Shawn Corey v. Eastern Connecticut Health Network, Inc. et al. (2011)

MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT

FACTS

On June 26, 2009, the plaintiff, Shawn Corey, brought suit against the defendants, Eastern Connecticut Health Network, Inc. (“ECHN”) and Dr. Michele B. Conlon,¹ both in his representative capacity as administrator of the estate of his deceased wife, Michele Corey, and in his individual capacity as the surviving spouse of Michele Corey, to recover damages for wrongful death, under General Statutes § 52–555, and for loss of consortium due to wrongful death, under General Statutes § 52–555a.   As pleaded in his Amended Complaint of December 22, 2009, the plaintiff's claims are based upon the following common allegations of fact.

On or about June 22, 2004, Michele Corey had a pap smear taken by her gynecologist, Dr. Judith Hofrichter.   On June 24, 2004, Dr. Hofrichter sent a slide of the pap smear to ECHN's pathology department for analysis.   Dr. Conlon, who at all times relevant to this case was an agent, apparent agent, servant or employee of ECHN acting within the scope of her agency duties, later interpreted the slide, concluding, in a report dated June 30, 2004, that it showed rare atypical squamous cells of undetermined significance.   On February 27, 2007, Michele Corey was diagnosed with cervical cancer, from which she died on August 11, 2008.

In counts one and two, respectively, the plaintiff claims that his wife's death and his own resulting loss of her consortium were caused by ECHN's negligent failure, through its agents, apparent agents, servants or employees, to conclude that the slide of her pap smear contained atypical glandular cells of undetermined significance (“AGUS”), which represented a primary endocervical neoplasm and/or a high grade squamous dysplasis extending into her glands.   As a result of such negligence, claims the plaintiff, his wife was not timely diagnosed with cervical cancer, thereby causing her to suffer pain, mental anguish, and an untimely death, and causing him to suffer the loss of her consortium.

In counts three and four, respectively, the plaintiff states the same claims against Dr. Conlon as he did against ECHN, to wit:  that his wife's death and his own resulting loss of her consortium were caused by Dr. Conlon's negligent failure to conclude that the slide of his wife's pap smear contained atypical glandular cells of undetermined significance (“AGUS”), which represented a primary endocervical neoplasm and/or a high grade squamous dysplasis extending into her glands.   As a result of Dr. Cordon's negligence, claims the plaintiff, his wife was not timely diagnosed with cervical cancer, she was thereby caused her to suffer pain, mental anguish and an untimely death, and he was caused to suffer the loss of her consortium.

On December 24, 2009, Dr. Conlon filed an answer and special defense to the Amended Complaint, which she later amended on February 9, 2010.   In her Amended Answer, Dr. Conlon asserted as a special defense that the plaintiff's claims against her, as pleaded in counts three and four, are barred by the statute of repose for medical malpractice actions set forth in General Statutes § 52–584 because they were not filed within three years of the date of her acts or omissions which the plaintiff claims to have constituted medical malpractice.   The plaintiff has denied this special defense.

On January 5, 2010, ECHN filed an answer to the amended complaint, in which it denied that Dr. Conlon was its agent, apparent agent, servant or employee while performing pathology services for Mrs. Corey in June 2004 and asserted as a special defense that the plaintiff's claims against her are barred by the applicable statutes of limitations and by the repose provisions of General Statutes §§ 52–584 and 52–555.   The plaintiff has denied this special defense.

On August 19, 2010, Dr. Conlon filed a motion for summary judgment, accompanied by a supporting memorandum, based upon her special defense under the statute of repose for medical malpractice actions set forth in Section 52–584.   The plaintiff filed a memorandum in opposition to that motion on October 8, 2010, and an amended memorandum in opposition on November 4, 2010.

On October 13, 2010, ECHN filed a motion for summary judgment, accompanied by a supporting memorandum, on grounds that the plaintiff's claims against it are barred by the applicable statutes of limitations and repose provisions set forth in Sections 52–584 and 52–555 and that it cannot be held vicariously liable for the negligence of Dr. Conlon because at no time relevant to the diagnosis and treatment of Mrs. Corey was Dr. Conlon its agent, apparent agent, servant or employee.   The plaintiff filed a memorandum in opposition to this motion on November 10, 2010, to which ECHN responded with a reply memorandum on November 11, 2010.

The Court heard argument on both pending motions for summary judgment on April 11, 2011.

ANALYSIS

I. STANDARDS FOR SUMMARY JUDGMENT

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).   A party movmg for summary judgment has the burden of showing the absence of any genuine issue of material fact.  Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971).   To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact.  Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Cummings & Lockwood v. Gray, 26 Conn.App. 293, 297, 600 A.2d 1040 (1991).

