Barbara J. Tiplady, Adm. v. Samuel Maryles, M.D. et al. (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO SET ASIDE THE VERDICT AND FOR NEW TRIAL (MOTION # 242)

I. INTRODUCTION

This medical malpractice case arises out of the tragic death of Linda Jablonski (Jablonski) resulting from a virulent virus known as herpes simplex encephalitis in November 2004.   The evidence at trial demonstrated that if the virus is not properly diagnosed and properly treated within a very short period of time from the onset of the initial symptoms (according to some expert testimony as little as five days) there is little or no chance that the patient will survive.   Indeed even if the disease is diagnosed and treated within that time there is still a considerable chance that the patient will succumb but there was certainly evidence from which the jury could have found that had the patient been treated within that five-day period she would have survived.   It was also not disputed during the trial that the patient presented at the Stamford Hospital Emergency Department and was examined by the defendant Dr. Samuel Maryles.¹  It was further not disputed that the defendant Maryles discharged the decedent from the emergency department and did not order or perform either of the two tests that would likely have led to the proper diagnoses and proper treatment.  (The specific tests were a CAT scan and a lumbar puncture.)   Two days subsequent to the decedent's discharge from the Stamford hospital she was found dazed, confused and incoherent in her automobile in Bridgeport.   She was taken to the Bridgeport Hospital, was diagnosed with the herpes simplex encephalitis, and was treated with the appropriate drug, acyclovir.   Ms. Jablonski succumbed to the disease several days later.

The case, brought by the administratrix of the decedent's estate, was tried to a jury during approximately three weeks in September 2012.   The jury responded to court propounded interrogatories as follows:

Interrogatory 1:  Did the plaintiff prove by a preponderance of the evidence, the standard of care applicable to the defendant, Samuel Maryles, M.D.? Yes.

2:  Did the plaintiff proved by a preponderance of the evidence, that the defendant, Samuel Maryles, deviated from the accepted standard of care as alleged?   No.

Accordingly the jury returned a verdict for all defendants.

The plaintiff now moves to set aside the verdict and for a new trial asserting that the trial court on multiple occasions erroneously precluded certain evidence or erroneously allowed certain evidence and asserting that the charge to the jury was harmfully erroneous.   The court will not address each and every claim of error set forth by the plaintiff as the record includes the court's rational and reasoning with regard to most of the contested evidentiary rulings.

The court, however, will take this opportunity to further address a number of the issues raised by the plaintiff in this motion because of their importance.

II. STANDARD FOR A MOTION TO SET ASIDE A VERDICT AND ORDER A NEW TRIAL

As the Connecticut Supreme Court has stated in Howard v. MacDonald, 270 Conn. 111 (2004), “[L]itigants have a constitutional right to have juries decide issues of fact.   The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fear-minded men passed upon by the jury and not by the court.”   (Citations omitted;  internal quotations omitted.)  Id. at 128.

It is appropriate for the trial court to set aside a verdict when the trial court determines that “its rulings on evidence were erroneous and that those erroneous ․ rulings were consequential enough to have had a substantial effect on the verdict.”  Ardoline v. Keegan, 140 Conn. 552, 555–56 (1954).   In keeping with those two principles the court will review a number of the important rulings made during the course of the trial.

III. BACKGROUND

One of the important factual issues in this case was the symptoms Jablonski presented with at the time of her examination by the defendant Maryles.   Portions of the emergency room record were dictated by the defendant Maryles during or shortly after his examination of Jablonski but were not typed until several days after her discharge.   Those portions read that the decedent presented with “atypical” migraine headache.   The plaintiff presented expert testimony that given an “atypical” migraine headache symptom along with the remainder of the hospital record, the standard of care required the defendant to order a CAT scan and a lumbar puncture.   Upon questioning by the plaintiff during the plaintiff's case in chief the defendant Maryles testified that a patient who presented with an “atypical” headache along with Jablonski's other symptoms should be administered the two subject tests.   Dr. Maryles also testified however that the patient did not present with an “atypical” migraine headache but rather with “a typical” migraine headache.   In response to the plaintiff's questioning, the defendant responded that he dictated that the plaintiff presented with “a typical migraine headache” and that the combining of the “a typical” to “atypical” was a typographical error.   While Dr. Maryles testified that he did not have a specific recollection of the decedent, the examination or the dictation he concluded that he dictated that the patient presented with “a typical” migraine type headache rather than “atypical” migraine type headache because “that's how I speak” and if it were otherwise he would have dictated “an atypical migraine type headache” based on his “knowledge of English.”

