Lisa J. Cefaratti v. Jonathan S. Aranow, M.D. et al. (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT BY JONATHAN S. ARANOW, M.D. AND SHORELINE SURGICAL ASSOCIATES (# 202) AND MIDDLESEX HOSPITAL (# 189)

The defendants Jonathan S. Aranow, M.D. and Shoreline Surgical Associates (“Shoreline”) have moved for summary judgment as to Counts One and Four of the plaintiff's amended complaint dated November 30, 2010 and Middlesex Hospital (“Hospital”) has moved for summary judgment on Counts Two and Three of the amended complaint on the grounds that the plaintiff's claims against them are barred by the applicable statute of limitations including the three-year period of repose pursuant to Connecticut General Statutes § 52–584.

Factual and Procedural Background

This medical malpractice action was commenced by the plaintiff, Lisa J. Cefaratti, against Dr. Aranow, Shoreline and the Hospital on August 5, 2010.   An amended complaint was filed on November 30, 2010 (the “complaint”).   Count One of the complaint alleges negligence against Dr. Aranow and Shoreline for allegedly leaving a surgical sponge in the plaintiff's abdomen during the performance of gastric bypass surgery on December 8, 2003.   In Count Two, the plaintiff brings a direct claim of medical malpractice against the Hospital, alleging, inter alia, that its operating room nursing staff was negligent on December 8, 2003, because they failed to properly conduct the sponge count and allowed a surgical sponge to be left in the plaintiff's abdomen.   In Count Three, the plaintiff alleges vicarious liability against the Hospital on the basis that Dr. Aranow was the Hospital's agent or apparent agent.

The plaintiff commenced this action six years and eight months after the alleged negligence and three years and eight months after the three-year statute of repose had expired.   The plaintiff has alleged that she first discovered her injuries on August 6, 2009 during a radiology work-up after her diagnosis of breast cancer.   She also alleged that on September 9, 2009 she was informed by Dr. Aranow that she had a retained sponge in her abdomen.   She also alleged in her complaint that she had a number of office visits with Dr. Aranow after the 2003 surgery.   The parties have submitted evidence that the only contact the plaintiff had with the Hospital after the surgery was routine outpatient laboratory work ordered by Dr. Aranow that she elected to have at the Hospital on six occasions from May 8, 2004 through March 9, 2009.

The Hospital has produced evidence that at all times alleged in the complaint Dr. Aranow was a private attending physician employed by Shoreline.   He had no employment contract with the Hospital to care for and treat his patients and was not compensated by the Hospital for the care and treatment of or the professional services he rendered to the plaintiff.

The plaintiff has produced her deposition testimony in which she states that she attended several informational sessions conducted by the Center for Weight Loss Surgery at the Hospital and hosted by Dr. Aranow.   She has also alleged that Dr. Aranow is the founder and director of the Center for Weight Loss Surgery at the Hospital and that after the surgery she was treated by Dr. Aranow on seven occasions from January 14, 2004 through March 20, 2009.

Discussion of the Law and Ruling

“Practice Book [§ 17–49] provides that summary 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 ․ In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact which will make a difference in the result of the case ․ Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary.”  (Citations omitted;  internal quotation marks omitted.)  H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558–60, 783 A.2d 993 (2001).  Dipietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116 (2012).

Summary judgment is “designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   The summary judgment procedure is well suited for resolving Statute of Limitations issues.   See, e.g., Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 385, 635 A.2d 1232, cert. denied, 228 Conn. 928 (1994);  Stein v. Katz, 213 Conn. 282, 289, 567 A.2d 1183 (1989);  Barnes v. Schlein, 192 Conn. 732, 739, 473 A.2d 1221 (1984);  Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984).

All the defendants argue that the plaintiff's claims are barred by Connecticut General Statutes § 52–584, which provides that medical malpractice actions must be brought within two years from the date when the injury is first sustained or discovered, “except that no such action may be brought more than three years from the date of the act or omission complained of.” § 52–584.