II. DR. CONLON'S MOTION

Dr. Conlon argues that the plaintiff's claims against her are barred by the statute of repose for medical malpractice actions set forth in General Statutes § 52–584 ² because the plaintiff failed to commence this action against her within three years of the date of the alleged negligence by which the plaintiff claims that she caused his wife's death.  Section 52–584 provides, in relevant part, that the plaintiff in any “action to recover damages for injury to the person ․ caused ․ by malpractice of a physician, ․ [must bring] such action ․ [n]ot more than three years from the date of the act or omission complained of[.]”  Dr. Conlon argues that Section 52–584 is applicable to this case because, by its terms, it expressly applies to all claims for damages based upon allegations of malpractice by a physician.

In response to this argument, the plaintiff argues that the damages he seeks from the defendant in this action—for wrongful death, under Section 52–555, and for loss of consortium due to wrongful death, under Section 52–555a—are only available in a statutory action because damages for wrongful death were unavailable at common law.   The plaintiff thus argues that the applicable statute of repose for this action is not that set forth in Section 52–584, which applies generally to personal injury actions based upon medical malpractice, but that set forth in Section 52–555, the wrongful death statute.   As amended in 1991, the plaintiff rightly notes, Section 52–555 provides that an action for wrongful death must be brought (a) within two years of the decedent's death but (b) no more than five years from the date of the act or omission complained of.   Here, then, claims the plaintiff, its claims against Dr. Conlon are timely because they were brought less than two years after his wife's death and less than five years after the allegedly negligent conduct here complained of.

The defendant acknowledges the statutory origins of the modern wrongful death action and the existence of the special statute of repose for such actions set forth in General Statutes § 52–555.   Even so, she argues that she is entitled to summary judgment in her favor on the plaintiff's claims against her because, as the text of the wrongful death statute assertedly confirms and at least one judge of this Court has held, a wrongful death action is not a new action that arises upon the death of the plaintiff's decedent, but instead the continuation after death, by a decedent's representative, of an action which the decedent herself would have had the right to prosecute on her own behalf had she lived.   That being so, the defendant argues, the administrator of a decedent's estate has no right to bring or prosecute any wrongful death action based upon alleged medical malpractice after the decedent's death where the decedent had already lost the right to bring as a medical malpractice action before she died.   Applying that logic to this case, the defendant argues that the plaintiff has no right to bring his current claims against her in any capacity because, by the date of Mrs. Corey's death, which occurred more than three years after Dr. Conlon's allegedly negligent failure to diagnose her cervical cancer, Mrs. Corey had already lost her right to prosecute any claim of medical malpractice against her based upon that failure of diagnosis by failing to sue her within three years of such conduct.   Accordingly, she argues, the plaintiff has no right to prosecute a wrongful death action against her on the basis of such alleged medical malpractice at this time.

The Court is impressed with the ingenuity of the defendant's argument, but not with its substantive merit.   Although our Supreme Court has indeed observed that wrongful death actions must be treated as the bringing or continuation of actions which decedents would have had the right to pursue on their own had they not died, such observations have been made in cases raising and addressing the very different issue of what kinds of damages may properly be awarded in such actions and to whom.   The types of losses compensable in a wrongful death action have thus been held to be those suffered by the decedent herself, not those suffered by others, such as friends or family, who may have been harmed as a result of her death.   See, e.g., Floyd v. Fruit Industries, Inc., 144 Conn. 659 (1957).   This is why our Supreme Court has characterized wrongful death actions as the bringing or continuation of actions that decedents could have prosecuted on their own had they lived.

Adoption of the defendant's argument, moreover, would fundamentally alter the statutory rules for the initiation of wrongful death actions by routinely replacing the five-year repose period set forth in Section 52–555 with the much shorter, three-year repose and/or limitations periods universally applicable to underlying claims of negligence or other forms of tortious conduct that have not yet led to death.   Such a reading of the statute would defeat many otherwise proper and sufficient wrongful death actions even before a death occurs, particularly where, as here, serious errors in treatment or diagnoses do not come to light until after a lengthy delay.   Such claims would be lost forever if wrongful death actions were barred simply because pre-death tort actions based upon the same alleged acts or omissions were not first filed.

This reading of the statute would utterly defeat the legislature's purpose for enacting the 1991 amendment to Section 52–555 which extended the statute of repose for wrongful death actions to five years ․ It is appropriate to examine the legislative history to resolve the tension between Section 52–555, which governs wrongful death actions but makes no mention of medical malpractice claims, and Section 52–584, which governs personal injury claims based upon medical malpractice but makes no explicit mention of wrongful death claims.

