Opinion
No. FST CV 08-5008536 S (X08)
December 17, 2010
MEMORANDUM OF DECISION MOTION TO STRIKE #189
FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2008, the plaintiffs Vaughn Dunn ("Dunn") and Jane Dunn commenced the present action naming as defendants, Alice Chen, M.D. ("Dr. Chen"), Coastal Orthopedics ("Coastal"), Dino G. Zacharakos, M.D. ("Dr. Zacharakos"), Anesthesia Associates of Southern Connecticut ("AASC"), and Norwalk Hospital Association ("Hospital"). The plaintiffs have amended and revised the complaint. The December 9, 2009 operative complaint consists of twelve counts. Vaughn Dunn sets forth his claims in counts one through eight inclusive, and Jane Dunn sets forth her claims in counts nine through twelve inclusive. Counts one and two allege negligence against the defendants Dr. Chen, Coastal and Dr. Zacharakos in failing to provide him with appropriate and acceptable care, skill and treatment. Counts three and four allege claims for negligence and negligent supervision against the defendant AASC. Counts six, seven and eight are claims against the defendant, Norwalk Hospital, for negligence via apparent agency, non-delegable duty and negligent supervision. The remaining counts are claims by Jane Dunn against Dr. Chen, Coastal, Dr. Zacharakos and AASC.
One of the revisions of the complaint involved the separation of the allegations of actual and apparent agency and the non-delegable duty claims of the plaintiff. The plaintiff has separate counts as to each theory and only the count as to the non-delegable duty is at issue in this motion.
On February 10, 2010, Norwalk Hospital filed a motion to strike the seventh count of the amended and revised complaint which alleges that Norwalk Hospital is vicariously liable for the negligent acts of Dr. Zacharakos contending the Hospital has a non-delegable duty to provide non-negligent anesthesia services. In its motion to strike, Norwalk Hospital contends that it cannot be liable as a matter of law because Zacharakos is not an employee of the Hospital and Connecticut does not recognize a cause of action for non-delegable duty in a medical malpractice claim. Norwalk Hospital contends that the plaintiffs' allegation is tantamount to a claim of strict liability. The plaintiff filed a memorandum in opposition to the motion on June 2, 2010 and the defendants submitted a reply on July 13, 2010. The parties appeared and argued the motion on October 1, 2010.
DISCUSSION
A. GENERAL LAW
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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, supra, 498. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
"In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the . . . pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grisby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "It is of no moment that the defendants might prove facts which operate to bar the plaintiff's claim, the sole inquiry at this stage of the pleadings is whether the plaintiff's allegations, if proved, would state a basis for standing . . . [An] argument [that] would require the court to consider facts outside the face of the pleadings . . . would be improper on a motion to strike . . ." (Citations omitted.) Miller v. Insilco Corp., Superior Court, judicial district of New Haven, Docket No. 27 92 67 (May 22, 1990, Schimelman, J.) ( 1 Conn. L. Rptr. 651).
B. NON-DELEGABLE DUTY CLAIM
The defendant, Norwalk Hospital has submitted the motion to strike Count Seven of the Amended and Revised Complaint. This count alleges a "non-delegable duty of the Hospital to deliver safe anesthesia services to patients, even if those services are furnished under contracts with those purported to be independent contractors." The plaintiff has set forth as part of the basis for the claim of non-delegable duty a recitation of a number of state and federal regulations, medicare conditions and accreditation from the Joint Commission on the Accreditation of Health Care Organizations ("JCAHO") which they contend create this duty.
In order to address this motion, the court has reviewed the following factual basis alleged in the complaint. The plaintiffs Vaughn Dunn and Jane Dunn are married. The plaintiff, Vaughn Dunn, has alleged medical malpractice as a result of procedures performed at Norwalk Hospital. Mr. Dunn had a medical history of spinal stenosis that caused him pain in his left leg. He had undergone six separate epidural steroid injections at Norwalk Hospital between June 7, 2005 and August 25, 2006 to relieve the pain. Dr. Chen performed these procedures. As part of the procedure, the plaintiff was administered sedation from officers, employees and/or agents of the defendant, Anesthesia Associates of Southern Connecticut, LLC. On August 25, 2006, Dr. Chen once again performed an injection procedure at the hospital during which procedure a deep sedation was given for the pain by Dr. Zacharakos. At the conclusion of the procedure, the plaintiff complained of numbness and inability to move his legs. It was determined that the plaintiff had suffered an early cord infarct at the T12-L1 spinal levels. This caused him to be diagnosed with paraplegia.
