Edmund Lohnes v. Hospital of St. Raphael (2013)

MEMORANDUM OF DECISION RE MOTIONS TO STRIKE # 127 AND # 130

FACTS

On June 26, 2013, the plaintiff, Edmund Lohnes, filed the five-count amended complaint in this action against the defendants Vinu Verghese, M.D., Hospital of St. Raphael (St.Raphael), Yale–New Haven Hospital, Inc., and Yale–New Haven Health Services Corporation (collectively, the Yale–New Haven defendants), in which he alleges the following facts.   On June 22, 2007, the plaintiff was admitted to the St. Raphael emergency department in New Haven, Connecticut, complaining of shortness of breath associated with chest pain and tightness in his chest.   The plaintiff warned the St. Raphael staff that he had a prior history of non-steroidal anti-inflammatory drug (NSAID) sensitive asthma which caused him to suffer shortness of breath, loss of consciousness, and vomiting as a result of ingesting NSAID.   St. Raphael's records thus contained notations indicating the plaintiff's allergy, and a staff member placed a red wristband on the plaintiff as a warning to its employees that the plaintiff suffered from this allergy.   On that date, the plaintiff also informed Dr. Verghese, who was employed by St. Raphael and/or its agent, acted with the authority to provide care to its patients, and undertook his care and treatment, of the fact that he was highly allergic to NSAIDs.   Despite this, Dr. Verghese administered several pills to the plaintiff, including Motrin, which is a NSAID.   The plaintiff was not aware that one of the pills was an NSAID, and he ingested it on the advice and recommendation of Dr. Verghese.   Upon learning that he was administered a NSAID, the plaintiff immediately notified Dr. Verghese and alerted him that he was highly allergic to NSAIDs.   In response, Dr. Verghese did not give any specific treatment to prevent him from having an adverse reaction to the NSAID.   The plaintiff further alleges that, as a result of the defendants' negligence, the plaintiff suffered from and continues to suffer from serious breathing problems, emotional distress, and mental anguish requiring intensive medical care.

In count one of his revised complaint, the plaintiff alleges a claim of negligence against Dr. Verghese.   In count two, the plaintiff alleges a claim of negligence against St. Raphael for its own conduct.   In count three, the plaintiff alleges a claim of negligence against St. Raphael that is premised on the conduct of its agents and/or employees.   In count four, the plaintiff alleges a claim of successor liability against Yale–New Haven Hospital for the negligence of St. Raphael.   In count five, the plaintiff alleges a claim of successor liability against Yale–New Haven Health Services Corporation for the negligence of St. Raphael.   Counts four and five are premised upon the plaintiff's allegations that the Yale–New Haven defendants purchased the assets of St. Raphael on September 12, 2012, and are therefore liable for St. Raphael's debts.   The plaintiff seeks money damages and such other relief the court deems appropriate.

On July 18, 2013, St. Raphael filed a motion to strike count three of the plaintiff's revised complaint, on the ground that the apparent authority theory of medical negligence is not a recognized theory of liability in Connecticut.   St. Raphael has submitted a memorandum of law in support of the motion to strike.   The plaintiff filed a memorandum of law in opposition to the motion to strike on July 25, 2013.   St. Raphael submitted a reply memorandum of law in opposition to the plaintiff's objection on August 22, 2013.   The plaintiff filed a supplemental objection along with a memorandum of law on August 26, 2013.   On July 30, 2013, the Yale–New Haven defendants filed a separate motion to strike counts four and five of the plaintiff's revised complaint, adopting St. Raphael's arguments in their memorandum.   The plaintiff responded with an objection memorandum on August 12, 2013.   The motions were heard at the short calendar on August 26, 2013.

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).  “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “A motion to strike is the proper procedural vehicle ․ to test whether Connecticut is ready to recognize some newly emerging ground of liability.”  (Internal quotation marks omitted.)   Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV12–6014139–S (January 30, 2013, Adams, J.) (55 Conn. L. Rptr. 451, 452).

In count three, the plaintiff alleges that St. Raphael is liable for the negligent acts of Dr. Verghese and its other unnamed agents and employees under the theory of apparent authority.   In that count, the plaintiff incorporates many of the allegations of count two and further alleges that his injuries were caused by the negligence of St. Raphael, and its servants, agents, apparent agents, and/or employees failed to exercise reasonable care under all of the circumstances by:  ignoring the plaintiff's warnings regarding his NSAID allergy;  ignoring the warnings contained in its own medical records regarding the NSAID allergy;  ignoring the red wristband placed on the plaintiff's wrist;  not taking any action to prevent the plaintiff from having an adverse reaction after administering the Motrin;  failing to adequately and properly care for, treat, diagnose, monitor, and supervise the plaintiff;  failing to properly obtain and/or review the plaintiff's records prior to administering the Motrin;  and improperly ignoring and/or minimizing the plaintiff's notification that he was allergic to Motrin.   Further, the plaintiff alleges that St. Raphael caused or allowed the plaintiff to believe that Dr. Verghese possessed a semblance of authority and/or agency, upon which the plaintiff acted in good faith, causing him to suffer severe, painful, and permanent injuries.