“It is a well-settled principle of [statutory] construction that specific terms covering a given subject matter will prevail over general language of the same or another statute ․ which might otherwise prove controlling.”  State v. State Employees' Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997);  Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482, 576 A.2d 510 (1990).   Here, however, both statutes are specific in some respects but general in others.  General Statutes § 1–2z “instructs us that [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning ․ § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.”  (Internal quotation marks omitted.)  Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 387, 978 A.2d 49 (2009).

The legislative history of the 1991 amendment clearly demonstrates that Section 52–555 is the applicable statute of repose for wrongful death actions based upon underlying medical malpractice, and that a cause of action will not be lost due to failure by the plaintiff's decedent to bring the action while alive prior to the expiration of the three-year statute of repose for malpractice actions.   Thus, in the House proceedings, when Representative Michael Lawlor moved for passage of the bill, he explained as follows what the amendment intended to accomplish:  “[T]his bill would extend the statute of limitations on wrongful death actions to two years from the time of death, but under no circumstances, more than five years from the date of the act or omission complained of.”   34 H.R. Proc., Pt. 14, 1991 Sess., p. 5170.   When asked to explain why such a bill was needed, Representative Lawlor responded as follows:  “It comes often enough that discoveries, especially in the case of misdiagnosis, especially in a cancer situation, will not be known, in other words, the act or omission will not be known until three or four of five years from the time of the actual act or omission, in other words, the misdiagnosis, and under the circumstances, I believe it's fair and I believe the Judiciary Committee believes it's fair that a person could bring an action for wrongful death.”   34 H.R. Proc., Pt. 14, 1991 Sess., p. 5172.   A question was then posed by Representative Chase:  Then if I understand, through you [Mr. Speaker], what you're saying is, using your example, if a physician doesn't discover or diagnose that someone is dying of cancer or has died of cancer, then this would allow the patient or their estate, I assume, to sue that doctor.”  Id. Representative Lawlor answered this question in the affirmative.  Id.

From this colloquy, it is clear beyond question that the legislature did not view the passage of three or four years from the date of a negligent act or omission without the filing of a medical malpractice action by the injured person as a bar to the later bringing a wrongful death action by the injured person's decedent after her resulting death.   Because the entire basis for bringing any action may remain unknown until after the injured person dies, which may occur long after the physician's negligent act or omission, the maximum period for bringing such an action was extended to not more than five years beyond the date of the act or omission complained of.   As long as the plaintiff's action is filed within two years of the decedent's death but not more than five years after the act or omission complained of, the action will be deemed timely under Section 52–555.   Accord, Dawson v. Kuehn, Superior Court, 47 Conn.Sup. 241, 242–43, 785 A.2d 1226 (2001) [30 Conn. L. Rptr. 236].³  For all of these reasons, defendant Conlon's motion for summary judgment must be denied.

III. ECHN'S CLAIMS

ECHN argues for summary judgment on two grounds:  first, that the action is time-barred;  and second, that there is a lack of an agency relationship between it and Dr. Conlon to support liability on its behalf.

A. CLAIM THAT ACTION IS BARRED BY APPLICABLE STATUTES OF LIMITATIONS AND/OR OF REPOSE

ECHN argues initially that this action is barred under Section 52–584 because the plaintiff's decedent failed to bring suit against it within two years of the alleged negligence of its putative agent, Dr. Conlon, which allegedly caused Mrs. Corey's pain, suffering and eventual wrongful death.   On this score, it relies upon the complaint, which alleges that Dr. Conlon's alleged negligence occurred in June 2004.   As this action was not brought until 2009, it is assertedly barred.   ECHN also argues that suit was not brought within two years of discovery of the actionable harm but not later than three years from the date of the act or omission complained of, which is permitted in the alternative by Section 52–584, and points to the fact that a medical malpractice suit was brought against Mrs. Corey's gynecologist, Dr. Hofrichter, pursuant to Section 52–584, within six months of her cancer diagnosis.   The earlier filing of that action assertedly demonstrates the plaintiff's awareness of the actionable harm she had suffered and statutory requirements.   In support of this motion, ECHN submitted the deposition testimony of Michele Corey and Shawn Corey to demonstrate when they first became aware of the actionable harm.

This Court has already concluded, in its foregoing discussion of Dr. Conlon's motion for summary judgment, that the applicable statute of repose for wrongful death actions based upon alleged medical malpractice is not that set forth in Section 52–584, but that set forth in Section 52–555, which makes no mention of the date of discovery of the actionable harm but requires that any such action be brought within two years of the decedent's death but not more than five years of the act or omission complained of.   Under that statute, it simply does not matter when the injured person discovered or should have discovered that she had been injured by the defendant's negligence, and an action based upon alleged medical malpractice can be brought at any time within two years from the decedent's death that is not more than five years after the act or omission complained of, whether or not the decedent brought a timely action for medical malpractice while he was still alive.   For that reason, as explained more fully in Part II of this Memorandum of Decision, ECHN's motion for summary judgment under the statute of limitations must be denied.

