Donald Newburry, Administrator of the Estate of Donna May Newburry v. The Bristol Hospital, Inc. et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, # 153

The issue before the court is whether to grant the defendant's motion to strike on the ground that the plaintiff failed to set forth facts sufficient to prove that the unidentified alleged agents and employees were employees of the defendant.

I

FACTS

On June 23, 2011, the plaintiff, Donald Newburry, administrator of the estate of Donna May Newburry, filed a five-count complaint alleging one claim of medical malpractice against each defendant, The Bristol Hospital, Inc. (Bristol Hospital), Balasubramanian Shanmugam, M.D., Greater Bristol Primary Care Group, P.C., Elizabeth Tillman, M.D. and Hospital Internists of Bristol, LLC. The complaint alleges the following facts.   On April 17, 2009, the plaintiff's decedent was admitted to the defendant hospital during which time she developed a spontaneous bleed that went undiagnosed and ultimately caused her death on April 26, 2009.   In count one, the plaintiff alleges that “Bristol Hospital, its agents, servants and/or employee physician or physicians” failed to exercise reasonable care under the circumstances.

On February 7, 2012, Bristol Hospital filed a motion to strike count one.   Bristol Hospital argues that this count, which is a claim for medical malpractice based on vicarious liability, should be struck on the ground that the plaintiff failed to set forth facts sufficient to prove that the unidentified alleged “agents, servants and/or employee physician or physicians” were agents of Bristol Hospital.   The motion is accompanied by a memorandum of law.   The plaintiff filed a memorandum of law in opposition strike on March 2, 2012.   The court heard oral argument on March 19, 2012.

II

DISCUSSION

“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.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).

Bristol Hospital argues that in order to state a claim that it is vicariously liable for the action of health care providers that are only identified as its alleged “agents, servants and/or employee physician or physicians,” the plaintiff must plead facts sufficient to prove that the these providers were in such a relationship with the defendant hospital.   To prove this relationship, Bristol Hospital maintains that the plaintiff must allege the facts necessary to prove agency:  (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.   According to Bristol Hospital, the complaint fails to allege the facts necessary to prove the existence of a principal-agent relationship.

The plaintiff counters that the complaint sufficiently alleges that Bristol Hospital was acting through its agents, servants and/or employees.   The plaintiff asserts that it is difficult, if not impossible, for the plaintiff to know the facts giving rise to the alleged agency relationship at the commencement of a lawsuit.   Moreover, the plaintiff maintains that alleging the specific elements of agency “does no more to put the defendant on notice of the claim against him than to allege that he is liable to the plaintiff for acts of his alleged agent.”

“[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment.”  Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003).  “[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another].   Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.”  (Internal quotation marks omitted.)  Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692, n. 16, 849 A.2d 813 (2004).   In the medical malpractice area, our Supreme Court has recognized that a corporate entity can be held liable for the medical malpractice of its employees.  Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 801 A.2d 775 (2002).  “When vicarious liability is alleged, the injured plaintiff may look for reparation from either the agent or the principal.”  Colon v. Board of Education, 60 Conn.App. 178, 188 n.4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).

Our Supreme Court and Appellate Court have yet to specifically address the issue of whether an allegation for the alleged malpractice of named and unnamed “servants, agents, apparent agents and/or employees” without a statement of facts evidencing the alleged agency relationship is sufficient to state a cause of action.   The Superior Court has, however, addressed this issue.

In two cases,¹ the Superior Court granted the motion to strike because the plaintiff failed to allege the elements of agency described in Hollister v. Thomas, 110 Conn.App. 692, 706, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008).²  Other decisions have, however, declined to follow this reasoning.   For example, in Trimm v. Kasir, Superior Court, judicial district of New Britain, Docket No. CV 11 6009059 (November 30, 2011) ³ [53 Conn. L. Rptr. 35], the court found the decisions that relied on Hollister unpersuasive because to require the plaintiff to allege merely the three elements of agency is no more “factual” than the allegation that an agent of the named defendant was negligent.  “In other words, just to allege that the named defendant manifested that the agent will act for him or that the agent accepted the undertaking or that the parties had an understanding that the principal will be in control of the undertaking does no more to put the defendant on notice of the claim against him than to allege that he is liable to the plaintiff for the acts of his alleged agent.”  Id.

