Opinion
No. X 09 CV 06 5006361
December 19, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Teh Hwan Joh sought treatment from the emergency department of the defendant Charlotte Hungerford Hospital (hospital) on April 30, 2005 and again the next day, when he was returned to the hospital by ambulance in respiratory extremis, with acute renal failure and myocardial infarction. He died the following day, May 2, 2005, after being transferred by LifeStar to Hartford Hospital.
These and other facts recounted in this section of the decision are taken from the operative complaint, the Second Amended Complaint of April 20, 2007, and the court does not understand that any of them are in dispute, at least for the purpose of this motion.
On April 30 Mr. Joh was seen in the emergency department by the defendant, William R. Schmidt, M.D. He complained of chest pain, cough, shortness of breath and dizziness. Dr. Schmidt diagnosed him as having atypical pneumonia and discharged him for follow-up with his primary care physician. Count one of the complaint in this medical malpractice action alleges that Dr. Schmidt's treatment of Mr. Joh deviated from the prevailing standard of care in multiple ways, and that Mr. Joh's death was proximately caused by his breach of the standard of care.
Count two seeks to hold the hospital liable for Dr. Schmidt's alleged malpractice in the treatment of Mr. Joh because he was "the actual and/or apparent agent of the [hospital] . . . while acting within the scope of that actual and/or apparent authority." Second Amended Complaint, count two, ¶ 13. On the day in question, however, Dr. Schmidt was an employee not of the hospital but of Northwest Connecticut Emergency Medicine, P.C. (corporation) which had a contract with the hospital to provide physicians to staff the emergency department at the hospital and provide treatment to patients like Mr. Joh. Based on that undisputed fact, the hospital moves for summary judgment in its favor on count two. The motion claims that Dr. Schmidt was not an actual agent of the hospital, nor did he have apparent authority to act for the hospital. It argues, as a matter of law, that Connecticut does not recognize the "apparent agency" of an independent contractor as a basis for tort liability. Finally, even if such a theory of recovery were to be endorsed, Mr. Joh does not allege and cannot prove one of the theory's essential elements; viz., that he relied to his detriment on Dr. Schmidt's appearance as an agent for the hospital.
Is there a genuine issue as to the material fact whether Dr. Schmidt was an actual agent of the hospital? If so, the motion for summary judgment must be denied. If not, may the hospital be held liable for Dr. Schmidt's actions on the theory that he was its "apparent agent"?
I
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." Cases too numerous to cite have laid out the principles a court must apply in deciding such a motion. It is the burden of the hospital, as the moving party, to show the absence of any genuine issue of material fact; if it does so, the plaintiff, Young Mi Joh, Mr. Joh's wife and the administratrix of his estate, must provide an evidentiary foundation to demonstrate the existence of such an issue. It will not be enough for her merely to assert the existence of a disputed material issue; she must provide evidence disclosing its existence. The court must view the evidence submitted by the parties in the light most favorable to the non-moving party, here Mrs. Joh.
The hospital has supported its motion with affidavits and deposition excerpts, a copy of the contract between it and the corporation (contract) and a copy of a hospital document entitled "Conditions of Care." Mrs. Joh also relies on the contract, deposition excerpts and affidavits and the "Conditions of Care" document, as well as other documents of the hospital and an excerpt from its internet web site. The court has relied on the pleadings and on these submissions in deciding whether there is a genuine issue as to a material fact and on the memoranda of law supplied by the parties and the cases cited therein in determining whether the hospital is entitled to judgment as a matter of law.
II
Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 132-33 (1983), says it all when it comes to defining the concept of agency under Connecticut law:
Agency 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.
In Beckenstein the court looked first to the provisions of the agreement between the parties who the plaintiff claimed had a principal-agent relationship to determine whether the necessary elements of such a relationship were present; Id., 134; and this court will do the same.