B. CLAIMED LACK OF AGENCY RELATIONSHIP BETWEEN DR. CONLON AND ECHN

In its second argument, ECHN argues that Dr. Conlon was not its employee, agent or servant at the subject time, and thus that it cannot be held responsible for Dr. Conlon's alleged negligence that allegedly caused Mrs. Corey's death.   In support of this argument, ECHN submitted Dr. Conlon's deposition testimony and the affidavit of Deborah Gogliettino, the senior vice president of human resources of ECHN. In her affidavit, Ms. Gogliettino states that Dr. Conlon was not employed by ECHN, that ECHN did not have the right to direct or control Dr. Conlon's interpretation of pathology slides, and that it did not compensate her for the interpretation of pathology slides.

In Dr. Conlon's deposition, she testified that she was employed by Pathology Consultants in June of 2004, which had a contract with ECHN for pathology services.   Deposition of Michele Conlon, August 16, 2010 p. 15.   She testified that Pathology Consultants had offices at Manchester Memorial Hospital and Rockville Hospital;  both of which were parts of ECHN. Id., 16.   She testified that ECHN provided her with a support staff, such as secretaries and technologists, and that those employees were paid by ECHN. Id., p. 17.   She testified that, although Pathology Consultants provided pathology services exclusively to ECHN in the relevant time frame;  id.;   it did not have any control over her interpretation of pathology slides.  Id., p. 93.   She also testified that;  although ECHN paid Pathology Consultants for pathology services, it did not pay her “personally” for such services.   Conlon Deposition p. 94.

ECHN argues that this evidence demonstrates that Pathology Consultants, not ECHN, was in control of Dr. Conlon's interpretation of pathology slides.   It also notes that, while Dr. Conlon had privileges to work in the pathology laboratory at Manchester Memorial Hospital, and that ECHN is the parent corporation of that hospital, that fact does not demonstrate an agency relationship between them.   Further, it argues that any belief by the plaintiff's decedent may have had as to an agency relationship between ECHN and Dr. Conlon is irrelevant without evidence to demonstrate that such an agency relationship existed.   ECHN argues that because there is a lack of control by ECHN over Dr. Conlon, a lack of a contract between itself and Dr. Conlon, and a lack of involvement by it in determining how Dr. Conlon practiced, there is no agency relationship, and it is entitled to summary judgment.

In response to the agency argument, the plaintiff argues that ECHN is responsible for Dr. Conlon's negligence under a theory of respondeat superior.   The plaintiff points to Dr. Conlon's deposition testimony, which demonstrates (1) that Pathology Consultants was the sole pathology provider for ECHN in 2004;  (2) that, in 2004, Pathology Consultants was exclusively providing pathology services for ECHN and for no other clients;  (3) that Pathology Consultants only maintained offices at ECHN locations and (4) that ECHN provided Pathology Consultants with a support staff.   He also points to ECHN's website, which lists Dr. Conlon as “Active Medical Staff.” ⁴  Additionally, he points to the fact that ECHN's website represents that it requires its staff to undergo a credentialing process and to maintain certain professional standards in the performance of their medical duties and advises website visitors to go to the “Doctor Search” function on the website to obtain information about ECHN physicians, by clicking on the “Active Medical Staff” link.   Further, he contends that all of the pathologists listed on ECHN's website as “Active Medical Staff” are stockholders of Pathology Consultants, as shown by the website pages, and Dr. Conlon's deposition testimony, wherein she testified that the members ECHN's pathology department are all stockholders in Pathology Consultants.   He also points to the fact that the slide reports drafted by Dr. Conlon were prepared and submitted on ECHN letterhead, which represents that they are from the ECHN pathology and laboratory services department, not from an independent servicer.   The plaintiff claims that the use of ECHN letterhead by Dr. Conlon represents to the world that she is an agent of ECHN.

To further support his argument, the plaintiff points to the fact that Dr. Conlon's work of interpreting pathology slides furthers ECHN's affairs, because she assists ECHN's pathology business.   He also points to the fact that Dr. Conlon acted within the scope of her employment as a pathologist when she worked on Michele Corey's slide, as her job was to interpret such slides for ECHN. Alternatively, the plaintiff argues that there is a genuine issue of material fact as to whether some type of agency relationship exists, and relies upon the evidence attached to his memorandum in opposition.⁵

“A corporation may also be held vicariously liable under the doctrine of respondeat superior if the person actually committing the violation was a servant of the corporation when the acts were committed, and the acts were committed within the scope of the servant's employment and in furtherance of the corporation's business.”  Landmark Investment Group, LLC v. Chung Family Realty, 125 Conn.App. 678, 702, n.24, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011).

