The full case caption appears at the
end of this opinion. JUSTICE BILANDIC delivered the opinion of the court: This appeal asks whether a health maintenance organization (HMO) may be held liable for institutional negligence. We answer inthe affirmative. The plaintiff, Sheila Jones (Jones), individually and as the mother of the minor, Shawndale Jones, brought this medical malpracticeaction against the defendants, Chicago HMO Ltd. of Illinois (Chicago HMO), Dr. Robert A. Jordan and another party. TheJoneses were members of Chicago HMO, an HMO. Dr. Jordan was a contract physician of Chicago HMO and the primary carephysician of Shawndale. The circuit court of Cook County awarded summary judgment in favor of Chicago HMO on all three counts of Jones’ secondamended complaint. Count I charges Chicago HMO with institutional negligence. Count II charges Chicago HMO with vicariousliability for Dr. Jordan’s alleged negligence under the doctrine of apparent authority. Count III charges Chicago HMO with breachof contract. The circuit court also entered a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). On appeal, theappellate court affirmed the grant of summary judgment as to counts I and III, but reversed the grant of summary judgment as tocount II, remanding that claim for further proceedings. 301 Ill. App. 3d 103. We allowed Jones’ petition for leave to appeal (177 Ill.2d R. 315). Because Chicago HMO does not challenge the appellate court’s reversal of count II, only counts I and III are at issuein this appeal. Two organizations filed amicus curiae briefs with the permission of this court. See 155 Ill. 2d R. 345. The Illinois Association ofHealth Maintenance Organizations filed a brief in support of Chicago HMO. The Illinois Trial Lawyers Association filed a brief insupport of Jones. For the reasons explained below, we affirm the summary judgment as to count III, breach of contract, but wereverse the summary judgment as to count I, institutional negligence, and remand that claim for further proceedings. FACTS In reviewing an award of summary judgment, we must view the facts in the light most favorable to the nonmoving party.Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 30-31 (1999). The following facts thus emerge. On January 18, 1991, Jones’ three-month-old daughter Shawndale was ill. Jones called Dr. Jordan’s office, as she had beeninstructed to do by Chicago HMO. Jones related Shawndale’s symptoms, specifically that she was sick, was constipated, wascrying a lot and felt very warm. An assistant advised Jones to give Shawndale some castor oil. When Jones insisted on speakingwith Dr. Jordan, the assistant stated that Dr. Jordan was not available but would return her call. Dr. Jordan returned Jones’ calllate that evening. After Jones described the same symptoms to Dr. Jordan, he also advised Jones to give castor oil to Shawndale. On January 19, 1991, Jones took Shawndale to a hospital emergency room because her condition had not improved. ChicagoHMO authorized Shawndale’s admission. Shawndale was diagnosed with bacterial meningitis, secondary to bilateral otitis media,an ear infection. As a result of the meningitis, Shawndale is permanently disabled. The medical expert for the plaintiff, Dr. Richard Pawl, stated in his affidavit and deposition testimony that Dr. Jordan had deviatedfrom the standard of care. In Dr. Pawl’s opinion, upon being advised of a three-month-old infant who is warm, irritable andconstipated, the standard of care requires a physician to schedule an immediate appointment to see the infant or, alternatively, toinstruct the parent to obtain immediate medical care for the infant through another physician. Dr. Pawl gave no opinion regardingwhether Chicago HMO was negligent. Although Jones filed this action against Chicago HMO, Dr. Jordan and another party, this appeal concerns only counts I and III ofJones’ second amended complaint, which are directed against Chicago HMO. Count I charges Chicago HMO with institutionalnegligence for, inter alia, (1) negligently assigning Dr. Jordan as Shawndale’s primary care physician while he was serving anoverloaded patient population, and (2) negligently adopting procedures that required Jones to call first for an appointment beforevisiting the doctor’s office or obtaining emergency care. Count III charges Chicago HMO with breach of contract and is basedsolely on Chicago HMO’s contract with the Department of Public Aid. Chicago HMO moved for summary judgment on bothcounts. Jones and Chicago HMO submitted various depositions, affidavits and exhibits in support of their positions. Chicago HMO is a for-profit corporation. During all pertinent times, Chicago HMO was organized as an independent practiceassociation model HMO under the Illinois Health Maintenance Organization Act (Ill. Rev. Stat. 1991, ch. 1111/2, par. 1401 et seq.). In her deposition testimony, Jones described how she first enrolled in Chicago HMO while living in Park Forest. A Chicago HMOrepresentative visited her home. According to Jones, he “was telling me what it was all about, that HMO is better than a regularmedical card and everything so I am just listening to him and signing my name and stuff on the papers. *** I asked him what kindof benefits you get out of it and stuff, and he was telling me that it is better than a regular card.” The “HMO ENROLLMENT UNDERSTANDING” form signed by Jones in 1987 stated: “I understand that all my medical carewill be provided through the Health Plan once my application becomes effective.” Jones remembered that, at the time she signedthis form, the Chicago HMO representative told her “you have got to call your doctor and stuff before you see your doctor; andbefore you go to the hospital, you have got to call.” Jones testified that when she later moved to Chicago Heights another Chicago HMO representative visited her home. Thismeeting was not arranged in advance. It occurred because the representative was “in the building knocking from door to door.”Jones informed the representative that she was already a member. When Jones moved to Chicago Heights, she did not select Dr. Jordan as Shawndale’s primary care physician. Rather, ChicagoHMO assigned Dr. Jordan to her. Jones explained: “They gave me *** Dr. Jordan. They didn’t ask me if I wanted a doctor. They gave me him. * * * *** They told me that he was a good doctor *** for the kids because I didn’t know what doctor to take my kids to because I was staying in Chicago Heights so they gave me him so I started taking my kids there to him.” Dr. Mitchell J. Trubitt, Chicago HMO’s medical director, testified at his deposition that Dr. Jordan was under contract withChicago HMO for two sites, Homewood and Chicago Heights. The service agreement for the Homewood site was first enteredinto on May 5, 1987. The service agreement for the Chicago Heights site was first entered into on February 1, 1990. Dr. Jordanwas serving both patient populations in January of 1991 when Shawndale became ill. Dr. Trubitt stated that, before Chicago HMO and Dr. Jordan executed the Chicago Heights service agreement, another physicianserviced that area. Chicago HMO terminated that physician for failing to provide covered immunizations. At the time that ChicagoHMO terminated that physician, Dr. Jordan agreed “to go into the [Chicago Heights] area and serve the