The factual distinction is critical since there was evidence from which the jury could have concluded that if the patient presented with an “atypical” migraine type headache that the standard of care required the subject tests to be ordered but if the patient presented with a “typical” migraine type headache the standard of care did not require the subject tests.

While the court does not suggest that this was the only factual issue in the case it was certainly a very important factual issue that the jury needed to weigh.

With this background the court will review some of the plaintiff's assignment of errors.

IV. THE ADMISSIBILITY OF THE CONSENT AGREEMENT AND ORDER

The plaintiff assigns as error the court's decision to prohibit the plaintiff from introducing or inquiring about a document entitled “CONSENT AGREEMENT AND ORDER” (Consent Agreement) executed by the defendant Maryles and the New York State Department of Health.   The issue arose on several occasions and in several contexts both before and during the trial.   On several occasions the court indicated, after extensive argument, that the court had reviewed the proffered evidence and found it to be more prejudicial than probative.

The Consent Agreement

The parties had provided the court with the Consent Agreement which includes a statement of charges.   The charges are set forth in Paragraphs A, B and C. Paragraphs A and B each refer to single incidents of patients presenting in New York Emergency Rooms in 2003, and the defendant's deviation from “accepted medical conduct” in that the defendant failed to investigate and follow up on the patient's complaint.   Paragraphs A and B deal with significantly different medical conditions than those suffered by Jablonski.   Paragraph C contains allegations that the defendant deviated from medical standards in the care of 4 patients in Connecticut in 2004–05, in discharging patients from the emergency room without appropriately following up or noting the identity of other physicians responsible for follow up.   The document also contains a statement with regard to all of the above matters that the defendant failed “to maintain a record for each patient which accurately reflects the care and treatment of the patient, as alleged ․” The Consent Agreement includes a statement by the defendant Maryles that “I do not contest the first specification to the extent it states factual allegations set forth in paragraphs A and B and the second and third specifications [which deal with paragraphs A and B], in full satisfaction of the charges against me and agree to the following penalty ․”

The allegations concerning the two incidents that the defendant did not contest occurred in 2003 in New York. The allegations concerning the four patients in Connecticut contained in Paragraph C were not consented to and the court was not presented with any evidence that they were otherwise pursued.

The issue of the admissibility of the Consent Agreement must be analyzed on two separate tracks.   First, as raised in the defendant's motion in limine,² whether certain past conduct of the defendant was admissible to demonstrate the likelihood of his conduct as alleged in the instant case.   Second, whether certain aspects of the defendant's testimony caused him to have the status in this case not only of party but also as an expert witness, thus broadening the scope of cross examination and rendering the document and subject matter admissible regarding credibility issues of an expert witness.

The first claim was the subject of the defendant's initial motion in limine and the plaintiff's objection thereto.

To be clear the court's initial ruling was not based on any determination that the documents were subject to privilege nor did the court give any weight to either the plaintiff's position that the documents were admissible because the parties to the agreement itself had indicated that they were admissible in subsequent proceedings or the defendant's argument that such statements are intended to apply to administrative proceedings only.   Rather, the court ruled on the initial motion in limine and objection thereto based upon traditional theories of relevance.   The heart of the plaintiff's initial claim for admissibility is based on the “basic principle of our law that evidence of habit and routine practice may be used to show conformity therewith on a particular occasion.   Code of Evidence.   Section 4–6.”   Plaintiff's Objection, August 28, 2012 file # 199, p. 7. See also transcript September 19, 2012 p. 63.   Evidence of habit and custom is generally admissible when it refers to “a course of conduct that is fixed, invariable and unthinking and generally pertain to a very specific set of repetitive circumstances.”   Collin C. Tait and Elliot D. Prescott, Tait's Handbook of Connecticut Evidence, Sec. 421.2 (4th edition, 2008) p. 177.   The Consent Agreement simply fails this fundamental test when applied in this context to the accuracy of an emergency room physician's report and treatment of a given patient.