The Seventh Count of the complaint alleges that Norwalk Hospital is vicariously liable for the alleged negligent actions of Dr. Zacharakos. The plaintiff alleges various licensing statutes, state regulations, medicare conditions of participation and accreditation from the Joint Commission on the Accreditation of Health Care Organizations (JCAHO) that give rise to a non-delegable duty. In particular, the plaintiff alleges in the complaint that the "defendant AASC provided exclusive anesthesiology services at defendant Hospital; and the physicians employed by AASC comprised and controlled the Anesthesiology Department of the Hospital and were the only physicians authorized to provide anesthesiology services at the Hospital by the contractual relationship in existence. Said control was effectuated by contract, and by membership and chairmanship of the Department of Anesthesiology being limited to agents, executives, officers and employees of AASC." Amended and Revised Complaint, Fifth Count ¶ 36. The plaintiff proceeds to refer to the licensing requirements of the state for a hospital and the various state regulations governing the operations of a state licensed hospital as the basis for the non-delegable duty. In particular, the plaintiff relies upon § 19-13-D1a and 19-13-D2 of the Connecticut Department of Public Health State Regulations, the accreditation of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and the federal Medicare provisions in support of their claim.
Although there are two plaintiffs in this action, Count seven relates only to the plaintiff, Vaughn Dunn and therefore the court will address the motion only as to one plaintiff.
The defendant Hospital contends that there is no such duty on the part of the Hospital that would subject it to liability and thus the court should strike this count as having no legal basis. The Hospital contends that the courts in Connecticut have not recognized this cause of action and to do so would be tantamount to a claim of strict liability for acts of independent contractors. Under the general rule, an employer is not liable for the negligence of its independent contractors. There are three exceptions to this general rule. First, an employer may be directly liable for injuries resulting from its own negligence in selecting or retaining an independent contractor. Restatement of the Law, 2d Torts, at 376, Section 411. Second, an employer may be held vicariously liable for the negligence of an independent contractor performing certain non-delegable duties which are imposed by statute, contract, franchise or charter or by common law. Restatement of the Law, 2d Torts, at 395, Section 416 et seq. Third, an employer may be held vicariously liable for the negligence of an independent contractor under the doctrine of agency by estoppel which requires a showing of induced reliance by a third person upon an ostensible agency. Johnson v. Wagner Provision Co., 49 N.E.2d 925 (1943).
The use of the terminology agency by estoppel is simply another term to define apparent agency which is referred to throughout this memorandum.
"The non-delegable duty doctrine means that the party with such a duty . . . may not absolve itself of liability by contracting out the performance of that duty." Gazo v. Stamford, 255 Conn. 245, 255, 765 A.2d 505 (2001).
The plaintiff cites Gazo, Id., as establishing the existence of a non-delegable duty, but the case is limited to a premises liability theory as will be discussed below.
There are no allegations in the Seventh Count of the complaint that indicate the hospital is directly liable for the plaintiffs' injuries resulting from its own negligence in selecting or retaining Dr. Zacharakos for which the Hospital would be liable under the first exception. The first exception is not applicable to the instant action. The third exception involves the doctrine of apparent agency or apparent authority which are separate claims addressed in Counts five and six of the Amended Revised Complaint. Therefore, this exception is not applicable in this action.
The only exception which is at issue in this motion is whether the Hospital has a non-delegable duty in relation to the acts of an independent contractor, Dr. Zacharakos.
Although the parties agreed during the course of argument that the issue was limited to whether there is a non-delegable duty, during the course of argument they injected facts or argument that are applicable to the counts concerning actual agency and apparent agency which will not be considered on this motion to strike. This motion is limited to the question of whether there is a recognized cause of action for a non-delegable duty related to a claim of medical malpractice.
To date, there are no Connecticut cases that create a non-delegable duty on the part of a hospital for the alleged medical malpractice context of an independent anesthesiologist. The plaintiff alleges that the defendant Norwalk Hospital has a non-delegable duty to deliver safe anesthesia services to patients, even if those services are furnished under contracts with independent contractors. The plaintiff argues this duty arises from the regulatory and statutory requirements as well as from the certification as a Medicare provider and/or the Joint Commission on Accreditation of Healthcare Organization ("JCAHO").
