Digitally signed by
                             Illinois Official Reports                        Reporter of Decisions
                                                                              Reason: I attest to the
                                                                              accuracy and integrity
                                     Appellate Court                          of this document
                                                                              Date: 2016.11.02
                                                                              11:09:56 -05'00'




           Yarbrough v. Northwestern Memorial Hospital, 2016 IL App (1st) 141585



Appellate Court         CHRISTINA YARBROUGH and DAVID GOODPASTER, on
Caption                 Behalf of Hayley Joe Goodpaster, a Minor, Plaintiffs-Appellees, v.
                        NORTHWESTERN             MEMORIAL           HOSPITAL          and
                        NORTHWESTERN MEDICAL FACULTY FOUNDATION,
                        Defendants (Northwestern Memorial Hospital, Defendant-Appellant).



District & No.          First District, Fifth Division
                        Docket No. 1-14-1585


Filed                   August 19, 2016


Decision Under          Appeal from the Circuit Court of Cook County, No. 10-L-296; the
Review                  Hon. William Gomolinski, Judge, presiding.



Judgment                Certified question answered; cause remanded.



Counsel on              Swanson, Martin & Bell, LLP, of Chicago (Kay L. Schichtel and
Appeal                  Catherine Basque Weiler, of counsel), for appellant.

                        Janet, Jenner & Suggs, LLC, of Baltimore, Maryland (Hal J. Kleinman
                        and Giles H. Manley, of counsel), for appellees.



Panel                   JUSTICE BURKE delivered the judgment of the court, with opinion.
                        Presiding Justice Reyes and Justice Gordon concurred in the judgment
                        and opinion.
                                             OPINION

¶1        This interlocutory appeal arises from a medical negligence action that plaintiffs Christina
     Yarbrough and David Goodpaster brought against Northwestern Memorial Hospital (NMH)
     and Northwestern Medical Faculty Foundation (NMFF), stemming from the premature birth of
     their daughter, Hayley Joe Goodpaster. NMH filed a partial motion for summary judgment,
     which the trial court denied. NMH requested that the trial court certify a question of law
     pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) regarding the doctrine of
     apparent authority in the medical negligence context. The trial court ultimately issued a
     certified question sua sponte. Following this court’s denial of NMH’s subsequent petition for
     leave to appeal, the Illinois Supreme Court directed us to consider the question certified by the
     trial court as follows:
                  “Can a hospital be held vicariously liable under the doctrine of apparent agency set
             forth in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (Ill. 1993), and its progeny for
             the acts of the employees of an unrelated, independent clinic that is not a party to the
             present litigation?”
¶2        For the reasons that follow, we answer the question in the affirmative.

¶3                                        I. BACKGROUND
¶4       We begin by setting forth the facts to the extent necessary to address the issues on appeal.
     In this endeavor, we rely on the pleadings, motions for summary judgment, and associated
     briefing, and the discovery evidence contained in the record on appeal.
¶5       Plaintiffs alleged that Yarbrough, believing she was pregnant, went to Erie Family Health
     Center, Inc. (Erie), a federally funded, not-for-profit clinic, on November 14, 2005, after
     searching the Internet for a nearby clinic offering free pregnancy testing. After receiving a
     positive pregnancy test, healthcare workers at Erie inquired where Yarbrough would receive
     prenatal care. Yarbrough was advised that if she obtained prenatal care from Erie, she would
     deliver at NMH and receive additional testing and care at NMH, including ultrasounds. She
     was given pamphlet and flyer information regarding scheduling tours and classes at NMH.
     Plaintiffs alleged that based on her knowledge of NMH’s reputation and the information
     provided by Erie, Yarbrough believed that if she received prenatal care from Erie, she would
     be receiving treatment from NMH health care workers.
¶6       Plaintiffs alleged that when Yarbrough was eight weeks pregnant, she experienced vaginal
     bleeding and went to the Advocate Illinois Masonic Medical Center (Advocate) on November
     30, 2005. An ultrasound was performed and she was diagnosed with having a bicornuate
     uterus. The emergency department notified Erie. Yarbrough received an ultrasound at Erie on
     December 2, 2005, and she was told that she had a shortened cervix but did not have a
     bicornuate uterus. No other follow-up regarding a uterine abnormality was performed. She
     continued receiving prenatal care at Erie. She also received a 20-week ultrasound on February
     21, 2006, at NMH, which was interpreted by Dr. William Grobman. Plaintiffs alleged that as a
     result of the failure to identify and address appropriately Yarbrough’s bicornuate uterus and
     shortened cervix, she delivered Haley Goodpaster prematurely at 26 weeks’ gestation on April
     8, 2006, via emergency cesarean section. As a result of the premature delivery, Hayley
     Goodpaster suffered numerous medical complications.


                                                 -2-
¶7         Plaintiffs filed their initial complaint on December 28, 2009. Count I alleged medical
       negligence by Dr. Grobman, as an actual or apparent agent of NMFF, in performing and
       interpreting Yarbrough’s 20-week ultrasound. Count II alleged medical negligence against
       NMH based on the prenatal care Yarbrough was provided at Erie, asserting that Erie was
       NMH’s actual or apparent agent. NMH moved for summary judgment. The trial court granted
       the motion as to all claims related to Erie as NMH’s agent. The trial court granted plaintiffs
       leave to file an amended complaint.
¶8         In the amended complaint filed on August 22, 2013, plaintiffs again alleged medical
       negligence against NMFF in count I based on Dr. Grobman’s conduct.1 In count II, plaintiffs
       alleged medical negligence against NMH based on the doctrine of apparent authority.
       Plaintiffs alleged that health care providers at Erie (Dr. Raymond Suarez, Dr. Virgil Reid,
       Janet Ferguson, CNM, and Elizabeth O. McKelvey, CNM) were the apparent agents of NMH
       and rendered negligent prenatal care in failing to properly scan, diagnose, and treat Yarbrough
       for a shortened cervix and bicornuate uterus, leading to preterm delivery.
¶9         In support of their apparent authority claim, plaintiffs set forth numerous allegations
       regarding the close ties between NMH and Erie in order to satisfy the elements of Gilbert v.
       Sycamore Municipal Hospital, 156 Ill. 2d 511, 524-25 (1993).2 Plaintiffs alleged that Erie was
       founded as a project between NMH and Erie Neighborhood House in 1957, and NMH provides
       financial support, technological assistance, and strategic support through board membership.
       Plaintiffs alleged that in 1998, NMH’s parent company, Northwestern Memorial Corporation
       (NMC) (now Northwestern Memorial HealthCare (NMHC)) and Erie entered into an
       “Affiliation Agreement” with the stated purpose of increasing NMC’s “services to the
       community, building on our current substantial commitments and partnerships” and to
       “provide clarity and continuity to the historical relationship between the Parties.” The
       agreement called for Erie to utilize NMH as a “primary site for acute and specialized hospital
       care for its patient population,” and NMC would arrange to treat Erie patients in need of more
       comprehensive care. Further, plaintiffs alleged that the agreement provided for joint marketing
       efforts, a board seat designated for an NMH representative, committee participation, and
       consideration of Erie providers for medical staff membership at NMH.
¶ 10       Plaintiffs further alleged that NMH held out Erie as its agent in its published materials and
       on its website. Plaintiffs alleged that NMHC published annual reports and community service
       reports that discussed Erie. For example, plaintiffs alleged that the 2005 community service