The two incidents not contested by the defendant deal with completely different procedures, the nature of the follow up and records kept regarding that follow up.   Even if the court considers the four charges that were not pursued, these types of events, decisions or conduct do not fall within the scope of the rule regarding habit and custom since they do not concern “a very specific set of repetitive circumstances,” or conduct that is “fixed, invariable and unthinking.”   The court determined that there was little probative value to the subject matter of the case at bar.   However its potential to prejudice the jury was not insignificant since it included disciplinary action which was taken not just against a witness but against the defendant himself.

The plaintiff also claims that the Consent Agreement should have been admitted for purposes of impeaching the defendant's expert, Dr. Miller, who relied upon Dr. Maryles's emergency department record.   However, for the same reason, the plaintiff's desire to impeach the defendant's expert witness does not justify its admission.   If under the rules of habit and custom it is not admissible because it is not sufficiently probative of the conduct at issue, then an expert witness who himself is not subject to disciplinary action, cannot be impeached with a document that is not sufficiently probative of the defendant's conduct to be admitted in the first place.   While disciplinary proceedings previously brought against an expert witness are often admissible to challenge the credibility of the expert witness, this document had nothing to do with the credibility of Dr. Miller, rather the plaintiff's proffered use was to suggest that Dr. Miller's reliance upon the Stamford Hospital record was misplaced.   This argument presumes that under traditional standards of relevance the precluded document is probative of the habit and custom of the defendant Maryles in preparing the record.   If however the document is not admissible because it is not probative of the conduct of Dr. Maryles in determining how he wrote his report or his conduct on the day in question, then Dr. Miller should not have been confronted with a report that under traditional rules of habit and custom would not have been admissible in the first place.   And of course, the prejudicial impact of the Consent Agreement still needs to be considered.

The second claim of the plaintiff as to the admissibility of the report turns on a somewhat unique set of circumstances.   Neither of the parties disclosed the defendant Maryles as an expert witness.   The plaintiff called Dr. Maryles in her case in chief and though the plaintiff did not elicit the defendant's credentials the plaintiff did ask the defendant questions about what the standard of care required if the patient presented with “atypical” headache.³  In response the defendant's counsel inquired of the defendant what the standard of care required if the patient presented with a “typical” headache.   The court allowed the defendant to testify over the plaintiff's objection based upon the scope of the plaintiff's direct examination of the defendant.   At no time did Dr. Maryles testify in any detail about his credentials.⁴  In summary Dr. Maryles was called primarily as a factual witness concerning what the hospital records said.   He testified as to why he thought one part of it was a typographical error and upon questioning by both the plaintiff and the defendant he testified in a limited manner as to his opinion as to what the standard of care required on the day in question depending upon the symptoms the patient presented.   At no time did he testify in any detail about his credentials, background, experience or expertise.

The plaintiff argues that under Richmond v. Longo, 27 Conn.App. 30 (1992), the Consent Agreement should have been admitted because the defendant testified as an expert.  Richmond provides significant guidance regarding the admissibility of disciplinary action or past conduct of an expert during cross examination of that expert witness.   However, Richmond differs significantly from the case at bar.   In Richmond the plaintiff called an expert witness specifically for the purpose of offering expert testimony and opinion.   The Richmond court noted on direct examination that the witness testified as to his medical education, training, background.   He described himself as a “specialist” in neurology and testified that he was “board certified in neurosurgery” as well as to what is necessary to become so certified.   The expert witness then testified extensively about the most critical issue in the case, the extent of the plaintiff's injuries.   The trial court prohibited the defendant from cross examining the witness concerning his loss of privileges at certain hospitals, disciplinary proceedings, and investigations which included 150 cases, as well as the fact that the witness did not have surgical privileges in any hospital in Connecticut at the time.  “It was the witness who initially put before the jury the question of his medical judgment.”   Richmond at 39.   In the case at bar the plaintiff called the defendant.   His credentials and background were not put before the jury.   Moreover in Richmond the trial court refused the defendant the opportunity to voir dire the witness outside the presence of the jury and made its ruling without having full knowledge of what cross examination might have elicited.   In this case the plaintiff was allowed to make a record concerning what they sought to be admitted, including marking the proposed exhibit as an exhibit for identification.   Neither party elicited the background and medical experience of the defendant.   Similarly, in Hayes v. Manchester Memorial Hospital, 38 Conn.App. 471 (1995), the court reversed a decision of a trial court not to allow cross examination concerning a pending lawsuit against an expert witness.   However, in the unique facts of the Hayes case, the pending lawsuit against the witness concerned similar facts to those involved in the defendant's treatment of the plaintiff therein.   The Appellate Court ruled that the prohibition and limitation on cross examination prohibited the plaintiff from bringing to the attention the motive and bias that the witness might well have had in developing his testimony.

