Opinion
No. LLI CV 09 5006121S
October 6, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #128
ISSUE
The issue is whether the court should grant Charlotte Hungerford Hospital's motion to strike counts one, four and five of the plaintiff's complaint.
FACTS
On January 29, 2010, the plaintiff, Maryann Pierzga, as administrator of the estate of Jessica Pierzga, failed a third revised, five-count complaint against the defendants, Charlotte Hungerford Hospital (the hospital), Peter Bull and NW CT Emergency Medicine, PC (NW CT). In Count one of the plaintiff's complaint, which is against the hospital, the plaintiff alleges that Jessica Pierzga came under the treatment of the hospital on or about April 6, 2007. At that time, Peter Bull was a servant, agent, apparent agent and/or employee of the hospital. As a result of the hospital and its servants, agents and/or employees' negligence, the plaintiff alleges that Jessica Pierzga suffered several serious and permanent injuries, all of which lead to her death on April 14, 2007. The plaintiff alleges that at all relevant times, the hospital and NW CT operated a "joint venture and/or other contractual arrangement" for the purpose of treating patients in the emergency room. The plaintiff alleges that the hospital provided the space and equipment, while NW CT provided physicians and other health care professionals to work in and operate the emergency department. Counts two and three of the plaintiff's complaint are against Peter Bull and NW CT, respectively. Count four is against the "joint venture" between the hospital and NW CT. In count four, the plaintiff alleges, inter alia, that the carelessness and negligence of the joint venture and the hospital and NW CT's servants, agents and/or employees led to Jessica Pierzga's injuries and death. Finally, count five is against the "apparent agents" of the hospital. In count five, the plaintiff alleges that Jessica Pierzga's injuries and subsequent death were caused by the failure of the hospital's apparent agents to exercise reasonable care.
On March 4, 2010, the hospital filed a motion to strike counts one, four and five of the third revised complaint on the ground that all three counts fail to state a legally sufficient causes of action for vicarious liability. On May 11, 2010, the plaintiff filed a memorandum in opposition to the hospital's motion to strike, and the hospital filed a reply brief on July 29, 2010. This matter was heard at the short calendar on September 13, 2010.
DISCUSSION
Practice Book § 10-39 provides in relevant part: "(a) Whenever a party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike." "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
In its motion to strike, the hospital argues that counts one, four and five are legally insufficient. The hospital raises three common arguments with regard to counts one and four. First, the hospital argues that both counts one and four fail to allege facts to support an agency relationship between the hospital and its alleged agents. The hospital argues that although Dr. Bull is identified by name, there are no allegations that he was acting within the scope of his authority or acting as an agent of the hospital. Moreover, the hospital argues that there are no allegations that it had the right to control Dr. Bull's decision making. Second, the hospital argues that both counts one and four fail to identify the class of health care providers that the plaintiff claims negligently performed their duties. As a result, there are no facts alleged to support the conclusion that these persons were agents of the hospital. Third, the hospital asserts that the plaintiff's failure to allege the applicable standard of care renders counts one and four legally insufficient because it must be allowed to established whether a duty was owed by its alleged tortfeasors. Additionally, the hospital argues that identifying the class of providers is necessary to bring an action in good faith.
With regard to count four, alone, the hospital argues that it is legally insufficient because all of the necessary factual elements of a joint venture have not been alleged. The hospital asserts that the plaintiff must allege the special circumstances of the relationship between the parties to establish a joint venture. Regarding count five, the hospital argues that it is insufficient because Connecticut has never recognized "apparent agency" in medical malpractice actions. Furthermore, the hospital asserts that "apparent authority" and "apparent agency" are distinct legal concepts.
In its memorandum in opposition, the plaintiff argues that agency need not be pleaded when a corporation is being sued because a corporation can only act through its agents or employees. The plaintiff argues that Practice Book § 10-2 supports this conclusion. Additionally, the plaintiff argues that the duty of "hospital agents or employees to abide by the standard of care is sufficiently alleged." The plaintiff asserts that duty is statutorily defined in General Statutes § 52-184c and that the "particulars" of duty are defined by expert testimony. Moreover, the plaintiff argues that it does not need to allege a "class" of health care providers who were negligent and the way in which that class was negligent. As to the claim for joint venture in count four, the plaintiff argues that it has pleaded all of the necessary facts for joint venture and that the hospital continually refers to facts outside of the pleadings when attacking the allegations of joint venture, which is improper. Finally, as to the issues surrounding "apparent agency" in count five, the plaintiff argues that: (1) apparent agency is properly alleged; (2) Connecticut recognizes apparent agency in tort cases; (3) there is no significant difference between apparent agency and apparent authority in this context; and (4) apparent agency applies to non-agents who appear to be agents.
