Opinion
No. CV-07-5011498-S
September 23, 2008
RULING ON MOTION FOR SUMMARY JUDGMENT
The defendant has moved for summary judgment on the grounds that there is no genuine issue of fact and it is entitled to judgment as a matter of law because the registered nurse alleged to have been acting within the scope of her nursing duties was not so acting and, therefore, the defendant is not liable to the plaintiff under the doctrine of respondeat superior.
Factual and Procedural Background
On April 29, 2006, the plaintiff's decedent, Thomas Kenyon, was admitted to the University of Connecticut Health Center due to a right hip fracture. During his admission he was placed into the cardiac step-down unit. When Mr. Kenyon was in the step-down unit, a registered nurse, Sharon Peterson, administered 2 milligrams of Dilaudid, a narcotic analgesic, to him, which resulted in his death.
The plaintiff, Executor of Thomas Kenyon's estate, brought a wrongful death action against the State of Connecticut, after receiving permission to sue by the Office of the Claims Commissioner. The complaint alleges, inter alia:
The injuries, losses, and death suffered by the plaintiff's decedent, Thomas P. Kenyon, were caused by one or more of the following deviations from the applicable standards of care by the defendant, the State of Connecticut, acting through its agents, apparent agents, servants, and/or employees, including the nursing staff at the University of Connecticut Health Center and/or John Dempsey Hospital:
a. in that they administered 2 milligrams of Dilaudid by way of intravenous push to the plaintiff's decedent without the required order of a physician; and/or
b. in that they administered 2 milligrams of Dilaudid by way of intravenous push to the plaintiff's decedent although they knew, or should have known, that a physician's order was required under the circumstances, under the hospital protocols and/or procedures, under the applicable law, and/or under the applicable standard of care; and/or
c. in that they administered 2 milligrams of Dilaudid by way of intravenous push to the without the direct supervision of any physician or APRN, nor at the direction of any physician or APRN; and/or
d. in that they administered 2 milligrams of Dilaudid by way of intravenous push to the without consultation with a physician; and/or
e. in that they administered a dosage of medication which was excessive and/or they administered such medication at a rate which was excessive; and/or
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h. in that they failed to exercise the degree of care, skill, and diligence used by other similar health care providers when faced with similar circumstances and conditions . . .
The parties have both presented the deposition testimony of Sharon Peterson, who was working as a nurse in the cardiac step-down unit at the University of Connecticut Medical Center on April 29, 2006, when Mr. Kenyon was transferred to that unit. Ms. Peterson testified that the physician's order that accompanied Mr. Kenyon indicated that he was to receive no more than 1 milligram of Dilaudid. Ms. Peterson saw that Mr. Kenyon was in pain and wanted to give him pain medication. The Dilaudid was kept in something called a Pyxis machine which was able to dispense no less than 2 milligrams of Dilaudid.
Ms. Peterson testified that she obtained the Dilaudid from the Pyxus machine with the intention of giving Mr. Kenyon only 1 milligram in accordance with the existing orders. However, she gave Mr. Kenyon the entire 2 milligrams of Dilaudid by mistake. She indicated in the medical record that she had administered 2 milligrams rather than 1. She also told another nurse that she had made a mistake on Mr. Kenyon's medication and stated that she would attempt to get a physician's approval of a verbal order for 2 milligrams of Dilaudid. Ms. Peterson then wrote in the medical record that she had a verbal order from Dr. Bilkoo for 2 milligrams of Dilaudid. At the time she wrote that order, Ms. Peterson believed that Dr. Bilkoo was Mr. Kenyon's physician and, further believed that Dr. Bilkoo would approve the verbal order after the fact. However, Dr. Bilkoo was not Mr. Kenyon's physician and never approved the order for 2 milligrams of Dilaudid.
Mr. Kenyon's condition worsened dramatically shortly after the Dilaudid was administered. Ms. Peterson testified that she had filled out an incident report and the hospital record which both indicated that she had mistakenly given Mr. Kenyon too much Dilaudid. However, before she could discuss the report or give it to a supervisor, the supervisor summoned the police.
Ms. Peterson was subsequently arrested and charged with forging a prescription. The defendant argues that writing a physician's order was outside the scope of Ms. Peterson's employment as a nurse and, therefore, the defendant is not liable to the plaintiff.
