Opinion
3:98cv720(AHN)
February 24, 2000
RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Rakhel Kafri ("Kafri"), brings this diversity action against the defendants, Joseph M. Murphy, M.D. ("Murphy"), Greenwich Radiology Group, P.C., ("Greenwich Radiology"), The Greenwich Hospital Association ("Greenwich Hospital") and Greenwich Medical Group, Inc. ("Greenwich Medical"), alleging medical malpractice and negligence. She claims that in August 1996, she engaged the services of the defendants for evaluation and treatment of breast cancer. In particular, she asserts that she incurred damages as a result of the defendants' negligence in performing and following-up on a mammography screen performed on August 22, 1996.
Now pending before the court is Greenwich Hospital's Motion for Summary Judgment. For the reasons that follow, the motion [doc. # 53] is DENIED.
STANDARD OF REVIEW
A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the moving party is entitled to judgment as a matter of law.See Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The substantive law governing the case identifies those facts that are material on a motion for summary judgment. See Anderson, 477 U.S. at 248. A court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact." Rule 56(c); see Miner v. Glen Falls, 999 F.2d 655, 661 (2d Cir. 1993). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (citation and internal quotation marks omitted). The party seeking summary judgment bears the burden of showing that no genuine dispute about an issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
After discovery, if the party against whom summary judgment is sought "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). In assessing the record to determine whether a genuine dispute as to a material fact exists, a court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmovant. See Anderson, 477 U.S. at 255; Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation omitted).
FACTS
Kafri claims that Greenwich Hospital is liable for the negligence of Murphy. Specifically, she seeks to hold Greenwich Hospital liable because it created an appearance to her that it would interpret the mammogram films and provide a written report after the test was completed. (See Plaintiff's 9(c)(2) Statement of Material Facts ¶ 1 [hereinafter "Pl.'s Stat."].)
It was suggested to Kafri at an office visit on August 9, 1996, by her internist, Dr. Fennel, that she should have a mammogram at Greenwich Hospital. (See Greenwich Hospital's 9(c) Statement of Material Facts ¶ 4 [hereinafter "Def.'s Stat."].) Upon leaving Dr. Fennel's office, Kafri was provided a referral sheet which contained a number to set up her mammogram with Greenwich Hospital. (See id. ¶ 5.) Other than calling to set up an appointment, Kafri had no contact with Greenwich Hospital regarding her mammogram or the mammography services provided by the hospital between August 9, 1996 and August 22, 1996, the date of her mammogram. (See id. ¶ 9.)
On August 22, 1996, Kafri went to the Benedict Cancer Center ("BBC"), a department of Greenwich Hospital, and had a bilateral mammogram performed. (See Kafri Dep. pp. 49-55.) When she arrived at Greenwich Hospital, Kafri wrote a check to Greenwich Hospital for $99, which was accepted. She was then told that part of the $99 would be paid to Greenwich Radiology for reading and interpreting the mammogram screening. (See Def.'s Stat. ¶ 10.) Kafri disputes this fact. Kafri also disputes that she was advised that Murphy was a private radiologist. (See Kafri Dep. pp. 93-94.)
Although Greenwich Hospital owns the radiographic screening equipment and hospital employees performed the actual screening, Murphy, who is not an employee of the hospital, read and interpreted Kafri's screening and dictated his report in the hospital. (See Murphy Dep. pp. 32-40.) Kafri never met or consulted with Murphy. (See Pl.'s Stat. ¶ 7.) Nor did she ever pay Murphy directly for services rendered. (See id. ¶ 8.) The interpretive report was forwarded to Dr. Fennel and was on Greenwich Hospital letterhead. (See David K. Fiveson Aff., Ex. E.)
Kafri stated that she was not aware that Murphy was a private radiologist and that "no one ever told (her) that." (See Kafri Dep. pp. 93-94.) Kafri further stated that she relied on the reputation of the hospital in choosing it to perform her mammogram and that it would have made a difference in her mind had she known that Murphy was a private radiologist. (See id.)
DISCUSSION
Greenwich Hospital argues that Kafri's claim attempting to hold it vicariously liable for the alleged negligence of Murphy fails as a matter of law because (1) Connecticut does not recognize the doctrine of apparent agency to impose liability on a hospital for the conduct of a non-employee staff physician; and (2) even if Connecticut does recognize this claim, Kafri has no evidence to support her claim in this case. In response, Kafri maintains that a claim of apparent agency in a hospital context is recognized in Connecticut. She further argues that there are disputed issues of material fact which preclude granting Greenwich Hospital's motion for summary judgment.
I. Hospital Liability — Apparent Agency
Greenwich Hospital asserts that Connecticut case law does not recognize a claim against a hospital based on apparent agency. The court disagrees.