           1
            Plaintiffs’ claim relating to Dr. Grobman is not at issue on appeal.
           2
            “[U]nder the doctrine of apparent authority, a hospital can be held vicariously liable for the
       negligent acts of a physician providing care at the hospital, regardless of whether the physician is an
       independent contractor, unless the patient knows, or should have known, that the physician is an
       independent contractor. The elements of the action have been set out as follows:
           ‘For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (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.’ ” Gilbert v. Sycamore
           Municipal Hospital, 156 Ill. 2d 511, 524-25 (1993) (quoting Pamperin v. Trinity Memorial
           Hospital, 423 N.W.2d 848, 856 (Wis. 1988)).

                                                       -3-
       report stated that NMHC improves access to health care “[t]hrough partnerships with
       community health centers”; it was committed to the community and to building “collaborative
       relationships with a number of neighborhood based centers”; Northwestern Memorial
       Foundation granted $1 million annually to the hospital’s “Community Service Expansion
       Project,” which “provides key funding for *** [Erie] sites on the West and Northwest sides”;
       and the project funded facility improvements and physician salaries. It stated that Erie
       physicians were “affiliated with Northwestern Medical Faculty Foundation, a multispecialty
       group practice with more than 500 physicians covering more than 40 specialties.” The 2005
       report included a statement from an Erie patient who was treated by an obstetrician who led
       “Woman’s Health at Erie” and was on staff at NMH. Further, the report discussed its
       “longstanding affiliations with community-based health centers” in ensuring that patients
       “have access to quality primary and specialty care regardless of their ability to pay” and that it
       has “shared a relationship with Erie Family Health Center for more than 45 years.” Plaintiffs
       alleged that the 2006 community service report stated that “Northwestern Memorial, in
       collaboration with [Erie] has provided the information technology infrastructure, educational
       tools and access to facilities with mammography equipment” and that 11.2% of the babies
       delivered at NMH’s Prentice Women’s Hospital in 2006 received prenatal care at Erie.
¶ 11       With regard to NMH’s website, plaintiffs alleged that NMH listed Erie under “Our Health
       Partners,” along with a link to Erie’s website, and promoted that it has a “formal and
       long-standing” affiliation with Erie, including two members on Erie’s board of directors.
       Plaintiffs alleged that Erie’s website similarly promoted its relationship with NMH and stated
       that it “partners with Northwestern Memorial Hospital *** to increase access to specialized
       medical care and state-of-the-art medical technologies. Patients who are in need of services not
       offered at Erie are eligible to receive care at these hospitals.” Further, Erie’s website stated that
       all Erie doctors “have faculty status at Northwestern University Feinberg School of Medicine.”
       Plaintiffs alleged that NMH was aware of Erie’s website but did not monitor or review it and
       never instructed Erie to change it.
¶ 12       NMH moved for partial summary judgment as to all apparent authority claims related to
       the alleged negligence of employees or agents of Erie. NMH argued that NMH did not hold out
       Erie as its agent and Erie and its employees did not hold themselves out as agents of NMH.
       NMH asserted that Erie was an independent, federally funded community health center
       comprised of 10 clinics in the Chicago area, it was not named as a defendant, and Erie’s
       employees were working onsite at Erie within the scope of their employment with Erie. NMH
       argued that neither it nor Erie represented that Erie was an outpatient facility of NMH and there
       was no legal partnership or joint marketing efforts. NMH asserted that Erie has its own
       management structure, budget, board of directors, employees, and facility. NMH asserted that
       although it provides some charitable funding to Erie and has a small presence on its board,
       NMH has no control over Erie.
¶ 13       In support of its argument that there was no evidence of an apparent agency relationship
       between NMH and Erie, NMH relied on the deposition testimony of Holli Salls, vice president
       of public relations for NMH; Doctor Daniel Derman, vice president of operations at NMH;
       William Kistner, vice president of internal audit for NMHC; and Yarbrough. Salls testified that
       NMH does not bring pamphlets about NMH to independent medical groups to distribute to
       their patients, NMH did not do any joint marketing with other entities between 2004 and 2006,
       and Erie has never sought to do any joint promotional marketing. Salls testified that she was


