Opinion
No. X08-CV04-4001232S
April 3, 2009
Memorandum of Decision on Motion for Summary Judgment (No. 232)
Procedural and Factual Background
This is an action by Bradford Spaulding and his wife Nancy Spaulding against Dr. Aron David Rovner, M.D., Dr. Rovner's medical group, NYConn Orthopaedic Rehabilitation Specialists LLC ("NYConn") and Stamford Hospital for injuries and disability sustained by Mr. Spaulding as the result of the alleged malpractice of his surgeon, the defendant Dr. Rovner, in his medical care and treatment of Mr. Spaulding, including the performance of two surgeries on Spaulding's spine at the Stamford Hospital on December 13, 2002 and January 18, 2003. Mr. Spaulding alleges that he sustained dural leaks and/or lacerations during the first surgery which were not properly repaired during the first or the second surgery, and that Dr. Rovner improperly damaged, traumatized, compressed or otherwise injured and damaged his nerves, nerve roots, and sacral nerves resulting in numbness, dysfunction, lack of sensation, hypersensitivity, ambulation difficulty, and physiological, psychological and neurological sequelae. Count One alleges medical malpractice of Dr. Rovner. Count Three alleges that NYConn is vicariously liable for Dr. Rovner's malpractice under the doctrine of respondeat superior. Count Five claims the direct and vicarious liability of Stamford Hospital, where Dr. Rovner had provisional (first year) privileges as a member of the surgical staff. Counts Two, Four and Six are Nancy Spaulding's claims for loss of consortium derivative to her husband's claims in Counts One, Three, and Five respectively.
Count Six purports to incorporate the allegations of Count "Seven," but there is no Count Seven, and the court has taken that reference in context as meaning to incorporate Count Five.
The motion now before the court is Stamford Hospital's Motion for Summary Judgment on Counts Five and Six, claiming there is no issue of material fact to support the plaintiff's assertion of the hospital's liability for Mr. Spaulding's injuries.
Legal Standards for Ruling on Summary Judgment Motion
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." Practice Book § 17-49. In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party. Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact that will make a difference in the result of the case . . . Hurley v. Heart Physicians P.C. (Internal quotation marks omitted.) 278 Conn. 305, 314 (2006). A party's conclusory statements in the affidavit and elsewhere may not constitute evidence sufficient to establish the existence of disputed material facts. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).
"A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279 (1989). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1988). Summary judgment "is appropriate only 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." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id.
Discussion
Count Five is the operative claim, Count Six being merely derivative. In Count Five the plaintiff Bradford Spaulding alleges several theories of liability of the hospital. Plaintiff alleges that Dr. Rovner was at all relevant times, ". . . a servant, agent, apparent agent, and/or employee of the defendant, Stamford Hospital" (¶ 2), and that in or about December 2002 and thereafter ". . . the defendant Stamford Hospital and its servants, agents, apparent agents, and/or employees undertook the care, treatment, diagnosis, monitoring, and supervision of the plaintiff . . ." (¶ 4). It is further alleged in ¶ 5 that Stamford Hospital ". . . had concurrent control and acted in concert with all the co-defendants . . ." as to plaintiff's care, and in ¶ 7b, c, d and g that plaintiff's injuries were caused by the failure of Stamford Hospital to exercise reasonable care in that, among other things, it improperly permitted Dr. Rovner who did not possess the requisite knowledge, skill and experience to operate on Mr. Spaulding, improperly permitted a non-board certified orthopedic surgeon to operate, failed to provide and/or see to it that there was a neurosurgeon to consult and/or operate upon the plaintiff, and failed to promulgate and/or enforce rules, regulations, standards and protocols for the care, treatment, diagnosis, monitoring and supervision of patients such as plaintiff. At oral argument plaintiff conceded that there is no evidence that Dr. Rovner was an employee of Stamford Hospital or that Stamford Hospital acted in concert with Dr. Rovner in caring for Mr. Spaulding. Counsel further conceded that there is no evidence of the corporate negligence of Stamford Hospital as alleged in ¶ 7 of Count Five. The only theories of hospital liability being advanced, then, are the vicarious liability claims that Dr. Rovner operated on and cared for Mr. Spaulding as the agent or the apparent agent of Stamford Hospital. Each of those theories will be considered.
