Opinion
KNLCV126012679S
11-24-2015
James Williamson et al. v. Thameside OB-GYN Center, P.C. et al
UNPUBLISHED OPINION
RULING ON MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANTS LAWRENCE & MEMORIAL HOSPITAL, INC. AND LAWRENCE & MEMORIAL CORPORATION (DOC. NO. 185.00)
Robert F. Vacchelli, Judge, Superior Court.
This case is an action brought in the name of James Williamson, by his mother as next friend, for money damages for personal injuries sustained by James, and by his mother personally, Melissa Mejias, for medical expenses incurred on behalf of her son (" plaintiffs"). The action alleges medical negligence against the defendants, Lawrence & Memorial Hospital, Inc. and Lawrence & Memorial Corporation (" defendant hospital"), and others. Pending before the court is the defendant hospital's motion for summary judgment as to the plaintiffs' claims of vicarious liability alleged in the First and Third Counts of the Amended Complaint, which are based on an alleged agency relationship between the defendant hospital and the co-defendants, Dr. Tricia Jacobsen and Dr. Peter Auerbach. For the following reasons, the court finds that the material facts are not in dispute and that the defendant hospital is entitled to judgment as a matter of law on the points raised in the motion. The motion is granted and summary judgment enters in favor of the defendant hospital, Lawrence & Memorial Hospital, Inc. and Lawrence & Memorial Corporation, on those points. The case remains pending against Lawrence & Memorial Hospital, Inc. and Lawrence & Memorial Corporation on all other extant issues, if any.
I
The law governing summary judgment is well-settled. As our Appellate Court has summarized:
Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings. (Citation omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).
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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. (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
It is frequently stated in Connecticut's case law that, pursuant to Practice Book § § 17-45 and 17-46, a party opposing a summary judgment motion " must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999). As noted by the trial court in this case, typically " [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Moreover, " [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citations omitted; internal quotation marks omitted.) Id., 244-45.Rockwell v. Quintner, 96 Conn.App. 221, 227-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
The Practice Book further mandates that " [a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.
II
In connection with their motion for summary judgment, the defendant hospital filed excerpts from deposition transcripts, telephone call notes, medical records and an affidavit. In opposition, the plaintiffs similarly filed excerpts from deposition transcripts, copies of a curriculum vitae, printouts from websites and an affidavit.
Based on a review of the materials filed, the court finds that the following material facts are not in dispute: On July 21, 2009, the plaintiff, Melissa Mejias, presented to the Thameside OB-GYN Center (" Thameside") and was informed that she was pregnant with an estimated due date of March 5, 2010. During the course of her pregnancy, from July 21, 2009 through March 7, 2010, Melissa was treated at both Thameside and at the defendant hospital. Among the physicians she treated with, at both Thameside and at the defendant hospital, were the codefendants, Dr. Tricia Jacobsen and Dr. Peter Auerbach. They both saw her for multiple follow-up treatments and consultations. Dr. Jacobsen worked at Thameside. Dr. Auerbach was a partner there. Both had privileges at the defendant hospital, which permitted them to bring their patients there. There is no evidence that either were employees of, nor contractors for, the hospital, requiring them to perform services for the hospital.
On February 21, 2010, some weeks from her estimated due date, the plaintiff presented to the defendant hospital with a chief complaint of contractions. She returned on February 22, 2010, with continued complaints of pain, and was examined by Dr. Jacobsen. While at the defendant hospital, Dr. Jacobsen gave the plaintiff a vaginal exam and spoke with a hospital nurse, Mary Hurley, twice that night, relaying treatment information and medication orders for the plaintiff.
Thereafter, on March 1, 2010, the plaintiff presented to the defendant hospital with a chief complaint of decreased fetal movement. Contractions were noted to be three to five minutes apart with an increased in fetal heart rate. On March 7, 2010, the plaintiff presented to the defendant hospital and the defendant Dr. Jacobsen delivered her baby, the plaintiff, James Williamson, via cesarean section. At the time of delivery, James was macrosomic, weighed over 10 pounds, and suffered from severe neurologic impairments and deficits. Thameside separately billed for the cesarean section and other medical services of Dr. Jacobsen and Dr. Auerbach.
On March 13, 2012, the plaintiffs filed a three-count complaint alleging medical negligence against Thameside, Jacobsen, Auerbach, the defendant hospital and others based on twenty claims. For the purpose of this motion, it is unnecessary to make findings of fact regarding those claims. The plaintiffs amended their complaint as of right on May 1, 2012. The First Count is directed towards all co-defendants for negligence. The First Count alleges, inter alia, that Dr. Jacobsen and Dr. Auerbach were agents, servants, and/or employees of the defendant hospital. The Third Count alleges, inter alia, that the defendant hospital was vicariously liable for the injuries and damages to the plaintiff caused by the negligence, carelessness and deviations from the accepted standard of care by the defendant hospital, its medical staff, nursing staff, doctors, and other agents and/or employees, including Dr. Jacobsen and Dr. Auerbach.