Moreover the opinion evidence that was elicited by both the plaintiff and the defendant from Dr. Maryles was not significantly inconsistent with the plaintiff's own experts.   Indeed the plaintiff asked the court for an instruction that the defendant by his testimony had judicially admitted the standard of care required.

The standard of care required was testified to by several experts whose impressive credentials were explained in detail before the jury.   The jury in answering its interrogatories found that the plaintiff had sustained her burden of proof in determining what the standard of care required.   The “opinion testimony” of the defendant was limited and not particularly significant.

V. DID THE DEFENDANT MAKE A JUDICIAL ADMISSION

The plaintiff also argues that the court erred in not instructing the jury that the defendant had made a judicial admission regarding the standard of care and that therefore the jury should have been instructed to disregard the testimony of the defendant's expert witness Dr. Miller, who testified that the standard of care was less stringent than that to which the defendant himself testified.   The plaintiff argues that the defendant's testimony in this regard was a judicial admission which is binding upon court, the trier of fact, and the defendant.

It is well settled however that where

the testimony of a party relates not to a fact peculiarly within his own knowledge and as to which he could not be mistaken, but is in the nature of an estimate or opinion as to which he may honestly be mistaken, he does not unequivocally concede that the fact is in accord with the opinion expressed, and there is no injustice in permitting the court to consider the other evidence in the case, and determine from all the evidence what the actual facts are.

Pedersen v. Vahidy, 209 Conn. 510, 520 (1989), quoting King v. Spencer, 115 Conn. 201, 205 (1932).

The testimony of the defendant Maryles in this regard constitutes evidence which the jury was entitled to consider particularly in so far as it was consistent with the plaintiff's own experts but because it constituted an opinion it was not a judicial admission and therein no “injustice” in allowing the jury to consider it along with other appropriately admissible evidence.

VI. APPARENT AGENCY

Because of its importance to the conduct of the trial all of the parties asked the court to deal with the significant issue of the “apparent agency” ⁵ of the Stamford Hospital in this case.   By way of background in count three of the revised complaint dated May 28, 2012 the plaintiff alleged that Dr. Maryles was acting as the actual or apparent agent of the Stamford Hospital.   It is undisputed that Dr. Maryles was the employee of the defendant Emergency Medicine Physicians of Fairfield County, LLC (EMP).⁶

It was also undisputed that the Stamford Hospital contracted with EMP to provide emergency department physicians at the Stamford Hospital.   The parties had previously filed cross motions for summary judgment on the issue of apparent agency but agreed to reserve the issue of apparent agency for the trial judge.   Because all parties wanted to know what standards the court would apply with regard to the issue of apparent agency they asked the court for a preliminary ruling prior to trial.   The court indicated that it would provide that preliminary guidance by way of a preliminary determination of how it would charge the jury on the issue of apparent agency and allowed the parties to submit requests to charge on the issue.

Since apparent agency deals with vicarious liability and a jury found that the defendant Dr. Maryles was not liable to the plaintiff the issue of apparent agency has become moot in the case at bar, unless the Appellate or Supreme Court reverses the trial court judgment.   Nonetheless, because of the importance of the issue, both in this case as well as throughout the state, this court needs to set forth its ruling and rationale.