Discussion of the Law and Ruling
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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); 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. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
A nurse's negligence is attributable to the hospital employer under the doctrine of respondeat superior. See Mather v. The Griffin Hospital, 207 Conn. 125, 136, 540 A.2d 666 (1988); Bria v. St. Joseph's Hospital, 153 Conn. 626, 627-30, 220 A.2d 29 (1966).
Both parties rely on Glucksman v. Walters, 38 Conn.App. 140, 659 A.2d 1217 (1995), where the Appellate Court held that the employee of a YMCA who assaulted the plaintiff during the a recreational basketball game could have been acting within the scope of his employment. The court stated:
The doctrine of respondeat superior focuses on the employee's conduct rather than on the employer's knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of employer business, the employer's consent or ratification of the misconduct is irrelevant . . . even an innocent employer must compensate an injured party.
Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 520, 603 A.2d 1173 (1992), quoting Paine Webber Jackson Curtis, Inc. v. Winters, 22 Conn.App. 640, 646, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990).
Glucksman v. Walters, supra at 144-45.
The court in Glucksman likened the employee's conduct to that of the employee in Pelletier v. Bilbiles, 154 Conn. 544, 227 A.2d 251 (1967), where an employee of a confectionery store, who was charged with keeping order in the store, assaulted a customer who had thrown a wrapper on the floor. The court in Pelletier held that the issue of respondeat superior should have reached the jury:
The beating of an unruly customer, if the plaintiff can be so characterized, is an extremely forceful, although misguided, method of discouraging patrons of the Spa, including the plaintiff, from causing disturbances on the premises in the future. The fact that the specific method a servant employs to accomplish his master's orders is not authorized does not relieve the master from liability . . . A master does not escape liability merely because his servant loses his temper while he is conducting the master's business.
Pelletier v. Bilbiles, supra, at 548.
The defendant in Glucksman argued that the actions of the employee were analogous to those of the employees in Brown v. Housing Authority, 23 Conn.App. 624, 583 A.2d 643, cert. denied, 217 Conn. 808, 585 A.2d 1233 (1990) and Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988). In Brown, an altercation arose between the plaintiff and the defendant's employee after the plaintiff asked the employee to move his van, which was blocking traffic. When the employee refused to move the van, the plaintiff drove away. The employee then followed the plaintiff down the street, rear-ended his car several times and then struck him in the chest with a hammer.
The court found that the employee was not furthering the defendant's business interests when he assaulted the plaintiff. The employee worked as a maintenance mechanic and the assault could not have arisen from the job responsibilities of the employee. The Court in Brown stated:
A master is liable only for those torts of his servant which are done with a view of furthering his master's business within the field of this employment for those which have for their purpose the execution of the master's orders or the doing of the work assigned to him to do. Bradlow v. American District Telegraph Co., 131 Conn. 192, 196, 38 A.2d 679 (1944); Turner v. American District Telegraph Messenger Co., 94 Conn. 707, 110 A. 540 (1920). In most cases, it is the function of the jurors to determine from the facts before them whether, under this test, a servant was acting within the scope of his employment. Bradlow v. American District Telegraph Commission, supra, 195. In some situations, however, the acts of the servant are "so clearly without the scope of his authority that the question is one of law." Id.; see also Gutierrez v. Thorne, supra, 499.
Brown, supra, at 628.
The Brown court found that the conduct of the employee was so clearly outside the scope of his employment that a summary judgment properly entered in favor of the employer:
It is clear in the present case that Jones was not furthering the defendant's business interests when he assaulted the plaintiff. His intentional, criminal acts were in no way connected to the defendant's business. The mere fact that Jones was driving from one job site to another when the assault took place does not change this analysis. Id.
The defendant argues that Ms. Peterson's writing of the unauthorized order for Dilaudid was analogous to the conduct of the employee in Brown, and so clearly outside the scope of the duties of a nurse that a summary judgment is warranted here. The court does not agree. Moreover, the basis of the motion for summary judgment ignores the allegations of negligence that Ms. Peterson mistakenly gave Mr. Kenyon too much Dilaudid. The administering of a pain medication to a patient who is in pain is certainly within the scope of the duties of a nurse and a jury could find that such conduct was within the scope of Ms. Peterson's duties in this case.
For the foregoing reasons, the motion for summary judgment is denied.