The opinion
JUSTICE GREEN, specially concurring:
I concur in the decision to affirm the summary judgment in favor of the plaintiff on the basis that the restrictive covenant was unenforceable because it violated prohibitions against the type of practice of medicine which was involved. I agree that none of the legislation ameliorating the holdings of United Medical Service and Allison is applicable to the situation here. I also agree that even after 60 years, the Supreme Court of Illinois has not set aside the holdings of those cases. We have a duty under the most compelling aspect of the rule of stare decisis to follow those decisions because they are decisions of a higher court which we cannot overrule.
I appreciate that Justice Steigmann has limited the holding of his opinion to avoid deciding whether the Emergency Medical Treatment Act authorizes hospitals to hire physicians and surgeons to furnish emergency medical services. For reasons I will state, I would, nevertheless, narrow our holding even further. Indeed, I would limit it as much as we can. My understanding is that under the agreement of the parties, Dr. Berlin acted as an employee of defendant even when he was treating or advising patients who were not hospitalized with defendant. That seems to me to be the clearest violation of the remains of the precedent of United Medical Service and Allison. I would leave for another day the question of the status of physicians or surgeons hired to treat hospital patients regardless of whether the treatment involved occurs on an emergency basis.
My concern arises because of evidence that many hospitals, acting in good faith, have hired radiologists, pathologists, anesthesiologists and even general practitioners to treat hospital patients in other than emergency room situations. The statement in Darling that hospitals "regularly employ on a salary basis a large staff of physicians” would indicate this is so. Other actions by the supreme court give similar indications.
In Edgar County Bank & Trust Co. v. Paris Hospital, Inc., 57 Ill. 2d 298 , 312 N.E.2d 259 (1974), a suit on behalf of a minor was brought against a hospital for injuries alleged to have resulted from the negligence of an emergency room doctor and nurse, both of whom were hospital employees. See Edgar County Bank & Trust Co. v. Paris Hospital, Inc., 10 Ill. App. 3d 465, 466-67 , 294 N.E.2d 319, 321 (1973). The plaintiff had settled with the doctor and the supreme court held the release did not release the employer of the doctor’s negligence when the release expressly reserved that right. That court also held that res ipsa loquitur was applicable to that case. The court made no mention of any illegality in the relationship between the doctor and the hospital nor did it say that the employer-employee relationship was justified because the doctor was working in an emergency room. If the supreme court was concerned with the employment of a doctor by a hospital would it not have so stated?
In Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 , 622 N.E.2d 788 (1993), a hospital was also held vicariously liable for the negligence of an emergency room physician. This doctor was actually an independent contractor who billed the patients separately from billing by the hospital. The liability was imposed on the theory the doctor was an apparent agent of the hospital. The rationale of the decision was that (1) hospitals advertise they are "full-care modern health facilities”; and (2) under modern conditions, the public is unaware of the status of hospital personnel. Gilbert, 156 Ill. 2d at 519-22 , 622 N.E.2d at 792-94 . If the supreme court felt it was holding that the doctor was ostensibly acting in a capacity which would not be legally permitted or acting in a capacity justified only by the Emergency Medical Treatment Act, the court would likely have so stated.
I feel that confusion exists as to the relationships that can properly exist between doctors and hospitals and that clarification in that respect by the Supreme Court of Illinois or by the legislature is desirable. In the meantime, we have a duty to decide this case, which we are hereby doing. I make this special concurrence because I deem the present public interest is best served by a narrow decision.