                                                     -4-
       aware that Erie discussed its affiliation with NMH on its website. Salls testified that Erie did
       not get her permission to do so, but NMH has never told Erie not to promote the affiliation
       between them. Salls testified that use of the word “partner” in promotional materials was not
       meant in the legal sense, but merely described collaborative activities.
¶ 14       Dr. Derman acknowledged in his deposition that NMH’s website stated that NMH had
       “formal and long-standing affiliations with two federally qualified health center partners, Near
       North Health Services Corporation and Erie Family Health Center” and that it had two
       representatives on Erie’s board of directors. Further, NMH’s website listed Erie under “Our
       Health Partners” and stated that Erie “was founded in 1956 as a project of volunteer physicians
       from Northwestern Memorial and Erie Neighborhood.” Dr. Derman also acknowledged
       NMH’s press releases discussing NMH’s partnership initiatives with Erie in treating diabetes
       and women’s health, promoting the fact that NMH and Erie “worked together to provide
       information about transportation, navigating and processes for accessing additional diagnostic
       services if needed,” and developing educations programs together. Dr. Derman acknowledged
       that Erie’s website listed NMH under “Our Partners” and “Hospital Affiliations” and it stated
       that “Erie partners with” NMH, among other hospitals, “to increase access to specialized
       medical care and state-of-the-art medical technologies. Patients who are in need of services not
       offered at Erie are eligible to receive care at these hospitals.” Further, Derman acknowledged
       that Erie’s website stated, “All Erie pediatricians, internists, OB/GYN physicians and family
       physicians have faculty status at Northwestern University Feinberg School of Medicine,” and
       that medical students and residents from Northwestern train at Erie. Dr. Derman testified that
       he was aware that Erie has a website, but his office does not review the information on Erie’s
       website.
¶ 15       Dr. Derman reviewed the affiliation agreement during his deposition and acknowledged
       that, in it, NMC agreed to cause NMH to consider Erie staff for hospital privileges. Further, the
       parties agreed to “jointly participate in collective marketing efforts as they relate to the
       affiliation of the parties” and that the other party “may publicize and refer to this affiliation
       agreement and their affiliation with each other with the prior consent of the other party.” The
       agreement also contained an “independent contractor” provision indicating that the parties did
       not have a joint venture, partnership, or employer/employee relationship.
¶ 16       Dr. Derman testified that NMH does not employ Erie staff and does not provide Erie with
       any equipment or supplies, lab coats, or promotional material. Dr. Derman testified that NMH
       makes charitable contributions to Erie of approximately $333,000 and $600,000 per year,
       passes along grant money, and does not charge Erie patients for care given at NMH. Derman
       testified that NMH makes charitable contributions to Erie and other organizations because
       “we’re just good community members and we try to support other people that are doing good
       in the community.” NMH has also provided Erie with free informational technology support
       services.
¶ 17       Kistner testified in his deposition that he has served on Erie’s board of directors since 2002,
       and he was the chairman for two years. At one point, there was a second NMHC representative
       on the board. Kistner explained that as indicated in the affiliation agreement, Erie must follow
       specific guidelines to satisfy Federally Qualified Health Center (FQHC) governance
       requirements, which requires 51% or more of the board to be composed of patients and
       community members, while the remaining 49% may be nonpatients, but “no more than 50
       percent of the 49 percent can derive more than 10 percent of their income from the healthcare

                                                    -5-
       field.” He signed a conflict of interest statement indicating that his fiduciary responsibility was
       to Erie when acting as a board member. He testified that Erie operates as an independent entity
       and its community board members are “very vocal.” Kistner testified that he could not recall
       any collective marketing efforts in the 10 years of his board membership. Kistner testified that
       in 2006, Erie’s revenue was approximately $25 million; approximately 60% came from patient
       revenue and 40% came from grants from various organizations, including NMH or NMC.
¶ 18       Yarbrough testified in her deposition that she found Erie by searching the Internet for a
       clinic where she could obtain a pregnancy test without having health insurance. When the test
       was positive, someone at Erie asked what her plans were for prenatal care. Yarbrough testified
       that she “asked questions about the doctors there, what hospital I would be going to, things like
       that. That’s when I chose Erie Family Clinic.” The Erie clinic was approximately five blocks
       from where she lived at the time. She filled out paperwork for Medicaid and scheduled her first
       appointment. She was also given written materials or a pamphlet about Erie. She testified that
       she was informed that she “would have ultrasounds done at Women’s Prentice Hospital, which
       is part of Northwestern, and that’s where I would most likely deliver the baby.”
                    “Q. Did anybody at Erie say anything to suggest to you that Erie Family Health
                Center and Northwestern Memorial Hospital were the same entity?
                    A. I was under the impression that they were.
                    Q. And what would give you that impression?
                    A. Most likely because of the delivery at Northwestern, the delivery privileges.
                    Q. So that if you had gone to Dr. Smith whose office was on Michigan Avenue and
                you were told you would most likely deliver at Northwestern, would you have drawn
                the inference that Dr. Smith’s practice and Northwestern were actually the same entity?
                    A. Yes.
                    Q. But in terms of whether anybody at Erie said, hey, we are Northwestern and
                Northwestern is part of us, fair to say nobody said anything like that?
                    A. No one said that, but they also never said that they weren’t.”
¶ 19       Yarbrough testified that after being treated for vaginal bleeding at Advocate on November
       30, 2005, and being diagnosed with a bicornuate uterus, she went to Erie on December 2, 2005,
       where she saw Dr. Suarez and midwife McKelvey. Dr. Suarez performed an ultrasound and
       informed her that she did not have a bicornuate uterus. She was told that she had a shortened
       cervix. Yarbrough returned to Erie several times after that for routine appointments, a urinary
       tract infection, and a lab test. She had the routine 20-week ultrasound performed at NMH on
       February 21, 2006, and she continued with her regular prenatal visits at Erie after that.
       Yarbrough testified that on April 5, 2006, she experienced severe cramps and back pain. She
       called Erie and was told to go to NMH. She was admitted to the hospital and delivered her
       daughter three days later via a cesarean-section performed by Dr. Suarez. Yarbrough testified
       that either during the delivery or afterward, Dr. Suarez mentioned something about her having
       a bicornuate uterus and an incompetent cervix when Yarbrough asked why she had delivered
       prematurely.
¶ 20       Regarding her decision to go to Erie, Yarbrough further testified as follows:
                    “Q. Early on you talked about doing some research, and you found Erie Clinic, and
                when you went through the first time and confirmed your pregnancy, you asked