patients.” Chicago HMOthen assigned to Dr. Jordan all of the patients of that physician. Dr. Trubitt explained: “Q. So then with the elimination of [the other physician], Dr. Jordan then- were the members notified that Dr. Jordan be their [primary care physician] from that point on? A. Yes. Q. They weren’t given a choice? A. At that point in the area there was no choice. Q. So they weren’t given a choice? A. They were directed to Dr. Jordan.” Dr. Trubitt also explained that Dr. Jordan was Chicago HMO’s only physician who was willing to serve the public aid membership in Chicago Heights. Dr. Trubitt characterized this lack of physicians as “a problem” for Chicago HMO. Dr. Jordan testified at his deposition that, in January of 1991, he was a solo practitioner. He divided his time equally between hisoffices in Homewood and Chicago Heights. Dr. Jordan was under contract with Chicago HMO for both sites. In addition, Dr.Jordan was under contract with 20 other HMOs, and he maintained his own private practice of non-HMO patients. Dr. Jordanestimated that he was designated the primary care physician of 3,000 Chicago HMO members and 1,500 members of otherHMOs. In contrast to Dr. Jordan’s estimate, Chicago HMO’s own “Provider Capitation Summary Reports” listed Dr. Jordan asbeing the primary care provider of 4,527 Chicago HMO patients as of December 1, 1990. Jones’ legal counsel and Dr. Trubitt engaged in the following colloquy concerning patient load: “Q. In entering into an agreement with a provider, is any consideration given to the number of patients to be designated as the primary provider for? A. Yes, there is consideration given to that element in terms of volume of patients that he is capable of handling. Q. And who determines the volume of patients he is capable of handling? The Chicago HMO or the provider or- A. There is some guidelines that HCFA provides. Q. Who provides? A. HCFA. The Health [Care Finance Administration], the governmental health and welfare. Q. Do you happen to know what those limits are with respect to pediatricians? A. I am going to say I believe they are 3,500 patients to a primary care physician. The number can be expanded depending on the number of physicians in the office and the number of hours of operation. Q. So you can’t tell me whether or not if Dr. Jordan had 6,000 or 6,500 that would be an unusually large number? A. If he himself had it. Q. It would be unusually large? A. It would. Q. And that would be of some concern to the Chicago HMO, right? A. Well, yes, if he had those.” In January of 1991, Dr. Jordan employed four part-time physicians, in addition to himself. This included anobstetrician/gynecologist, an internist, a family practitioner and a pediatrician. Dr. Jordan, however, did not explain in whatcapacities these physicians served. The record contains no further information regarding these physicians. The record also contains evidence concerning Chicago HMO procedures for obtaining health care. Chicago HMO’s “MemberHandbook” told members in need of medical care to “Call your Chicago HMO doctor first when you experience an emergencyor begin to feel sick.” (Emphasis in original.) Also, Chicago HMO gave its contract physicians a “Provider Manual.” The manualcontains certain provisions with which the providers are expected to comply. The manual contains a section entitled, “TheAppointment System/Afterhours Care,” which states that all HMO sites are statutorily required to maintain an appointment systemfor their patients. Dr. Trubitt testified that Chicago HMO encouraged its providers to maintain an appointment system and also “to retain openspaces on their schedules so that patients who came in as walk-ins could be seen.” Retaining space on the schedule for walk-inswas recommended because it offers quicker access to care, keeping patients out of the emergency room with its increased costs,and because, historically, the Medicaid patient population often did not make or keep appointments. Dr. Jordan related that his office worked on an appointment system and had its own written procedures and forms for handlingpatient calls and appointments. When a patient called and Dr. Jordan was not in the office, written forms were used by his staff orhis answering service to relay the information to him. If Dr. Jordan was in the office, the procedure was as follows: “Q. *** [I]f it was a routine appointment for the purpose of having a routine shot or checkup, [the office staff] could make the appointment themselves? A. Yes. Q. But if the caller calls and says there is some problem, then they would take the temperature and find out the complaints and refer that call to you; is that correct? A. That’s correct. Q. And you were the one who would make the determination as to whether or not to schedule an appointment, is that correct? A. Medical decision, yes. Q. Medical decision. And I assume there were times when people would call and after you reviewed the information and talked to them that you decided that they didn’t need the appointment; is that correct? A. Of course. Q. In other words, you would perform some type of triage over the telephone; is that correct? A. Yes.” Three agreements appear in the record. First, Chicago HMO and the Department of Public Aid entered into a 1990″AGREEMENT FOR FURNISHING HEALTH SERVICES.” This agreement was “for the delivery of medical services toMedicaid recipients on a prepaid capitation basis.” Jones and her children, Medicaid recipients, fall within the agreement’sdefinition of beneficiaries. The preamble to the agreement stated that Chicago HMO “is organized primarily for the purpose of providing health careservices.” It continued: “[Chicago HMO] warrants that it is able to provide the medical care and services required under thisAgreement in accordance with prevailing community standards, and is able to provide these services promptly, efficiently, andeconomically.” Article V of the agreement described various duties of Chicago HMO, as follows. Chicago HMO “shall provide or arrange tohave provided all covered services to all Beneficiaries under this Agreement.” Chicago HMO “shall provide all Beneficiaries withmedical care consistent with prevailing community standards.” In addition, a section entitled “Choice of Physicians” provided inrelevant part: “[Chicago HMO] shall afford to each Beneficiary a health professional who will supervise and coordinate his care, and, to the extent feasible within appropriate limits established by [Chicago HMO] and approved by the Department, shall afford the Beneficiary a choice of a physician. There shall be at least one full-time equivalent, board eligible physician to every 1,200 enrollees, including one full-time equivalent, board certified primary care physician for each 2,000 enrollees. *** There shall be *** one pediatrician for each 2,000 enrollees under age 17.” Another article V duty stated that, although Chicago HMO may furnish the services required by the agreement by means of subcontractors, Chicago HMO “shall remain responsible for the performance of the subcontractors.” Regarding appointments, this agreement stated that Chicago HMO “shall encourage members to be seen by appointment, exceptin emergencies.” The agreement also stated that “[m]embers with more serious or urgent problems not deemed emergencies shallbe triaged and