Katherine Rivera, Fiduciary of Estate of Carmelo Rodriguez v. Richard Frank, M.D. et al. (2010)

RULINGS ON REQUEST TO REVISE

Request # 1 is denied.   Although Connecticut does not accept the so-called “Captain of the Ship” doctrine it is certainly true that “under Connecticut law, the doctrine of respondeat superior in medical malpractice situations rests on common law agency principles of vicarious liability.   Under these principles, a master is responsible for the acts of his servant committed within the scope of employment and in furtherance of the master's business.”   Connecticut Medical Malpractice, Laquese, Anderson, Santoro, Section 1-7.   Thus the court in Bria v. St. Joseph 's Hospital, 153 Conn. 626, 630 (1966), the court said:  “In the absence of assumption of control and direction by the doctor, the nurses did not become his servants.”   With such assumption they would have, being the necessary implication.

Anesthesiologists and nurse anesthetists in performance of their duties can act as agents of the hospital as alleged in the Third Count and also can use other agents or employees to perform their specific functions-here the specific allegations of negligence are listed in paragraph 21 and specifically relate to the alleged carelessness in the performance of a specific function i.e., the administration of anesthesia.   The claim is (1) the doctor and the nurse were responsible for that function (2) they or the people used by them to perform this function, over whom they had supervision and control did not perform that function in a careful and non-negligent manner.   There is nothing in § 52-190a which requires the listing and identification of each and every agent acting under their supervision.   The only operative claim of negligence lies in the alleged negligence in the administration of anesthesia.   Doctors and nurses in charge of these procedures do not act as monads but, as here and as alleged, act as part of a team for whose actions they are responsible;  likewise being themselves agents of the hospital, the hospital would be responsible for the doctors' or nurses' failure to supervise the administration of anesthesia acting themselves or with the assistance of other agents or employees of the hospital.

Request # 3 denied same reasons as stated above.

Request # 2.   Subsection (1) of paragraph 21 of the Third Count alleges carelessness because of “failure to prepare and implement an adequate and proper anesthesia plan.”   Then there are listed in subparagraphs (b) through (i) specific acts of negligence.

Why isn't this analogous to the situation where specific allegation of negligence are made, for example in a motor vehicle case, and at the very end of these allegations the old chestnut appears “the defendant was otherwise negligent.”   That is generally recognized as unfair as anything can come in and liberal discovery rules do not protect the defendant.

What the court does not know, however, is whether in this profession a specific, formal treatment plan is required to be formulated and failure to do so and implement specific aspects of it can lead to patient injury of the types listed in subparagraphs (b) through (i).

The court will not grant the request based on the foregoing but rules that at trial specific allegations of negligence not listed in (b) through (i) may not be introduced under the guise and blessing of paragraph (a).   This problem is perhaps best addressed after discovery by means of a motion in limine.

Thomas J. Corradino

Judge Trial Referee

Corradino, Thomas J., J.T.R.