To determine whether a person is a servant of the employer, the Court may look whether that person was an agent of the employer;  however, the existence of an agency relationship is a factual issue.   The elements 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.”  (Internal quotation marks omitted.)  National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 678, 949 A.2d 1203 (2008).

“The 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,” (Citation omitted;  internal quotation marks omitted.)  Id., 677–78.

“The legal incidents of the employer-employee relationship, on the one hand, and the employer-independent contractor relationship, on the other, are well established ․ [T]he Supreme Court adopted the definition that an independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.   This definition has been amplified in subsequent cases but at no time has the basic principle been altered ․ The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work ․ It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.”   (Citations omitted, internal quotation marks omitted.)  Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 534, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004).

In the present case, there is a genuine issue of material fact as to whether Dr. Conlon was an agent of ECHN. While ECHN provided evidence that Dr. Conlon was an independent contractor,⁶ the plaintiff has presented sufficient evidence to raise such a genuine issue of material fact on that issue, which must be resolved by a fact finder.   First, a fact finder could find that ECHN manifested that Dr. Conlon would act as its agent (as a pathologist) because it provided her with a staff and facilities, her offices were exclusively within ECHN hospitals, and her pathology reports were all on ECHN letterhead, with no mention of Pathology Consultants, and Pathology Consultants worked exclusively for ECHN at that time.

According to Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983), the court may look at several factors to determine whether such a relationship exists, including:  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.   As to whether ECHN had any control over Dr. Conlon's work, it certainly had control over the staff that it provided her and the facilities it provided to her for her work, and a fact finder could find that this demonstrates its control over her work.   ECHN provided Dr. Conlon's facilities, supplies and most of her staff.   ECHN did not, however, directly pay Conlon;  Pathology Consultants paid her salary.   For all intents and purposes, as Dr. Conlon is listed on ECHN's website as a part of ECHN's medical staff, her reports are drafted on ECHN letterhead, her offices are all located exclusively within ECHN hospitals, ECHN provides Dr. Conlon with a staff and facilities, and ECHN uses Pathology Consultants exclusively for its pathology services, there is more than enough evidence to raise a genuine issue of material fact as to whether Dr. Conlon may be seen as an employee, agent, or servant for ECHN. Because such a disputed fact will be dispositive to the outcome of the case, it must be decided by a fact finder and not this court.   Accordingly, ECHN's motion for summary judgment must be denied on this ground as well.

Connecticut recognizes the doctrine of apparent authority.  Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn. 140.  “An agent has apparent authority to represent the principal when a principal[,] through his own acts or inadvertences, causes or allows third persons to believe his agent possesses such authority.”  (Internal quotation marks omitted.)  Bella Vista Condominium Assn., Inc. v. Byars, 102 Conn.App. 245, 253, 925 A.2d 365 (2007).  “Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal ․ The issue of apparent authority is one of fact to be determined based on two criteria ․ First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority ․ Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action.”  (Citations omitted, internal quotation marks omitted.)  Tomlinson v. Board of Education, 226 Conn. 704, 734–35, 629 A.2d 333 (1993).

In Koniak v. Sawhney, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 93 042154 (January 13, 1994, Rush, J.), the plaintiff sued both the hospital and two of its employees, a doctor and a nurse, and alleged that the hospital was responsible under a theory of vicarious liability.⁷  The hospital filed a motion for summary judgment on the ground that there was no agency relationship between it and the other defendants.   The plaintiff argued that there was an apparent agency relationship, and submitted an affidavit in which she stated that:  (1) when she met with the defendant doctor, he never advised her that he was not an employee of the hospital, and she assumed he was its employee;  (2) no one explained to her that the defendant doctor or her associates did not work for the hospital;  and (3) she never received any material from the hospital that explained the doctor's relationship to contradict her understanding.   The Court held that, based upon such evidence, a genuine issue of material fact remained on the issue of apparent agency.   On this score it observed that, since “[t]he issue of apparent agency is one of fact” and should only be decided in “the clearest of circumstances,” it must be left to the fact finder.  Koniak v. Sawhney, supra, Superior Court, Docket No. CV 93 042154.

In Aube v. Middlesex Hospital, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 04 4010594 (October 3, 2008, Scholl, J.), the plaintiff brought a wrongful death suit against a hospital, on the grounds of vicarious liability, and a pathology company due to a pap smear of the decedent's that the pathology company failed to interpret as cancerous.   The hospital moved for summary judgment based upon the alleged absence of an agency relationship between itself and the pathology company, as the pathology company was an independent contractor.   The Court denied the motion for summary judgment because there was a genuine issue of material fact as to whether the pathology company was an apparent agent, of the hospital.   The diagnostic report submitted by the plaintiff was on the hospital's letterhead, not the pathology company's letterhead.   Further, as the only report concerning the plaintiff's pap smear was on the hospital's letterhead, and that report did not explain the pathology company's involvement in producing it, the report could be seen as holding the pathology company out as an agent of the hospital.   Thus, the Court held that a sufficient question remained as to the hospital's relationship with the pathology company to require the denial of summary judgment.