A. Agency
". . . [T]he 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." Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 133 (1983) (quoting Restatement (Second), 1 Agency § 1). By contrast, an "independent contractor" is "one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without [being] subject to the control of his employer, except as to the rest of his work." Panero v. Electrolux Corp., 208 Conn. 589, 604 (1988) quoting Alexander v. R.A. Sherman's Sons Co., 86 Conn. 292, 297 (1912).
Defendant Stamford Hospital claims there are no facts of record or adduced during discovery to support a factual finding of the elements of agency, and particularly that there is no evidence that Stamford Hospital manifested any consent to have Dr. Rovner act as its agent or that it have control over how he performed his surgeries. The uncontested affidavit of Timothy Hall, M.D., the Chief of the Department of Surgery at Stamford Hospital, established that in 2002 and 2003 Dr. Rovner was engaged in the private practice of his specialty, orthopaedic surgery, and was based in his private offices outside the hospital; that he did not have offices in Stamford Hospital and was not a hospital-based physician. Dr. Hall further attests that Stamford Hospital did not compensate Dr. Rovner for professional services and did not bill patients for Dr. Rovner's services; and that Stamford Hospital had no contractual relationship with Dr. Rovner at any time.
In opposition, the plaintiffs have each submitted affidavits in which they state their "understanding" that "all of the nurses and doctors who treated [Mr. Spaulding] were employees or agents of Stamford Hospital, and that the hospital had authority and supervisory responsibility over them." Such an "understanding" without a basis attributable to the hospital would be inadmissible in court and therefore may not be considered on the claim of agency. Practice Book § 17-46. Furthermore those wholly conclusory statements do not constitute evidence sufficient to establish the existence of disputed material facts on the agency issue. Gupta v. New Britain General Hospital, supra. The court has also disregarded the materials plaintiff has submitted consisting of reproductions from Stamford Hospital's current website relating to the hospital's "Human Motion Institute" and the link to "highly skilled, specially trained surgeons" (which does not include a link to Dr. Rovner), in the absence of any proof that these materials were posted in the December 2002-January 2003 period of the events alleged in the complaint, and in light of the uncontested statement in the affidavit of Ellen Komar, an employee of Stamford Hospital, that the Human Motion Institute was started at Stamford Hospital in August of 2003 and did not exist at the hospital prior to that date.
Plaintiffs rely on Dr. Rovner's deposition testimony that he used materials (synthetic products, such as "fibrin glue" and "DuraGen") provided by Stamford Hospital in performing Mr. Spaulding's surgeries; that Stamford Hospital had rules regarding surgical record keeping including the preparation of a discharge summary within thirty days which the hospital enforced by keeping a list of surgeries lacking completed discharge summaries; and the fact that surgical and test records are prepared on forms captioned with the Stamford Hospital name or heading. But primarily plaintiffs rely on Dr. Rovner's status as a member of the Stamford Hospital medical staff holding provisional first year privileges to perform surgery at the hospital, as evidenced by Exhibit 6 to the affidavit of Atty. Cynthia Bott, which is the June 14, 2002 Stamford Hospital letter (accepted by Dr. Rovner by his signature thereon) granting medical staff privileges and obligating Dr. Rovner to read and comply with the Medical Staff Bylaws and Rules and to abide by all policies and other directives in force during the time of his appointment. The letter also contains special provisions that apply during a provisional period of one year (or longer if extended) which include "monitoring by the Department Chief," sufficient clinical activity for quality assessment, and completion of all medical records in a timely manner. It is further stated in letter that "[a]ny breach of the requirements set forth in the medical staff bylaws could result in a lapse of privileges at the conclusion of the provisional period." Plaintiffs' counsel stipulated at oral argument that they are not claiming that all physicians holding staff privileges at a hospital are thereby agents of that hospital, but only that the hospital should be responsible for physicians holding provisional privileges, such as Dr. Rovner, or, at least, that the monitoring during the provisional period creates a genuine issue of material fact as to control as an element of a principal-agency relationship. In order to reach that narrow issue it is necessary to explore briefly the status of the law on the broader issue.