C. REGULATIONS
The plaintiff relies upon a number of state regulations and accreditation as the basis for the exception to the prior findings of the courts related to the claim of a non-delegable duty. The defendant contends that the regulations relied upon by the plaintiff do not give rise to a non-delegable duty and cites the federal case of Menzie v. Windham Community Memorial Hospital, 774 F.Sup. 91, 97, 98 (1991) in support of its position. A review of both the findings by the court and the regulations themselves provides support for the defendant's argument. The plaintiff in Menzie was injured in a motorcycle accident and admitted to the hospital for emergency treatment. The plaintiff required the services of an anesthesiologist to administer a spinal anesthetic for surgery. After the administration of an anesthetic, the plaintiff's blood pressure dropped before surgery commenced, and he suffered cardiorespiratory arrest and was left with no memory of the accident and permanent brain damage. The plaintiff in Menzie brought an action on three causes of action. The third claim was that the hospital had a non-delegable duty to provide non-negligent emergency and anesthesia services to the plaintiff and cannot avoid this by claiming the doctors it provided were not agents or employees. The plaintiff in Menzie contended that state regulations similar to those raised in this action created a non-delegable duty. However, the court stated that: "The state regulations which permit hospitals to operate provide that a hospital must provide adequate care for persons in emergency situations at all hours. See Conn. Agencies Regs. § 19-13-D3(j)(2)." Menzie, supra. 91. The interpretation of this duty to the hospital as a result of this regulation is that it is "to provide a place for treatment and ensure the availability of treatment." This is evident from the following section which states: "In a city or town with two or more hospitals, the operation by one such hospital, under a mutual agreement, acceptable to the Connecticut Department of Public Health, of an emergency room twenty-four hours a day shall be considered satisfactory compliance with this section; in other hospitals arrangements shall be made to operate an emergency room twenty four hours a day with a physician to be available within twenty minutes of the call to the physician." Conn. Agencies Regs. § 19-13-D3(j)(3). The Menzie court recognized the limits of liability and stated: "The hospital is not necessarily charged with, nor has it undertaken, rendering or performing the actual care. The physician's duty is to administer medical care in a non-negligent manner. Although a hospital may be directly liable for its own negligence if it grants non-qualified physicians staff privileges and the physicians then commit malpractice, that theory has not been alleged." Menzie, supra at 98. Therefore, the adequate care cited in Menzie and similar to the regulations cited by the plaintiffs in the instant matter is interpreted as providing the needed services of emergency rooms or anesthesiology. It has never been interpreted that these regulations will charge the hospital with the rendering of the actual care and responsibility for the outcome. Nowhere in any Connecticut case, as in Menzie, is there an implication that the hospital is regulated for more than the availability of the care or services outlined in the regulations.
The court examined the reliance upon Conn. Regs. § 19-13-D3(j)(2) which states: "Each general hospital shall be organized in such a way as to provide adequate care for persons with acute emergencies at all hours."
The plaintiffs in this action cite Connecticut Department of Public Health agency regulation sections 19-13-D2 and 19-13-D1a as a regulatory basis for the defendant Norwalk Hospital's non-delegable duty. Section 19-13-D2 states that in order to obtain and maintain a license to operate as a hospital with surgery services performed therein, the hospital is required to comply with regulation sections 19-13-D2 to 19-13-D12. Compliance with section 19-13-D2 to 19-13-D12 provides that the defendant Norwalk Hospital, among other requirements, establish a department of anesthesia; the chief of the department of anesthesia must be responsible for supervising the quality of anesthesia services provided in the hospital; provide adequate care for persons with acute emergencies at all hours; approve written rules and regulations governing the control of privileges granted to members of the medical staff and the staff's clinical work; and employ qualified personnel in sufficient numbers to effect the services provided by the hospital. The requirements of this section of the regulations, as the requirements noted in Menzie, address the availability of the service in order to maintain a license and do not create standards of care for the procedures within the department.
Section 19-13-D2 states: "All hospitals licensed under sections 19-32 to 19-42 of the general statutes as amended, shall comply with the requirements set forth in sections 19-13-D2 to 19-13-D12, inclusive, before a license is issued."