In Spaulding v. Rovner, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No. X08 CV 04 4001232 (April 3, 2009, Jennings, J.) (47 Conn. L. Rptr. 544), the Court held, inter alia, that a doctor with staff privileges at a defendant hospital was not an agent of the hospital.   The plaintiffs sued the hospital and a surgeon.   The hospital moved for summary judgment on the ground that there was no agency relationship between itself and the surgeon, and presented uncontroverted evidence to this effect.   Although the plaintiffs presented an affidavit, it simply stated their understanding that the surgeon was an employee of the hospital, but offered no evidentiary basis for that conclusion, and relied upon another affidavit that demonstrated that the surgeon was a member on the hospital's medical staff who had first-year privileges.   The Court found that this evidence did not establish an agency relationship, for the surgeon was not compensated by the hospital, there was no evidence that the hospital could control the manner in which he practiced, there was no contractual relationship between the two defendants to show an intent to create an agency relationship between them, and the surgeon had an independent professional practice with offices outside of the hospital.   The Court noted, however, that apparent authority is possible where medical services are provided to patients at a hospital seeking diagnostic care, “and were provided the requested services by professionals based at the hospital who had no previous relationship with the patient, who were arranged by or contracted for by the hospital under circumstances where the patient was not told and did not know that the provider was an independent contractor.”   Spaulding v. Rovner, supra, Superior Court, Docket No. X08 CV 04 4001232.   The Court granted the motion for summary judgment in the case before it because the plaintiff had been specifically referred to the surgeon at his private offices, not those of the hospital, and there was no basis for supporting a finding of apparent agency.

In Francisco v. Hartford Gynecological Center, Inc., Superior Court, judicial district of Hartford, Docket No. CV 92 0513841 (March 1, 1994, Corradino, J.) (11 Con. L. Rptr. 191), the plaintiff brought a medical malpractice action against a hospital and a nurse.   The hospital moved for summary judgment on the grounds that the nurse was an independent contractor.   After an expansive discussion of cases from other jurisdictions and of the policy reasons for allowing a hospital to retain liability for independent contractors,⁸ the Court held that the apparent agency doctrine gave a patient a right to assume that his nurse was an agent of the hospital, because the plaintiff had specifically contracted with the hospital for medical services.   The Court relied on the plaintiff's affidavit, wherein she stated that she was not notified that the nurse was not an employee of the hospital and she was not aware of an independent contractor agreement between the hospital and the nurse.   The Court denied the motion for summary judgment because whether an apparent agency relationship existed was a factual matter for the fact finder.

In the present case, while there is evidence that Dr. Conlon was not an employee of ECHN, the plaintiff, through its evidence, has raised a genuine issue of material fact as to whether Dr. Conlon was an apparent agent of ECHN, and the Court must view the evidence in the light most favorable to the non-movant.   The plaintiff submitted several pathology reports which were on ECHN letterhead.   A trier of fact could conclude that ECHN adopted Dr. Conlon's findings as its own when it reported them on its pathology report form.   The ECHN webpage for “Active Medical Staff lists Dr. Conlon as a member of its active medical staff, which a trier of fact could conclude was a method of ECHN holding Dr. Conlon out as its agent.   Similar to Aube, Corey did not go to ECHN for her pap smear;  it was sent there by her gynecologist for processing and interpretation, and the only report generated regarding Michelle Corey's pap smear is a report on ECHN letterhead, which states that the smear was screened and reviewed at Rockville Hospital, a subsidiary of ECHN. There is no mention of Pathology Consultants on any of the reports submitted by the plaintiff;  the reports have ECHN letterhead and Dr. Conlon's name.   Applying the criteria of Tomlinson, the facts that the reports on ECHN letterhead, the “Active Medical Staff webpage, the fact that Dr. Conlon's offices and support staff are provided by ECHN, and Pathology Consultants worked exclusively for ECHN could be seen as holding Dr. Conlon out as an agent of ECHN. From the reports, webpage, offices, support staff and exclusivity between ECHN and Pathology Consultants, a question is raised as to whether Dr. Conlon was in any way a different entity from ECHN or that the interpretation of the pap smear was that of anyone other than ECHN. Therefore, the evidence regarding whether Dr. Conlon was an apparent agent of ECHN raises disputed issues of fact which must be resolved by a fact finder.

