Opinion
CV176036734
06-12-2018
Beth SAUNDERS, Administratrix of the Estate of Eric S. Gagner v. Andrew LIM, M.D. et al.
UNPUBLISHED OPINION
OPINION
Swienton, J.
The plaintiff, Beth Saunders, administratrix of the estate of Eric S. Gagner, has brought a wrongful death action against the defendants, Andrew Lim, M.D., MEP of Bristol, LLC, and Bristol Hospital, Inc., for injuries and damages arising out of the treatment of the decedent, Eric S. Gagner. The plaintiff’s amended complaint dated August 2, 2017, asserts claims of medical negligence. The first count is directed against the defendants, Andrew Lim and MEP of Bristol. In the second count, the plaintiff claims Bristol Hospital is liable for Dr. Lim’s negligence based upon a theory of apparent agency. Bristol Hospital now moves for summary judgment because it asserts it cannot be held vicariously liable for the alleged negligence of Dr. Lim as a matter of law.
FACTUAL BACKGROUND
On February 15, 2016, the plaintiff brought her son, the decedent, to the emergency department of Bristol Hospital because the decedent was complaining of epigastric abdominal pain. The decedent was admitted to the emergency department and came under the care of Dr. Lim. After an evaluation by Dr. Lim, an ultrasound was performed which showed a heterogeneous appearance to the liver. Dr. Lim prescribed ondansetron and famotidine, discussed precautions with the plaintiff and the decedent, and discharged the decedent that day. The plaintiff alleges that Dr. Lim was negligent in that he failed to obtain a complete history of the decedent’s alcohol consumption habits; failed to order a CT scan of the abdomen and pelvis; failed to provide adequate warning to the decedent and the plaintiff concerning the dangers of excess alcohol; and failed to diagnose alcohol induced pancreatitis. The plaintiff claims that as a result of Dr. Lim’s negligence, the decedent returned to the emergency department on March 27, 2016, suffering from alcohol induced hemorrhagic pancreatitis, and died the following day. (Amended complaint, ¶¶ 6, 7.)
The second count is against Bristol Hospital based upon a theory of apparent agency. The plaintiff alleges that Bristol Hospital held itself out to the decedent and public as having an emergency department available to provide emergency services; the decedent utilized the emergency department based upon such representations; and he relied on Bristol Hospital to select and provide him with competent and experienced emergency department physicians. The plaintiff claims that the decedent was unaware that Dr. Lim was not an employee of Bristol Hospital, but rather an employee of a contractor engaged by Bristol Hospital to provide the emergency department with physicians. (Amended complaint, second count, ¶¶ 3, 4.)
The second count contains no specific allegations setting forth a claim of vicarious liability, nor does it indicate whether the claim is that Dr. Lim was acting as Bristol Hospital’s actual agent.
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted to show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issues of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ..." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). "Mere assertions of fact ... are insufficient to establish the existence of an issue of material fact and, therefore, cannot refute evidence properly presented to the court in support of a motion for summary judgment." (Internal brackets and citations omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995).
The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence property presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In considering a motion for summary judgment, it is not the court’s function to decide material facts or determine the credibility of evidence. See Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988). However, summary judgment is appropriate "if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "A summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." Id., 752. A verdict may be directed when the evidence, even when viewed in the light most favorable to the party opposing the motion, can only lead to the "conclusion ... embodied in the verdict as direct." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969).
The defendant, Bristol Hospital, contends that the plaintiff is unable to prove the requisite elements of her claims of apparent agency. In support of this contention, Bristol Hospital has submitted the deposition testimony of the plaintiff which it argues supports its position that neither the plaintiff nor the decedent chose Bristol Hospital based upon any representations made by the hospital- an element necessary to substantiate a claim of apparent agency.
The issue is whether Bristol Hospital can be held vicariously liable for Dr. Lim’s diagnosis and treatment of the decedent under a theory of apparent agency. "[I]t has never been the rule in this state that hospitals cannot be held vicariously liable for the medical malpractice of their agents or employees." (Footnote omitted.) Cefaratti v. Aranow, 321 Conn. 593, 610-11, 141 A.3d 752 (2016). "[V]icarious liability is premised upon the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 693 n.16, 849 A.2d 813 (2004). "Before vicarious liability can be imposed, however, there must be sufficient evidence produced to warrant a finding of agency between the parties. If there is a finding that the allegedly negligent actor is not an employee or agent, then the claim of vicarious liability must fail." (Internal quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C., 167 Conn.App. 826, 836-37, 145 A.3d 331 (2016).
