Joseph Comer and Laura Wibberley Secure Summary Judgment Win for Agency Allegations in Medical Malpractice Case

February 2021

Joseph Comer and Laura Wibberley achieved a summary judgment win on behalf of a healthcare system client in a recent case involving allegations of agency of the physicians involved in a patient’s spinal surgery.

The plaintiff underwent surgery at an Illinois hospital to be treated for a spinal ailment. She alleged that the neurosurgeon, who was an independent practitioner with privileges to treat patients at the hospital, negligently performed a hemilaminectomy and a subsequent surgery days later. The plaintiff brought derivative claims for loss of consortium due to the procedures.

Joseph and Laura moved for summary judgment on behalf of the healthcare system, arguing that it cannot be held vicariously liable for the conduct of the neurosurgeon based on theories of actual or apparent agency. They elicited testimony during the plaintiff’s deposition that she had selected the neurosurgeon to perform the surgeries while being fully aware of the doctor’s affiliation with an independent practice group. They thus argued that the plaintiff did not rely on the hospital to provide her with a neurosurgeon.

After abandoning their claim that the doctor was an agent of the hospital, the plaintiff argued that the doctrine of apparent agency still applied because she had presented to the Emergency Room without a plan to undergo surgery at that time. Joseph and Laura pointed to further evidence they elicited at her deposition that she was involved in discussions with another physician from the neurosurgeon’s independent practice group in deciding to undergo surgery, and so could not have relied on the healthcare system or any alleged “holding out” of the neurosurgeon.

Joseph Comer’s practice focuses on civil litigation with an emphasis on representing health care institutions, physicians and nurses. He has particular expertise in cases involving complex and catastrophic losses and appellate litigation. His practice also includes construction negligence and general liability defense.

Laura Wibberley practices in general litigation with a concentration in the area of medical negligence, serving in the defense of hospitals, physicians, nurses and other healthcare providers. She also serves in the defense of long-term care facilities and assisted living facilities. Laura frequently assists with presentations at health care facilities designed to educate practitioners on challenges and concerns in the context of litigation.