The three-year period of repose set forth in § 52–584 “begins running when the negligent conduct of the defendant occurs and ․ not the date when the plaintiff first sustains damage.”  (Internal quotation marks omitted.)  Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000);  Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994);  Stein v. Katz, 213 Conn. 282, 285, 567 A.2d 1183 (1989).   A medical malpractice action commenced more than three years from the date of the negligent act or omission complained of “is barred by the statute of limitations, regardless of whether the plaintiff had not or, in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period.”  (Internal citations omitted.)  Blanchette, supra.

In her Supplemental Memorandum of Law in Opposition to Summary Judgment, the plaintiff argues that the defendants' interpretation of § 52–584 is incorrect.   Relying solely on cases where the injury was discovered within the three-year repose period, Lagassey v. Connecticut, 268 Conn. 723, 743, 846 A.2d 831 (2004), Catz v. Rubenstein, 201 Conn. 39, 513 A.2d 98 (1986), and Tarnowsky v. Socci, 271 Conn. 284, 292, 856 A.2d 408 (2004), the plaintiff argues, essentially, that the court can ignore the repose language in the statute.   Such argument is simply incorrect and contradicted by the very cases the plaintiff cites.   In each case cited, the Supreme Court specifically recognized that the three-year repose date was absolute and could not be extended by late discovery of the negligence or late discovery of the injury.

In Catz v. Rubenstein, 201 Conn. 39, 49–50, 513 A.2d 98 (1986), the Court stated:

It is clear that the repose portion of 52–584 which provides that “no action may be brought more than three years from the date of the act or omission complained of” bars the bringing of suit more than three years after the alleged negligent conduct of a defendant regardless of when a plaintiff discovers the proximate cause of his harm or any other essential element of a negligence cause of action.  McDonald v. Haynes Medical Laboratory, Inc., supra, 334.   Our holding in this case therefore will only affect causes of action not barred by the repose portion of 52–584 which bars suit brought more than three years from the act or omission complained of.

Emphasis added.

Similarly, in Tarnowsky v. Socci, 271 Conn. 284, 296, 856 A.2d 408 (2004), the Court stated:

We fully recognize that “[a] statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.”  (Internal quotation marks omitted.)  DeLeo v. Nusbaum, 263 Conn. 588, 596, 821 A.2d 744 (2003).   As in Catz, our decision in this case merely recognizes that in cases in which a plaintiff, through no fault of his own and despite the exercise of reasonable care, is ignorant of an essential jurisdictional fact, the three year repose period represents a legislative compromise between the public policy of protecting individuals from the uncertainty that could result from unduly protracted time limits for filing legal claims and the public policy favoring the vindication of meritorious claims in the courts.

* * *

We conclude that the two year statute of limitations set forth in § 52–584 does not begin to run until a plaintiff knows, or reasonably should have known, the identity of the tortfeasor.   We emphasize that a plaintiff's ignorance of the identity of a tortfeasor will not excuse the plaintiff's failure to bring a negligence action within three years of the date of the act or omission complained of.   When the plaintiff in the present case knew or should have known the defendant's identity is a question to be determined by the fact finder on remand.   See State v. Lagassey, supra, 268 Conn. 752.

Tarnowsky v. Socci, supra, at 297.   Emphasis added.

The appellate courts of this state have recognized that the three-year repose date may sometimes result in hardship for the plaintiff.   In Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 527–28, 785 A.2d 234 (2001) the court, citing Mendillo v. Board of Education, 246 Conn. 456, 483, 171 A.2d 1177 (1998), stated that “while it may seem that there should be a remedy for every wrong, this is an idea limited perforce by the realities of this world.   Every injury has ramifying consequences like the rippling of the waters, without end.   The problem for the law is to limit the legal consequences of wrongs to a controllable degree ․” Contrary to the plaintiff's argument, the three-year repose date exists, and bars even actions where the negligence or harm could not reasonably have been discovered until after three years from the conduct at issue.