"[I]t is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent’s employment ... An agent’s authority may be actual or apparent ... Actual authority exists when [an agent’s] action [is] expressly authorized ... or although not authorized, [is] subsequently ratified by the [principal]." (Internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 508, 4 A.3d 288 (2010). "Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations." Cefaratti v. Aranow, supra, 321 Conn. 607. In Cefaratti, our Supreme Court held that a hospital may be held vicariously liable for the medical malpractice of both its actual and apparent agents. Id., 611.
As earlier stated, the plaintiff has not set forth any allegations for a claim of actual agency, but instead is claiming that Dr. Lim was acting as an apparent agent of Bristol Hospital. The plaintiff argues that she has presented questions of material fact as to apparent agency pursuant to the standards set forth in Cefaratti.
Although the plaintiff argues that both standards for establishing apparent agency set forth in Cefaratti may be applicable, the court disagrees. The complaint does not set forth the necessary allegations in order to substantiate a claim of apparent agency under the second standard.
Cefaratti established two alternate standards for establishing apparent agency. The first standard- commonly referred to as the "principal selected" standard- applies to the allegations of the present matter. See n.2 above. "[T]he plaintiff may establish apparent agency by proving that: (1) the principal held itself out as providing certain services; (2) the plaintiff selected the principal on the basis of its representations; and (3) the plaintiff relied on the principal to select the specific person who performed the services that resulted in the harm complained of by the plaintiff." Id., 624. Under this standard, proof of detrimental reliance is not required. "[W]e ultimately are persuaded by the cases that have concluded that, under certain circumstances, proof of detrimental reliance is not required to establish an apparent agency in tort actions. Specifically, many courts, especially in cases seeking to hold a hospital vicariously liable for a physician’s malpractice, have concluded that an apparent agency is established when the plaintiff provides that he or she looked to the principal to provide services and the principal, not the plaintiff, selected the specific person who actually provided the services and caused the plaintiff’s injuries." (Note omitted.) Id., 618.
The Supreme Court cited numerous cases from other jurisdictions where the courts found that apparent agency can be established when the patient looks to the institution, rather than the individual practitioner, for care. Several of the decisions cited were later legislatively overruled in part. " Fletcher v. South Peninsula Hospital, 71 P.3d 833, 840 (Alaska 2003) (apparent agency may be found when the patient looks to the institution, rather than the individual physician, for care), legislatively overruled in part as stated in Evans ex rel. Kutch v. State, 56 P.3d 1046, 1067 (Alaska 2002) (under state statute, hospital is not liable for negligence of physicians who are independent contractors if hospital provides notice that physicians are not agents or employees and physicians have required levels of malpractice insurance); Hardy v. Brantley, 471 So.2d 358, 371 (Miss.1985) ([w]here a hospital holds itself out to the public as providing a given service ... and where the hospital enters into a contractual arrangement with [independent contractor] physicians to direct and provide the service, and where the patient engages the services of the hospital without regard to the identity of a particular physician and where as a matter of fact the patient is relying upon the hospital to deliver the desired health care and treatment, the doctrine of respondeat superior applies and the hospital is vicariously liable for damages proximately resulting from the neglect, if any, of such physicians), legislatively overruled in part as stated in Brown v. Delta Regional Medical Center, 997 So.2d 195, 197 (Miss.2008) (Hardy was overruled in part by state statute barring claims against state for acts of independent contractors) ..." (Internal quotation marks omitted.) Id., n.26.
In the present case, the plaintiff testified at her deposition that the decedent called her, asking her to drive him to the hospital. He did not specifically tell her where he wanted her to drive him, "he just said the hospital." He did not say Bristol Hospital, but according to the plaintiff it was "just assumed" because it was the "closest." Also, she testified that his primary care doctor was also affiliated with Bristol Hospital. When asked "was there anything about the staff at Bristol Hospital or the facilities at Bristol Hospital that caused either [the decedent] or you to want to go to Bristol Hospital," she replied, "No. I mean, like I said, his doctor was affiliated, so ... them, right? Correct." Defendant’s Exh. B, B. Saunders Depo., 114:22-119:02. Bristol Hospital argues that this testimony establishes the absence of a material dispute as to the second element of the principal selected standard, i.e., that the plaintiff’s decedent did not rely upon any representations made to him by Bristol Hospital in selecting its facility.
The plaintiff argues in her objection that the plaintiff and her decedent relied on expressed and implied representations of Bristol Hospital when they selected its emergency department to provide medical care to the decedent. Bristol Hospital’s representation that it provided emergency medical care was the representation that the plaintiff and her decedent relied upon to select Bristol Hospital to provide emergency medical care to the plaintiff’s decedent. Plaintiff’s Exh. 1, Saunders affidavit, ¶ 7. ("If Bristol Hospital had not offered an emergency Department, I would have driven my son to another hospital.") She further states in her affidavit that the decedent’s primary care physician, Dr. Cherneskie, is associated with Bristol Hospital, and he and the plaintiff were comfortable with the quality and care provided to the decedent by Dr. Cherneskie, and therefore believed Bristol Hospital would provide the same level of care.