                                                    -6-
               questions and were told about the delivery at Northwestern, and you believed that they
               were working—they would be working together?
                   A. Yes.
                   Q. When you had your 20-week ultrasound and they sent you—when Erie sent you
               on to Northwestern to Prentice to have it done, did that reconfirm your belief that the
               two were working together?
                   A. Yes.
                   Q. Okay, and that was because you would get your complete care was all affiliated,
               since the ultrasound was there, the delivery was going to be there?
                   A. Yes.
                   Q. And you did not have your own o-b-g-y-n and you just went there initially at
               Erie to confirm your belief that you were pregnant. Once you did find out that you were
               pregnant, did the fact that they said that you would have the delivery and other care at
               Northwestern influence your decision to stay at Erie?
                   A. Yes.”
¶ 21       Yarbrough also testified:
                   “Q. Did you have any particular knowledge of [NMH]?
                   A. I was under the impression that they were a very good hospital, very big, very
               well-known in the city.
                   Q. And I assume that if you had been living on the south side and you had gone to a
               physician’s office and they said, you know, we are likely to deliver you at Christ
               Hospital, you would have been happy about that as well?
                   A. Yes.
                   Q. Okay. So, you know, any good hospital would sound good to you?
                   A. Yes.
                   Q. Did anybody at [NMH], flipping this around, say anything to you to suggest that
               [NMH] and Erie Family Health Center had some special connection?
                   A. No.”
¶ 22       Based on this testimony, NHM argued that Yarbrough was never told that NMH and Erie
       were the same entity and the fact that she was informed she would likely deliver at NMH was
       insufficient to establish apparent authority. Further, Yarbrough was not seeking treatment from
       NMH as she had no specific desire to deliver at NMH and “any good hospital would sound
       good to” her. NMH contended that plaintiffs’ claim would require a massive expansion of the
       apparent authority doctrine under Gilbert, and plaintiffs could not show that NMH held Erie
       out as its apparent agent, that NMH acquiesced to any holding out by Erie, or any reasonable
       reliance by Yarbrough. NMH asserted that Yarbrough sought care from Erie and all of the
       treatment Erie provided was performed at Erie’s facility.
¶ 23       Plaintiffs responded that Yarbrough agreed to receive prenatal treatment at Erie based on
       her knowledge of NMH and after being led to believe, reasonably, that the Erie health care
       workers were employees or agents of NMH. Plaintiffs contended that her belief was
       reasonable because Erie staff informed her that she would deliver and have ultrasounds
       performed at NMH, she was provided pamphlets with information about delivering at NMH,
       she knew NMH had a very good reputation, and she was never told that the doctors and nurses

                                                  -7-
       at Erie were not employees or agents of NMH. Plaintiffs asserted that NMH promoted itself as
       a provider in partnership with Erie under the affiliation agreement, in its press releases, and on
       its website, and it did not prevent Erie from discussing its affiliation with NMH on Erie’s
       website.
¶ 24       At a hearing on the motion for summary judgment on February 21, 2014, NMH orally
       moved to certify a question under Rule 308. The circuit court stated that the case was “the first
       of its kind” and it entered an order denying NMH’s partial summary judgment motion and
       ordering the parties to submit proposed certified questions.
¶ 25       Following their respective submissions, the circuit court took the matter under advisement.
       According to NMH, the circuit court decided not to certify a question but did not enter an order
       to that effect. On May 16, 2014, the circuit court sua sponte entered an order certifying the
       question set forth supra, pursuant to Rule 308, and holding that its February 21, 2014, order
       “involves a question of law as to which there is substantial ground for difference of opinion
       and that an immediate appeal from the order may materially advance the ultimate termination
       of the litigation.” At our supreme court’s direction, we allowed NMH’s petition for leave to
       appeal on January 14, 2015.

¶ 26                                         II. ANALYSIS
¶ 27                                    A. The Certified Question
¶ 28      As set forth above, the certified question is as follows:
                  “Can a hospital be held vicariously liable under the doctrine of apparent agency set
             forth in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (Ill. 1993), and its progeny for
             the acts of the employees of an unrelated, independent clinic that is not a party to the
             present litigation?”

¶ 29                                         B. Standard of Review
¶ 30        “The scope of review in an interlocutory appeal under Rule 308 is ordinarily limited to the
       question certified by the trial court, which is reviewed de novo.” Kennedy v. Grimsley, 361 Ill.
       App. 3d 511, 513 (2005) (citing Thompson v. Gordon, 356 Ill. App. 3d 447 (2005)). Rule
       308(a) provides in relevant part that the trial court may certify a question to this court when, “in
       making an interlocutory order not otherwise appealable, finds that the order involves a
       question of law as to which there is substantial ground for difference of opinion and that an
       immediate appeal from the order may materially advance the ultimate termination of the
       litigation.” Ill. S. Ct. R. 308(a) (eff. Feb. 26, 2010).

¶ 31                             C. Gilbert v. Sycamore Municipal Hospital
¶ 32       The parties agree that under Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 525
       (1993), a hospital may be vicariously liable for negligent medical treatment rendered in the
       hospital by an independent-contractor physician under the doctrine of apparent authority. Id. at
       524. Before our supreme court decided Gilbert, “hospitals in Illinois could be subject to
       vicarious liability for a physician’s negligent acts only if the physician was an actual agent of
       the hospital.” Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st) 101558, ¶ 24.
       The court cited the “realities of modern hospital care” as its impetus for allowing hospitals to
       be vicariously liable under the doctrine of apparent authority. The court observed that hospitals

                                                    -8-
       “increasingly hold themselves out to the public in expensive advertising campaigns as offering
       and rendering quality health services,” and spend “billions of dollars marketing themselves,
       nurturing the image with the consuming public that they are full-care modern health facilities”
       in order to attract patients and compete for health care dollars. (Internal quotation marks
       omitted.) Gilbert, 156 Ill. 2d at 520. Further, the public is generally unaware of whether the
       staff in an emergency room is comprised of independent contractors or employees of the
       hospital, and absent a situation where a patient is somehow put on notice of a doctor’s
       independent status, a patient generally relies on the reputation of the hospital and reasonably
       assumes that the staff is comprised of hospital employees. Id. at 521.
¶ 33       With these concerns in mind, the Gilbert court held that a plaintiff must establish the
       following three factors to hold a hospital liable under the doctrine of apparent authority for acts
       of independent-contractor physicians:
               “ ‘(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 (quoting Pamperin v. Trinity
               Memorial Hospital, 423 N.W.2d at 856).
¶ 34       The first two elements are “frequently grouped together and have been referred to as the
       ‘holding out’ factor.” Lamb-Rosenfeldt, 2012 IL App (1st) 101558, ¶ 26. A plaintiff must
       present some evidence of all three elements in order to avoid summary judgment. Wallace v.
       Alexian Brothers Medical Center, 389 Ill. App. 3d 1081, 1094 (2009); Lamb-Rosenfeldt, 2012
IL App (1st) 101558, ¶ 25. The Gilbert court stressed that “liability attaches to the hospital
       only where the treating physician is the apparent or ostensible agent of the hospital. If the
       patient knows, or should have known, that the treating physician is an independent contractor,
       then the hospital will not be liable.” Gilbert, 156 Ill. 2d at 522.