The Statute of Limitations may be tolled if the defendants engaged in a continuing course of conduct or treatment.  Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn 158, 947 A.2d 291 (2008);  Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000);  Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994).   The defendants argue that the facts of this case do not permit tolling of the statute and are more analogous similar to those of Martinelli v. Fusi, 290 Conn. 347, 963 A.2d 640 (2009);  Grey v. Stamford Health System, Inc., 282 Conn. 745, 924 A.2d 831 (2007);  and Zielinski v. Kotsoris, 279 Conn. 312, 901 A.2d 1207 (2006).

In Grey the plaintiff commenced a medical malpractice action in February of 2002 alleging that the defendant radiologist, Dr. Schwatz, his employer and other entities were negligent due to Dr. Schwartz' failure to diagnose malignant breast cancer via mammograms interpreted in 1996 and 1997.   The plaintiff claimed that the continuing course of treatment doctrine tolled the Statute of Limitations.   In Grey, Dr. Schwartz first interpreted the plaintiff's mammograms in 1995 and ordered diagnostic views to assess an abnormality in the breast which he subsequently interpreted as negative for cancer.   The plaintiff then had routine follow-up screening mammograms thereafter with Dr. Schwartz until her diagnosis of breast cancer by a different radiologist in 1998.   The court held that the trial court properly granted the defendant's motion for summary judgment on the basis of the Statute of Limitations because the continuing course of treatment doctrine did not apply to save the action which was brought outside the three-year period of repose.   The Court found that the contacts with Dr. Schwartz were independent discreet encounters and no continuing duty remained after the films were interpreted by Dr. Schwartz.

The court in Grey articulated the elements of the continuing course of treatment doctrine.   To use the doctrine to toll the Statute of Limitations in a medical malpractice action, a plaintiff must prove the following:  “1) that he or she had an identifiable medical condition that required ongoing treatment or monitoring;  2) that the defendant provided treatment or monitoring of that condition after the allegedly negligent conduct, or that the plaintiff reasonable could have anticipated that the defendant would do so;  and 3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated.   As [the Court] previously [has] recognized, the determination that any of these elements exists is conspicuously fact bound.”  Id., at 754–55, emphasis added.

The difference between the continuing course of treatment and conduct doctrines is “the former focuses on the plaintiff's reasonable expectation that the treatment for an existing condition will be ongoing, while the latter focuses on the defendant's duty to the plaintiff arising from [the defendant's] knowledge of the plaintiff's condition.”  Id., at 755.

As to the first prong of the continuing course of treatment doctrine, the defendants argue that the plaintiff had no identifiable medical condition concerning a sponge until August of 2009 when it was first discovered.   As to the second prong—that the defendants provided medical treatment after the allegedly negligent conduct, the defendants argue that the plaintiff could not have sought treatment for a condition that she did not know she had.   Rather, the visits to Dr. Aranow were for monitoring of her weight loss and nutritional status.   The visits to the Hospital were not for treatment of any kind, but only for routine blood work, clearly unrelated to any retained sponge condition.

The plaintiff does not claim that visits to Dr. Aranow after the surgery were for treatment relating to the sponge.   She agrees with the defendants that the post-surgical visits to Dr. Aranow were for treatment of the condition of morbid obesity.   Notwithstanding the foregoing, the plaintiff implies that Dr. Aranow should have known of the presence of the sponge.   In support of this implication, the plaintiff has provided in Exhibit E to her Memorandum in Opposition to Summary Judgment by Dr. Aranow and Shoreline copies of Dr. Aranow's records of the plaintiff's post-surgical visits.

All records indicate that the purpose of the plaintiff's visit is “routine.”   The first form is dated December 31, 2003.   It appears to have been filled out by a nurse or doctor and lists the plaintiff's current weight, pre-operation weight, as well as ideal weight and lists “none” for postoperative complications.   The second form is dated January 14, 2004 and again contains preoperative weight and the weight on the date of the visit.   The form also contains a section which states “Any frequent Nausea/Vomiting/Diarrhea/Constipation/Abdominal Pain? (circle all that apply) or No.” The plaintiff has circled “constipation.”   The next two forms are dated May 11, 2004, and December 8, 2004, respectively, and are the same as the previous form.   The plaintiff has again circled “constipation” as her only problem.   On the May 10, 2005 form the plaintiff indicates that she is having no problems.   The next form is dated November 16, 2005 and indicates abdominal pain when she has a bowel movement.   The forms of December 17, 2007 and March 20, 2009 indicate that the plaintiff is having no problems.