In its reply brief, the hospital disputes the fact that its motion to strike is a speaking motion. Second, while the hospital concedes that the plaintiff's representation about the pleading requirements for corporate entities is partially correct, it argues that the plaintiff still confuses the pleading requirements. More specifically, the hospital argues that claims of corporate negligence do not require specific agency pleadings, but that claims of vicarious liability for medical negligence require a plaintiff to make specific allegations about the alleged agency relationship. As to the plaintiff's argument about duty, the hospital argues that the plaintiff has misconstrued its argument. While the hospital recognizes that the duty of specific medical providers is defined by statute, it argues that there are many different classes of medical providers and, as a result, many different standards of care that attach to those providers in different circumstances. The hospital asserts that it cannot challenge whether those health care providers owed an alleged duty because it does not know of the class of those agents. Once again, the hospital reiterates its arguments as to joint venture and apparent agency.
I COUNT ONE A Vicarious Liability and Agency
"`[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when the conduct occurs during the course of the employee's employment.' Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003). `[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another].' (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n. 16, 849 A.2d 813 (2004). `[A] fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee.' Id., 693 n. 16." (Internal quotation marks omitted.) Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010, Martin, J.).
"[A]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 892 A.2d 389 (2006).
As previously noted, the hospital moves to strike count one on the ground that the plaintiff has failed to plead the necessary elements of agency. The hospital cites Hollister v. Thomas, 110 Conn.App. 692, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008), in support of its argument. In Hollister, the Appellate Court upheld the trial court's decision to strike counts of a complaint pertaining to one of the defendants, Stanley Brown. Id., 705-06. Brown was hired to renovate the plaintiff's bathroom, and then he subcontracted parts of that work to Thomas Janesky. Id., 695. When plumbing problems arose during the renovation, Brown delegated that plumbing work to Janesky. Id., 695-96. While completing that plumbing work, Janesky started a fire. Id., 696. In several counts of the complaint, the plaintiff alleged that Brown was liable for Janesky's actions in starting the fire. Id., 696. The trial court struck those counts. Id., 696-97.
On appeal, the issue before the court was whether "the [trial] court improperly struck the counts of the complaint pertaining to Brown because it failed to adopt the argument that Brown was liable for the actions of Thomas Janesky under a theory of vicarious liability." (Emphasis added.) Id., 705. The court went on to explain that the theory of vicarious liability upon which the plaintiff was basing her claims against Brown was one based on agency. Id. Ultimately, the court upheld the trial court's decision to strike the counts against Brown because "the complaint failed to allege the facts necessary to prove the existence of such [an agency] relationship" and because "there were scant facts alleged that elaborate on the relationship between Thomas Janesky and Brown other than the use of the labels `agent' and `subcontractor.'" Id., 706-07.
In count one of the complaint, the plaintiff alleges: "At all times mentioned herein, the co-defendant, Peter Bull, was a servant, agent, apparent agent and/or employee of the defendant hospital and/or the defendant NW CT Emergency Medicine, PC and/or the joint venture formed by the Hospital and NW CT." Several courts have held or implied that such allegations are a sufficient basis for pleading vicarious liability in medical malpractice actions. See, e.g., Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010, Martin, J.); Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.); Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003164 (May 26, 2009, Ginocchio, J.). Moreover, unlike the plaintiff's allegations in Hollister, the plaintiff's allegations in the present matter are not based on agency alone, which is just one theory of vicarious liability. Rather, the plaintiff alleges that Bull was a servant, agent, apparent agent and/or employee of the hospital and NW CT. Given these allegations, specifically the allegation that Bull was an employee of the hospital, and the line of cases that finds these and similar allegations sufficient to put the hospital on notice of vicarious liability in medical malpractice actions, the court concludes that the plaintiff has sufficiently pleaded vicarious liability in count one.
B Duty Standard of Care
As previously noted, the hospital also argues that count one fails to identify the class of health care providers that allegedly performed their duties negligently and that, as a result, it is impossible to establish the duty and the standard of care owed. Moreover, the hospital argues that this prevents the plaintiff from bringing an action in good faith.
In count one, the plaintiff refers to Peter Bull as a servant, agent, apparent agent and/or employee of the hospital and NW CT. Although the plaintiff does not describe Bull's work in count one, the plaintiff identifies Bull as a "physician duly licensed to practice medicine in the [s]tate of Connecticut specializing in emergency medicine and practicing in Torrington, Connecticut" in count two. While count one should also encompass this description as to Bull, the court concludes that it is possible to establish duty and the standard of care owed when reading counts one and two together. Moreover, the plaintiff has attached a good faith certificate to its complaint, as well as the opinion letter required by General Statutes § 52-190a. Although the hospital seems to argue that the plaintiff must identify other classes of agents besides the class represented by Bull, the allegation as to Bull is sufficient to maintain count one. As a result, the hospital's arguments regarding duty and the standard of care are also unpersuasive, and the court denies the motion to strike count one.