Section 19-13-D1a permits the defendant, Norwalk Hospital, to maintain a license without additional inspection or investigation by the Connecticut Department of Health. This waiver of additional inspection is a consequence of Norwalk Hospital's obtaining and maintaining a certification as a Medicare provider from the United States Department of Health and Human Services and/or an accreditation from the Joint Commission on Accreditation of Healthcare Organizations. The plaintiff contends that the plain language of the state regulations impose a non-delegable duty upon Norwalk Hospital to provide supervised anesthesia services. The plaintiffs refer to the Federal Register Vol. 51, No. 116, which encompasses the federal regulations, 42 C.F.R. § 482.12 and 42 C.F.R. § 482.52 in support of their position. This regulation states in relevant part that the background of these regulations is to "protect patient health and safety and assure the quality of care provided to Medicare and Medicaid beneficiaries . . ." The plaintiff contends that this language intends to impose a non-delegable duty. Based upon the court's analysis in Menzie and a reading of the regulations and Connecticut law, this court disagrees with such a position. It is clear that the purpose of the state regulations and requirements which hospitals must abide by are established in order to obtain licensure and thus provide a full range of medical services to members of the public. The intent of these regulatory sections is to be determined by this court's plain meaning analysis and any stated purpose or history of the regulatory sections. The stated purpose of regulation 19-13-D1a as noted in the proposed amendments published in the Connecticut Law Journal is "to establish criteria and procedures by which to allow the Commissioner of Health Services to deem a hospital . . . licensable without additional inspection in accordance with Public Act 80-17." In the March 26, 1980 hearing, before the senate on Senate Bill 188, Senator Ciarlone commented on the purpose of the bill to "provide a health care facility that has been certified by the United States Department of Health and Human Resources as a provider of services under Medicare or Medicaid programs shall be deemed licensed for a State facility in Connecticut if it passes the Federal Regulations." Senator Ciarlone further commented that the bill would "eliminate much of the inspection procedures by the Department of Health." These comments evince an intent of procedures for licensing and not interference or control over the standards of health care. There is a distinction between requiring the availability of the care and regulations which control or oversee the duties of licensed physicians while administering the professional care needed. The plaintiffs are requesting that this court interpret the regulations as addressing the latter. There has been no evidence that this is the intent of the regulations. Contrary to this assertion, the case law in Connecticut has not extended the liability to include the scope of the nature and manner of the care. The purpose of sections 19-13-D1a and 19-13-D2 is clearly to establish standards and requirements that the state has mandated to allow operation and payment for services.
Section 19-13-D1a allows any institution as defined by sections 19-576(b) through 19-576(f) of the Connecticut General Statutes to "apply to the department of health services to be deemed licensable without additional inspection or investigation if said institution (1) has been certified as a provider of services by the United States Department of Health and Human Services . . ."
There is no Connecticut case law evaluating the language of the Department of Public Health regulation sections cited by the plaintiff.
This intent is also established in a review of the summary and the background of the Conditions of Participation for Hospitals in Medicare programs stated in the Federal Register Vol. 51, No. 116 which encompasses 42 C.F.R. § 482.12 and 42 C.F.R. § 482.52 that states: "These regulations revise the requirements that hospitals must meet in order to participate in the Medicare and Medicaid programs." Further, "the conditions and accompanying standards specified in the regulations are used by our surveyors as a basis for determining (1) whether a hospital qualifies for a provider agreement under Medicare and Medicaid; and (2) whether a hospital that does not qualify or choose to participate in the Medicare program may nevertheless be paid for emergency services furnished to Medicare beneficiaries." These comments make it clear that the regulations provide guidelines to distinguish entities that could be compensated for services to program participants.
Although the Connecticut courts have not interpreted these requirements for Medicare participation in conjunction with the issue of non-delegable duty, there have been other courts that examined the alleged duty in conjunction with the Medicare participation. The court in Sepulveda v. Stiff, 2006 WL 3314530 (E.D.Va.), held that 42 C.F.R. § 482.1 et seq. does not create a private right of action, as they are solely intended to set out guidelines for determining whether a hospital may participate in Medicaid or Medicare. The plaintiff in Sepluveda claimed the defendant hospital had a federal non-delegable duty to provide competent care, and therefore, was vicariously liable for the negligent medical care she received while a patient at the hospital. The plaintiff relied on the language of 42 C.F.R. § 482.12(e) which states that "the governing body [the hospital] must ensure the services performed under a contract are provided in a safe and effective manner." The court explained that "section 482.1, et seq. of Title 42 of the Code of Federal Regulations was promulgated pursuant to §§ 1102 and 1871 of the Social Security Act, 42 U.S.C. §§ 1302 and 1395 . . . Nowhere in the relevant provisions of the C.F.R., or in the statute authorizing it, is a private right of action expressly created." Id., 8. Further, in determining the significance of the regulation cited by the plaintiff, the court looked to the "basis, scope and purpose of the regulation . . ." The Sepulveda court viewed the lead section, 42 C.F.R. § 482.1(b) which defines the scope of the provision as ". . . the basis of survey activities for the purpose of determining whether a hospital qualifies for a provided agreement under Medicare and Medicaid." Id. From this language the Sepulveda court concluded that there was no proof that "Congress intended to create a new private right of action, exposing hospitals to liability for medical malpractice §§ 1302 and 1395 of the Social Security Act, or the implementing regulations contained in 42 C.F.R § 482.1, et seq." Id. Based upon this review the court granted the defendant, hospital's, motion for judgment.