At her deposition, the plaintiff testified that she always complained to Dr. Aranow about abdominal pain after the surgery.   Putting aside the fact that this testimony appears to be contradicted by the foregoing office visit forms, the plaintiff has provided no medical opinion whatsoever that a complaint of abdominal pain by a patient almost two years after a gastric bypass surgery, or any time after the surgery, should have alerted Dr. Aranow to the presence of a surgical sponge in the plaintiff's abdomen.

Even if the plaintiff had presented evidence in the form of affidavits of other physicians that abdominal pain should have alerted Dr. Aranow to the presence of the sponge, “our courts have refused to impose a continuing duty on the defendant when the only evidence demonstrating his or her actual knowledge is in the form of expert testimony that the defendant should have been aware of those facts, or that he or she deviated from the standard of care.”   Martinelli v. Fusi, 290 Conn. 347, 363–64, 963 A.2d 640 (2009), citing Neuhaus v. DeCholnoky, 280 Conn. 190, 205, 211, n.15, 905 A.2d 1135 (2006);  Nieves v. Cirmo, 67 Conn.App. 576, 580, 587, 787 A.2d 650 (2002);  Hernandez v. Cirmo, 67 Conn.App. 565, 570–71, 787 A.2d 657, cert. denied, 259 Conn. 931, 793 A.2d 1084 (2002);  Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn.App. 518, 529–30, 785 A.2d 234 (2001).   The court in Martinelli stated that “although such evidence[that the defendant should have known of the condition] may indicate that the defendant's failure to act was negligent, it does not indicate that the defendant was actually aware that the plaintiff's condition required further treatment, such that an ongoing duty to diagnose and treat that condition could be imposed.”  Id., at 364, emphasis added.   The “treatments” by Dr. Aranow were clearly routine follow up visits and not related to the presence of the sponge, a medical condition about which neither he nor the plaintiff was aware.

The continuing course of treatment doctrine cannot toll the Statute of Limitations here because there was no knowledge of the retained sponge and, therefore, Dr. Aranow's postsurgical consultations with the plaintiff were not “treatments” for the retained sponge condition and the plaintiff could have had no reasonable expectation that she was being treated for a condition of which no one was aware.

To invoke the continuing course of conduct doctrine, “there must be evidence of a breach of a duty that remained in existence after the commission of the original wrong related thereto.   That duty must not have terminated prior to the commencement of the period allowed for bringing an action for such a wrong ․” Sherwood v. Danbury Hospital, 252 Conn. 193, 203, 746 A.2d 730 (2000).  “[T]here must have been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.”  Id. As with the continuing course of treatment doctrine, the Statute of Limitations will not be tolled unless there is proof that the physician had actual knowledge of a prior wrong.  Neuhaus v. DeCholnoky, 280 Conn. 190, 211, n.15, 905 A.2d 1135 (2006).   As stated above, there is no evidence that Dr. Aranow knew of any wrongful conduct in this case.

In Zielinski v. Kotsoris, 279 Conn. 312, 901 A.2d 1207 (2006), the Supreme Court reiterated the “modern formulation” of the continuing course of conduct doctrine as applied to medical malpractice, opining that:

Under the “modern formulation” of the continuing course of conduct doctrine, “[t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong ․ Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.”  (Internal quotation marks omitted.)   Id., 275;  see also Witt v. St. Vincent's Medical Center, supra, 252 Conn. 370 (continuing course of conduct doctrine requires plaintiff to prove that “defendant:  [1] committed an initial wrong upon the plaintiff;  [2] owed a continuing duty to the plaintiff that was related to the alleged original wrong;  and [3] continually breached that duty”).

Zielinski v. Kotsoris, supra, at 322.