The contract between the hospital and the corporation satisfies the first two of the three elements of an agency relationship. Through it the hospital manifests that the corporation will act for it in treating hospital patients who require service in the emergency department; Contract, p. 1 ("WHEREAS, the Hospital desires to make available to its patients and individuals in the Hospital's community Emergency Medical Services through an independent emergency medicine group"); and the "hospital's patients" are broadly defined to include "all inpatients and outpatients of the Hospital, as well as all individuals presenting in the [Emergency] Department and seeking evaluation and/or treatment for an acute medical need." Id., ¶ 1.4. By entering into the contract the corporation evidences its acceptance of that undertaking. Id., p. 1 ("WHEREAS, the [corporation] wishes to provide such [emergency medical] services on a full-time basis as the exclusive provider of such Services . . .").
On the question of control, as is true of all products of a negotiation, there is something for everyone in the contract. The hospital points to paragraph 2.4, which is headed "Independent Contractor Status" and provides, "The Hospital shall not exercise any control or direction over the professional (medical) aspects of the provision of Emergency Medical Services, which control and direction shall be the sole responsibility of the [corporation] and the Director [of the emergency department]." But, Beckenstein enjoins the court to interpret the contract "as a whole and with all relevant provisions considered together"; Id.; and this contract is replete with provisions evidencing ultimate control by the hospital over the "undertaking" of providing emergency medical services to its patients.
The Supreme Court has also pointed out that, "Language in a contract that characterizes an individual as an independent contractor is not controlling. The primary concern is what is done under the contract and not what it says." Latimer v. Administrator, 216 Conn. 237, 251 (1990). "The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact." Id., 249.
One of the stated and commendable purposes of the contract was the "rendition of high quality care" to persons seeking treatment in the hospital's emergency department; Contract, p. 1; so, it should come as no surprise that the hospital saw the contract as a way to "promote . . . control and standardization of procedures" (emphasis added) in the department. Id. Toward that end the contract contains numerous provisions which have the obvious intent and effect of controlling the provision of services there. To mention just a few: (1) the director of the emergency department, a physician supplied by the corporation, must ensure that emergency medical services are performed in accordance with the policies of the hospital, as well as "acceptable professional standards" (emphasis added); Contract, ¶ 2.2.3; (2) standard protocols developed and adopted by the hospital shall be used and followed by the corporation in providing services in the department (emphasis added) Id., ¶ 2.2.9; (3) the hospital determines which physicians may provide services in its emergency department by setting the criteria to which the corporation must conform; Id., ¶ 2.3.1; and requiring that each physician be "individually credentialed" by the hospital; Id., ¶ 2.3.2; (4) a physician employed by the corporation may not work in the department if the physician has "failed to render services to the Hospital's patients in a competent, professional and ethical manner . . ." Id., ¶ 2.3.3(v); (5) hospital bylaws, rules and regulations and policies govern all record keeping and report writing done by the corporation's physicians, and all patient records are the property of the hospital (emphasis added); Id., ¶ 2.9. Indeed, ¶ 2.4 of the contract, upon which the hospital relies to negate an agency relationship with the hospital, itself provides that emergency medical services shall be provided by the corporation and its physicians "in accordance with . . . Hospital and Medical Staff Bylaws, Rules and Regulations, and policies [and] the Department's rules, regulations and policies . . ." (Emphasis added.)
This listing of contract provisions which relate directly to the provision of patient service by corporation physicians in the emergency department does not include the many sections of the contract meant to control the activities of the corporation, as opposed to the individual physicians, in carrying out the undertaking of providing emergency medical services to patients of the hospital such as Mr. Joh. For example, the corporation has no choice as to the patients it treats: it must treat all who present to the emergency department for evaluation or treatment, and it must do so twenty-four hours a day, seven days a week, 365 days a year. See Contract, ¶ 2.1.
In Beckenstein the Supreme Court declined to find an agency relationship between the manufacturer of roofing material and the roofer who had purchased the material for use in completing a specific project. But, the agreement in Beckenstein was simply one "to buy and sell material." Beckenstein v. Potter Carrier, Inc., supra, 191 Conn. 134. The same may not be said of the agreement here, which created a continuing undertaking between the hospital and the corporation by which the former's work of evaluating and treating emergency department patients was to be carried out by the latter, under the hospital's supervision and monitoring. Contract, p. 1.