¶ 35                 D. Application of Gilbert Outside the “Four Walls” of a Hospital
¶ 36       On appeal, NMH first contends that the doctrine of apparent authority is not applicable
       here because the conduct at issue did not occur at the hospital but instead occurred, as indicated
       in the certified question, at an “unrelated, independent clinic.”
¶ 37       As this court in Malanowski v. Jabamoni observed, the negligent conduct in Gilbert
       occurred in the emergency room of a hospital. Malanowski v. Jabamoni, 293 Ill. App. 3d 720,
       727 (1997); Gilbert, 156 Ill. 2d at 516-17. Accordingly, the particular facts in Gilbert
       necessarily confined the court’s analysis to medical negligence occurring in an emergency
       room. Malanowski, 293 Ill. App. 3d at 727; Gilbert, 156 Ill. 2d at 516-17. The Malanowski
       court reasoned that there was
               “nothing in the Gilbert opinion that 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.” Malanowski, 293 Ill.
               App. 3d at 727.



                                                    -9-
¶ 38       In Malanowski, the allegedly negligent conduct occurred in an outpatient clinic owned and
       operated by Loyola University of Chicago (Loyola) called the “Loyola University Mulcahy
       Outpatient Center.” Id. at 722. The plaintiff brought suit against Loyola and Dr. Reena
       Jabamoni, alleging that Dr. Jabamoni negligently failed to diagnose the decedent’s breast
       cancer while treating her at the outpatient clinic. Id. In her apparent authority claims, the
       plaintiff alleged that Loyola owned and operated the outpatient center, which held itself out as
       a “direct provider of health care services”; that the decedent had been a regular patient of the
       clinic since 1982; that the decedent had been a regular patient of Dr. Jabamoni for several
       years; and that she reasonably believed that Dr. Jabamoni was an employee of the outpatient
       center, when in fact she was an independent contractor with privileges at the center. Id. at 726.
¶ 39       In arguing on appeal that the trial court properly dismissed the apparent authority claims,
       Loyola contended that Gilbert did not apply because the conduct occurred outside of the
       hospital, but the court found that “[i]f, as plaintiff maintains, Loyola’s conduct reasonably led
       [the patient] to rely upon ‘Loyola’ for treatment, rather than any particular physician, then
       plaintiff should be allowed recovery for damages caused thereby.” Id. at 727. The court also
       found that under Gilbert, the existence of an ongoing doctor-patient relationship did not
       preclude a claim of reliance on the hospital, and remained a question of fact for the jury to
       resolve. Id. at 728. The court observed that the outpatient center bore Loyola’s name, it held
       itself out as a direct provider of health care services, it had introduced the decedent to Dr.
       Jabamoni, the decedent was also treated by other physicians at the center, and payment for Dr.
       Jabamoni’s services were made to the outpatient center. Id. See also Butkiewicz v. Loyola
       University Medical Center, 311 Ill. App. 3d 508, 510-11 (2000) (holding that Gilbert was not
       limited to conduct in an emergency room where the independent-contractor radiologist failed
       to diagnose the decedent’s lung cancer after his admission to the hospital for chest pains), and
       York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 151-52 (2006) (applying
       Gilbert to negligent medical conduct that occurred outside of the emergency room, i.e., in the
       hospital’s operating room).
¶ 40       NMH argues that Malanowski is distinguishable because Erie is a separate corporate entity
       contained in a separate facility, and not a separate corporate entity located within an outpatient
       facility owned and operated by NMH, as in Malanowski. However, plaintiffs’ claim is that
       there were such close ties between NMH and Erie, despite being separate entities located in
       separate facilities, that material issues of fact exist regarding the elements of apparent
       authority. Based on Malanowski, York, and Butkiewicz, we reject NMH’s argument that
       Gilbert is inapplicable here because the allegedly negligent conduct did not occur within the
       “four walls” of the hospital. As the court in Malanowski found, nothing in the Gilbert opinion
       limits a plaintiff 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.” Malanowski, 293 Ill. App. 3d at 727. The key determinant for recovery under
       Gilbert is whether the plaintiff can show that the hospital’s “conduct led [the plaintiff] to reply
       upon [‘the hospital’] for treatment, rather than on any particular physician.” Id. This is
       precisely what plaintiffs aim to show in this case.
¶ 41       NMH also cites Scardina v. Alexian Brothers Medical Center, 308 Ill. App. 3d 359, 365
       (1999), in support of its argument. However, the brief passage cited by NMH from Scardina
       merely summarizes the holding in Gilbert: “In Gilbert, the court held that a hospital can be
       vicariously liable under the doctrine of apparent agency for the negligent acts of a physician


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       providing care at the hospital, irrespective of whether the physician is an independent
       contractor.” Id. at 363. Notably, the Scardina court observed that “although Gilbert speaks of
       negligent treatment rendered in a hospital’s emergency room, its decision is not limited to such
       factual settings, but applies to cases involving other forms of hospital care.” Id. at 364. As in
       Butkiewicz and York, the alleged medical negligence in Scardina occurred in the hospital (an
       operating room), but not in the emergency room; thus, the court had no reason to consider
       Gilbert’s applicability outside the “four walls” of a hospital. Moreover, the contested issue did
       not involve where the conduct occurred, but whether the patient relied on the hospital to
       provide radiological services upon his admission to the hospital for stomach and chest pain,
       where the patient went there because his family physician instructed him to go to that particular
       hospital and had staff privileges there. Id.