In Blanchette v. Barrett, 229 Conn. 256, 640 A.2d 74 (1994), the plaintiff's long-time family physician first noted an abnormality in the plaintiff's breast in 1979, diagnosed it as fibrocystic disease, and never mentioned that diagnosis to the plaintiff.   The physician continued to treat and monitor the plaintiff through 1995 when the defendant physician failed to follow up on a negative mammogram result.   The Court held that since the physician/patient relationship continued as to the particular injury or condition for which the physician was treating the patient, and because the physician committed later wrongful conduct by failing to report a negative diagnostic study, this conduct triggered the continuing course of conduct and treatment doctrines thereby tolling the Statute of Limitations.  Id. at 279–80.

In Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000), the Court reversed a summary judgment granted in favor of the defendant pathologist, holding that the continuing course of conduct doctrine could apply to a pathologist who failed to report a longstanding concern that the patient had cancer.   In Witt, the defendant pathologist reviewed tissue slides following a biopsy of the plaintiff's lymph nodes in 1993, concluding that the slides were negative for cancer.   After the plaintiff was diagnosed with non-Hodgkin's lymphoma eleven years later, the treating oncologist requested the original pathology slides and the defendant pathologist provided the slides and report, along with a note from 1993 that indicated his concern for cancer in the plaintiff.   In reversing the summary judgment, the Court relied on this note, stating that it could have given “rise to the defendant's continuing duty to warn, which in turn triggered the continuing course of conduct doctrine.”   Id. at 372.   The defendant pathologist's continuing nondisclosure of his concern was found to be a possible continuing breach of his duty, implicating the continuing course of conduct doctrine.

In contrast to Witt, the Court in Golden v. Johnson Memorial Hospital, 66 Conn.App. 518, 785 A.2d 234 (2001), concluded that the plaintiff's action was untimely because there was no continuing course of conduct to toll the Statute of Limitations.   In Golden, a lump in the plaintiff's neck was tested by the defendant pathologist who reported that the lump was benign and the plaintiff was cured.   Eleven years later, the plaintiff was diagnosed with Hodgkin's disease, and at that time, told his oncologist about the lump that had been removed 11 years previously.   After another pathologist reviewed the earlier tissue slides and concluded the slides revealed cancer, the initial diagnosis was corrected to reflect cancer.   The Court concluded that the plaintiff's action filed six months after the issuance of the corrected report was untimely and it rejected plaintiff's claim that the defendant owed him a continuing duty from the time of the original misdiagnosis until the issuance of the corrected report 11 years later.  Id. at 525–26.   The Court further rejected the plaintiff's claim that “the pathologist's duty to the patient arises out of his examination of the patient's tissue, his analysis of that tissue and his diagnosis resulting from that examination and analysis.”  Id. at 526.

In distinguishing the Blanchette and Witt decisions, the Golden Court noted that “in Witt, the duty arose because of the defendant's initial, but unmentioned, concern about cancer, and in Blanchette because of the defendant's continuing relationship with the plaintiff ․” Id. at 528–29.   The Court concluded that:

as a matter of law, to expect a pathology group to provide follow-up treatment or to instruct a patient on follow-up care after a negative diagnosis when there was no awareness that the diagnosis is wrong and there is no ongoing relationship is beyond the expectation of public policy ․ [and]would basically render the statute of limitations a nullity.   That result would be against the policy of limiting the liability of defendants to claims brought within a reasonable time.

Golden v. Johnson Memorial Hospital, 66 Conn.App. at 529–30.

In Zielinski, supra, the plaintiff brought suit against a radiologist, Dr. Zimmerman, in 2001, for the negligent interpretation of an MRI taken in 1996, claiming that Dr. Zimmerman interpreted the MRI as negative and failed to diagnose a brain tumor.   Following a second MRI in 1999, a different radiologist from Dr. Zimmerman's practice read the 1999 films and diagnosed a brain tumor.   The same radiologist reviewed the 1996 study and determined the tumor was visible on that study.

