Opinion
No. X10-UWY-CV-06-5005306-S
November 3, 2008
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#177 AND #178)
Introduction
In this medical malpractice case, the Defendant, Stephen Flagg, M.D., moves for summary judgment as to Counts Four and Five of the Plaintiff's complaint on the grounds that, given the testimony of the Plaintiff's disclosed standard of care and causation expert, the Plaintiff will be unable to meet the requisite burden of proof as to the issues of causation and damages. In Count Four the Plaintiff alleges that she was admitted to Temple Surgical Center for a bilateral reduction mammaplasty. Subsequent visits noted complications with regard to healing and seven months later the Plaintiff's gynecologist performed an ultra sound which revealed a foreign body in the Plaintiff's right breast. Emergency surgery was performed to remove a penrose drain. The Plaintiff alleges that Dr. Flagg breached the standard of care when he failed to perform an ultrasound to further investigate the continued implication of induration of the right breast; failed to determine that a penrose drain had been left in the Plaintiff's right breast; and failed to properly advise the plaintiff of her medical status. In Count Five the Plaintiff claims that the acts of Dr. Flagg resulted in the negligent infliction of emotional distress upon the Plaintiff.
In support of his motion, Dr. Flagg has submitted portions of deposition testimony as well as a memorandum of law. In opposition, the Plaintiff has filed a memorandum of law and various exhibits. Oral argument on the motion was held on September 29, 2008.
Temple Surgical Center has also moved for summary judgment as to Counts One and Three of the Plaintiff's complaint. It argues that it is undisputed that neither Dr. Flagg nor Dr. Restifo was an employee of Temple, none of the negligent acts occurred on Temple's premises, and Temple did not supervise, direct or control the actions of the Defendant doctors.
In support of its motion, Temple submitted various exhibits and portions of deposition testimony as well as a memorandum of law. In opposition, the Plaintiff has submitted similar documents as well as a memorandum of law. Oral argument on Temple's Motion was also held on September 29, 2008.
Discussion
"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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citation and internal quotation marks omitted.) Rivers v. City of New Britain, 288 Conn. 1, 10 (2008). "A material fact is a fact that will make a difference in the result of the case . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Citation and internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 563-4 (2008). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under 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." (Citations and internal quotation marks omitted). Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368 (2000).
Dr. Flagg's Motion for Summary Judgment (#177)
In moving for summary judgment, Dr. Flagg claims that the Plaintiff's standard of care and causation expert, Rocco Tutela, M.D., was unable to testify at his deposition that the alleged deviation of care by Dr. Flagg caused any harm, and therefore the Plaintiff will be unable to carry her burden of proof as to causation. Dr. Flagg argues that it is undisputed that he treated the Plaintiff during several visits after the surgery but that he understood that Dr. Restifo had removed the penrose drains on the first post-operative visit. Dr. Restifo saw the Plaintiff because Dr. Flagg was ill. Dr. Flagg claims that Dr. Tutela's only criticism of Dr. Flagg's care was concerning the visit of December 16, 2004 and his failure to pursue an evaluation of the Plaintiff's suspected area of fat necrosis in the right breast. He claims that since the Plaintiff had an ultrasound on February 2, 2005, and Dr. Tutela stated it would have been acceptable to have it performed by February 5th, that any harm caused by failing to remove the drain in December as opposed to February "was in reality so little as to be immeasurable and [Dr. Tutela] could not testify to a reasonable degree of medical certainty that the tissue damage would have been any greater in February of 2005 than December of 2004." Memorandum of Law in Support of Defendant Stephen Flagg, M.D.'s Motion for Summary Judgment, p. 5. Therefore, Dr. Flagg argues that summary judgment should be granted on the medical malpractice claim against him in Count Four, and, since Count Five is derivative of Count Four, summary judgment should enter on that claim as well.
"[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Citation and internal quotation marks omitted.) Gold v. Greenwich Hospital Association, 262 Conn. 248, 254-5 (2002). "The general rule regarding causation in medical malpractice cases is clear. All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician's conduct proximately cause the plaintiff's injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiff's injury. Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person." (Citations and internal quotation marks omitted.) Drew v. William W. Backus Hospital, 77 Conn.App. 645, 652 (2003).
The court believes that the Defendant limits too narrowly the claim of damages in this case by focusing on the ultimate outcome. The Plaintiff alleges in her complaint that Dr. Flagg failed to adhere to the standard of care in that: "a. Even though the plaintiff experienced persistent indulation in her right breast, the defendant failed to evaluate and/or investigate the cause; b. He failed to timely determine that a penrose drain had been left in plaintiff's right breast; and c. He failed to properly advise the plaintiff of her medical status, subsequent to her breast reduction surgery." Second Revised Complaint, Count Four, paragraph 17. The Plaintiff alleges that as a result of the acts of Dr. Flagg she sustained the following injuries: "A foreign object, for seven (7) months, was painfully and unnecessarily lodged in her right breast . . ." An unplanned and painful surgical intervention was necessary in order to extricate the penrose drain lodged in her right breast . . . Second Revised Complaint, Count Four, paragraph 16. Dr. Tutela testified at his deposition that in regard to whether there was a difference in outcome if the drain was removed in December or February that "don't forget this is a foreign body, and it's causing tissue reaction and it's, you know, sooner better than later. Maybe there would have been less tissue to be removed in December as opposed to February, two months of this things smoldering and eating away tissue, it may have had a little, little, more." He also stated that the eight-week delay may have cause a minimal amount of "more dissolution of breast tissue" and the breast got a little worse. Therefore, Dr. Tutela recognized that the presence of the penrose drain in the Plaintiff's breast was having a continuing deleterious effect on the Plaintiff, even if minimally. As to ultimate outcome he also stated that:
"Well, because as the breast tissue is being dissoluted (sic), it's making it smaller. And I think somewhere in here, or in there, you know, her breast, as a result of removal of the drain and removal of the fat necrosis, associated with all this, the breast was smaller."