Particularly on the issue of agency vis-a-vis the defendant hospital and Drs. Jacobsen and Auerbach, which is the narrow focus of the present motion for summary judgment, Dr. Jacobsen's curriculum vitae identifies her as Vice Chair, Department of OB/GYN Lawrence and Memorial Hospital. Her curriculum vitae also lists her clinical activities at the defendant hospital, including: " Active on committees including the research committee, peer review committee, Chair of the Perinatal Executive Committee working directly with Anesthesia, the physician assistants, CEO, Maternal Fetal Medicine, nursing coordinators and other members of the department reviewing data and evidenced based medicine to increase patient safety, proficiency, decreasing c/section rates, and developing procedures and protocols for continued improvement in safety and satisfaction on our labor and delivery unit." Her CV also includes her responsibilities as Vice Chair of the defendant hospital's OB/GYN department: " Duties include working closely with the Chair of OB/GYN on department issues, unit issues, mentoring colleagues on new procedures such as Essure tubal ligation, Monarc Sling procedures, and HerOption, mentoring future medical students in the community, teaching rotating physician assistant students clinical and surgical skills, working directly with nursing coordinator on nursing education, safety drills, working directly with nursing coordinator on nursing education, safety drills and patient advocacy." However, the CV does not indicate whether she performed those duties in 2009-10. The defendant hospital holds out Dr. Jacobsen as one of its physicians on its website, stating that she joined the hospital in 2007. However, the website visit is not from 2009-10.
Dr. Jacobsen testified at her deposition that she was required to undergo electronic fetal monitoring certification testing by the defendant hospital. She had privileges at the defendant hospital which included that she delivered babies and did her surgeries at the hospital. Every year she was re-evaluated by the hospital in order to renew her privileges. The defendant hospital looked at her relationship with other physicians, her complication rates and her continuing medical education before deciding whether to renew her privileges or not. The only hospital she was affiliated with at the time she treated the plaintiff was the defendant hospital. That hospital also had training and observation requirements that Dr. Jacobsen was required to undergo. Dr. Jacobsen had to have five vaginal deliveries and five C-sections before being allowed to do them on her own. That threshold was created, not by Thameside, but by the defendant hospital, where she performed her deliveries and surgeries.
Thameside physicians, including Dr. Jacobsen and Dr. Auerbach, complete a form on each visit with respect to a pregnant patient that is called an ACOG form. That form is provided to the hospital by Thameside physicians after each visit with a pregnant patient. In addition, all Thameside patients deliver their babies at the hospital.
Dr. Auerbach testified that he takes his patients to the defendant hospital. He, as well as the rest of the Thameside group, including Dr. Jacobsen, is on call for the emergency room at the hospital. Thameside physicians, including both Dr. Auerbach and Dr. Jacobsen, have remote access to pull up patients' hospital records from their homes, however the record is not clear as to whether such access was available in 2009-10. Further, the hospital holds out Dr. Auerbach as one of its physicians on its website, stating that he joined the hospital in 1985. However, the website visit is not from 2009-10.
III
The defendant hospital argues that summary judgment should enter in its favor as to the plaintiffs' claims of vicarious liability alleged in the First and Third Counts of the Amended Complaint which are based on an alleged agency relationship between the defendant hospital and Drs. Jacobsen and Auerbach. Two issues are presented for resolution. The first concerns actual agency. The second concerns apparent agency. The issues are discussed seriatim:
A
With respect to the issue of whether doctors can be considered actual agents of a hospital, rendering the hospital responsible for the acts of their agents acting within the scope of their authority, the test is well-settled:
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 . . . [t]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking, and (3) an understanding between the parties that the principal will be in control of the undertaking . . . [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal.(Citations omitted; internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132-33, 464 A.2d 6 (1983).
In the context of a medical malpractice action, the fact that a physician holds staff privileges at a hospital is not, in itself, sufficient to support a finding that an actual agency relationship was created. Cefaratti v. Aranow, 154 Conn.App. 1, 30, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015) In that case, which involved pertinent facts very similar those in the instance case, our Appellate Court held that, absent evidence that there was a contract between the doctor and the hospital for the provision of service, or proof that there was an understanding of any sort between the hospital and the doctor that the hospital had a right to control the doctor's performance, there is no actual agency relationship between the doctor and the hospital. Id., 33-34; accord, Weiss v. Surgical Associates, Superior Court, judicial district of Fairfield, Doc. No CV 11-6022546, (April 30, 2015, Kamp, J.). Similarly, in the instant case, the plaintiffs have demonstrated that the doctors held staff privileges at the defendant hospital, but no proof of any facts that would support the existence of an actual agency relationship, nor even enough proof to raise an issue of material fact sufficient to forestall the entry of summary judgment on the point. Accordingly, the defendant hospital is entitled to summary judgment on this point.
B
The test for apparent authority is also well-settled:
Apparent and ostensible authority is such authority as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe that the agent possesses. This authority to act as agent may be conferred if the principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to act on an apparent agency. It is essential to the application of the above general rule that two important facts be clearly established: (1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question or knowingly permitted him to act as having such authority and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority. The apparent power of an agent is to be determined by the acts of the principal, and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent's own conduct has created the apparent authority. The liability of the principal is determined in any particular case, however, not merely by what was the apparent authority of the agent, but by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent.(Citation omitted; internal quotation marks omitted.) Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 496-97, 18 A.2d 347 (1941).
On this point, the Cefaratti v. Aranow case, again, is controlling. Assuming, arguendo, that the plaintiff has raised an issue of material fact as to the applicability of this doctrine in the instant case, the Cefaratti court held that " the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent." (Citation omitted; internal quotation marks omitted.) Cefaratti v. Aranow, supra, 154 Conn.App. 45. Accordingly, the court must enter summary judgment in favor of the defendant hospital on this point, as well.
IV
For all of the foregoing reasons, the court finds that the material facts are not in dispute and the defendant hospital is entitled to judgment as a matter of law on the points raised in their motion for summary judgment. The motion is granted and summary judgment enters in favor of the defendant hospital, Lawrence & Memorial Hospital, Inc. and Lawrence & Memorial Corporation, on the points. The case remains pending against Lawrence & Memorial Hospital, Inc. and Lawrence & Memorial Corporation on all other extant issues, if any.