The plaintiff’s affidavit also states that that she believed that Dr. Lim was an employee of Bristol Hospital, that he wore a white lab coat which displayed his name and Bristol Hospital’s name, and that she and the decedent were not told that Dr. Lim was not an employee of Bristol Hospital. Exh. 1, Saunders affidavit, ¶¶ 10-12. These facts are irrelevant to support a claim for apparent agency under the principal selected standard of Cefaratti.
So the issue becomes, when a person selects a hospital based upon his or her knowledge that the hospital has an emergency department, is this sufficient to establish the second standard- that is, whether the plaintiff selected the principal on the basis of the hospital’s representations. Cefaratti would appear to say yes. "[c]ases in which the plaintiff accepted a principal’s offer of services and the principal then chose the specific person who would provide the services have contractual overtones, and detrimental reliance is implicit in a contractual relationship. See 1 Restatement (Second), Torts, supra, § 8, comment (d), p. 33 (it is not irrational to hold that merely entering into a contract is a change of position which would enable the third person to bring an action against the principal for negligence of independent contractor employed by principal). Second, when an entity has held itself out as providing certain services to the public- and, indeed, may have made great efforts to persuade members of the public to avail themselves of those services, and benefited from doing so- and has selected the specific individual who will provide those services to particular members of the public, we do not believe that it is unfair to hold that entity liable for the individual’s negligence. Third, and relatedly, holding principals liable under these circumstances is consistent with the fundamental purposes of the tort compensation system of deterring wrongful conduct and shifting the blame to the party who is in the best position to prevent the injury." Id., 621-22.
The majority in Cefaratti also addressed the application of the apparent agency doctrine to emergency room settings, refusing to limit the application to only those settings. "[The defendant hospital] claims that, even if the plaintiff is not required to prove detrimental reliance on the principal’s representations that the tortfeasor was its agent or employee when the principal selected the tortfeasor, we should limit the application of that doctrine to cases in which the plaintiff sought treatment in a hospital’s emergency room. We disagree. Although a number of courts have held that the fact of seeking medical treatment in a hospital emergency room and receiving treatment from a physician working there is sufficient to satisfy the elements of an apparent agency ...; Bynum v. Magno, 125 F.Supp.2d 1249, 1266 (D.Haw.2000) (applying Hawaii law and concluding that where the patient was admitted to the emergency room ... the elements for apparent agency are more likely to be met, whatever test is used); we see no reason why the doctrine should be limited to that situation. Rather, we conclude that the doctrine should apply whenever its elements have been established. See Kashishian v. Port, 167 Wis.2d 24, 44, 481 N.W.2d 277 (1992) (although three criteria for establishing apparent agency can be satisfied in emergency room setting, we can discern no reason to conclude, as a matter of law, that the doctrine of apparent authority should not exist in other contexts concerning hospitals and independent physicians when all the elements are present): Other settings in which the elements might be established might include a hospital operating room, when the hospital chose the anesthetist or nurses, or in a hospital clinic, when the plaintiff chose the clinic and the clinic selected the specific provider of services." (Citations omitted; internal quotations marks omitted.) Id., n. 29.
If, as a matter of policy, it should be the law that a hospital is responsible for the care provided by everyone in the hospital’s emergency department, regardless of status, then perhaps that policy should be clearly enunciated presumably by the legislature. "Although the court finds the dissent in Cefaratti persuasive because of its reliance on a policy argument, it is nevertheless bound by the majority. Just as the courts were flooded with motions dealing with the inadequacy of the § 52-190a disclosure, which the Supreme Court attempted to address in Wilcox v. Schwartz, 303 Conn. 630, 37 A.3d 133 (2012), and the legislature addressed by "clarifying" the statute, it is likely that the same flood of pleadings and evidentiary issues will now occur in dealing with the issue of apparent agency." Lavoie v. Manoharan et al., Superior Court, judicial district of New Britain, CV 14 6027377 (May 24, 2017) (Swienton, J.).
Bristol Hospital held itself out as providing emergency department services. A question of fact exists as to whether the plaintiff- or her decedent- selected Bristol Hospital on the basis of its representations that it provided emergency department services. The affidavit submitted by the plaintiff provides enough of a basis to raise a question of material fact as to that issue.
Accordingly, Bristol Hospital has not met its burden of establishing the lack of a material dispute.
CONCLUSION
For the foregoing reasons, the defendant, Bristol Hospital’s motion for summary judgment on the issue of vicarious liability is denied.