Furthermore, while an "examination of some of the other factors utilized in determining whether an agency relationship could reasonably be found to exist"; Id., 136; in Beckenstein cemented the Court's conclusion to the contrary, the opposite is true here. The hospital, unlike the manufacturer in Beckenstein, controls both "the instrumentalities and the place of work"; Id.; of the corporation's physicians. That is, all of the services are provided in the hospital's emergency department, over which it maintains plenary control, and it provides all equipment, supplies and personnel to be used by the physicians in providing emergency medical services. Contract, ¶ 3.1. It is the hospital which determines the number of personnel necessary and the space and equipment adequate for the corporation's physicians to provide their services to the hospital's patients. Id.
The hospital argues that it does not control how the corporation's physicians, like Dr. Schmidt, treat their patients; so, it does not have sufficient control over them to render them its agents. The hospital, however, does not control how its staff physicians treat their patients. It doesn't tell the surgeon where to make her incision or the anesthesiologist how much of which drug to use on a particular patient or the emergency room physician, before the contract with the corporation was entered into, how to evaluate a particular patient presenting for treatment. But, the contract declares the corporation's "failure to meet the Hospital's reasonable standards for quality patient services and patient satisfaction" to be a material breach of the contract. (Emphasis added.) Id., ¶ 5.2. The hospital's ultimate prerogative to terminate the contract gives it sufficient influence over how the corporation and its physicians carry out their duty to treat the hospital's patients as to raise a jury question whether Dr. Schmidt was functioning as its agent in evaluating and treating Mr. Joh. See Lobo v. Rock, Superior Court, judicial district of New Haven, Docket No. CV 92 0332930 (Sept. 20, 1996); See also Zielinsky v. Kotsoris, Superior Court, judicial district of Stamford, Docket No. CV 01 0185802 (Mar. 24, 2003).
The depositions of Dr. Schmidt and John Capobiano, vice president of patient care services and administration at the hospital, submitted by Mrs. Joh, establish that all emergency department physicians, including Dr. Schmidt, were hospital employees prior to its entering into contracts with various medical groups to provide emergency department services.
The hospital relies heavily on paragraph 6.2 of the contract, which provides, "This Agreement shall not be construed to create any agency relationship between the Hospital on the one hand and the [corporation] or any [corporation] Physician . . . on the other." We know, however, again from Beckenstein, that "the labels used by the parties in referring to their relationship are not determinative; a court must look to the `operative terms' of their agreement or understanding." Id., 133-34. It is not that the portions of the contract pointed to by the hospital are not relevant to a jury's determination whether an agency relationship existed between the hospital and Dr. Schmidt as an employee of the corporation: They are, but they are not determinative of that question.
The hospital's argument confuses the issue of whether Dr. Schmidt was an employee of the hospital, which he was not, and whether he was its agent. There is no requirement that, before someone can be another's agent, he must be its employee. See generally 1 Restatement (Third), Agency § 1.01, p. 17 et seq. (2006). Nor does the fact that the hospital and the corporation call the latter and its physicians "independent contractors" preclude an agency relationship. In fact, as far as the latest edition of the Restatement on Agency is concerned, "the common term `independent contractor' is equivocal in meaning and confusing in usage because some termed independent contractors are agents while others are nonagent service providers . . . This Restatement does not use the term `independent contractor,' except in discussing other material that uses the term." Id., p. 20.
"The existence of an agency relationship is a question of fact." Beckenstein v. Potter Carrier, Inc., supra, 191 Conn. 133. There are occasional cases where it is possible to determine that issue without the jury's participation, but this is not one of them. "To satisfy his burden [of showing the absence of a genuine issue as to a material fact] the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 445 (1984). The hospital has failed to carry that burden.
III
The court's determination that there is a genuine issue as to the material fact whether Dr. Schmidt was the hospital's agent in treating Mr. Joh is fatal to the motion for summary judgment. Therefore, it is unnecessary for the court to reach the issue of apparent agency.
The motion for summary judgment is DENIED.