Kweku Odei et al. v. Saint Mary's Hospital et al. (2011)

MEMORADUM OF DECISION RE SAINT MARY'S HOSPITAL'S MOTION TO STRIKE-# 144

I. NATURE OF THE PROCEEDINGS

This is a medical malpractice action filed on April 6, 2010, by the plaintiff, Kweku Odei (hereinafter referred to as the plaintiff patient) and his spouse, the plaintiff, Cynthia Odei, which was initially brought in eight counts against four medical providers.   The operative complaint is a revised six-count complaint filed on August 26, 2010 (# 140) against the three remaining defendants:  Saint Mary's Hospital (hereinafter referred to as “the hospital”), Dr. Paul Langevin, and Milford Anesthesia Associates, PC (hereinafter referred to as “Milford”).¹  The plaintiff patient claims that Dr. Langevin was negligent in his failure to properly interpret a transesophageal echocardiogram, known as a “TEE,” and that his mistaken interpretation resulted in an alteration in the type of cardiac surgery that the plaintiff underwent on March 7, 2008, for an aortic dissection which allegedly resulted in permanent injuries and other damages to said plaintiff.   Accompanying the initial complaint was an attorney's good-faith certificate and the opinion letter authored by a similar health care provider, a board certified anesthesiologist and practicing cardiac anesthesiologist, as required by General Statutes Sec. 52–190a(a).

Specifically, the plaintiff patient claims that Dr. Langevin, as an agent of both the hospital and Milford, violated the requisite standard of care during his treatment of the plaintiff from March 7 to March 15, 2008, and was negligent in several respects, as set forth in Paragraph # 6 of the first count of the operative complaint, including the misinterpreting of the TEE, failing to consult with other specialists and misinforming the surgeon who performed the operation on said plaintiff, which caused the surgeon “to change his initial approach of using the femoral artery to using the axillary/subclavian artery.”   In Paragraph # 7(a) through (dd) of said count, the plaintiff patient claims that Dr. Langevin's misinterpretation of the TEE that resulted in the change in surgical approach caused the plaintiff to suffer, due to that change, multiple “serious, severe, painful and permanent injuries.”   As part of his damages, the plaintiff claims the inability to carry on his life activities, the destruction of his earning capacity and the cost of past and future medical care.

The first count is brought by the patient plaintiff against the hospital and is premised upon vicarious liability, while the second count against the hospital is brought by the plaintiff spouse and consists of a claim of loss of consortium.   The plaintiff patient claims that Dr. Langevin, at all relevant times, was an “agent” of the hospital (Par. # 2) and was performing anesthesiology services at the hospital pursuant to “a joint venture” between the hospital and Milford.   The third count is brought against Dr. Langevin and, inter alia, alleges that the doctor was not only an agent of the hospital but was also “a servant, agent, apparent agent, and/or employee” of Milford.   Par. # 3.   Count four mirrors count two.   The fifth count is brought against Milford and alleges that Dr. Langevin was an agent of Milford, performing services at the hospital pursuant to the joint venture agreement.   The sixth count mirrors the second and fourth counts, i.e., the loss of consortium counts brought by the plaintiff spouse.

On September 16, 2010, the hospital filed a Motion to Strike (# 144) the first and second counts of the operative complaint, asserting that the facts alleged therein do not establish that Dr. Langevin was an agent of the hospital when he performed anesthesiology services on the plaintiff patient.   On October 25, 2010, the plaintiffs filed their Objection (# 148).   The hospital's Reply was filed on November 12, 2010 (# 150).   A memorandum of law accompanied each of the aforesaid documents.   The court heard arguments at the short calendar on November 15, 2010.   For reasons hereinafter stated, the Motion to Strike is DENIED.

II. MOTION TO STRIKE

“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.)  Peter–Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998).   The role of the trial court in ruling on a motion to strike is “to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)   Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ It is fundamental that in determining the sufficiency of a complaint [or a count in a complaint] challenged by a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Doe v. Board of Education, 76 Conn.App. 296, 299–300 (2003).  “In reading the complaint we follow the modern trend, which is to construe pleadings broadly and realistically, rather than narrowly and technically ․ As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient.”  Edwards v. Tardif, 240 Conn. 610, 620 (1997).