Instead, the Trimm court denied the motions to strike because it found that “[b]y alleging medical malpractice against the corporate defendants, the plaintiff has sufficiently stated a claim for the corporate defendants' vicarious liability for the actions of both named and unnamed persons.”   The court explained that “[c]orporations always act through agents.   They are excepted from the rule requiring that the fact that a contract was made through an agent be stated ․ Therefore, when the defendant is a corporation ․ it is not even necessary to allege that the act charged to have been performed by the defendant was in fact performed by an agent acting for it, much less is it necessary to allege that this agent had authority to act.   This is so by virtue of an express provision of our rule ․” Accordingly, the court held that “[b]y alleging medical malpractice against the corporate defendants, the plaintiff has sufficiently stated a claim for the corporate defendants' vicarious liability for the actions of both named and unnamed persons.”

The court in Trimm further explained that, “unlike the plaintiff in Hollister, [the plaintiff] ha[d] sufficiently alleged grounds for vicarious liability other than agency, including employment.”   Therefore, the Trimm court found that “the allegations sufficiently put the defendants on notice of the facts claimed and the issues to be tried.”  Id. Finally, the court reasoned that “[t]he defendant[s] will not suffer any prejudice or surprise, especially because [they are] in the best position to know, at this point, which of [their] employees or agents were involved in the plaintiff's [decedent's] care during the relevant time period.” ⁴  (Internal quotation marks omitted.)   Id.

Similarly, in Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. 08 5006789 (October 27, 2009), this court denied a motion to strike regarding claims for medical malpractice based on vicarious liability against a hospital.   Regarding liability for unnamed agents, servants and/or employees, the court noted that “[t]here is no requirement that a theory of vicarious liability needs to be expressly pleaded in the complaint for a claim to be addressed under that theory, nor is the complaint insufficient if it does not specifically identify the class of agents, servants and employees of an institutional defendant.”  Id.

In the present case, like in Trimm, the plaintiff has sufficiently alleged grounds for vicarious liability other than agency, including employment.   Moreover, as noted in Figueroa, “[t]here is no requirement that a theory of vicarious liability needs to be expressly pleaded in the complaint.”   Accordingly, reading the complaint broadly and construing it in a manner most favorable to sustaining its legal sufficiency, the allegations sufficiently state a claim for Bristol Hospital's vicarious liability for the actions of unnamed persons.

III

CONCLUSION

For the foregoing reasons, the motion to strike is denied.

Swienton, J.

FOOTNOTES

FN1. Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (March 23, 2011) (51 Conn. L. Rptr. 592);  Hill v. Jabbour, Superior Court, judicial district of New Haven, Docket No. CV 09 6006300 (April 4, 2011)..  FN1. Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (March 23, 2011) (51 Conn. L. Rptr. 592);  Hill v. Jabbour, Superior Court, judicial district of New Haven, Docket No. CV 09 6006300 (April 4, 2011).

FN2. “[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.”  (Internal quotation marks omitted.)  Hollister v. Thomas, 110 Conn.App. 692, 706, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008)..  FN2. “[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.”  (Internal quotation marks omitted.)  Hollister v. Thomas, 110 Conn.App. 692, 706, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008).

FN3. Other Superior Court decisions denying motions to strike based on this issue include:  Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010), Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009), and Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003164 (May 26, 2009)..  FN3. Other Superior Court decisions denying motions to strike based on this issue include:  Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010), Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009), and Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003164 (May 26, 2009).

FN4. In reaching this result, the court in Trimm v. Kasir, Superior Court, judicial district of New Britain, Docket No. CV 11 6009059 (November 30, 2011) relied on several other Superior Court decisions:  Burnette v. Roland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010), Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009), and Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003164 (May 26, 2009)..  FN4. In reaching this result, the court in Trimm v. Kasir, Superior Court, judicial district of New Britain, Docket No. CV 11 6009059 (November 30, 2011) relied on several other Superior Court decisions:  Burnette v. Roland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010), Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009), and Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003164 (May 26, 2009).

Swienton, Cynthia K., J.