Additionally, this scenario is similar to the one envisioned and distinguished by Judge Jennings in Spaulding v. Rovner.   Here, Michelle Corey sought diagnostic care and her pap smear was sent to ECHN, which sent it to Pathology Consultants for interpretation, who had no previous relationship with Corey.   Mrs. Corey was not told and did not know that Dr. Conlon was not an employee of ECHN. This is also similar to Koniak v. Sawhney, supra, Superior Court, Docket No. CV 93 042154 and Francisco v. Hartford Gynecological Center, Inc., supra, Superior Court, Docket No. CV 92 0513841, because the plaintiff has presented sufficient evidence to raise a genuine issue of material fact as to apparent agency because she was never advised that Dr. Conlon was an independent contractor, Dr. Conlon's reports used ECHN letterhead, she was on their website as part of ECHN's medical staff, and none of these references mentioned Pathology Consultants or gave any clue that Dr. Conlon was not a direct employee of ECHN. Because this fact is unclear, it must be resolved by the fact finder.   Accordingly, ECHN's motion for summary judgment on this ground must also be denied.

CONCLUSION

For the foregoing reasons, the defendants' motions for summary judgment must be DENIED.   IT IS SO ORDERED this 22nd day of July 2011.

Michael R. Sheldon.

FOOTNOTES

FN1. Dr. Conlon and ECHN shall be referred to collectively as the defendants in this memorandum..  FN1. Dr. Conlon and ECHN shall be referred to collectively as the defendants in this memorandum.

FN2. General Statutes § 52–584 provides:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”.  FN2. General Statutes § 52–584 provides:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

FN3. In Dawson, the plaintiff, as executor for his deceased wife, sued a doctor for her wrongful death within two years of her death but more than two years from the date of discovery of the alleged negligent act, and more than three years from the alleged negligent act.   The defendant, there as here, moved for summary judgment pursuant to the time limitations set forth in Section 52–584.   The Court held that the time limitations set forth in Section 52–555 applied because the suit was based upon the decedent's wrongful death, and Section 52–584 does not specifically speak to wrongful death suits.  Id., 246–47.   It cited Lynn v. Haybuster Mfg., Inc., supra, 226 Conn. 295, for the proposition that wrongful death suits may only be brought through Section 52–555.   See id., 246–47;  see also Lagassey v. State, 50 Conn.Sup. 130, 134, 913 A.2d 1153 (2005), aff'd, 281 Conn. 1, 914 A.2d 509 (2007)..  FN3. In Dawson, the plaintiff, as executor for his deceased wife, sued a doctor for her wrongful death within two years of her death but more than two years from the date of discovery of the alleged negligent act, and more than three years from the alleged negligent act.   The defendant, there as here, moved for summary judgment pursuant to the time limitations set forth in Section 52–584.   The Court held that the time limitations set forth in Section 52–555 applied because the suit was based upon the decedent's wrongful death, and Section 52–584 does not specifically speak to wrongful death suits.  Id., 246–47.   It cited Lynn v. Haybuster Mfg., Inc., supra, 226 Conn. 295, for the proposition that wrongful death suits may only be brought through Section 52–555.   See id., 246–47;  see also Lagassey v. State, 50 Conn.Sup. 130, 134, 913 A.2d 1153 (2005), aff'd, 281 Conn. 1, 914 A.2d 509 (2007).

FN4. Pages from ECHN's website were submitted as evidence by the plaintiff.   The active medical staff page is attached to the plaintiff's memorandum as exhibits J and K..  FN4. Pages from ECHN's website were submitted as evidence by the plaintiff.   The active medical staff page is attached to the plaintiff's memorandum as exhibits J and K.

FN5. As evidence in support of its argument, the plaintiff attached Dr. Conlon's pathology report, which has ECHN letterhead (Exhibit A), doctor notes (Exhibit B), another pathology report on ECHN letterhead (Exhibit C), Corey's death certificate (Exhibit D), the deposition testimony of Dr. Conlon (Exhibits E, F, G, H, I, L, M, N, O), a printout of ECHN's website, which includes a list of its “Active Medical Staff,” which lists Dr. Conlon as part of its active medical staff (Exhibit J), a printout of ECHN's website page which explains the ECHN medical staff (Exhibit K), and Corey's cytology report on ECHN letterhead (Exhibit P)..  FN5. As evidence in support of its argument, the plaintiff attached Dr. Conlon's pathology report, which has ECHN letterhead (Exhibit A), doctor notes (Exhibit B), another pathology report on ECHN letterhead (Exhibit C), Corey's death certificate (Exhibit D), the deposition testimony of Dr. Conlon (Exhibits E, F, G, H, I, L, M, N, O), a printout of ECHN's website, which includes a list of its “Active Medical Staff,” which lists Dr. Conlon as part of its active medical staff (Exhibit J), a printout of ECHN's website page which explains the ECHN medical staff (Exhibit K), and Corey's cytology report on ECHN letterhead (Exhibit P).