The court has not been provided a legislative history that interprets the purpose of the regulations to expand the liability of a hospital to include a non-delegable duty for services provided by independent contractors. The purpose of the federal regulations as ennunciated in Sepluveda and Menzie does not support the plaintiff's position of the establishment of a nondelegable duty.
D. CASE LAW REGARDING NON-DELEGABLE DUTY
The plaintiff next argues that the Connecticut court in Machado v. City of Hartford, 292 Conn. 364, 972 A.2d 724 (2009) recognizes a statutory non-delegable duty that this court should adopt. However, the present action is not only factually but legally distinct from the Machado case. The plaintiff argues that Machado recognizes the theory of non-delegable duty even when the acts were performed by an independent contractor. Machado can only be described as a case with a specialized category. It involved a specific statutory duty of a municipality pursuant to General Statutes §§ 13a-99 and 13a-149, to maintain the public highways. The statutes at issue create mandatory responsibility upon the municipalities that has been well recognized by our courts. In fact, the statute regarding this claim for a municipal defect is the exclusive remedy available to the plaintiff and unlike the situation in this matter closes the door on the allegations of other causes of action against the municipality. Steele v. Stonington, 225 Conn. 217, 622 A.2d 551 (1993), Nikel v. Turner, 119 Conn.App. 724, 989 A.2d 1088 (2010), Bagg v. Town of Thompson, 114 Conn.App. 30, 968 A.2d 468 (2009) and Read v. Town of Plymouth, 110 Conn.App. 657, 955 A.2d 1255 (2008). The enactment of 13a-149 provided a method of relief to parties that would have no cause of action against a municipality with immunity from suit. The courts determined that this statutory responsibility of keeping its' highways in a reasonably safe condition for public travel is a duty that cannot be imposed upon the property owner by contract or ordinance. Machado, Id., citing Kristiansen v. Danbury, 108 Conn. 553, 559, 142 A. 850 (1928). The duty outlined in Machado is a very specific statutory obligation that attaches to any defect of which the town is or should be aware of and is not applicable to allegations to an action that would have separate and distinct claims in a medical malpractice action involving an independent professional. Machado, Id. The cases that are consistent with the Machado line of reasoning including Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001) are also based upon an exception to the general rule of independent contractor for non-delegable duties as an owner or occupier of premises and the duty to invitees. Gazo, supra., Restatement (Second) Torts. As noted above, the policy considerations of a highway defect statute which have considerations of notice and sole proximate cause are not the same as considerations of a claim for medical malpractice There is no similarity as to factual basis or legal analysis that would lead this court to follow the statutory mandates of the highway statute as similar to the statutory and regulatory guidelines for licensing and operation of the hospital.
The case of Himmelstein v. Town of Windsor, 293 Conn. 927 (2009), is an appeal to the Supreme Court on this very issue of exclusive remedy.
The plaintiffs in their memorandum also attempt to link the Machado and Gazo decisions with Ray v. Schneider, 16 Conn.App. (1998). However that case related to a work situation when a trench caved in. The court in Ray v. Schneider did not find a non-delegable duty as to the employee. The court did not find liability as to the general public and limited it to facts that involved a dangerous situation. This case does not open the door for unlimited liability.
The plaintiff argues that the Restatement (Second) of Torts § 424 and Restatement (Second) of Agency § 214 support their position that the regulations create a non-delegable duty. The reliance on these treatises is misguided. The Restatement of Agency is not applicable to the argument regarding non-delegable duty and is a separate and distinct cause of action in the complaint. The Restatement of Torts discussed "specified safeguards or precautions imposed by statute or regulation." In the instant action, the regulations are general standards imposed to permit the establishment and payment for services. The Restatement refers to a number of cases but none of which address the non-delegable duty as to a hospital and a medical malpractice claim.
A claim for vicarious liability upon the hospital in a medical malpractice action has never been decided by any State of Connecticut court. The regulatory provisions relied upon by the plaintiff in the instant case establish no such direct responsibility nor interpretation that would clearly create a non-delegable duty for the anesthesiology services provided in a hospital.
The case of Menzie v. Windham Community Memorial Hospital, 774 F.Sup. 91 (Dorsey, Sept. 16, 1991), is a federal district case in which the court did decide the action based upon Connecticut law and regulations.