provided same day service, if necessary,” and that “emergency treatment shall be available on an immediate basis,seven days a week, 24-hours a day.” Finally, the agreement directed that Chicago HMO “shall have an established policy thatscheduled patients shall not routinely wait for more than one hour to be seen by a provider and no more than six appointments shallbe made for each primary care physician per hour.” The record also contains a second agreement, a 1990 “MEDICAL GROUP SERVICE AGREEMENT” between Chicago HMOand Dr. Jordan, that lists a Chicago Heights office address for Dr. Jordan. This agreement described numerous duties of Dr.Jordan. Pertinent here, Dr. Jordan would provide to Chicago HMO subscribers specified medical services “of good quality and inaccordance with accepted medical and hospital standards of the community.” Pursuant to a “PUBLIC AID AMENDMENT TOTHE MEDICAL GROUP SERVICE AGREEMENT,” Dr. Jordan agreed to “abide by any conditions imposed by [ChicagoHMO] as part of [Chicago HMO's] agreement with [the Department].” The third agreement appearing of record is a second “MEDICAL GROUP SERVICE AGREEMENT” between Chicago HMOand Dr. Jordan. This agreement was entered into in 1987 and lists a Homewood office address for Dr. Jordan. Both agreements between Chicago HMO and Dr. Jordan provided for a capitation method of compensation. Under capitation,Chicago HMO paid Dr. Jordan a fixed amount of money for each member who selected Dr. Jordan as the member’s primary careprovider. In exchange, Dr. Jordan agreed to render health care to his enrolled Chicago HMO members in accordance with theChicago HMO health plan. Dr. Jordan was paid the same monthly capitation fee per member regardless of the services herendered. For example, for each female patient under two years old, Chicago HMO paid Dr. Jordan $34.19 per month regardlessof whether he treated that patient. In addition, Chicago HMO utilized an incentive fund for Dr. Jordan. Certain costs such asinpatient hospital costs were paid from this fund. Chicago HMO would then pay Dr. Jordan 60% of any remaining, unused balanceof the fund at the end of each year. As earlier noted, the appellate court affirmed the circuit court’s grant of summary judgment in favor of Chicago HMO as to countI, institutional negligence, and as to count III, breach of contract. 301 Ill. App. 3d 103. We are asked to decide whether ChicagoHMO was properly awarded summary judgment on these two counts. ANALYSIS We conduct de novo review of an award of summary judgment. Olson v. Etheridge, 177 Ill. 2d 396, 404 (1997). Summaryjudgment is proper where the pleadings, depositions, admissions, affidavits and exhibits on file, when viewed in the light mostfavorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is entitledto judgment as a matter of law. Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). Summary judgment is a drasticremedy and should be allowed only when the right of the moving party is clear and free from doubt. Colvin v. Hobart Brothers,156 Ill. 2d 166, 169-70 (1993). This court first addressed a question of whether an HMO could be held liable for medical malpractice in Petrovich v. ShareHealth Plan of Illinois, Inc., 188 Ill. 2d 17, 29 (1999). Petrovich, however, involved different legal theories of liability than thosepresented here. Petrovich held that an HMO may be held vicariously liable for the medical malpractice of itsindependent-contractor physicians under both the doctrines of apparent authority and implied authority. Petrovich, 188 Ill. 2d 17.In contrast, this appeal focuses on whether an HMO may be held liable under the theory of institutional negligence. I. Institutional Negligence Institutional negligence is also known as direct corporate negligence. Since the landmark decision of Darling v. CharlestonCommunity Memorial Hospital, 33 Ill. 2d 326 (1965), Illinois has recognized that hospitals may be held liable for institutionalnegligence. Darling acknowledged an independent duty of hospitals to assume responsibility for the care of their patients.Ordinarily, this duty is administrative or managerial in character. Advincula v. United Blood Services, 176 Ill. 2d 1, 28 (1996)(and authorities cited therein). To fulfill this duty, a hospital must act as would a “reasonably careful hospital” under thecircumstances. Advincula, 176 Ill. 2d at 29. Liability is predicated on the hospital’s own negligence, not the negligence of thephysician. Underlying the tort of institutional negligence is a recognition of the comprehensive nature of hospital operations today. Thehospital’s expanded role in providing health care services to patients brings with it increased corporate responsibilities. As Darlingexplained: “Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities fortreatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes, as well as administrative andmanual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legalaction.” Darling, 33 Ill. 2d at 332. Expounding on the point, this court later stated: “[A] modern hospital *** is an amalgam ofmany individuals not all of whom are licensed medical practitioners. Moreover, it is clear that at times a hospital functions farbeyond the narrow sphere of medical practice.” Greenberg v. Michael Reese Hospital, 83 Ill. 2d 282, 293 (1980). Thus, inrecognizing hospital institutional negligence as a cause of action, Darling merely applied principles of common law negligence tohospitals in a manner that comports with the true scope of their operations. See Darling, 33 Ill. 2d at 331 (noting that the duty innegligence cases is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk). In accordance with the preceding rationale, we now hold that the doctrine of institutional negligence may be applied to HMOs.This court in Petrovich acknowledged the potential for applying this theory to HMOs. See Petrovich, 188 Ill. 2d at 30 (andauthorities cited therein). A court in another jurisdiction has likewise extended the theory of hospital institutional negligence toHMOs. Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998). It did so out of a recognition that HMOs, like hospitals, consistof an amalgam of many individuals who play various roles in order to provide comprehensive health care services to theirmembers. Shannon, 718 A.2d at 835-36. Moreover, because HMOs undertake an expansive role in arranging for and providinghealth care services to their members, they have corresponding corporate responsibilities as well. Shannon, 718 A.2d at 835-36;see Petrovich, 188 Ill. 2d at 28, 33-40 (recognizing that HMOs act as health care providers and attempt to contain the costs ofhealth care); 215 ILCS 125/1-2(9) (West 1998) (defining an HMO as “any organization formed *** to provide or arrange for oneor more health care plans under a system which causes any part of the risk of health care delivery to be borne by the organizationor its providers”); Official Lists Current Amicus Briefs of Labor Department on Medical Malpractice, 68 U.S.L.W. 2249-50(November 2, 1999) (noting that, according to the United States Department of Labor, HMOs wear “three different hats,” one ofwhich is “medical provider”). Our nationwide research has revealed no decision expressing a contrary view, and Chicago HMOmakes no argument against extending the doctrine of institutional negligence