III. CLAIMS OF THE PARTIES

The hospital asserts that the factual allegations in the first count of the operative complaint are insufficient to establish that an agency relationship existed between Dr. Langevin and the hospital.   The hospital points out, citing Wesley v. Schaller Subaru Inc., 277 Conn. 526, 543 (2006), that the plaintiffs' allegations lack a crucial element necessary to prove an agency relationship.   To establish that relationship and by virtue of it, the liability of the alleged principal, there needs to be an understanding between the parties that the hospital as the principal would be in control of Dr. Langevin's activities and conduct while at the hospital, in particular, his interpretation of the TEE, which is a gravamen of the plaintiffs' claim.   The hospital argues that no such allegations are contained in the plaintiffs' complaint.   As to the plaintiffs' allegations that Dr. Langevin, through Milford, was the “agent” of the hospital pursuant to the hospital's alleged joint venture with Milford, the hospital asserts that the plaintiffs' allegations fail to meet the test in order to establish vicarious liability of the hospital via the joint venture route.   Specifically, the hospital, citing Dolan v. Dolan, 107 Conn. 372, 140 A. 745, 748 (1928), argues that the plaintiffs fail to identify the contribution that Milford made to the common understanding and fails to allege the manner in which the hospital was in such control of the actions of Dr. Langevin, an alleged agent of Milford, so as to demonstrate that the doctor was also an agent of the hospital.   The hospital cites Doe v. Yale University, 252 Conn. 641, 680 (2000), for the proposition that for an employee of one of the parties to a joint venture to be considered an employee or agent of the other party the latter must have the right to control the means and methods of the alleged agent's work.   The hospital asserts that the plaintiffs' complaint lacks the essential allegation that the hospital was in control of Dr. Langevin's actions, in particular, the doctor's means and methods in interpreting the TEE.

In their opposing memorandum, the plaintiffs cite a long line of Connecticut appellate cases that hold that because a corporation can only act via its agents and employees, an agency need not be pleaded when a corporation is sued.  Vincent v. S. Alexander Sons Co., 85 Conn. 512, 516 (1912).   The plaintiffs cite Judge Roche's decision in Pierzga v. Charlotte Hungerford Hospital, et al., (CV–09–5006121), Judicial District of Litchfield, at Litchfield, October 6, 2010, wherein he denied the hospital's motion to strike and held the plaintiff's allegations that the defendant doctor was a “servant, agent, apparent agent and/or employee” of the hospital sufficient to establish the vicarious liability of the hospital.   As to the joint venture allegation, the plaintiffs, citing Doe, supra, and Greenhouse v. Zempsky, 153 Conn. 501, 504–05 (1966), assert that the elements necessary to establish a joint venture are satisfied by the plaintiffs' claim that the contribution that the hospital made to the undertaking was to provide a space and the patients while the contribution made by Milford, via Dr. Langevin and other employees, was to supply the expertise and the necessary equipment.   Moreover, the plaintiffs point out that the question of whether or not a joint venture existed between the hospital and Milford is a question of fact, which is not appropriately resolved by a motion to strike.

In its reply to the plaintiffs' claim that agency need not be pled when the case involves the alleged negligence of a corporate hospital as a defendant in a medical malpractice case, the hospital asserts that this is true only when the hospital's negligence is the premise upon which the claim is based, such as lack of rules or regulations or the improper grant of privileges.   The hospital asserts that since the crux of the plaintiffs' claim is the alleged negligence of Dr. Langevin as an “agent” of the hospital, the plaintiffs are obligated to plead sufficient facts to establish that agency relationship.   This the plaintiffs have failed to do.   The hospital claims that none of the elements necessary to establish a joint venture, with the exception of the “intent” to do so, is alleged in the plaintiffs' complaint.   Further, even if the court finds otherwise, the crucial element of control of Dr. Langevin's activities is nevertheless lacking.

IV. DISCUSSION

A. The Agency Claim

In arriving at the decision to rule in the plaintiff's favor, Judge Roche's opinion was most instructive and persuasive.   In that case, the plaintiff brought a medical malpractice claim against Charlotte Hungerford Hospital, Dr. Bull and Northwest Connecticut Emergency Medicine, PC. In the first count against the hospital the plaintiff alleged that Dr. Bull was a “servant, agent, apparent agent and/or employee” of the hospital and was working in its emergency department as an emergency room physician pursuant to a joint venture agreement with Northwest.   The plaintiff in Pierzga, alleged that the hospital provided the space and equipment, while Northwest contributed doctors who were certified to work in the emergency room, just as Milford provided the doctors, including Dr. Langevin, to perform anesthesiology services at St. Mary's, as alleged by the plaintiffs in this case.