The plaintiff next argues that there are a number of cases in a number of jurisdictions that have extended the obligation of a hospital to a nondelegable duty in a medical malpractice action even when the physicians are not directly employed by the hospital. The defendant counters by distinguishing the cases relied upon by the plaintiff and citing a large number of cases which have not extended legal actions to a hospital for independent physicians to create a non-delegable duty. This court has reviewed a number of cases beginning with Jackson v. Power, 743 P.2d 1376 (Alaska 1987). The Jackson court found that a general acute care hospital may not delegate its duty to provide the physicians for emergency care because the law imposes a duty upon the hospital for that care. In Jackson, the plaintiff was treated in the emergency room for injuries. The plaintiff alleged negligence in the treatment by the emergency room physicians who are employees of a wholly owned corporation separate and apart from that of the defendant hospital. The plaintiff made a claim of apparent agency or actual agency but also claimed that the hospital had a non-delegable duty to provide non-negligent physician care in their emergency room regardless of whether the emergency physician is actually an employee. The Supreme Court of Alaska was the first Appellate Court to adopt the non-delegable duty and apply it to the vicarious liability of the hospital since the plaintiff proved negligence by the emergency room physicians who were not employees of the hospital. The hospital was licensed pursuant to federal statutes to receive Medicare and Medicaid benefits and was licensed and approved by the Joint Commission on Accreditation of Health Care Facilities. In addition, the hospital was licensed by state statutes and regulatory agencies as an acute care hospital. The hospital was held vicariously liable for the negligence of the non-employee emergency room physicians. Ten years later, the legislature of the State of Alaska passed tort reform and one statute addressed the holding in Jackson. The statute § 09.65.096 effective as of August 7, 1997 states in part: (c) "a hospital is not immune from liability under (a) of this section for an act or omission of an emergency room physician who is an independent contractor unless the emergency room physician has liability insurance coverage in the amount of at least $500,000 for each incident and $1,500,000 for all incidents in a year, and the coverage is in effect and applicable to those health care services offered by the emergency room physician that the hospital is required to provide by law or by accreditation requirements."
There was no specific cite to regulations that control but the court refers to the general regulations concerning the creation of a department such as the emergency room. The court clearly had a broad definition of respondeat superior.
Thereafter, the Alaska court in Fletcher v. South Peninsula Hospital, 71 P.3d 833 (Alaska 2003), Supreme Court of Alaska (June 13, 2003) discussed the Jackson v. Power case. The Fletcher case focused on the care in the emergency room of the hospital and the limitations of the Alaska court. The Fletcher court limited the holding of vicarious liability where a patient comes to the hospital seeking emergency care and is treated by a physician provided by the hospital and the hospital selects the physician. The Fletcher court recognized that courts in other jurisdictions had differing findings as to a cause of action based upon a non-delegable duty. The Fletcher court cited the case of Simmons v. Tuomey Regional Medical Center, 341 S.C. 32, 533 S.E.2d 312 (S.C. 2000), also cited by the plaintiffs, in support of the non-delegable duty doctrine. The Simmons court discussed the theory of apparent agency in conjunction with the claim of non-delegable duty. This action distinguishes the two causes of action and thus standing alone is not authoritative on the issue of non-delegable duty especially in light of the case of Menzie v. Windham Community Memorial Hospital, 774 F.Sup. 91 (D.Conn. 1991). In addition to the Connecticut cases, the plaintiff cites a number of cases from other jurisdictions which they contend have established a non-delgable duty in medical malpractice cases and which this court should follow. Crooks v. Keene, No .95232 (Ma.Super. Mar. 26, 1999) [10 Mass. L. Rptr. 56], Hunt v. Mercy Medical Center, 121 Md.App. 516, 710 A.2d 362 (1993), and Marek v. Professional Health Services, Inc., 129 N.J.Super. 433, 432 A.2d 538 (N.J.App. 1981). In effect, the plaintiffs are asking this court to review cases from other jurisdictions and apply that law to this case. Although the court has reviewed each of the cases as noted below, the court is of the opinion that to the extent that some of the cases may favor the plaintiffs' position, they are not the law in Connecticut and this court will not recognize them as giving the court the authority to change the law in this state.
The Supreme Court in ATC Partnership v. Coats North America Consolidated, 284 Conn. 537, 935 A.2d 115 (2007) and Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998) acknowledge that the Supreme court has the authority to create a new cause of action. There is no case law that gives this authority to the Superior Court.
The Massachusetts case of Crooks v. Keene, involved the operation of a commercial clinical laboratory where an employee/independent contractor incorrectly read a pap smear as negative. The clinical laboratories were extensively regulated and licensed. The issue was specifically whether a commercial laboratory can delegate its duties under its license to physicians working at the facility as independent contractors and thus shield itself from liability for negligence in performing the very function which gave rise to the licensing requirements. This action did not involve a hospital but the court in its decision referred to and distinguished cases involving liability of hospitals who staff emergency rooms and radiology departments as of "limited utility" in the action. The final rationale of the court in denying the motion for summary judgment was that the responsibility at issue was so important to the community that the court believed it should have a fully developed record to explore. The Crooks case did not discuss the specific application of the non-delegable duty in the hospital context and offers no definitive law that would guide the court in finding a non-delegable duty exists in this case.