Thus the evidence presented raises disputed issues of fact which must be resolved by the trier of fact regarding the extent to which the conduct of Dr. Flagg was negligent and the cause of any of the Plaintiff's claimed injuries.
Accordingly, Dr. Flagg's motion for summary judgment is denied.
Temple Surgical Center's Motion for Summary Judgment (#178)
Temple moves for summary judgment claiming that there is no basis to hold it liable for the acts of Dr. Flagg and Dr. Restifo. The Plaintiff alleges in her complaint that Drs. Flagg and Restifo were "working as . . . agent[s], servant[s] and/or employee[s] of the defendant, Temple Surgical Center." Second Revised Complaint Count One, Paragraph 3, 4. She alleges that Temple's conduct was negligent in that "(a) its agents failed to properly remove the penrose drain; (b) its agents failed to utilize necessary professional skill and training sufficient to immediately detect that a penrose drain had been left in her right breast; and (c) its agents, even after several months, failed to reasonably and prudently investigate the reason for the induration in her breast following surgery." Second Revised Complaint, Count One, Paragraph 18.
As to this claim, the parties, including the Plaintiff, admit that Drs. Flagg and Restifo were not employees of Temple. The Plaintiff claims, however, that there is a genuine issue of fact as to whether they were Temple's agents. As to whether Drs. Flagg and Restifo were Temple's agents, "the elements required to show the existence of an agency relationship [are]: (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 . . . [t]he existence of an agency relationship is a question of fact . . . Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent. See 1 Restatement (Second) Agency, §§ 14, 220 [1958] . . . In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal . . . Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." (Citations and internal quotation marks omitted.) National Publishing Co v. Hartford Fire Ins. Co., 287 Conn. 664, 677-8 (2008). "Although agency is normally a question of fact, its existence or nonexistence may be determined as a matter of law." Macomber v. Travelers Property Casualty Corporation, 261 Conn. 620, 639, n. 12 (2002).
The undisputed facts reveal that the only connection between Temple and the Plaintiff's treatment by Drs. Flagg and Restifo is that her initial surgery was performed there by Dr. Flagg. Temple is just one of several places at which Dr. Flagg had privileges to perform surgery. Where the only connection between a physician and a hospital is that he has staff privileges at the hospital "[t]he majority of the courts that have considered the question [of whether the physician is an agent of the hospital] 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. Ass'n, 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 the hospital); Evans v. Bernhard, 23 Ariz.App. 413, 533 P.2d 721, 725 (1975) (`the fact that a physician or a 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, 95 (D.C. Conn. 1991). The Plaintiff makes no allegations of negligence regarding the performance of the surgery itself at Temple. Her claims focus on her post-operative care. All that care was rendered at either Dr. Flagg's or Dr. Restifo's offices, which were at other locations. There is no evidence to support the claim that Temple had any right to direct or control the Plaintiff's post-operative care, by either Dr. Flagg or Dr. Restifo, outside the Temple facility. In response to a request to admit, Dr. Flagg admits that for any and all care and treatment rendered to the Plaintiff he was not acting under the supervision, direction or control of Temple. Dr. Restifo admits that he was not acting under the supervision or control of Temple but denies that he was not acting under its direction. In response to Temple's requests to admit directed to the Plaintiff, that "[for any and all care and treatment rendered to you by Stephen Flagg, M.D. [and Richard Restifo, M.D.], during all times relevant in your operative complaint, Stephen Flagg, M.D. [and Richard Restifo, M.D.] was not acting under the supervision, direction or control of Temple Surgical Center," the Plaintiff stated: "Denied insofar as Dr. Flagg [and Dr. Restifo], in regards to performing surgery upon the plaintiff, was required to obtain professional privileges from Temple Surgical Center to utilize its medical facility and, therefore, was acting under its direction and/or control." Although there may be issues of fact as to the extent of Temple's ability to direct or control the doctors' conduct while providing services in its facility, those factual disputes are not material to the resolution of the Plaintiff's claims against Temple. Those claims do not relate to services provided at Temple but to the post-operative care of the Plaintiff rendered by the Defendant doctors in the context of their practices.
The essence of the Plaintiff's claim is that since Temple's Medical Director asked Dr. Restifo to assume the Plaintiff's post-operative care after Dr. Flagg became ill, that but for that intervention her resulting injuries would not have occurred. However, there is no claim that Temple was negligent in choosing Dr. Restifo or knew or had reason to know that he would allegedly leave the penrose drain in the Plaintiff's breast. In addition, there is no evidence that Temple had any authority to control or direct how Drs. Flagg and Restifo treated their patients in the course of their practices outside the Temple facility or that Temple benefitted in any way from the doctors' practice outside its facility.
The Plaintiff cites Burns v. Board of Education, 228 Conn. 640 (1994) but that case is clearly inapplicable here. There the plaintiff school child slipped and fell due to icy conditions on a courtyard of the school campus, during school hours, while he was compelled by statute to be on those school grounds. The Court held that the municipal officials were not immune from liability because "the plaintiff school child was one of a class of foreseeable victims to whom the superintendent owed a duty of protection in relation to the maintenance and safety of the school grounds, and accordingly governmental immunity is no defense." Id., 650. There is no legal basis, and the Plaintiff has cited none, on which she can claim that Temple owed a duty to her to insure that her treating physicians did not commit malpractice in her post-operative care. The forseeability test utilized in Burns is not applicable to the circumstances here since they do not deal with the issue of the governmental immunity of municipal employees, to which that test applies.
Therefore Temple's Motion for Summary Judgment is granted.