to HMOs. Hence, we conclude that the law imposesa duty upon HMOs to conform to the legal standard of reasonable conduct in light of the apparent risk. See Darling, 33 Ill. 2d at331. To fulfill this duty, an HMO must act as would a “reasonably careful” HMO under the circumstances. See Advincula, 176 Ill.2d at 29. Having determined that institutional negligence is a valid claim against HMOs, we turn to the parties’ arguments in this case. Jonescontends that Chicago HMO is not entitled to summary judgment on her claim of institutional negligence. She asserts that genuineissues of material fact exist as to whether Chicago HMO (1) negligently assigned more enrollees to Dr. Jordan than he wascapable of serving, and (2) negligently adopted procedures requiring Jones to call first for an appointment before visiting thedoctor’s office. Chicago HMO argues that Jones’ claim of institutional negligence cannot proceed because she failed to provide sufficient evidencedelineating the standard of care required of an HMO in these circumstances. In particular, Chicago HMO contends that Jonesshould have presented expert testimony on the standard of care required of an HMO. Jones responds that she has provided sufficient evidence showing the standard of care required of an HMO in thesecircumstances. She argues further that her claim does not require expert testimony on this point. In support, Jones relies onDarling, where a claim of institutional negligence was allowed against a hospital without expert testimony because other evidenceestablished the hospital’s standard of care. Darling, 33 Ill. 2d 326. Given that the parties’ dispute centers on standard of care evidence and the need for expert testimony, we briefly review the rolesof the standard of care and expert testimony in negligence cases. We then discuss Darling and its progeny. The elements of a negligence cause of action are a duty owed by the defendant to the plaintiff, a breach of that duty, and an injuryproximately caused by the breach. Cunis v. Brennan, 56 Ill. 2d 372, 374 (1974). The standard of care, also known as the standardof conduct, falls within the duty element. Dean Prosser has explained: “It is better to reserve ‘duty’ for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation. In other words, ‘duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty. The distinction is one of convenience only, and it must be remembered that the two are correlative, and one cannot exist without the other. A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” (Emphasis added.) W. Prosser, Torts, at 324 (4th ed. 1971). In an ordinary negligence case, the standard of care required of a defendant is to act as would an ” ‘ordinarily careful person’ ” ora ” ‘reasonably prudent’ person.” Advincula v. United Blood Services, 176 Ill. 2d 1, 22 (1996), quoting Cunis, 56 Ill. 2d at 376.No expert testimony is required in a case of ordinary negligence. See Advincula,176 Ill. 2d at 24. In contrast, in a professional negligence case, the standard of care required of a defendant is to act as would an “ordinarily carefulprofessional.” Advincula, 176 Ill. 2d at 23. Pursuant to this standard of care, professionals are expected to use the same degree ofknowledge, skill and ability as an ordinarily careful professional would exercise under similar circumstances. Advincula, 176 Ill. 2dat 23-24. Expert testimony is usually required in a case of professional negligence. Advincula, 176 Ill. 2d at 24, 38. Experttestimony is necessary to establish both (1) the standard of care expected of the professional and (2) the professional’s deviationfrom the standard. See Purtill v. Hess, 111 Ill. 2d 229, 242 (1986). The rationale for requiring expert testimony is that a lay juror isnot skilled in the profession and thus is not equipped to determine what constitutes reasonable care in professional conduct withoutthe help of expert testimony. Advincula, 176 Ill. 2d at 24; see Purtill, 111 Ill. 2d at 246. In Illinois, a professional standard of carehas been applied in cases involving a variety of both medical and nonmedical professions, such as law and dentistry. Advincula,176 Ill. 2d at 23-24 (and cases cited therein). The foregoing principles of law establish that the crucial difference between ordinary negligence and professional malpracticeactions is the necessity of expert testimony to establish the standard of care and that its breach was the cause of the plaintiff’sinjury. Although not applicable to this case, there are exceptions to the requirement of expert testimony in professional negligencecases. For example, in instances where the professional’s conduct is so grossly negligent or the treatment so common that a layjuror could readily appraise it, no expert testimony or other such relevant evidence is required. Advincula, 176 Ill. 2d at 24 (andcases cited therein); Walski v. Tiesenga, 72 Ill. 2d 249, 257 (1978) (noting that examples of this exception in medical malpracticecases include instruments left in a patient’s body after surgery and X-ray burns); see also Ohligschlager v. Proctor CommunityHospital, 55 Ill. 2d 411 (1973) (holding that a drug manufacturer’s instructions provided the proper standard of care with which tomeasure the conduct of a physician). As Jones correctly notes, the institutional negligence of hospitals can also be determined without expert testimony in some cases.The standard of care evidence required to bring an action for institutional negligence against a hospital is best understood by areview of the relevant case law. In Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965), the plaintiff had his leg placed in a cast at thedefendant hospital. While remaining at the hospital, he suffered a serious case of gangrene. He ultimately lost his leg below theknee. The plaintiff brought an action directly against the hospital for failing to have trained nurses monitor his condition and forfailing to review his treatment. In support of his argument that the hospital breached the standard of care required of hospitals inthis regard, the plaintiff presented evidence that the hospital breached its own bylaws, as well as the state’s licensing regulationsand the “Standards for Hospital Accreditation.” Darling, 33 Ill. 2d at 330-32. A jury returned a verdict for the plaintiff, and thiscourt affirmed. Darling, 33 Ill. 2d at 328. As earlier noted, this court in Darling recognized an independent duty of hospitals to assume responsibility for the care of theirpatients. Relevant here, Darling also held that the hospital bylaws, licensing regulations, and standards for hospital accreditationwere sufficient evidence with which to establish the hospital’s standard of care. Darling likened this evidence to evidence ofcustom, which may also be used to determine a hospital’s standard of care. The jury was therefore entitled to conclude from theplaintiff’s evidence that the hospital had breached its duty to the plaintiff. Darling, 33 Ill. 2d at 330-33. In Greenberg v. Michael Reese Hospital, 83 Ill. 2d 282 (1980), a group of plaintiffs sued the hospital for injuries that theysustained as a result of being X-rayed without a protective shield. As standard of care evidence, the plaintiffs presented an expertwitness who was a health physicist specializing in the effects of radiation. The hospital challenged the