The Maryland court in Hunt v. Mercy Medical Center, 121 Md.App. 516 supra, denied a motion for summary judgment in an action that involved the pathology department. A physician was hired as an independent contractor to review all of the tests. It was alleged that the independent physician negligently reviewed and reported as to the test. The plaintiff brought an action naming the physician and the hospital. There was no ruling that the hospital was liable for a non-delegable duty in the pathology department. The decision of Hunt focused on whether the physician was as an independent contractor through the agency relationship. In particular, the court stated: ". . . the issue of apparent authority should be determined by a jury." The court left the matter to the jury to examine whether the hospital had the right of control over the hiring, work schedule, billing, credentialing, continuing education, and performance of the physician's professional duties to determine if the hospital had control over his physical conduct such as to create a master-servant relationship. The Hunt court does not factually or legally analyze the issue of non-delegable duty. The court was focused of the agency relationship.
In the New Jersey case of Marek v. Professional Health Services, Inc., 179 N.J.Super. 433, supra, the court found that there was a non-delegable duty in a matter where the radiologist employed by a medical group that performed mobile X-ray testing at job sites neglected to properly read an X-ray. However, the factual pattern and the analogous law cited in the Marek case narrows the scope of this finding. In Marek, the defendant PHS was described as a company with a mobile testing service operating throughout the United States. The radiologist, Dr. Johnson, was a subcontractor and paid $1.00 by the company for review of each X-ray. He allegedly misread the X-ray. The court determined that the company PHS engaged in a non-delegable duty and thus was vicariously liable for the negligence of Dr. Johnson. Although on its face this action appears to extend the liability to independent contractors in a medical setting, the factual scenario of this case involved a private group paying the radiologist and very different factually from the claims in the instant case. The supporting case law in Marek focused on the duty in relation to the employer/employee relationship and did not a medical relationship. Additionally, the court qualified its' decision in a footnote stating: "By today's holding, we do not intend to suggest that a physician who engages a specialty consultant, such as a radiologist, pathologist or anesthesiologist or any other, is vicariously liable for the specialist's dereliction." Marek, Id. at 443 fn.3, citing Tramutola v. Bartone, 63 N.J. 9, 16, 304 A.2d 197 (1973).
Although the plaintiffs argue these other jurisdictions support the expansion of liability, a review of the case law does not provide this court with a compelling argument to make a finding that Connecticut should expand the hospital's liability for independent contractors.
The plaintiff also cites case law from Connecticut which he contends supports his position. A review of these cases demonstrates that they do not address the one issue before this court, that is, non-delegable duty. Each of the cases cited by the plaintiff involves hospitals but each case involves the issue of agency. In fact, in Francisco v. Hartford, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 92 0513841, (March 1, 1994, Corradino, J.) ( 11 Conn. L. Rptr. 191), the court in denying a motion for summary judgment stated: "the doctrine of apparent authority lies and factual issues must be resolved to determine whether liability should be imposed. In light of the ruling the court will not discuss the viability of the plaintiff's second theory of recovery [non-delegable duty] since in light of the courts' holding this would constitute what in effect would be an advisory opinion on the issue in dispute between the parties." Although the court in Francisco recognized that there are separate causes of action with separate analysis it chose not to rule on the non-delegable duty. However, the Connecticut Superior Court cases of Franklin v. Murray, Superior Court, judicial district of Waterbury, Docket No. X01 CV 010170608, (March 12, 2004, Sheedy, J.), and Custer v. Kurowski, M.D., Superior Court, judicial district of New London, Docket No. CV 97 0543040 (January 29, 1999, Hurley, J.T.R.) ( 23 Conn. L. Rptr. 695), cited by the plaintiff presents an issue of apparent agency for consideration and not the issue of non-delegable which is the issue before the court. These courts along with a number of other Connecticut courts when confronted with the issue of non-delegable duty liability in the hospital setting have merged the arguments of apparent agency and non-delegable duty leaving the Connecticut case law of non-delegable duty unchanged. The only and most significant case utilizing Connecticut law that addresses this new theory of liability is Menzie v. Windham Community Memorial Hospital, 774 Conn. 91, supra, which was discussed earlier.