The opinion letter, which is attached to the first version of the complaint, is written by a "board certified emergency medicine physician."
II COUNT FOUR
The hospital's first two arguments regarding count four are identical to those already raised with regard to count one. The first paragraph of count four provides: "Paragraphs 1-6 of the First Count are hereby made Paragraphs 1-6 of this Fourth Count." Paragraph 6 of count one provides that: "At all times mentioned herein, the co-defendant, Peter Bull, was a servant, agent, apparent agent and/or employee of the defendant hospital and/or the defendant NW CT Emergency Medicine, PC, and/or the joint venture formed by the hospital and NW CT." Since Peter Bull is also referenced in count four, the court concludes that the hospital's aforementioned arguments are also unpersuasive as they are applied to count four. The question remains, however, whether the plaintiff has sufficiently pleaded the requirements of joint venture.
"A joint venture . . . exists where two or more parties combine their property, money, efforts, skill or knowledge in some common undertaking . . . The relationship between contracting parties cannot amount to a joint venture unless the parties so intend [and] . . . joint ventures relate to a single transaction, whereas partnerships exist for a general business." (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 672-73, 748 A.2d 834 (2000); see also R.S. Silver Enterprises Co., Inc. v. Pascarella, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002499 (July 14, 2010, Jennings, J.T.R.). While the courts of this state have established what is required to prove a joint venture, there is a dearth of case law as to what must be pleaded for a claim of joint venture to survive a motion to strike. Regardless, count four incorporates several allegations from count one, including the following: "At all times mentioned herein the defendant, Charlotte Hungerford Hospital, was a specially chartered corporation organized and existing under the laws of the State of Connecticut, providing emergency physicians and/or personnel for the operation of the hospital's emergency department.
"At all times mentioned herein the defendant, NW CT Emergency Medicine, PC, was a professional corporation organized under the laws of the State of Connecticut, providing emergency physicians and/or personnel for the operation of the hospital's emergency department.
"At all times mentioned herein the defendant, hospital, and the co-defendant, NW CT Emergency Medicine, PC operated a joint venture and/or other contractual arrangement for the purpose of treating patients in the emergency department of the defendant hospital, under which: there was mutual control over said emergency department and its personnel; the defendant, hospital, provided the space, equipment and other services for said emergency department; the co-defendant, NW CT Emergency Medicine, PC, provided physicians and other health care professionals to operate and maintain the emergency department; and revenues from said operation were shared by both entities."
Based on these allegations, the court concludes that the plaintiff has sufficiently pleaded joint venture. The plaintiff has alleged that there were two parties who combined their respective skills — one in providing equipment and the other in providing professionals — in the common undertaking of the operation of an emergency room. The plaintiff also alleges that the parties shared the revenues from this operation, and there is no indication that the act of maintaining the emergency room, alone, constituted the "general business" of either party. For all of these reasons, the motion to strike is denied as to count four.
III COUNT FIVE
"[Apparent agency and agency by estoppel] are generally discussed in the context of apparent authority. They concern basically `that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.' (Internal quotation marks omitted.) Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 140, 464 A.2d 6 (1983)." Davies v. General Tours, Inc., 63 Conn.App. 17, 32, 774 A.2d 1063, cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001).
In Davies, the Appellate Court noted that it had previously rejected apparent authority or agency by estoppel as a "viable ground upon which to premise liability against a defendant sued for the torts of an alleged agent" in the case of Mullen v. Horton, 46 Conn.App. 759, 771, 700 A.2d 1377 (1997). Davies v. General Tours, Inc., supra, 63 Conn.App. 17, 31. The court also rejected the application of apparent authority or agency by estoppel in Davies, which involved a question of whether a tour operator could be held liable for a Moroccan tour bus operator's acts or omissions. The court rejected the application of apparent authority because the plaintiff had not set forth specific facts to establish an agency relationship. Davies v. General Tours, Inc., supra, 63 Conn.App. 17, 27-34. In reaching this conclusion, however, the court distinguished two Superior Court cases cited by the plaintiff: "The plaintiff cites two Superior Court decisions in support of her proposition that her cause of action against the defendant, under a theory of apparent agency, should proceed to trial. We are not persuaded. Those cases, at most, permitted causes of action against hospitals for the acts or omissions of independent contractors who were held out by the hospitals to be employees, not partners. We have found no Connecticut authority favoring the plaintiff's proposition that this same reasoning should apply to the tenuous relationship between a tour operator and an independent contractor that it contracted with to provide services to tourists around the world." (Emphasis in original.) Id., 32-33.