qualifications of plaintiffs’expert, claiming that, since he was not a physician practicing in any school of medicine, he could not testify concerning conductthat involves a medical judgment. This court held that the affidavit of the plaintiffs’ nonphysician expert was sufficient to withstandthe hospital’s motion for summary judgment. Greenberg, 83 Ill. 2d at 293-94. Although the expert was not a medical practitioner,he was highly qualified and familiar with radiation therapy in hospitals. This court deemed “it appropriate to the diversity inherent inhospital administration that a broad range of evidence be available to establish the applicable standard of care.” Greenberg, 83 Ill.2d at 293. More recently, this court in Advincula v. United Blood Services, 176 Ill. 2d 1, 29 (1996), stated that the standard of care requiredof a hospital in a case of institutional negligence may be shown by a wide variety of evidence, including, but not limited to, experttestimony, hospital bylaws, statutes, accreditation standards, custom and community practice. Advincula explained that this varietyof evidence is appropriate given the inherent diversity in hospital administrative and managerial actions, only a portion of whichinvolves the exercise of medical judgment. Advincula, 176 Ill. 2d at 32-34. Advincula further explained, however, that the tort ofinstitutional negligence “does not encompass, whatsoever, a hospital’s responsibility for the conduct of its *** medicalprofessionals.” Advincula, 176 Ill. 2d at 31. Rather, in cases against hospitals based on vicarious liability for the conduct ofmedical professionals, the standard of care remains the standard applied to all professionals, i.e., to use the same degree ofknowledge, skill and ability as an ordinarily careful professional would exercise under similar circumstances. Advincula, 176 Ill. 2dat 30, 31. Darling and its progeny have firmly established that, in an action for institutional negligence against a hospital, the standard ofcare applicable to a hospital may be proved via a number of evidentiary sources, and expert testimony is not always required.Advincula, 176 Ill. 2d at 29-34; Greenberg, 83 Ill. 2d at 293-94; Darling, 33 Ill. 2d at 330-33. We likewise conclude that, in anaction for institutional negligence against an HMO, the standard of care applicable to an HMO may be proved through a numberof evidentiary sources, and expert testimony is not necessarily required. Accordingly, expert testimony concerning the standard ofcare required of an HMO is not a prerequisite to Jones’ claim. Nonetheless, Jones, as the plaintiff here, still bears the burden ofestablishing the standard of care required of an HMO through other, proper evidentiary sources. We must therefore evaluate theevidence presented on this point to determine whether Jones’ claim withstands Chicago HMO’s motion for summary judgment. Indeciding whether Jones’ standard of care evidence is sufficient, we look to whether that evidence can equip a lay juror todetermine what constitutes the standard of care required of a “reasonably careful HMO” under the circumstances of this case. A. Patient Load We first consider Jones’ assertion that Chicago HMO negligently assigned more patients to Dr. Jordan than he was capable ofserving. Parenthetically, we note that this assertion involves an administrative or managerial action by Chicago HMO, not theprofessional conduct of its physicians. Therefore, this claim properly falls within the purview of HMO institutional negligence.Jones argues that the standard of care evidence in the record is sufficient to support her claim. She points to Dr. Trubitt’stestimony, as well as the contract between Chicago HMO and the Department of Public Aid. Dr. Trubitt was the medical director for Chicago HMO. He testified that, when Chicago HMO entered into agreements withprimary care physicians, it considered the number of patients that the physician is capable of handling. The HMO would look tofederal “guidelines” in making this determination. Based on those guidelines, Dr. Trubitt expressed 3,500 as the maximum numberof patients that should be assigned to any one primary care physician. He stated that, if Dr. Jordan himself had 6,000 or morepatients, then that would be an unusually large number and of concern to Chicago HMO. We agree with Jones that Dr. Trubitt’s testimony is proper and sufficient evidence of the standard of care on this issue. Accordingto Dr. Trubitt, an HMO should not assign more than 3,500 patients to any single primary care physician. Chicago HMO evenconcedes in its brief that the maximum patient load to which Dr. Trubitt testified “represent[s] a ‘standard of care’ whose violationcould affect the quality of patient care.” This particular standard of care evidence, setting forth a limit of 3,500 patients per primarycare physician, is adequate to equip a lay juror to determine what constitutes the standard of care required of a “reasonably carefulHMO” under the circumstances of this case. Whether Dr. Trubitt relied on an unidentified federal regulation or some other sourcein arriving at a maximum patient load of 3,500 is of no consequence. It is enough that Chicago HMO, through its medical director,admitted that it used the 3,500 limit as a guide in assigning patient loads. See Darling, 33 Ill. 2d at 330-33 (holding that thehospital’s own bylaws may be used to establish the hospital’s standard of care). Chicago HMO, however, submits that there is no evidence in the record that Dr. Jordan’s patient load exceeded 3,500. Wedisagree. Chicago HMO’s “Provider Capitation Summary Reports” listed Dr. Jordan as being the primary care provider of 4,527Chicago HMO members as of December 1, 1990. Thus, Chicago HMO’s own records show Dr. Jordan’s patient load asexceeding the 3,500 limit by more than 1,000 patients. In addition, Dr. Jordan estimated that he himself was designated the primarycare physician for an additional 1,500 members of other HMOs. He also maintained his own private practice of non-HMOpatients. This evidence supports Jones’ theory that Dr. Jordan had more than 6,000 HMO patients. Chicago HMO, in support of its position, points to Dr. Jordan’s testimony that he employed four part-time physicians in his office.We disagree with Chicago HMO concerning the significance of this testimony. Although Dr. Jordan testified that he employedfour part-time physicians, he never explained in what capacities these physicians served. In fact, the record contains no furtherinformation regarding these physicians. Notably, the agreements between Chicago HMO and Dr. Jordan do not refer to anyphysicians other than Dr. Jordan himself. The evidence in the record, therefore, supports Jones’ theory that Chicago HMOnegligently assigned more than 3,500 patients to Dr. Jordan himself. At best, the testimony regarding the four part-time physicianscreates a genuine issue of material fact as to how many patients Dr. Jordan actually served himself. Consequently, this limitedinformation in the record about part-time physicians does not entitle Chicago HMO to summary judgment. As earlier noted, it iswell established that summary judgment is a drastic remedy and should be awarded only where the right of the moving party isclear and free from doubt. Chicago HMO also submits that Jones’ claim of patient overload must