Although there is no Connecticut Supreme Court or Appellate Court case dealing specifically with this issue, a few superior court cases, see LeConche v. Elliners, 4 Conn. L. Rptr. No. 14, 477 (1991) (Stengel, J.);Custer v. Kurowski, No. 543040, 1999 WL 61484, (Conn.Super.Ct. Jan. 29, 1999) (Hurley, J.); Koniak v. Sawhney, No. cv93 042154, 1994 WL 14539 (Conn.Super.Ct. Jan. 13, 1994) (Rush, J.), Francisco v. Hartford Gynecological Center, Inc., No. cv92-0513841 (Conn.Super.Ct. March 1, 1994) (Corradino, J.), and one district court case, see Menzie v. Windham Community Memorial Hosp., 774 F. Supp. 91 (D. Conn. 1991), have ruled that an apparent agency claim against a hospital is permitted under Connecticut law. In addition, this is the modern trend, see Restatement of Agency 2d, § 267, and other jurisdictions faced with this issue have recognized such a claim. See, e.g., Mduba v. Benedsetime Hosp., 384 N.Y.S.2d 527, 52 A.D.2d 450 (N.Y. 1976); see also 51 A.L.R.4th 235, § 7.
Before LeConche was decided in 1991, no Connecticut court had considered the question of whether a hospital could be vicariously liable for the negligence of a staff doctor. In LeConche, the plaintiff claimed that the negligent doctor was an apparent agent of the hospital and, therefore, the hospital could be held liable for his negligence. See LeConche, 4-Conn. L. Rptr. at 477. In denying the hospital's motion for summary judgment, the court explained that the majority of jurisdictions which had considered the issue have held that a hospital may be liable under an apparent agency theory. See id. at 479. The court's conclusion was deemed justified by the changing role of hospitals in society which has created a likelihood that patients look to the hospital for care and services, as opposed to individual physicians. See id.
In Menzie, the court impliedly recognized an apparent agency claim against a hospital, although it decided that the plaintiff had failed to produce evidence of reliance and thus summary judgment was deemed proper.See Menzie, 774 F. Supp. at 96. The court based its holding on the fact that the plaintiff had been taken to the hospital under emergency circumstances and had not chosen the hospital or the doctor. See id.. As such, the court held that there could be no reliance by the plaintiff.See id.
In support of its argument that Connecticut law does not permit a hospital to be held liable for the negligence of an independent contractor, Greenwich Hospital relies on Mullen v. Horten, 46 Conn. App. 759 (1997). In Mullen, the plaintiff brought a claim of apparent agency against a religious institution in an attempt to hold it vicariously liable for the acts of a priest/psychologist. The Appellate Court held that, although other states had permitted claims based on apparent agency, the doctrine had never been used this way in Connecticut and thus the doctrine was inapplicable. See Mullen, 46 Conn. App. at 771-72.
In finding that other states had permitted apparent agency claims, the Appellate Court cited Mehlman v. Powell, 281 Md. 269, 272-75 (Md. 1977). In Mehlman, the plaintiff was permitted to bring an apparent agency claim against a hospital for the negligence of an emergency room staff physician. Greenwich Hospital contends that Mehlman was cited in Mullen as a state which recognized a novel apparent agency claim. As such, Greenwich Hospital argues that when the Appellate Court found that there could be no apparent agency claim against the religious institution because the doctrine had never been used in such a manner in Connecticut, it intended to preclude all novel claims of apparent authority. The court disagrees.
This court, along with numerous other courts, finds no reason why the doctrine of apparent agency should not apply to hold a hospital liable for the negligence of an independent contractor. See Mehlman, 281 Md. at 272-75; Hunt v. Mercy Medical, 121 Md. App. 516, 710 A.2d 362, 377 (Md. 1998); Litwak v. Our Lady of Victory Hosp. of Lackawanna, 238 A.D. 881, 882, 660 N.Y.S.2d 914, 915 (N.Y. 1997); Pamperin v. Trinity Memorial Hosp., 144 Wisc.2d 188, 423 N.W.2d 848, 852 (Wisc. 1988); Whitlow v. Good Samaritan Hosp., 42 Ohio App.3d 74, 536 N.E.2d 659, 662 (Ohio 1987);Jackson v. Power, 743 P.2d 1376, 1381 (Ala. 1987); Walker v. Winchester Memorial Hosp., 585 F. Supp. 1328, 1330 (W.D. Va. 1984); Irving v. Doctors Hosp., 415 So.2d 55, 57 (Fla. 1982). Moreover, the modern trend is to permit the use of an apparent agency theory to hold a hospital liable for the negligence of a doctor/independent contractor when there has been a holding out of the doctor by the hospital and reasonable reliance thereon by the plaintiff. See Restatement (Second) of Agency § 267 (1994) (recognizing that the modern trend is to permit apparent agency claims against hospitals for the negligence of doctors who are independent contractors); Restatement (Second) of Torts § 429 (2000) (recognizing the same).