Transcript, December 8, 2008, pp. 19, 22-23.
No Connecticut court case has been cited, nor has the court found any case, holding that a physician having staff privileges at a hospital is thereby an actual agent of the hospital. The United States District Court for the District of Connecticut in a medical malpractice action brought in federal court under the diversity of citizenship rules has held, in applying the substantive law of Connecticut, after a thorough review of decisions in other jurisdictions, that no principal-agent relationship is thereby created:
Thus, the only connection Moskowitz [the treating orthopedic surgeon] had with the hospital was that he had staff privileges there. The majority of courts that have considered the question have found that this factor does not weigh in favor of a finding that the doctor is an agent. See, e.g., Hale, 724 F.2d at 1208; Cooper v. Curry, 92 N.M.417, 589 P.2d, 201, 203, cert denied,92 N.M. 353, 588 P.2d 554 (1978); Reed v. Good Samaritan Hosp. Assoc., 453 So.2d 229, 230 (Fla.App. 1984), (a physician whose only connection with a hospital is that he or she has staff privileges is not an agent or employee of a hospital); Evans v. Bernhard, 23 Ariz.App. 413, 533 P.2d, 721, 725 (1975) (the fact that a physician or surgeon is on a hospital's staff does not necessarily make him an employee of that hospital); Albain v. Flower Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038, 1044 (1990).
Menzie v. Windham Community Memorial Hospital, 774 F.Sup. 91 (D.Conn. Sept., 16, 1991) U.S. Dist.LEXIS 13079.
In granting summary judgment in favor of the defendant hospital in the Menzie case Judge Dorsey relied on the same type of facts which are uncontested in this case, namely that the doctor received no compensation from the hospital, lack of any evidence that the hospital exercised any control over the manner in which the doctor practiced medicine, lack of any evidence that the hospital set the doctor's schedule or dictated what types of procedures he performed, lack of any contract between the doctor and the hospital evidencing an intent to create an agency relationship; and membership of the doctor in an independent professional practice with offices outside the hospital where the doctor saw patients who were not hospitalized and from which he billed his patients for his services. See, 774 F.Sup. at 95. This court agrees with and adopts the holding of Menzie, as have other superior courts in granting summary judgments for hospitals or surgical centers under similar circumstances.
See, Zbras v. St. Vincent's Medical Center, Docket No. CV95-0323593, Superior Court, Judicial District of Fairfield at Bridgeport (August 6, 2002, Gallagher, J.) ( 2002 Ct.Sup. 10094, 32 Conn. L. Rptr. 670); and Walker v. Temple Surgical Center, Docket No. X10-CV96-5005306S, Superior Court, Judicial District of Waterbury at Waterbury (November 3, 2008, Scholl, J.) ( 2008 Ct.Sup. 17260).
Plaintiff's attempts to distinguish Menzie are unavailing. The evidence that Stamford Hospital provided surgical supplies in its operating room, and that it required certain records to be created regarding each surgical procedure performed at the hospital and that some of those records are written on paper forms bearing the pre-printed name or legend of Stamford Hospital are mere administrative details not inconsistent with a surgeon with privileges to practice at the hospital being an independent contractor and not an agent of the hospital. There is no evidence that a staff surgeon could not also use equipment and supplies from other sources if he decided to do so in the exercise of his clinical judgment. Nor have the plaintiffs met their burden of showing that the provisional nature of Dr. Rovner's privileges at Stamford Hospital raises an issue of material fact on the issue of agency. The only evidence submitted on this claim is the previously-mentioned one-page letter on Stamford Hospital letterhead, advising Dr. Rovner in June of 2002 that he had been granted clinical staff privileges at the hospital, which would be provisional for at least one year, and that during the provisional period his privileges "are subject to monitoring by the Department Chief." The issue is, does the letter raise a triable issue of fact as to the nature and amount of the hospital's control over Dr. Rovner in carrying out this monitoring function? The court concludes that it does not.