¶ 42                E. Application of Gilbert Where the Apparent Agent Is Not a Defendant
¶ 43       NMH next argues that the apparent agent, an “unrelated, independent clinic,” i.e., Erie, was
       not made a party to the litigation, and therefore NMH cannot be held liable as the principal.
¶ 44       We conclude that Gilbert contains no such requirement. Although whether the apparent
       agent must be named as a party was not at issue in Gilbert, we note that the physician and the
       hospital were sued in Gilbert but not the independent medical group that employed the
       physician. Gilbert, 156 Ill. 2d at 515. Also by way of example, in Mizyed v. Palos Community
       Hospital, 2016 IL App (1st) 142790, ¶¶ 23-25, 36, neither the physician who rendered the
       treatment at issue nor the independent medical group that employed her were named in the
       plaintiff’s medical negligence lawsuit, which alleged that the hospital was vicariously liable
       for the physician’s negligence under the doctrine of actual and apparent agency.
¶ 45       As noted by plaintiffs, the apparent agency instruction in the Illinois Pattern Jury
       Instructions, Civil, supports that a principal may be sued even where the apparent agent is not.
       The Notes on Use for instruction 105.11, “Claims Based on Apparent Agency—Principal
       Sued, But Not Agent,” provides that “[t]his instruction should be used where the issue of
       apparent agency is in dispute, the principal alone is sued, and plaintiff alleges reliance upon a
       ‘holding out’ on the part of the principal.” (Emphasis added.) Illinois Pattern Jury Instructions,
       Civil, No. 105.11, Notes on Use (2006) (hereinafter, IPI Civil (2006)). See also IPI Civil
       (2006) No. 105.10, Notes on Use (“This instruction should be used where the issue of apparent
       agency is in dispute, the principal and agent are sued in the same case, and plaintiff alleges
       reliance on a ‘holding out’ by the principal.”); IPI Civil (2006) No. 50.04 (general apparent
       agency instruction where only principal is sued). Accordingly, plaintiffs were not required to
       name Erie or any of the Erie treaters as defendants and their absence is not a bar to recovery
       against the hospital here.
¶ 46       In sum, we find that a hospital may be held liable under the doctrine of apparent agency for
       the acts of the employees of an independent clinic that is not a party to the litigation, assuming
       that the plaintiff establishes the elements of apparent authority as set forth in Gilbert. Courts
       may apply Gilbert outside the “four walls” of the hospital, and a plaintiff is not required to
       name the individual physician or his employer as a defendant in order to hold the
       principal/hospital vicariously liable.




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¶ 47                            F. Applying Gilbert to the Facts of This Case
¶ 48        NMH argues, in the alternative, that plaintiffs have failed to establish the Gilbert elements,
       i.e., they have not shown that NMH held Erie out as its agent, that Erie held itself out as
       NMH’s agent with NMH’s acquiescence, or that Yarbrough reasonably relied on any holding
       out in electing treatment at Erie. NMH warns that an opposite conclusion would greatly expand
       apparent agency law in Illinois. NMH asserts that this case is “ripe” for ruling on summary
       judgment as there are no disputed issues of material fact and the only issue remaining is the
       question of law regarding apparent authority. NMH asserts that this court should answer the
       certified question in the negative and remand for a finding that it is entitled to partial summary
       judgment.
¶ 49        Plaintiffs assert that the certified question does not present a novel question and NMH’s
       appeal merely involves questions of fact that should be determined by a jury. Plaintiffs argue
       that they have established material issues of fact under the Gilbert test as to the holding out and
       reasonable reliance requirements.
¶ 50        We note that the parties have engaged in extensive discovery with respect to the agency
       issue and NMH has expended considerable effort on appeal discussing why the facts do not
       support an apparent authority claim here. In essence, NMH is arguing that the trial court should
       have granted its motion for summary judgment. This case is before us on a Rule 308 certified
       question from the trial court, and not an appeal from the trial court’s ruling on NMH’s motion
       for partial summary judgment. A Rule 308 appeal focuses on answering a certified question of
       law and is “not intended to address the application of the law to the facts of a particular case.”
       Razavi v. Walkuski, 2016 IL App (1st) 151435, ¶¶ 7, 8 (declining to address the parties’
       arguments regarding the underlying motion to dismiss). See also Spears v. Association of
       Illinois Electric Cooperatives, 2013 IL App (4th) 120289, ¶ 15 (stating that the court should
       only answer a certified question if it presents a question of law and decline to answer if the
       resolution depends on “a host of factual predicates” (internal quotation marks omitted)).
       However, even considering NMH’s alternative argument, given the facts adduced in this case
       thus far, NMH has failed to establish that no genuine issue of material fact exists such that its
       right to a judgment in its favor is “ ‘clear and free from doubt.’ ” Mizyed, 2016 IL App (1st)
142790, ¶ 35 (quoting Lamb-Rosenfeldt, 2012 IL App (1st) 101558, ¶ 23).
¶ 51        We recognize that the present case does not involve the traditional situation of an
       independent-contractor physician employed by a separate, private medical group, providing
       negligent care inside a hospital. However, plaintiffs do not seek to hold NMH liable merely
       because, as NMH contends, the Erie physicians have privileges at the hospital. Rather, the
       issue of whether NMH and/or Erie held themselves out as having such close ties such that a
       reasonable person would conclude that an agency relationship existed, and whether Yarbrough
       relied upon NMH or Erie, raises material questions of fact for a jury to resolve. Under the
       unique facts of this case and in light of the evidence presented thus far, plaintiffs have, at a
       minimum, raised a question of fact regarding the holding out and reliance elements under
       Gilbert and their apparent authority claim contains issues of fact subject to a jury’s
       determination. As the Gilbert court stated, “[w]hether an agent is authorized to act is a question
       of fact. [Citation.] Whether a person has notice of the lack of an agent’s authority, or is put on
       notice by circumstances, is likewise a question of fact.” Gilbert, 156 Ill. 2d at 524. See also
       Scardina, 308 Ill. App. 3d at 363 (“Whether an agency relationship exist[ed] in such instances
       is typically a question of fact to be decided by the trier of fact and may only be disposed of by

