McNamee v. Sandore

MALPRACTICE – APPARENT AGENCY

McNamee v. Sandore, No. 2-05-0739 (Ill. App. Ct. June 7, 2007)

The Appellate Court of Illinois, Second District reversed a trial court’s order granting summary judgment in favor of a physician in a malpractice action, holding that judicial estoppel applies to statements of fact, not legal conclusions and that res judicata is inappropriate when there is a factual dispute on an issue material to the element of privity.

A patient’s husband alleged that the physician who treated his wife during labor was negligent and as a result caused their child to have a severe neurological disorder. In an earlier action against the hospital, the patient and her husband argued that the physician was an agent of the hospital where she was treated. They eventually settled with the hospital then brought suit against the physician. In the suit against the physician, the appellate court ruled that the husband could deny that the physician was an agent of the hospital even though he and his wife had asserted the opposite in the earlier action. The court reasoned that judicial estoppel only applies to inconsistencies in assertions of fact and not to legal conclusions, such as when a party alleges an agency relationship. The court also held that there was a factual dispute on an issue material to the privity element of res judicata because the patient denied signing a consent form which acknowledged that physicians on staff at the hospital are not its employees but independent contractors.