fail because there is no evidence of a causal connectionbetween the number of patients that Dr. Jordan was serving and his failure to schedule an appointment to see Shawndale. Wedisagree. We can easily infer from this record that Dr. Jordan’s failure to see Shawndale resulted from an inability to serve anoverloaded patient population. A lay juror can discern that a physician who has thousands more patients than he should will nothave time to service them all in an appropriate manner. We note, moreover, that additional evidence in the record supports Jones’ claim. The record indicates that Chicago HMO wasactively soliciting new members door-to-door around the same time that it lacked the physicians willing to serve those members.Jones described how she first enrolled in Chicago HMO while living in Park Forest. A Chicago HMO representative visited herhome and persuaded her to become a member, telling her that Chicago HMO “is better than a regular medical card.” When Joneslater moved to Chicago Heights, another Chicago HMO representative visited her home. Jones explained that this meeting was notarranged in advance. Rather, the representative was “in the building knocking from door to door.” Jones also testified that, whenshe moved to Chicago Heights, Chicago HMO assigned Dr. Jordan to her and did not give her a choice of primary carephysicians. The latter aspect of Jones’ testimony was supported by Dr. Trubitt. He explained that, before Chicago HMO and Dr. Jordanexecuted the Chicago Heights service agreement, another physician serviced that area. When Chicago HMO terminated thatother physician, Dr. Jordan agreed “to go into the [Chicago Heights] area and serve the patients.” Chicago HMO then assigned toDr. Jordan all of the patients of that physician. Chicago HMO directed its members to Dr. Jordan; they had no other choice of aphysician because “[a]t that point in the area there was no choice.” According to Dr. Trubitt, Dr. Jordan was Chicago HMO’s onlyphysician who was willing to serve the public aid membership in Chicago Heights. Dr. Trubitt stated that this lack of physicianswas “a problem” for Chicago HMO. The record further reflects that Chicago HMO directed its Chicago Heights members to Dr. Jordan, even though it knew that Dr.Jordan worked at that location only half the time. Chicago HMO entered into two service agreements with Dr. Jordan, the first fora Homewood site in 1987, and the second for the Chicago Heights site in 1990. Dr. Trubitt indicated that Chicago HMO and Dr.Jordan executed the Chicago Heights service agreement at the time that Chicago HMO terminated the other physician. Dr.Jordan confirmed that, in January of 1991, he was dividing his time equally between his two offices. All of the foregoing evidencesupports Jones’ theory that Chicago HMO acted negligently in assigning more enrollees to Dr. Jordan than he was capable ofhandling. Jones also relies on the contract between Chicago HMO and the Department of Public Aid as standard of care evidence. Thatcontract stated that Chicago HMO shall have one full-time equivalent primary care physician for every 2,000 enrollees. We neednot address in this appeal whether this contractual provision may serve as standard of care evidence. Our role here is to determinewhether Chicago HMO is entitled to summary judgment on the patient overload aspect of the institutional negligence claim. Evenif this contractual provision is removed from consideration, Chicago HMO is not entitled to summary judgment. Accordingly, weexpress no opinion on whether this provision may properly serve as standard of care evidence. One final matter with respect to patient load remains to be considered. Chicago HMO contends that imposing a duty on HMOs toascertain how many patients their doctors are serving would be unreasonably burdensome. Chicago HMO asserts that onlyphysicians, and not HMOs, should have the duty to determine if the physician has too many patients. To determine whether a duty exists in a certain instance, a court considers the following factors: (1) the reasonable foreseeabilityof injury, (2) the likelihood of injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences ofplacing that burden upon the defendant. Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 437-38 (1990); Kirk v.Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 526 (1987). Lastly, the existence of a duty turns in large part onpublic policy considerations. Ward v. K mart Corp., 136 Ill. 2d 132, 151 (1990); see Mieher v. Brown, 54 Ill. 2d 539, 545 (1973).Whether a duty exists is a question of law to be determined by the court. Cunis, 56 Ill. 2d at 374. Here, given the circumstances of this case, we hold that Chicago HMO had a duty to its enrollees to refrain from assigning anexcessive number of patients to Dr. Jordan. HMOs contract with primary care physicians in order to provide and arrange formedical care for their enrollees. It is thus reasonably foreseeable that assigning an excessive number of patients to a primary carephysician could result in injury, as that care may not be provided. For the same reason, the likelihood of injury is great. Nor wouldimposing this duty on HMOs be overly burdensome. Here, for example, Chicago HMO needed only to review its “ProviderCapitation Summary Reports” to obtain the number of patients that it had assigned to Dr. Jordan. This information is likely to beavailable to all HMOs, as they must know the number of patients that a physician is serving in order to compute the physician’smonthly capitation payments. The HMO may also simply ask the physician how many patients the physician is serving. Finally, theremaining factors favor placing this burden on HMOs as well. Public policy would not be well served by allowing HMOs to assignan excessive number of patients to a primary care physician and then “wash their hands” of the matter. The central consequenceof placing this burden on HMOs is HMO accountability for their own actions. This court in Petrovich recognized that HMOaccountability is needed to counterbalance the HMO goal of cost containment and, where applicable, the inherent drive of anHMO to achieve profits. Petrovich, 188 Ill. 2d at 29. In conclusion, Chicago HMO is not entitled to summary judgment on Jones’ claim of institutional negligence for assigning too manypatients to Dr. Jordan. B. Appointment Procedures We next consider Jones’ assertion that Chicago HMO negligently adopted procedures requiring Jones to call first for anappointment before visiting the doctor’s office or obtaining emergency care. Jones fails to develop this argument in her brief. Inparticular, she points to no evidence in the record as providing the standard of care required of an HMO in developing appointmentprocedures. This claim cannot proceed without standard of care evidence. Chicago HMO is therefore entitled to summaryjudgment with respect to this portion of Jones’ claim of institutional negligence. II. Breach of Contract Jones argues that Chicago HMO is not entitled to summary judgment on her breach of contract claim. This claim, set forth incount III of Jones’ complaint, is based solely on the contract between Chicago HMO and the Department of Public Aid. Jones isnot a signatory to this contract, but rather a beneficiary. Jones, however, expressly disclaims any reliance on a