This claim of the provisional appointment being the deciding factor has not been briefed at all by the plaintiffs. It came up for the first time at oral argument.
Monitoring is mentioned in Menzie as one of several factors to be considered in determining the amount of control exercised by a hospital. The court said, "Moreover, the record reveals that the hospital is not responsible for evaluating the quality of medical care delivered by Moskowitz or any other doctor to whom it grants staff privileges. Rather, this evaluation is done by an `executive committee' made up of doctors with staff privileges." Menzie, at 95. The record submitted by the plaintiffs tells the court virtually nothing about the nature or scope of the monitoring of first-year surgeons at Stamford Hospital, or the relationship of the monitoring person to the hospital. Is the "Department Chief" an officer or employee of the hospital, or, as in Menzie, another physician with staff privileges? Is the Department Chief paid by the hospital generally, or for performing this monitoring function? What does the monitoring consist of? Is it just a record review, or does the monitor actually observe surgical procedures being performed? Is it an outcome review, or a technique and surgical skill review? The former — an outcome review — under Connecticut law in other contexts would be not be inconsistent with being an independent contractor, as noted in Menzie. "Thus, the determination as to whether one is an employee or an independent contractor `depends on the existence or nonexistence of the right to control the means and method of work.'" (Emphasis added.) Menzie, at 94 quoting Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179 (1940). "An employer may exercise control over the general results and also the immediate results from time to time, without creating an agency relationship." Id., quoting Darling v. Burrone Bros., 162 Conn. 187, 193 (1972). No evidence touching on these specific relevant issues has been adduced by the plaintiffs. The burden on a party opposing summary judgment is to establish an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Hurley, supra, 278 Conn. at 314. That burden was explained in detail in United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79 (1969):
A "genuine" issue has been variously described as a "triable," "substantial," or "real" issue of fact . . .; and has been defined as one which can be maintained by substantial evidence . . . Hence, the "genuine issue" aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. (Emphasis added; citations omitted.)
Bringing forth a single letter which gave the "Department Chief" (presumably the chief of surgery) the right (which he or she might have had under the Bylaws — not submitted — even in the absence of such a provision in the letter) to "monitor" Dr. Rovner's exercise of his privileges at the hospital for a period of time which included December 2002-January 2003, without any other facts as to the nature, scope and extent of such monitoring, does not meet that burden. There is no "triable issue" raised. The hospital does not contest the existence or the contents of the letter. It does not amount to "substantial evidence" on the issue of control. Even construing the letter most favorably to the plaintiffs, there is nothing in the letter which warrantably infers that Stamford Hospital had the power to control the means and method of Dr. Rovner's exercise of his surgical privileges. Summary judgment for the defendant Stamford Hospital is therefore appropriate on the claim of agency.
Contrast the detailed evidence submitted to the court on the issue of monitoring and control in Joh v. Schmidt, Docket No. X09CV06-5006361 (December 19, 2007, Shortall, J.) ( 2007 Ct.Sup. 22314; 44 Conn. L. Rptr. 760) (Motion for summary judgment by defendant hospital denied as to the issue whether or not the emergency room physician working under a contract between his medical group and the hospital was an agent of the hospital.) Joh is discussed in an article by Elliott B. Pollack, Esq. In the May 12, 2008 edition of the Connecticut Law Tribune entitled "When Should Hospitals Be Responsible."
B. Apparent Agency
Plaintiffs argue in the alternative that, even if Dr. Rovner is found to be an independent contractor and not an actual agent of Stamford Hospital, there is a triable issue of fact as to whether or not the hospital is vicariously liable under the doctrine of apparent agency (also sometimes referred to as "ostensible agency" or "agency by estoppel").
The elements of apparent agency were also stated by the Supreme Court in. Beckenstein v. Potter Carrier, Inc., supra, at 140:
Apparent authority is that semblance of authority which a principal, through his own acts or inadvertencies, causes or allows third persons to believe his agent possesses . . . see Restatement (Second), 1 Agency § 8 (1958). Apparent authority thus must be determined by the acts of the principal rather than by the acts of the agent . . . Furthermore, the party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertencies of the principal . . . It follows from this principle that if . . . the plaintiffs . . . did not know or did not rely upon any action or statement of GAF prior to entering into its agreement with Potter Carrier, no liability can be imposed based upon the doctrine of apparent authority. (Internal quotation marks and case citations omitted.)