Lastly, the plaintiffs argue that their claims are supported by the decision in Stewart v. Stamford Radiological Associates, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4006288 (January 22, 2008, Tierney, J.) ( 44 Conn. L. Rptr. 747). The plaintiff cites the Stewart decision as support for the position that a Connecticut court recognizes a non-delegable duty in relation to a claim involving medical malpractice. This position is misguided and premature. In Stewart, the hospital submitted a motion for summary judgment as to issue of non-delegable duty. The plaintiff, as in the instant action, cited the federal regulations as authority to find that there was a non-delegable duty on the part of the hospital to provide radiological services. The defendant hospital contended that there was no authority for the claim that the hospital had a non-delegable duty to provide non-negligent radiological services based upon the regulations, statutes and contracts. The court without discussion concluded that the regulatory language appeared to "create a question of fact." Thus, the court denied the motion for summary judgment without any analysis as to the application of the statutes, regulations or contracts. However, thereafter, this very court ruled of a motion to strike in the case of Tiplady v. Maryles et al., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 075003525 (June 25, 2010, Tierney, J.T.R.) ( 50 Conn. L. Rptr. 282) that: "Connecticut law does not recognize a claim based on non-delegable duty against a Connecticut hospital for the negligence of physicians employed by another non-hospital entity as emergency room physicians staffing that hospital's emergency room." Based upon the court's decision in Tiplady, the court's denial of the summary judgment in Stewart does not establish a cause of action for a non-delegable duty to the hospital when engaged with independent contractors in a medical malpractice action.
The court in Tiplady entered a decision on June 25, 2010 that simply ruled that Connecticut does not recognize a cause of action for independent contractors in a medical malpractice action. The court indicated that a written decision will be forthcoming but to date no other written decision has been filed.
The defendant, Norwalk Hospital has provided the court with a multitude of case law in which the courts have reaffirmed the position that there is no cause of action for a non-delegable duty to the hospital for the acts of independent contractors in a medical malpractice action. The most notable and closely aligned case is the federal case of Menzie v. Windham Community Memorial Hospital, 774 Conn. 91, supra. discussed above The defendant, Norwalk Hospital, does refer to a number of cases from other jurisdictions that support their position that there is no non-delegable duty to the hospital for an independent contractor when there is a medical malpractice claim. This court recognizes that there is a split of authority in other jurisdictions with a number of courts rejecting this theory as a cause of action Baptist Memorial Hospital v. Sampson, 969 S.W.2d 945 (Texas 1998); Kelly v. St. Luke's Hospital of Kansas City, 826 S.W.2d 391 (MO. 1992); Milliron v. Francke, 243 Mont. 200, 293 P.2d 824 (Mont. 1990); Albain v. Flower Hospital, 50 Ohio St.3d 251, 553 N.E.2d 1038 (Ohio 1990); Clark v. South View Hospital, 68 Ohio St.3d 435, 628 N.E.2d 46 (Ohio 1994); Johnson v. St. Bernard Hospital, 79 Ill.App.3d 709 (Ill.App.Ct. 1979), Tolman v. IHC Hospitals, Inc., 637 F.Sup. 682 (Dist. of Utah, 1986) Bynum v. Magno, 125 F.Sup.2d 1249 (Dist. of Hawaii, Dec. 13 2000). However, the defendant's reliance upon Menzie, supra, is distinguished by this court as the only case addressing this issue and thus is controlling.
The decision of this court is not based upon the weighing of the number of cases supporting a non-delegable duty versus those that have found no such duty, but it is the nature of the action alleged in the complaint and the application of the law as it presently exists that leads the court to find that there is no Connecticut case law that supports the claim in Count Seven. The complaint is devoid of any facts that would create some control over the medical service that was provided to the plaintiff. The allegations in Count Seven are generic to the hospital including providing "adequate" care much the same as in the state or federal regulations. No case law or regulation defines what is adequate other than the Menzie court that interprets the regulations to require the establishment and availability of the various departments with the hospital. To rule that there is a viable claim as a result of the actions of the anesthesiologist administering medical care to a patient would create a whole new range of liability upon a hospital that has never before been permitted. The regulations imposed by the State and Federal governments are clearly to ensure the availability of treatment. The only case interpreting the law of Connecticut ruled that the regulations for establishment of hospital do not create a non-delegable duty for the various departments that may incorporate independent contractors. As such, here are no facts contained in the complaint that would give rise to allowing a cause of action for the acts of the professional independent contractor.
In reviewing the case law cited by the parties, it should be noted that the cases cited by both parties did have one common thread, that is, there was as one of the remaining claims in the action, the claim of apparent agency that the courts consistently recognized as a cause of action which created a question of fact for the jury or trial court in most circumstances. This common thread is also present in the present action.
CONCLUSION
For the foregoing reasons, the motion to strike Count Seven of the December 9, 2009 Amended and Revised Complaint is granted.
THE COURT