case consultation, so that we can help you begin the process of recovery as soon as possible. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.