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       summary judgment where the parties’ relationship is so clear as to be undisputed.”); McNamee
       v. Sandore, 373 Ill. App. 3d 636, 651 (2007) (“While agency is a legal concept, the existence
       and scope of an agency relationship is a fact-intensive inquiry reserved for the finder of fact
       unless the parties’ relationship is so clear as to be undisputed.”).
¶ 52       As stated, the first two elements of apparent authority require a showing that “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,” and if
       the agent’s acts created “the appearance of authority, the plaintiff must also prove that the
       hospital had knowledge of and acquiesced in them.” (Internal quotation marks omitted.)
       Gilbert, 156 Ill. 2d at 525. “The focus of this factor is whether or not ‘the patient knows, or
       should have known, that the physician is an independent contractor.’ ” Lamb-Rosenfeldt, 2012
IL App (1st) 101558, ¶ 26 (quoting Gilbert, 156 Ill. 2d at 524).
¶ 53       It is undisputed that NMH holds itself out as a “full service hospital.” More relevant to this
       case, however, are the facts showing that NMH also promotes itself as a community-oriented
       hospital that collaborates with neighborhood centers, including Erie, to make quality health
       care available to those in need. NMH publicized its relationship with Erie on its website,
       annual reports, community service reports, and other press releases. As plaintiffs noted, NMH
       promoted that 11.2% of babies delivered at NMH in 2006 received prenatal care at Erie, and
       100% of prenatal patients at Erie delivered at NMH. NMH’s website provided a link to Erie’s
       website and represented that Erie was one of “Our Health Partners” and promoted their
       “formal and long-standing affiliations” with Erie, that two NMH representatives sit on Erie’s
       board, and that Erie was founded “as a project of volunteer physicians from Northwestern
       Memorial and Erie Neighborhood House.” Dr. Derman testified in his deposition regarding
       collaborative efforts between NMH and Erie in providing care in the areas of diabetes and
       women’s health and its promotion of these efforts. In addition, NMH has continuously
       contributed financially to Erie, provides information technology assistance to Erie, and does
       not charge Erie patients for care given at NMH.
¶ 54       Significantly, the relationship between Erie and NMH also involves the affiliation
       agreement, pursuant to which the parties agreed that NMH was to be the primary site for acute
       and specialized hospital care for Erie patients. The affiliation agreement called for a NMH
       representative to sit on Erie’s board of directors, the creation of a community advisory
       committee, and appointment of Erie’s executive director to the committee. Although Salls
       testified in her deposition that she did not know of any joint marketing efforts between NMH
       and Erie, the affiliation agreement provided for joint marketing efforts relating to their
       affiliation.
¶ 55       Regarding Erie’s actions, which would constitute a “holding out” by Erie, Yarbrough
       testified that, upon confirming her pregnancy, Erie staff inquired where she planned to receive
       prenatal care and informed her that, if she were treated at Erie, she would likely deliver at
       NMH and receive additional testing at NMH and provided her with information about
       delivering at NMH. As testified to by Yarbrough, although no one told her that the doctors and
       staff at Erie were NMH employees, no one informed her that her treating doctors and staff at
       Erie were not a part of NMH.
¶ 56       In addition, Erie’s website referred to NMH as an “Our Partner” and stated that “Erie
       partners with [NMH],” in addition to other hospitals, in order to “increase access to specialized
       medical care and state-of-the-art medical technologies. Patients who are in need of services not

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       offered at Erie are eligible to receive care at these hospitals.” The website stated that all Erie
       physicians “have faculty status at Northwestern University Feinberg School of Medicine.”
       Salls testified that she was aware that Erie discussed its affiliation with NMH on its website,
       but that NMH has never told Erie not to promote the affiliation between them. Dr. Derman
       testified that he was also aware of Erie’s website, but his office does not review it.
¶ 57        Whether Yarbrough actually observed these indicia of “holding out” on the websites of
       NMH and Erie and in written materials is not determinative. Whether a patient actually
       observes a hospital’s advertisements is not relevant to the objective inquiry into the “holding
       out” factor under Gilbert. Spiegelman v. Victory Memorial Hospital, 392 Ill. App. 3d 826, 839
       (2009). In Spiegelman, the hospital argued that its advertisements promoting the hospital could
       not show reasonable reliance as there was no evidence that the plaintiff actually viewed the
       advertisements. Id. The plaintiff argued that the advertisements demonstrated that the hospital
       held itself out as a complete provider of care, an objective determination which did not depend
       on whether the plaintiff actually viewed them. Id. The court agreed with the plaintiff, holding
       that the advertisements “were relevant to the element of holding out—whether the hospital
       held itself out as a provider of complete medical care.” Id. at 841. See also Hammer v. Barth,
       2016 IL App (1st) 143066, ¶ 26 (finding that a genuine issue of material fact existed as to the
       “holding out” element where the evidence showed that the hospital’s website advertised that
       the hospital had clinical leadership in over 60 medical fields and boasted a staff of over 1000
       doctors in various specialties and one of the “most experienced” emergency trauma centers in
       Illinois).
¶ 58        NMH argues that this case does not involve the same concern present in Spiegelman and
       Gilbert, i.e., hospitals using advertisements to attract patients by promising complete, quality
       care while attempting to avoid liability by using independent contractors. Spiegelman, 392 Ill.
       App. 3d at 839-41; Gilbert, 156 Ill. 2d at 520-21. However, as in Spiegelman, in holding itself
       out as a close partner with Erie to provide specialized and acute care to a targeted population,
       NMH attempted not only to be a good citizen of the community but also to attract patients. We
       disagree with NMH’s assertion that Spiegelman is distinguishable or that the concerns
       animating Gilbert are not present in this case.
¶ 59        Turning to the third element in Gilbert, reasonable reliance is established where “the
       plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary
       care and prudence.” (Internal quotation marks omitted.) Gilbert, 156 Ill. 2d at 525.
                “ ‘[T]he critical distinction is whether the plaintiff is seeking care from the hospital
                itself or whether the plaintiff is looking to the hospital merely as a place for his or her
                personal physician to provide medical care. Except for one who seeks care from a
                specific physician, if a person voluntarily enters a hospital without objecting to his or
                her admission to the hospital, then that person is seeking care from the hospital itself.
                An individual who seeks care from a hospital itself, as opposed to care from his or her
                personal physician, accepts care from the hospital in reliance upon the fact that
                complete emergency room care—from blood testing to radiological readings to the
                endless medical support services—will be provided by the hospital through its staff.’ ”
                Gilbert, 156 Ill. 2d at 525-26 (quoting Pamperin, 423 N.W.2d at 857).
¶ 60        NMH asserts that plaintiffs failed to establish any reasonable reliance by Yarbrough
       because she sought treatment at Erie, she understood her treaters were Erie employees, no one