There is no Connecticut appellate authority which recognizes the doctrine of apparent agency in a medical malpractice context or in any tort liability context. The Appellate Court said in 2001: "As we noted in Mullen [ Mullen v. Horton, 46 Conn.App. 759, 771 (1997),] that theory is not a viable ground on which to premise liability against a defendant sued for the torts of an alleged agent." Davies v. General Tours, Inc., 63 Conn.App. 17, 31 (2001). Several 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. See Kafri v. The Greenwich Hospital Association et al., 2000 WL 306620 (D.Conn., February 24, 2000, Nevas, J.) ("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"); Wilverding v. Ostrowitz et al., Docket No. CV96-0334949S, Superior Court, Judicial District of Fairfield at Bridgeport (February 28, 2000, Skolnick, J.) (2000 Conn.Super. LEXIS 607) [ 26 Conn. L. Rptr. 632]; Custer v. Kurowski et al., Docket No 543040, Superior Court, Judicial District of New London at New London (January 29, 1999, Hurley, JTR) (1999 Conn.Super. LEXIS 228) [ 23 Conn. L. Rptr. 695]; LeConche v. Elligers et al., Docket No CV88-348312, Superior Court, Judicial District of Hartford/New Britain at Hartford (July 6, 1991, Stengel, J.) (1991 Conn.Super. LEXIS 1693) [ 4 Conn. L. Rptr. 373]; Francisco v. Hartford Gynecological Center Inc. et al., Docket No. CV92-0513841S, Superior Court, Judicial District of Hartford/New Britain at Hartford (March 1, 1994, Corradino, J.) (1994 Conn.Super. LEXIS 521) [11 191]; Koniak v. Shawney et al., Docket No. CV93-0412154S, Superior Court, Judicial District of Ansonia/Milford at Milford (January 13, 1994, Rush, J.) (1994 Conn.Super. LEXIS 95); Franklin v. Murray et al., Docket No. X01CV01-0170608S, Superior Court, Judicial District of Waterbury, Complex Litigation Docket at Waterbury (March 12, 2004, Sheedy, J.) (2004 Conn.Super. LEXIS 685); Piteau v. Horanieh et al., Docket No. CV00-0598361S, Superior Court, Judicial District of Hartford at Hartford, (April 11, 2002, Wagner, JTR) (2002 Conn.Super. LEXIS 1291); and McClelland v. Day Kimball Hospital, Docket No. X07CV98-0071389S, Superior Court, Judicial District of Tolland, Complex Litigation Docket at Rockville (February 2, 2001, Bishop, J.) (2001 Conn.Super. Lexis 366) [ 29 Conn. L. Rptr. 166]. Assuming that these cases correctly apply the doctrine of apparent authority to the area of medical malpractice tort liability in the absence of appellate authority to do so, they all, with the exception of Custer and Piteau can be distinguished by the fact that they involved medical services (radiology, emergency care, or anesthesia) to patients who had gone to the hospital seeking diagnostic or imaging services or care or treatment of a particular ailment and were provided the requested services by professionals based at the hospital who had no previous relationship with the patient, who were arranged by or contracted for by the hospital under circumstances where the patient was not told and did not know that the provider was an independent contractor. In this case, however, it is uncontroverted that Mr. Spaulding had been referred to Dr. Rovner to treat his back problem and went to meet with Dr. Rovner at the office of his private practice medical group, not located in the hospital, some time before the surgery and retained Dr. Rovner to operate. The difference between the two situations is discussed by the Court of Appeals of Michigan in affirming summary judgment for the hospital in Estate of Salmone Delgado v. St Mary's Hospital, 192 Mich.App. 29, 480 N.W.2d 590, Mich.App. LEXIS 468 (1991):
Custer is a half-page summary opinion which recites none of the underlying facts; Piteau did involve services performed by a surgeon with staff privileges at the defendant hospital and the court held without extensive analysis that there were issues of fact going to the claim of apparent authority.