There are multiple Connecticut Superior Court cases within a variety of procedural contexts that have dealt with the issue of apparent agency or agency by estoppel within the context of a medical malpractice case and addressing the issue of vicarious liability of a hospital for the negligence of a physician or a health care provider under the doctrine of apparent agency.   All of the Superior Court cases apply the concept of apparent agency but vary in terms of what standards or factors a plaintiff will need to prove in order to hold a non-negligent party liable under the theory that the negligent actor is the apparent agent of the party.   See e.g. Wellons v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV 09 5014713 (May 10, 2012, Sheridan, J.) (54 Conn. L. Rptr. 13, 2012 Conn.Super. LEXIS 1226);  Center v. Kost, Superior Court, judicial district of New Haven, [*16] Docket No. CV 08 5021444 (August 4, 2011, Wilson, J.) (52 Conn. L. Rptr. 426, 2011 Conn.Super. LEXIS 2005);  Corey v. Eastern Connecticut Health Network, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 503 1120S, 2011 Conn.Super. LEXIS 1918 (July 22, 2011, Sheldon, J.);   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, 2009 Conn.Super. LEXIS 942);  Aube v. Middlesex Hospital, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 04 4010594S, 2008 Conn.Super. LEXIS 2548 (October 3, 2008, Scholl, J.);   Koniak v. Sawhney, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 93 042 154S, 1994 Conn.Super. LEXIS 95 (January 13, 1994, Rush, J.).

The court also notes that various jurisdictions throughout the country have dealt with the issue in a variety of ways.   These cases are collected and analyzed in a thorough if not an exhaustive article Liability of Hospital or Sanitorium for Negligence of Independent Physician or Surgeon–Exception Where Physician Has Ostensible Agency or “Agency by Estoppel,” ALR Sixth, volume 64 at p. 249 (2011).   Connecticut does not appear to have any appellate authority on the application of the doctrine of apparent agency within the medical malpractice context and particularly with regard to what appears from the cases to be a growing practice of Connecticut hospitals contracting with private entities to provide emergency department physicians.   The many superior court cases in Connecticut, while thorough and thoughtful, do not appear to expressly address the underlying issue of whether under Connecticut law the doctrine of apparent agency can be applied to allow a principal to be held liable to a third person who is harmed by the tortious conduct of a person who is not the actual agent but may be the apparent agent of the principal.   Candidly, at the time of the first oral argument on the issue, this court had not considered that underlying issue.   However on July 10, 2012 the Appellate Court of Connecticut released the decision of L and V Contractors LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn.App. 662 (2012).   The Superior court cases previously cited were decided prior to the L and v. Contractors case.

While not a medical malpractice case, L and v. Contractors expressly and clearly addresses the fundamental issue of whether in Connecticut the doctrine of apparent agency can be utilized to allow a principal to be held liable for the tortious conduct of an apparent agent who is not an actual agent of the principal.   The L and v. Contractors court held as follows:

Connecticut, nevertheless, has yet to apply the doctrine of apparent authority to allow for a principal to be held liable to a third person who was harmed by a tortious conduct of a person held out as principal's agent.   In Mullin v. Horton, 46 Conn.App. 759, 771, 700 A.2d 1377 (1997), this court observed that other states have used the doctrine of apparent authority “to hold a principal, who represents that another is his servant or agent and thereby causes a third person to rely justifiably on the care or skill of such agent, vicariously liable for harm caused to the third person by the lack of care or skill of his servant or agent.”   The court, however, noted that the doctrine has never been used in such a manner in Connecticut and therefore concluded that the doctrine of apparent authority was inapplicable to the case before it.  Id., 772.

In Davies v. General Tours, Inc., 63 Conn.App. 17, 31, 774 A.2d 1063 (2001), cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001), this court again determined that the doctrine of apparent authority should not be used to hold a principal liable for the tortious conduct of a person held out as its agent.   Citing Mullin we determined that apparent authority “is not a viable ground on which to premise liability against a [principal] sued for the torts of an alleged agent.  Id.

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 670–71.

The case at bar, though a medical malpractice case, sounds in tort and seeks to hold a principal liable to a third person who was allegedly harmed by the tortious conduct of one who may not actually be the agent but allegedly was held out to be the agent of the hospital.   The court notes that the holding in the L and v. Contractors case is consistent with the decision of the Virginia Supreme Court in Sanchez v. Medicorp Health System, 270 Va. 299, 618 S.E.2d 331 (2005).   The Virginia decision seems to be the sole decision of a state's highest court disallowing completely the application of apparent authority in the medical malpractice context.  (See ALR 6th volume 64 at 249).   The court is aware that the L and v. Contractors case relies in part on the case of Davies v. General Tours, Inc., supra, and that Davies contains a brief notation leaving open the possibility of distinguishing the hospital cases, but L and v. Contractors contains no such limiting language and its holding is too broad, too clear, and too definitive for this court to either ignore or distinguish.