third-partybeneficiary theory of liability. Instead, Jones insists that she may maintain an action for damages against Chicago HMO as if shewere a party to the agreement. The appellate court held that summary judgment was properly awarded to Chicago HMO on this claim because Jones is not aparty to the contract at issue. The appellate court also noted that Jones’ theory of liability in this regard was “murky at best.” 301Ill. App. 3d at 115. We hold that Chicago HMO is entitled to summary judgment on count III. The record discloses that Jones is not a party to thecontract that she seeks to enforce. Rather, the contracting parties are Chicago HMO and the Department. Nonetheless, Jonesinsists that she may maintain a cause of action on that contract, while also disclaiming any reliance on a third-party beneficiarytheory of liability. Jones’ position is not correct as a matter of law. See Olson v. Etheridge, 177 Ill. 2d 396, 404 (1997) (explainingthird-party beneficiary theory); 17A Am. Jur. 2d Contracts �� 435, 437 (2d ed. 1991) (noting that a nonparty to a contract mustsue under a third-party beneficiary theory). We also agree with the appellate court that the theory presented by Jones on this pointis not clear. III. Breach of Warranty Jones lastly argues that she should be permitted to pursue a breach of warranty claim against Chicago HMO. She asserts thatcount III can be construed as raising this claim. Chicago HMO counters that Jones has waived any breach of warranty claim byfailing to raise it in the courts below. We agree with Chicago HMO. Issues raised for the first time on appeal are waived.Employers Insurance v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 161 (1999). Our review of the record reveals that Jones didnot raise this claim in either the circuit court or the appellate court. Nor did Jones raise this issue in her petition for leave to appeal.We thus conclude that Jones has waived any claim of breach of warranty. CONCLUSION An HMO may be held liable for institutional negligence. Chicago HMO is not entitled to summary judgment on Jones’ claimcharging Chicago HMO with institutional negligence for assigning more enrollees to Dr. Jordan than he was capable of serving.We therefore reverse the award of summary judgment to Chicago HMO on count I of Jones’ second amended complaint andremand that claim to the circuit court for further proceedings. As to count III, we affirm the award of summary judgment toChicago HMO. The judgments of the appellate and circuit courts are affirmed in part and reversed in part and the cause is remanded to the circuitcourt. Judgments affirmed in part and reversed in part; cause remanded. JUSTICE MILLER, concurring in part and dissenting in part: I agree with the majority that the trial court properly granted the defendant’s motion for summary judgment on count III of theplaintiff’s second amended complaint, which alleges breach of contract. I do not agree with the majority’s conclusion that summaryjudgment is not also appropriate on count I, which alleges institutional negligence. The majority opinion correctly notes that the defendant makes no argument against extending the doctrine of institutionalnegligence to health maintenance organizations, such as the defendant. Slip op. at 12. In this regard, Justice Rathje’s separateopinion would grant the defendant more extensive relief than the defendant itself requests, by ruling in its favor on an issue muchbroader than the one actually raised by the HMO, and for that reason I cannot join his partial concurrence and dissent. Thedefendant does argue, however, that summary judgment was proper on count I because there is no evidence of a causalconnection between the number of patients assigned to Dr. Jordan by the defendant and the doctor’s failure to schedule animmediate appointment to see the plaintiff’s daughter. Reaching a contrary conclusion, the majority accepts the plaintiff’s assertion that a genuine issue of material fact exists regardingwhether the number of patients assigned by the defendant to Dr. Jordan was a proximate cause of the plaintiff’s injury. In supportof this result, the majority states, “We can easily infer from this record that Dr. Jordan’s failure to see Shawndale resulted from aninability to serve an overloaded patient population. A lay juror can discern that a physician who has thousands more patients thanhe should will not have time to service them all in an appropriate manner.” Slip op. at 18-19. The majority emphasizes Dr. Trubitt’s deposition testimony, in which Dr. Trubitt stated that 6,000 to 6,500 patients would be anunusually large load for a doctor to carry. The majority ignores Dr. Trubitt’s further testimony on this subject, however, in whichhe explained that the number of patients formally assigned to a particular doctor may be expanded, if there are additional doctorsin the office and the hours of operation for the office are increased. But even this testimony is insufficient to give rise to a genuine issue of material fact, for the plaintiff presents no support for theallegation that the injury was proximately caused by the number of patients assigned by the defendant to Dr. Jordan. As the trialjudge reasoned in granting summary judgment to the defendant on this portion of the plaintiff’s second amended complaint: “[Plaintiff's counsel] comes up with some theories. He comes up with some numbers. But, you know, there’s no nexus. There’s no expert testimony to show how these claimed theories and numbers, omissions, or failures had any impact on the doctor’s decisions in this case.” The appellate court made the same point, similarly noting the absence of any evidence in the record specifically linking the size ofDr. Jordan’s patient load in January 1991 with the negligence alleged by the plaintiff, the failure to schedule an immediateappointment for her daughter. 301 Ill. App. 3d 103, 111. Whether Dr. Jordan and the other physicians in his practice together served 1,000 patients, 3,000 patients, 5,000 patients, or more,the majority cites nothing in the record before us from which one may infer that Dr. Jordan’s failure to schedule an immediateappointment to see the plaintiff’s daughter on the day in question was the result of the number of patients assigned to and servedby his office. I believe that summary judgment in the defendant’s favor was proper on count I, and therefore I would affirm thatportion of the judgment below. JUSTICE RATHJE, also concurring in part and dissenting in part: I agree with both the majority’s affirmance of summary judgment on the breach of contract claim and its determination thatplaintiff has waived the breach of warranty claim. I strongly disagree, however, with the majority’s holding that Chicago HMO canbe liable under a theory of institutional liability. The majority reasons that, because an HMO is an “amalgam of many individuals” like a hospital, then Chicago HMO can beinstitutionally liable under the rule set forth in Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965). Slipop. at 11-12. Although both a hospital and an HMO hire many different people for many different reasons, the reasons for holdinghospitals liable under this theory do not hold true for Chicago HMO. Generally, institutional liability attaches when an organization breaches a duty it owes as an organization.