Generally speaking a hospital is not vicariously liable for the negligence of a physician who is an independent contractor and merely uses the hospital's facilities to render treatment to his patients . . . However, if the individual looked to the hospital to provide him with medical treatment and there has been a representation by the hospital that medical treatment would be afforded by physicians working therein an agency by estoppel can be found . . .
In our view, the critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as a situs where his physician would treat him for his problems. A relevant factor is this determination involves resolution of the question whether the hospital provided the plaintiff with Dr. Katrowitz or whether the plaintiff and Dr. Katrowitz had a patient-physician relationship independent of the hospital setting. (Emphasis in original; citations omitted.)
Id., 480 N.W.2d at 591.
In this case it is established beyond any issue of fact that Mr. Spaulding was not looking to Stamford Hospital to provide him with medical care, but was looking to Dr. Rovner to provide him with care and Stamford Hospital happened to be the situs of his surgery. It is likewise established that Mr. Spaulding had a physician-patient relationship with Dr. Rovner prior to and independent of the hospital setting. Mr. Spaulding testified at his deposition that he understood that Dr. Rovner was employed by the NYConn practice group and understood that the surgery would be scheduled at Stamford Hospital where he had never before been treated so far as could recall, and that he did not select Dr. Rovner as his surgeon because he wanted to have his operation at Stamford Hospital, but rather because Dr. Rovner had been referred to him by a Dr. Bardadimos and because Dr. Rovner "was more than qualified to do the surgery." Tr. 3/22/07, pp 254-56.
Under these circumstances, even if Mr. Spaulding could make a showing that the use of Stamford Hospital surgical supplies and report forms bearing the Stamford Hospital legend or letterhead, and the right to monitor Dr. Rovner during his provisional appointment, gave him the understanding or impression that Dr. Rovner was an agent of the hospital, he cannot as a matter of law establish the Beckenstein element of apparent agency that he acted in good faith based upon the actions or inadvertence of the purported principal, which in the hospital setting has been identified as a reliance upon the actions of the hospital such as ". . . evidence, for example, that plaintiff consented to treatment after the hospital led him to believe the doctors were hospital employees." Menzie v. Windham Community Memorial Hospital, supra, 774 F.Sup. at 97, where the federal court, citing the Superior Court opinion in LeConche v. Elligers, supra, said, ". . . the sole Connecticut case [ LeConche] to address the issue [apparent agency in a hospital setting] has required proof of reliance . . . Thus, as plaintiff has failed to show any proof of reliance, his cross motion for summary judgment is denied. Defendant's motion for summary judgment on this issue is granted." Id. So also should defendant Stamford Hospital's motion for summary judgment on the apparent agency issue be granted in this case.
Since Menzie was decided in 1991 there have been at least seven Superior Court decisions applying the apparent agency doctrine to hospitals or clinics sued in medical malpractice actions. See citations, supra, at p. 12. One of those cases, Francisco v. Hartford Gynecological Center, supra, specifically dispenses with the need for a showing of reliance since that requirement "misses the whole point of the doctrine" which is that a patient — as a member of a "vulnerable public" — "would have a right to assume a nurse was an agent of the center"[absent notice to the contrary]. This court disagrees with that analysis. The reliance requirement is grounded in sound appellate authority. Beckenstein, supra. Nor does the reliance requirement seem inappropriate in order to deviate from the venerable principle of non liability for the acts of independent contractors.
See, also, Ferris v. Riegler, Docket No. X10UWYCV02-4010138S, Superior Court, Judicial District of Waterbury, Complex Litigation Docket at Waterbury (August 10, 2007, Monro, J.) (2007 Conn.Super. LEXIS 2226) (Summary judgment entered for hospital on claim of apparent agency).
Order
For the foregoing reason the motion of the defendant Stamford Hospital for summary judgment on Counts Five and Six is granted. Judgment may enter for the defendant Stamford Hospital on Counts Five and Six.