After giving the parties an opportunity to respond to the holding of the L and v. Contractors case, the court ruled based upon L and v. Contractors that the doctrine of apparent agency would not be available to the plaintiff in this case in her effort to hold the Stamford Hospital liable for the alleged tortious conduct of the defendant Dr. Maryles.

The court has reviewed the very thoughtful decision written subsequently in the case of Bordonaro v. Anesthesia Associates of Torrington, superior court for the judicial district of Litchfield at Litchfield CV106002739S, October 23, 2012 (Danaher III, J.) [55 Conn. L. Rptr. 2], as well as the two Connecticut Supreme Court cases cited therein, Fireman's Fund Indemnity Co. v. Longshore Beach and Country Club, Inc., 127 Conn. 493, 496–98 (1941), and Hanson v. Transportation General, Inc., 245 Conn. 613, 617 n.5. (1998), which arguably recognize or at least discuss the concept of apparent agency within the tort context.   It may also be possible to reconcile Davies, L and v. Contractors and Fireman's Fund by distinguishing situations in which the apparent agent is held out to be an employee, as opposed to some other relationship, which gives rise to the apparent agency.

Because of the jury's decision in this matter, this court has no reason to reconsider its prior ruling as the issue of vicarious liability is no longer before this court.

With regard to the plaintiff's other assignments of error the court believes the record is clear as to its rulings.   Accordingly the plaintiff's motion to set aside the verdict and for a new trial is denied.

GENUARIO, J.

FOOTNOTES

FN1. There were originally four defendants:  Samuel Maryles, M.D.;   Emergency Medicine Physicians of Fairfield County LLC;  Emergency Medicine Physicians, LTD, and Stamford Health System, Inc. d/b/a The Stamford Hospital.   After several rulings of the court, one of which is discussed in section VI of this decision, the plaintiff withdrew against Stamford Health System, Inc..  FN1. There were originally four defendants:  Samuel Maryles, M.D.;   Emergency Medicine Physicians of Fairfield County LLC;  Emergency Medicine Physicians, LTD, and Stamford Health System, Inc. d/b/a The Stamford Hospital.   After several rulings of the court, one of which is discussed in section VI of this decision, the plaintiff withdrew against Stamford Health System, Inc.

FN2. The parties filed multiple motions in limine pursuant to Connecticut Practice Book § 15–3.   The court considered, and where appropriate, ruled on such motions.   Of course, the court maintained the right and did reconsider its rulings based upon the evidence elicited during the course of the trial..  FN2. The parties filed multiple motions in limine pursuant to Connecticut Practice Book § 15–3.   The court considered, and where appropriate, ruled on such motions.   Of course, the court maintained the right and did reconsider its rulings based upon the evidence elicited during the course of the trial.

FN3. Plaintiff's counsel during his questioning of the defendant, or several occasions, commented before the jury, that the defendant was not testifying as an expert..  FN3. Plaintiff's counsel during his questioning of the defendant, or several occasions, commented before the jury, that the defendant was not testifying as an expert.

FN4. At one point the court interrupted the proceedings and, outside the presence of the jury, made it clear to the defendant's counsel that if he elicited the credentials of the defendant the court would likely admit the consent agreement..  FN4. At one point the court interrupted the proceedings and, outside the presence of the jury, made it clear to the defendant's counsel that if he elicited the credentials of the defendant the court would likely admit the consent agreement.

FN5. The doctrine of apparent agency is also frequently referred to as “ostensible agency” or “agency by estoppel.”.  FN5. The doctrine of apparent agency is also frequently referred to as “ostensible agency” or “agency by estoppel.”

FN6. There was evidence introduced from which the jury might have found that the defendant Maryles was also the employee of the defendant Emergency Medicine Physicians, LTD..  FN6. There was evidence introduced from which the jury might have found that the defendant Maryles was also the employee of the defendant Emergency Medicine Physicians, LTD.

Genuario, Robert L., J.