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       represented that Erie and NMH were the same entity, and she expressed no specific preference
       for any particular hospital.
¶ 61        Yarbrough testified that she did not have a prior or ongoing relationship with any
       physicians at Erie, she had never been to Erie for any treatment before, and she did not seek out
       a particular physician at Erie. Her testimony indicated that she went to Erie because it was a
       local clinic offering free pregnancy testing. After confirming her pregnancy, Erie staff inquired
       about where Yarbrough planned to receive prenatal care and informed her that, if she were
       treated at Erie, she would likely deliver at NMH and receive additional testing, including
       ultrasounds, at NMH. She was given pamphlets and information about NMH by Erie.
       Yarbrough testified that she asked about the doctors and what hospital she would deliver at and
       “[t]hat’s when I chose Erie Family Clinic.” She testified that she was under the impression that
       Erie and NMH were the same entity “[m]ost likely because of the delivery at Northwestern, the
       delivery privileges.” She confirmed that if she had gone to a different doctor’s office and had
       been told she would most likely deliver at NMH, she would have drawn the same inference.
       Yarbrough testified that she believed Erie and NMH were working together. She affirmed that
       being sent to NMH for her 20-week ultrasound reaffirmed this belief because her complete
       care was “all affiliated, since the ultrasound was there, the delivery was going to be there.”
       Yarbrough affirmed that the fact that she would deliver at NMH and receive other care there
       influenced her decision. Her impression of NMH was that it was “a very good hospital, very
       big, very well-known in the city.” When asked if she “had been living on the south side and
       you had gone to a physician’s office and they said, you know, we are likely to deliver you at
       Christ Hospital, you would have been happy about that as well?” Yarbrough answered, “Yes.”
       She also responded in the affirmative when asked if “any good hospital would sound good to
       you?”
¶ 62        Yarbrough’s testimony raises an issue of material fact regarding whether there was
       reasonable reliance in this case. Yarbrough indicated that her decision to utilize Erie for
       prenatal treatment was not based on her desire to receive treatment from a particular doctor at
       Erie or Erie itself, but was instead based on her expressed preference for a particular hospital,
       i.e., NMH, which she deemed to be a “very good” hospital. Her testimony also supports that
       she was unaware that her Erie treaters were not part of NMH; it was her understanding or
       perception that Erie was the same entity as, or was related to, NMH.
¶ 63        Plaintiffs assert that this case is similar to York, where the plaintiff believed there were
       “ ‘good docs at Rush’ ” and, based upon this knowledge, he selected a particular orthopedic
       surgeon there to perform his knee replacement surgery. York, 222 Ill. 2d at 195-96. The court
       found sufficient evidence to support the jury’s verdict in finding Rush vicariously liable for the
       negligent conduct of the anesthesiologist who participated in the plaintiff’s surgery based on
       apparent authority. Id. at 195. The plaintiff did not select who would serve as his
       anesthesiologist; he relied on the hospital to select one for him. Id. at 195-98. Our supreme
       court’s holding was based on evidence showing that the plaintiff selected the orthopedic
       surgeon only after determining that the hospital had good doctors and nothing alerted the
       plaintiff to the fact that the anesthesiologist was an independent contractor. Id. at 196. Our
       supreme court clarified the holding in Gilbert in observing that “the mere existence of a
       preexisting physician-patient relationship” did not “automatically preclude[ ] any claim by the
       patient of reliance upon the hospital or the support staff.” Id. at 193. Accordingly, “the reliance
       element of a plaintiff’s apparent agency claim is satisfied if the plaintiff reasonably relies upon


                                                   - 15 -
       a hospital to provide medical care, rather than upon a specific physician.” Spiegelman, 392 Ill.
       App. 3d at 840.
¶ 64       In the present case, the evidence showed that Yarbrough did not have a preexisting
       relationship with Erie or any physician at Erie. She decided to receive prenatal treatment at
       Erie only after she was informed of its relationship with NMH, which she believed to be a very
       good hospital, similar to the plaintiff in York. In contrast, where a patient goes to a hospital at
       the direction of and in reliance on a trusted personal physician, our court has found no
       reasonable reliance under Gilbert. For example, there was no reliance established in
       Butkiewicz, where the patient went to the defendant hospital because his long-time personal
       physician directed him to, even though he did not like that hospital, and the patient trusted his
       physician completely and would have done “whatever he told him to do.” Butkiewicz, 311 Ill.
       App. 3d at 510, 512-14. See also Lamb-Rosenfeldt, 2012 IL App (1st) 101558, ¶¶ 33-35
       (finding no evidence of reliance sufficient to avoid summary judgment where the patient went
       to the defendant hospital to receive treatment at the direction of her personal physician, with
       whom she had a preexisting relationship, and the plaintiff’s negligence claim sought to hold
       the hospital vicariously liable for treatment protected by that physician).

¶ 65                                       III. CONCLUSION
¶ 66       In sum, we answer the certified question in the affirmative. A hospital may be held liable
       under the doctrine of apparent agency for the acts of the employees of an independent clinic
       that is not a party to the litigation, assuming that the plaintiff establishes the elements of
       apparent authority as set forth in Gilbert. We remand this case for further proceedings
       consistent with this opinion.

¶ 67      Certified question answered; cause remanded.




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