As St. Mary's asserts in this case, Charlotte Hungerford asserted in Pierzga, via a motion to strike the counts against the hospital, that the plaintiffs failed to allege that the hospital had a right to control Dr. Bull's decision-making.   After referring to the basis of the doctrine of vicarious liability as founded upon public policy considerations, Judge Roche agreed with the hospital that a crucial element to the establishment of an agency relationship and the “fundamental premise” underlying the doctrine is that the alleged employer must be in control of the alleged agent.   The court, however, correctly pointed out that:  “the existence of an agency relationship is a question of fact,” citing Wesley, supra, 277 Conn. 543.   Emphasis added.   Questions of fact are not resolved via a motion to strike.   Judge Roche, agreed with other cited trial court decisions and held that the allegation in the first count that Dr. Bull was an agent of the hospital was “a sufficient basis for pleading vicarious liability” in medical malpractice actions.   See Burnette v. Boland (CV 08 5009111), Superior Court, Judicial District of New London, April 23, 2010 (Martin, J.);   Ribiero v. Elfenbein (CV 09 5006155), Superior Court, Judicial District of Danbury, October 16, 2009 (Shaban, J.);   Ryan v. Litchfield Hills Orthopedic Associates LLP (CV 08 500 3164), Superior Court, Judicial District of Litchfield, May 26, 2009 (Ginocchio, J.).   The court's finding in this regard, which led to the denial of the hospital's motion to strike the first count, was buttressed by the fact that, in Pierzga, as in this case, the plaintiffs allegations against Charlotte Hungerford were not based on agency alone, which was, just one theory of vicarious liability” invoked by the plaintiff.   In that case, as in this case, the plaintiff alleged that Dr. Bull was an agent of the hospital and of Northwest via the joint venture agreement.   Judge Roche concluded, as does this court:  “Given these allegations, specifically the allegation that Bull [Langevin] was an employee [agent] of the hospital [St. Mary's], and the line of cases that finds these and similar allegations sufficient to put the hospital on notice of vicarious liability in medical malpractice actions, the court concludes that the plaintiff has sufficiently pleaded vicarious liability in count one.”

In this court's view, the allegations in the first count of the plaintiffs' operative complaint provide sufficient notice to Saint Mary's Hospital of “the facts claimed and issues to be tried” and should not result in any undue surprise or prejudice to said hospital.  Edwards, supra, 240 Conn. 620.

B. The Joint Venture

As to the joint venture allegations against the hospital, in Pierzga, Judge Roche addressed that issue as well, finding that the plaintiff in that case had sufficiently met the requirements of a joint venture.   After pointing out the “dearth of case law” as to what must be pleaded for a cognizable cause of action based upon an alleged joint venture to survive a challenge via a motion to strike, Judge Roche reviewed the allegations in the fourth count and found that the plaintiff had pled a sufficient claim that Dr. Bull was an agent by virtue of a joint venture between Northwest and Charlotte Hungerford.   As noted, in the first count against St. Mary's the patient plaintiff alleges that Dr. Langevin was an agent of Milford and an agent of Saint Mary's Hospital by virtue of a joint venture agreement between the two corporate medical providers.   Specifically he alleges in Paragraph # 2 that Dr. Langevin was an “agent” of Saint Mary's Hospital, while in Paragraph # 3, he adds the allegation relative to the claimed joint venture as follows:  “At all times mentioned herein the defendant, Saint Mary's Hospital, had a contract, understanding, or other agreement with the co-defendant, Milford Anesthesia Associates PC, whereby the defendant, Saint Mary's Hospital, would provide the patients and the place within the hospital where the servants, agents, apparent agents, and/or employees of Milford Anesthesia Associates PC could and would practice their specialty and provide the necessary equipment, in effect a joint venture.”

In finding in favor of the plaintiff in the joint venture count against Charlotte Hungerford, Judge Roche concluded:  “The plaintiff has alleged that there were two parties who combined their respective skills—one in providing equipment and the other in providing professionals—and the common undertaking of the operation of an emergency room.   The plaintiff also alleges that the parties shared the revenues from this operation, and there is no indication that the act of maintaining the emergency room, alone, constituted the general business of either party.   For all of these reasons, the motion to strike is denied as to count four.”   In this case, the plaintiffs' allegations in Paragraph # 3 meet the test of sufficiency employed by Judge Roche in Pierzga.   The only difference in the underlying facts between the individual defendant physician in Pierzga and the defendant physician in this case is that, in the former the medical group involved provided emergency room specialists, while in the latter the defendant medical group, i.e., Milford, provided anesthesiologists.   In this case, although not specifically alleged, the control factor can reasonably be inferred from the allegation that Dr. Langevin was an “agent” of each of the joint venture corporate participants.   The issue of which corporation was in control of his TEE decision-making process remains to be determined by a trier of fact and is not appropriately resolved by a motion to strike.

V. CONCLUSION

The court's findings herein with regard to the legal efficacy of the first count apply equally as well to the allegations made by the plaintiff spouse in the second count, the loss of consortium count, as that cause of action is derivative of the cause of action alleged in the first count.  Musorofiti v. Vlcek, 65 Conn.App. 365, 372–73, cert. denied, 258 Conn. 938 (2001).   For the reasons stated above, St. Mary's Motion To Strike (# 144) Counts One and Two of the plaintiffs' operative complaint is hereby DENIED.   The plaintiffs' objection thereto (# 148) is SUSTAINED.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. On July 9, 2010, the plaintiffs withdrew the action against Waterbury Anesthesiology Associates..  FN1. On July 9, 2010, the plaintiffs withdrew the action against Waterbury Anesthesiology Associates.

Trombley, Wilson J., J.