FN6. Evidence of Dr. Conlon as an independent contractor include that she has no contractual relationship with ECHN;  her employer, Pathology Consultants, has the contract with ECHN, and she is paid by Pathology Consultants, not ECHN..  FN6. Evidence of Dr. Conlon as an independent contractor include that she has no contractual relationship with ECHN;  her employer, Pathology Consultants, has the contract with ECHN, and she is paid by Pathology Consultants, not ECHN.

FN7. “Vicarious liability of an employer for the acts of an employee engaged in the activities of his employment instead arises under the common law doctrine of respondeat superior.”   Palmer v. Claydon, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 91 0154046 (September 23, 1999, Hodgson, J.) (25 Conn. L. Rptr. 580)..  FN7. “Vicarious liability of an employer for the acts of an employee engaged in the activities of his employment instead arises under the common law doctrine of respondeat superior.”   Palmer v. Claydon, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 91 0154046 (September 23, 1999, Hodgson, J.) (25 Conn. L. Rptr. 580).

FN8. Those policy reasons include:  “(1) The center here agreed to perform certain surgical procedures for the plaintiff.   No patient in the plaintiff's situation would assume anything else but that someone performing a necessary medical intervention to accomplish that procedure was anything else than an employee of the center that had agreed to perform the agreed upon procedure ․ (2) When a patient agrees to have a surgical procedure performed at a hospital or medical center, she has a right to rely on the reputation of the hospital as opposed to any particular health professional who may have a contract or perform particular services for the hospital ․ (3) A person enters a hospital or goes to a medical center for a wide range of services rather than treatment by a particular health professional.  ‘It would be absurd to require such a patient to be familiar with the law of respondeat superior and so inquire of each person who treated him (sic) whether he (sic) is an employee of the hospital or an independent contractor.’  Capan v. Divine Providence Hospital, 430 A.2d 647, 649 (Pa.1981).   Similarly the court went on to say it would be unfair to allow the ‘secret limitations' on liability contained in a doctor's contract with the hospital to bind the unknowing patient.  (4) Public outrage would surely follow an announcement by a medical center or hospital that it regards all staff doctors as completely independent professionals, conducts no supervision of their performance and takes no interest in their competence.  Hanola v. Lakewood, 426 N.E.2d 1187, 1191 (Oh.1980).   The public should have a right to assume that the medical center or hospital to which it goes for treatment exercises medical supervision over and is responsible for the negligence of medical personnel providing services whether the hospital styles them as independent contractors or not ․ The cases seem to apply the doctrine simply because of the fact that the hospital provides the treatment and fails to specifically notify the patient that he or she was not being treated by an agent of the hospital.”  (Citations omitted.;   internal quotation marks omitted.)   Francisco v. Hartford Gynecological Center, Inc., supra, Superior Court, Docket No. CV 92 0513841..  FN8. Those policy reasons include:  “(1) The center here agreed to perform certain surgical procedures for the plaintiff.   No patient in the plaintiff's situation would assume anything else but that someone performing a necessary medical intervention to accomplish that procedure was anything else than an employee of the center that had agreed to perform the agreed upon procedure ․ (2) When a patient agrees to have a surgical procedure performed at a hospital or medical center, she has a right to rely on the reputation of the hospital as opposed to any particular health professional who may have a contract or perform particular services for the hospital ․ (3) A person enters a hospital or goes to a medical center for a wide range of services rather than treatment by a particular health professional.  ‘It would be absurd to require such a patient to be familiar with the law of respondeat superior and so inquire of each person who treated him (sic) whether he (sic) is an employee of the hospital or an independent contractor.’  Capan v. Divine Providence Hospital, 430 A.2d 647, 649 (Pa.1981).   Similarly the court went on to say it would be unfair to allow the ‘secret limitations' on liability contained in a doctor's contract with the hospital to bind the unknowing patient.  (4) Public outrage would surely follow an announcement by a medical center or hospital that it regards all staff doctors as completely independent professionals, conducts no supervision of their performance and takes no interest in their competence.  Hanola v. Lakewood, 426 N.E.2d 1187, 1191 (Oh.1980).   The public should have a right to assume that the medical center or hospital to which it goes for treatment exercises medical supervision over and is responsible for the negligence of medical personnel providing services whether the hospital styles them as independent contractors or not ․ The cases seem to apply the doctrine simply because of the fact that the hospital provides the treatment and fails to specifically notify the patient that he or she was not being treated by an agent of the hospital.”  (Citations omitted.;   internal quotation marks omitted.)   Francisco v. Hartford Gynecological Center, Inc., supra, Superior Court, Docket No. CV 92 0513841.

Sheldon, Michael R., J.