Several trial courts have discussed the applicability of apparent agency in the context of medical malpractice actions. In the recent case of Spaulding v. Rovner, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X08 CV 04 4001232 (April 3, 2009, Jennings, J.) ( 47 Conn. L. Rptr. 544), Judge Jennings acknowledged that: "[t]here is no Connecticut appellate authority which recognizes the doctrine of apparent agency in a medical malpractice context or in any tort liability context." Id., 547. Despite this lack of appellate authority, Judge Jennings noted that "[s]everal trial courts, state and federal, have nonetheless denied hospitals' motions for summary judgment directed to vicarious liability claims of apparent agency in medical malpractice cases." Id.
See, e.g., Aube v. Middlesex Hospital, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 04 4010594 (October 3, 2008, Scholl, J.); Wiggins v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 03 0399753 (March 21, 2006, Radcliffe, J.); Franklin v. Murray, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 01 0170608 (March 12, 2004, Sheedy, J.); Piteau v. Horanieh, Superior Court, judicial district of Hartford, Docket No. CV 00 0598361 (April 11, 2002, Wagner, J.T.R.); McClelland v. Day Kimball Hospital, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 98 0071389 (February 2, 2001, Bishop, J.) ( 29 Conn. L. Rptr. 166); Wilverding v. Ostrowitz, Superior Court, judicial district of Fairfield, Docket No. CV 96 0334949 (February 28, 2000, Skolnick, J.) ( 26 Conn. L. Rptr. 632); Custer v. Kurowski, Superior Court, judicial district of New London, Docket No 543040 (January 29, 1999, Hurley, J.T.R.) ( 23 Conn. L. Rptr. 695); Francisco v. Hartford Gynecological Center, Inc., Superior Court, judicial district of Hartford, Docket No. CV 92 0513841 (March 1, 1994, Corradino, J.) [ 11 Conn. L. Rptr. 191]; Koniak v. Sawhney, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 93 0412154 (January 13, 1994, Rush, J.).
Count five is brought against the "apparent agents" of the hospital. Although count five does not mention a specific agent of the hospital, count five provides in relevant part: "At all times mentioned herein the defendant, Charlotte Hungerford Hospital, was a specially chartered corporate organized and existing under the laws of the State of Connecticut operating a hospital in Torrington, Connecticut providing emergency services, physicians, nurses, anesthesiologists and other health care professionals and providers to the general public.
"Commencing on or about April 6, 2007, and continuously to on or about April 7, 2007, plaintiff's decedent, Jessica Pierzga, came under the care, treatment, monitoring, diagnosing and supervision of the defendant, hospital, and its apparent agents.
"While under the care, treatment, monitoring, diagnosing and supervision of the defendant hospital's apparent agents, the plaintiff's decedent, Jessica Pierzga, suffered serious, severe, painful and permanent injuries all leading to her death on April 14, 2007 . . ." (Emphasis added.)
At the outset, the court notes that although the hospital argues that apparent agency and apparent authority are different concepts and that the plaintiff cannot rely on Connecticut cases discussing "apparent authority," the hospital fails to cite any controlling case law for this proposition. Moreover, the appellate courts of this state have acknowledged that the concepts of apparent authority and apparent agency are intertwined. For this reason, the court concludes that the hospital's first argument regarding apparent agency is unpersuasive. As to the hospital's argument that Connecticut does not recognize apparent agency in tort cases, the court acknowledges that the appellate courts of this state have yet to recognize apparent agency in the context of medical malpractice actions. Despite this, while distinguishing two trial court cases in Davies, the Appellate Court appears to acknowledge, albeit indirectly, that such a theory may apply to hospitals where independent contractors are held out as employees. Additionally, the Davies court specifically acknowledged that the "tenuous relationship between a tour operator and an independent contractor that it contracted with to provide services to tourists around the world" was distinguishable and critical to its decision in that case. Davies v. General Tours, Inc., supra, 63 Conn.App. 17, 32-33. Moreover, this court agrees with the other trial courts that have recognized this cause of action. As a result, the court denies the motion to strike as to count five.
The hospital also appears to challenge the sufficiency of count five for failure to identify the class of agents and attach appropriate opinion letters. Unlike counts one and four, which specifically reference Dr. Bull, count five refers only to "physicians, nurses, anesthesiologists and other health care professionals and providers." Despite this, the court agrees with the plaintiff that, under General Statutes § 52-190a, the appropriate way to challenge the plaintiff's failure to attach opinion letters for different classes of providers is on a motion to dismiss.
CONCLUSION
For all of the foregoing reasons, the hospital's motion to strike counts one, four and five of the plaintiff's third revised complaint is denied in its entirety.