[FOOTNOTE 1] Under Darling,hospitals are vulnerable to institutional liability partly because, as organizations, they offer complete medical services, includingnurses, doctors, orderlies, and administration. Darling, 33 Ill. 2d at 332. Hospital facilities include both the place and the staff, andhospitals “assume certain responsibilities for the care of the patient.” Darling, 33 Ill. 2d at 332. In Darling, the hospital wasnegligent for two reasons: it failed to properly review the work of an independent doctor, and its nurses failed to administernecessary tests. Darling, 33 Ill. 2d at 333. The rule set forth in Darling is that a hospital must act as a reasonably careful hospitalwould and is responsible for reviewing and supervising the medical care given to its patients. Advincula v. United BloodServices, 176 Ill. 2d 1, 28-29 (1996). Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998), the case upon which the majority relies, is perfectly consistent with theprinciples set forth in Darling and Avincula. In Shannon, the defendant HMO was not serving simply as a vehicle through whicha member’s medical bills are paid. Instead, the HMO employed nurses to work its own triage service and to advise members onmedical decisions such as whether to seek treatment at a hospital. Shannon, 718 A.2d at 832-33. The court concluded: “Where the HMO is providing health care services rather than merely providing money to pay for services their conduct should be subject to scrutiny. We see no reason why the duties applicable to hospitals should not be equally applied to an HMO when that HMO is performing the same or similar functions as a hospital. When a benefits provider, be it an insurer or a managed care organization, interjects itself into the rendering of medical decisions affecting a subscriber’s care it must do so in a medically reasonable manner. Here, HealthAmerica provided a phone service for emergent care staffed by triage nurses. Hence, it was under a duty to oversee that the dispensing of advice by those nurses would be performed in a medically reasonable manner. Accordingly, we now make explicit that which was implicit in McClellan [v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 604 A.2d 1053 (1992)] and find that HMOs may, under the right circumstances, be held corporately liable.” (Emphasis added.) Shannon, 718 A.2d at 835-36. The passage demonstrates why Chicago HMO is not subject to institutional liability. Under Chicago HMO’s contract with Dr.Jordan, Chicago HMO is responsible for enrolling members, providing the doctor’s group with a current list of those members,paying capitation fees, providing a list of hospitals and health care providers, providing other funding, and obtaining the appropriateregulatory licensure for the doctor’s group. The doctor’s group is solely responsible for providing the health services. Moreover,Chicago HMO’s member’s handbook specifically explains that the individual doctors are responsible for nurses and all othermedical attention. Unlike the HMO in Shannon, which “provid[ed] health care services,” Chicago HMO “merely provid[ed]money to pay for services.” Thus, institutional liability is inappropriate in this case. The primary flaw in the majority’s analysis is that it attempts to create a rule of general application that fails to take into accountnot only the differences that exist between a hospital and an HMO but also those that exist among HMOs. To determine whetheran HMO should have the same duty to its members that a hospital has to its patients, a court must assess not only whetherhospitals are similar to HMOs but also whether the patient’s relationship to the hospital is similar to the member’s relationship tothe HMO. See Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987) (the question of whether a dutyexists is “whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon thedefendant an obligation of reasonable conduct for the benefit of the plaintiff”). Hospitals are “institutions holding themselves out as devoted to the care and saving of human life.” Johnson v. St. BernardHospital, 79 Ill. App. 3d 709, 716 (1979). Institutional liability makes sense in the hospital context because a person in need oftreatment must be assured that the hospital will abide by a sufficient standard of care. That patient generally does not have thetime or opportunity to compare hospital bylaws or look for the hospital with the best administrative policies and the higheststandard of care. A person goes to the nearest hospital in an emergency or to a hospital where his doctor has privileges in anonemergency. In many cases, including most emergent cases, the patient has no time to make an informed choice. In hisrelationship with a hospital, the patient is at a severe disadvantage, which the law acknowledges by subjecting hospitals toinstitutional liability. By contrast, the goal of an HMO is to provide health care in a cost-sensitive manner. B. Furrow, Managed Care Organizationsand Patient Injury: Rethinking Liability, 31 Ga. L. Rev. 419, 457 (1997). HMOs offer medical services, but they do not do so inthe same way that hospitals do. HMOs offer the funding and the contact with the medical professionals. In Chicago HMO, forinstance, the way in which daily business is conducted, the duties of nurses and other staff, and other day-to-day decisions aremade by the individual doctor or hospital with whom the HMO has contracted.
[FOOTNOTE 2] This type of HMO makes no decision as to whattype of care is ultimately given; they only decide whether the HMO will pay for that care. Moreover, when a person joins an HMO, he knows beforehand what that HMO will cover and, in most cases, chooses whichHMO he will join based on his assessment of the costs and benefits. To become a member, that person usually has to contractwith the HMO.
[FOOTNOTE 3] As a result, the HMO will be held accountable for any failure to comply with its own policies through a contractaction. In this case, the Chicago HMO representative arrived at plaintiff’s door and asked her whether she would prefer to receive herpublic aid medical benefits through the HMO or continue receiving them directly through public aid. He reviewed the policies, andplaintiff made the decision to join, signing a statement that her participation in the HMO was voluntary and that she could disenrollat any time. Plaintiff was given the opportunity to make an informed choice and chose to receive her medical services through anHMO. Just as hospitals can differ substantially from HMOs, substantial differences may exist among HMOs. Generally, HMOs areorganized under one of four major models: (1) staff, in which the providers are all salaried employees of the HMO; (2) medicalgroup, in which the HMO contracts with an organized group of doctors who have combined their practices; (3) independentpractice association; in which the HMO contracts with individual physicians who are solo or group practitioners; and (4) networkmodels, in which the HMO contracts with two or more physician group practices who may serve several HMOs at the same time.Both the methods of organization and the methods of reimbursement vary among the models. E. Weiner, Managed Health Care:HMO Corporate Liability, Independent Contractors, and the Ostensible Agency Doctrine, 15 J. Corp. L. 535, 540 (1990). Insome cases, an HMO may behave very much like a hospital, and institutional liability might be appropriate in such cases. In mostcases, however, an HMO will do everything in its power not to behave like a hospital, precisely to avoid the liability that comeswith operating as one. Having a uniform standard of care for all HMOs makes little sense, given the major differences instructure. Before concluding, I wish to stress that I by no means believe that HMOs should not be held accountable for their actions.Ordinarily, an HMO will be accountable to its members through the contract that is signed by both parties. Unfortunately, in thiscase, plaintiff was receiving benefits from the HMO through public aid and, therefore, did not contract with the HMO.Consequently, as the majority correctly holds, her particular situation leaves her unable to enforce the policy provisions becauseshe was not a party to the contract. Slip op. at 22. While I sympathize with plaintiff’s unenviable position, the fact remains thatplaintiff’s theory of liability is not one permissible under our laws. :::FOOTNOTES:::
FN1 Contrast with vicarious liability, which attaches to an organization when one of its agents breaches his duty.
FN2 Some HMOs do employ the staff and provide the facilities for care, but most do not. See E. Weiner, Managed Health Care:HMO Corporate Liability, Independent Contractors, and the Ostensible Agency Doctrine, 15 J. Corp. L. 535, 540 (1990).
FN3 This case is an exception to that rule because the HMO membership was given to plaintiff by the Department of Public Aid.See slip op. at 22.
Jones v. Chicago HMO Ltd. of Illinois Illinois Supreme Court Sheila Jones, Indiv. and as Mother and Next Friend of Shawndale Jones, a Minor, Appellant, v. Chicago HMO Ltd. Of Illinois, Appellee. No. 86830 Circuit Court of Cook County Filed: May 18, 2000. Before: JUSTICE BILANDIC