The plaintiff in Zielinski claimed that although the Statute of Limitations had run against Dr. Zimmerman, the radiology group was liable for its employee radiologist's [Dr. Zimmerman's] negligence and the continuing course of conduct doctrine tolled the Statute of Limitations because the radiologist employee who reviewed the MRI in 1999 completed a continuing course of treatment provided by the radiology group.   The Court held that the diagnostic services provided by the defendants did not constitute continuous treatment because the contacts had been isolated and discrete.   The Court further held that “where there are separate and isolated contacts with different physicians who have the same employer, especially in the context of consultive practices such as radiology, this will not, without more, give rise to a continuing course of conduct or treatment relationship for the purposes of tolling the Statute of Limitations.”  Id. at 328.

The defendants have submitted evidence that at the time of the surgical procedure, Dr. Aranow was informed by the Hospital staff, who were responsible for the surgical sponge count, that the sponge count was correct.   There is no evidence that any defendant had reasons to suspect that the sponge count was incorrect or that their care of the plaintiff was in any way negligent.   Without such evidence there is no factual basis on which to allege that any defendant had actual knowledge of a suspected retained sponge in the plaintiff's abdomen which they failed to make known to the plaintiff and, therefore, no basis to toll the Statute of Limitations under either the continuing course of treatment or conduct doctrines.

As in Martinelli, supra, there is no evidence that Dr. Aranow or the Hospital were aware of a retained surgical sponge from a December 2003 surgical procedure until August 6, 2009 when the sponge was incidentally discovered in a CT scan related to the plaintiff's breast cancer.   Neither Dr. Aranow nor the Hospital had any reasons to suspect a retained sponge because the sponge count was reported as correct at the time of the surgery.

Unlike Witt, this is not a case where the defendants suspected that the plaintiff had any type of a concerning condition about which they failed to advise the plaintiff.   The defendants, therefore, did not commit “some later wrongful conduct” related to their prior acts which might implicate the Witt exception, triggering the continuing duty to warn.

As stated above, the direct claim against the Hospital must fail because it is barred by § 52–584 and that Statute of Limitations has not been tolled.   The derivative claims against Shoreline and the Hospital must also fail because they are based on the claim of alleged negligence by Dr. Aranow, which claim is barred by the Statute of Limitations.

The Hospital argues that the plaintiff's derivative claims against it must also fail, even if the Statute of Limitations could be tolled against Dr. Aranow, because the plaintiff has not asserted a viable respondent superior or vicarious liability claim against it.

The plaintiff alleges that Dr. Aranow was an agent of the Hospital.   She has not offered evidence that the Hospital had an employment contract with Dr. Aranow, paid him anything for the plaintiff's surgery or directed how he practiced medicine.   Rather, the plaintiff alleges, essentially, that the Hospital is liable for the alleged negligence of Dr. Aranow under the doctrine of apparent authority.

An employer is liable for the negligent acts of its employees and the theory is “based on the relationship under which it is determined as a matter of public or social policy that one person should be liable for the act of another, irrespective of the participation of the person vicariously liable.”   LaBonte v. Federal Mutual Insurance Co., 159 Conn. 252, 258, 268 A.2d 663 (1970).

As a threshold issue, before the theory of vicarious liability can apply, there must be sufficient evidence produced to warrant a finding of agency between the parties;  in this case, the Hospital and Dr. Aranow.   If there is a finding that the allegedly negligent actor is not an employee or agent, then the claim for vicarious liability must fail.   To find an agency relationship, the Court in Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 464 A.2d 6 (1983) stated that three elements must be established:  “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.”  Id. at 133.

In the context of a medical malpractice action, the fact that the physician holds staff privileges at a hospital is not enough to find that a principal/agent relationship was created.  Menzie v. Windham Community Memorial Hospital, 774 F.Sup. 91 (D.Conn.1991).   In Menzie, the Court granted the defendant Hospital's motion for summary judgment because an attending physician's staff privileges at the Hospital did not render him an agent of the Hospital.   In granting the motion, the Court relied upon the following facts:  “that the [co-defendant physician] received no compensation from the hospital for the medical care at issue in the case;  lack of any evidence that the hospital exercised any control over the manner in which the doctor practiced medicine;  lack of any evidence that the hospital set the doctor's schedule or dictated what types of procedures he performed;  lack of any contract between the doctor and the hospital evidencing an intent to create an agency relationship;  and membership of the doctor in an independent professional practice with offices outside the hospital where the doctor saw patients who were not hospitalized and from which he billed his patients for his services.”  Menzie decision as summarized in Spaulding v. Rovner, (Judicial District of Stamford–Norwalk at Stamford) (Docket No. X08–CV04–4001232S) (April 3, 2009, Jennings, J.) [47 Conn. L. Rptr. 544].   The factors mentioned in Menzie and Spaulding are all present here.