Further, the court finds several reasons for applying the doctrine of apparent agency to a hospital. No reasonable patient in the position of the plaintiff would assume anything else but that the medical staff performing the medical procedure were employees of the hospital. Indeed, a patient has the right to rely on the reputation of the hospital when she agrees to have a medical procedure performed at the hospital. As such, it is reasonable for the public to assume that a hospital to which it goes for treatment exercises medical supervision over, and is responsible for the negligence of, medical personnel providing services whether they are independent contractors or not. See LeConche, 4 Conn. L. Rptr. at 477-79. Accordingly, the court finds that Connecticut law does not preclude a plaintiff from bringing an apparent agency claim against a hospital for the alleged negligence of a doctor who is an independent contractor.
II. Apparent Authority Claim
Greenwich Hospital argues that even if Connecticut law recognizes a claim of apparent agency against a hospital, Kafri's claim fails as a matter of law. Specifically, Greenwich Hospital contends that there is no evidence that it held out Murphy or the radiology clinic as part of the hospital. Moreover, Greenwich Hospital asserts that even if it had done so, Kafri submits no evidence of reliance. To the contrary, Kafri argues that there is sufficient evidence showing that Greenwich Hospital held out Murphy and the radiology department as part of the hospital. She further asserts that she has produced evidence to support her claim of reliance. Thus, Kafri maintains that there are disputed issues of material fact which preclude the court from granting Greenwich Hospital's motion for summary judgment.
"Apparent authority is that semblance of authority which a principal, through his own acts or inadvertence, causes or allows third persons to believe his agents possess. . . . Apparent authority thus must be determined by the acts of the principal rather than by the acts of the agent . . . Furthermore, a party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertence of the principal." Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 140-141 (1983) (internal quotations and citations omitted). Thus, in order to recover against a principal on a theory of apparent authority, a plaintiff must establish (1) that the principal held out a person as possessing certain authority; and (2) reasonable reliance thereon by the plaintiff. See id.
Based on the present record, Kafri has produced evidence which, if found credible by a reasonable factfinder, shows that Greenwich Hospital held out to the public that it provided mammography services and that there was reliance thereon by Kafri.
Specifically, Kafri has produced evidence which shows that Greenwich Hospital held out Murphy and the mammography services as its own. She states that she was never told that Greenwich Radiology was not part of the hospital, that Murphy was a private physician or that non-hospital employees would be interpreting her mammogram. (See Kafri Dep. pp. 93-94.) Moreover, Greenwich Radiology is physically located within Greenwich Hospital, hospital employees performed the actual screening and the equipment within the radiology department is owned by Greenwich Hospital. (See Murphy Dep. pp. 32-40.) Further, Kafri paid for the mammography services by a check payable only to Greenwich Hospital, not to Murphy or Greenwich Radiology. Finally, the interpretive report was forwarded to Dr. Fennel directly and was on Greenwich Hospital letterhead. (See Fiveson Aff., Ex. E.) Based on these facts, a reasonable factfinder could conclude that Greenwich Hospital held out Murphy and the radiology department as part of the hospital.
Greenwich Hospital's contention that there is no evidence to support a finding that it held Murphy out as its employee or that it was a provider of post-mammography services is not supported by the record. Although Greenwich Hospital contends that Kafri admitted that she had no contact with its personnel regarding her mammogram and that she did not receive any pamphlets or brochures describing mammography services provided by Greenwich Hospital, (See Kafri Dep. pp. 49-55.), these conflicting facts should be submitted to a jury for it to determine whether or not Greenwich Hospital held out Murphy as its employee and whether it provided post-mammography services. See LeConche, 4 Conn. L. Rptr. at 479.
As to the reliance requirement, Kafri has submitted evidence that she was not aware that Murphy was a private radiologist and that "no one ever told [her] that." (See Kafri Dep. pp. 93-94.) Moreover, in her deposition, Kafri stated that she relied on the reputation of Greenwich Hospital in choosing it to perform her mammogram and that it would have made a difference to her had she known that Murphy was a private radiologist. (See id.) In response, Greenwich Hospital argues that Kafri cannot establish reliance in view of her deposition testimony that she was not sure whether it would have made a difference if she knew that Murphy was a private radiologist. (See Kafri Dep. p. 97.) Again, these factual disputes regarding Kafri's reliance should be submitted to a jury for it to determine whether or not Kafri relied on Greenwich Hospital's holding out of Murphy and the radiology department.
CONCLUSION
Based on the foregoing, Greenwich Hospital's Motion for Summary Judgment [doc. # 53] is DENIED.