In Spaulding the plaintiff had spinal surgery performed by a private attending orthopedic surgeon, Dr. Rovner, at Stamford Hospital.   The plaintiff claimed Dr. Rovner negligently performed his spinal surgery and sued him, as well as Stamford Hospital on a theory of vicarious liability based upon agency and/or apparent agency.   Stamford Hospital filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law because the plaintiff could not establish the surgeon was an actual or apparent agent of Stamford Hospital.

Judge Jennings granted the summary judgment based on the plaintiff's failure to establish the necessary three elements of agency from Beckenstein and the consistency of the facts with those of Menzie.

The Hospital has provided an affidavit by the Vice President of Human Resources, Mr. Nokes, which avers that Dr. Aranow was not an agent or employee of the Hospital and there was no contract of employment with respect to Dr. Aranow's care and treatment of his patients.   The affidavit from the Hospital's Chief Financial Officer, Ms. Martin, avers that Dr. Aranow received no remuneration from the Hospital for providing care and treatment to the plaintiff and the Hospital did not bill the plaintiff for those services.

In this case there is no evidence that the Hospital consented to have Dr. Aranow act as its agent or that it exercised any control over the means and methods of his practice of medicine or surgery.   Like Menzie and Spaulding, there is no evidence to establish that the professional services provided by Dr. Aranow to the plaintiff, whether in his private offices at Shoreline or while the plaintiff was at the Hospital, were controlled by the Hospital or that it controlled the manner in which Dr. Aranow performed surgery.

The plaintiff argues that the Hospital's website touts Dr. Aranow as the “founder” of the Center for Weight Loss and refers to Dr. Aranow as being part of its staff.   She also argues that the Hospital vested Dr. Aranow with authority to conduct informational seminars on its premises to educate prospective candidates about bariatric surgery.   None of these arguments supports the third element of Beckenstein, that is, that the Hospital controlled or directed the manner in which Dr. Aranow performed surgery.   Therefore, even if the Statute of Limitations did not bar the plaintiff's suit against Dr. Aranow, the Hospital would not be liable for his conduct under an agency theory.

The plaintiff also argues that the foregoing facts establish that Dr. Aranow was the apparent agent of the Hospital and, therefore, the Hospital could be liable to the plaintiff for Dr. Aranow's negligent conduct under a theory of apparent agency.   The Hospital argues that no appellate court in the State of Connecticut has recognized apparent authority as a proper theory to find liability in tort actions.

In the recent case of L and V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn.App. 662 (2012), the Court reversed the decision of the trial court which had held AAMCO vicariously liable for the tortious conduct of the defendant, Drive Train, a franchisee of co-defendant, AAMCO, based on Drive Train's apparent authority to act as AAMCO's agent.   The Court stated that “AAMCO contends that the plaintiff failed to submit any evidence on the issue of AAMCO's control of Drive Train.   Accordingly, AAMCO asserts that the plaintiff failed to prove that there was an agency relationship between Drive Train and AAMCO.   We agree.”  Id. at 667.   The Court explained the rationale for its holding as follows:  “In the present case, the claims against AAMCO sound in tort and are based on the tortious conduct of Drive Train, which the plaintiff alleges AAMCO held out as its agent.   Because this court has held that the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent, we conclude that the trial court erred in determining that Drive Train had apparent authority to bind AAMCO.”  Id. at 670.

Based on the foregoing, even if the Statute of Limitations did not bar the plaintiff's claims against Dr. Aranow, which it does, the Hospital would not have vicarious liability for Dr. Aranow's alleged negligence.   Both motions for summary judgment are granted.

By the Court,

Aurigemma, J.

Aurigemma, Julia L., J.