In its memorandum of law in support of its motion to strike, St. Raphael, citing L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2012), argues that apparent authority is not a recognized theory of liability for tortious conduct in Connecticut, and that the court should therefore grant its motion to strike count three.   In response, the plaintiff argues that apparent authority has been recognized by the Connecticut Supreme Court, as well as by numerous judges of the Superior Court as the basis for imposing liability on a principal for the negligent conduct of its apparent agent.   In their motion to strike, the Yale–New Haven defendants contend that, because counts four and five are premised solely on their status as successors to St. Raphael, if the court determines that St. Raphael is not liable to the plaintiff under the theory of apparent agency, the court should grant their motion to strike counts four and five of the revised complaint.   The plaintiff opposes this motion to strike for the same reason he opposes St. Raphael's motion.

In general, as the Supreme Court recently explained, “[A]pparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses ․ 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.”  (Internal quotation marks omitted.)  Patel v. Flexo Converters USA, Inc., 309 Conn. 52, 59–60 n.8, 68 A.3d 1162 (2013).¹

As it currently stands, there is a lack of authority with regard to the doctrine of apparent authority as it applies to tort liability.   Certain Connecticut courts have recognized its legitimacy and have used it to assess liability, while other courts have declined to recognize its existence, pointing to the lack of appellate authority on point.   This case law must be examined in order to establish a clearer picture as to the status of this doctrine in Connecticut.

Appellate Court case law appears to support St. Raphael's argument that apparent authority is not recognized as a legitimate legal doctrine in the area of torts in Connecticut.   In L & V Contractors, a vicarious liability case dealing with the issue of whether a car company could be held liable for the intentional torts of theft and conversion committed by that company's alleged agent, servant, and/or employee, the court specifically stated:  “Connecticut ․ 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 the tortious conduct of a person held out as the principal's agent.”  L & V Contractors v. Heritage Warranty Ins. Risk Retention Group, Inc., supra, 136 Conn.App. 669.   In reversing the trial court's finding that the defendant was vicariously liable to the plaintiff, the court reasoned that it was bound by Appellate Court precedent that held that the doctrine of apparent authority cannot be used to hold “a principal liable for the tortious actions of its alleged agent ․” Id., 892.   Specifically, the precedent the court was referring to is found in the following two cases.

In Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1997), the Appellate Court dealt with the issue of apparent authority in the context of a claim regarding whether a religious institution could be held liable in negligence to a plaintiff who alleged that she was sexually exploited by a priest.   The court noted that other states have held that principals may be liable for the acts of their alleged agents when a third person is harmed by the agent's breach of the duty of care, but that Connecticut had never used the doctrine of apparent authority in that manner.  Id., 771–72.   The court concluded that it was bound by Connecticut precedent, and thus unable to hold that the doctrine of apparent authority applied.  Id., 772.

In Davies v. General Tours, Inc., 63 Conn.App. 17, 774 A.2d 1063, cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001), the court dealt with the issue of apparent authority in the context of whether a tour bus operator could be held liable for the negligent conduct of the employees of the independent contractor that provided services for its tours.   The court cited Mullen and held that, “[apparent authority] is not a viable ground on which to premise liability against a defendant sued for the torts of an alleged agent.”  Id., 31.   The court did, however, recognize that a hospital's relationship with independent contractors is different from that of a tour bus operator and independent contractor, and noted that there is Superior Court case law permitting “causes of action against hospitals for the acts or omissions of independent contractors who were held out by the hospitals to be employees, not partners.”  Id., 32.

Supreme Court case law, on the other hand, supports the plaintiff's argument that apparent authority is a proper basis for tort liability in Connecticut.   In Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 18 A.2d 347 (1941), a negligence case, the Supreme Court explained:  “Apparent and ostensible authority is such authority as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe that the agent possesses.   This authority to act as agent may be conferred if the principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to act on an apparent agency.”   (Internal quotation marks omitted.)  Id., 496–97.   Although the court was not persuaded that the plaintiff had established apparent authority, the Fireman's Fund court introduced the doctrine of apparent authority to the case, explained it, and applied it to the facts, which should be enough to support a holding that it is recognized in Connecticut.   As pointed out below, the Appellate Court did not mention Fireman's Fund in L & V Contractors, Davies, or Mullen.

Additionally, numerous judges of the Superior Court have recently recognized that the doctrine of apparent authority may apply to tort claims.   In Carasone v. Gemma Power Systems, LLC, Superior Court, judicial district of New Haven, Docket No. CV–12–6033846–S (April 17, 2013, Wilson, J.) [55 Conn. L. Rptr. 914], the court held that apparent authority is a legal basis for imposing vicarious liability on a principal for the negligent acts of an apparent agent.   In declining to be constrained by the holding in L & V Contractors, the court explained that, in that case, the Appellate Court failed to address Fireman's Fund, which expressly “recognized the doctrine of apparent authority in the context of a negligence action.”  Id. In Cadavid v. Rangiwala, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–12–6014019–S (June 24, 2013, Tobin, J.) [56 Conn. L. Rptr. 318], the court discussed the issue in a case that is factually almost identical to the present case, i.e. where a patient sought to hold a hospital liable for the negligent acts of a doctor who was allegedly cloaked with hospital authority.   The court distinguished the case before it from the Appellate Court's holdings in L & V Contractors and Davies on the basis that those cases were not grounded in professional medical negligence.  Id. The court explained that L & V Contractors was an intentional tort case, and that in Davies, the court specifically noted that there is “a meaningful distinction between [Davies] and cases involving negligence claims against hospitals.”  Id. The court continued, “ ‘[i]t is true that our Supreme and Appellate courts have yet to recognize apparent agency in the context of medical malpractice actions.   Nonetheless, there is ample Superior Court authority in support of the proposition that apparent authority may be maintained as a cause of action in medical malpractice actions.’  ․ ‘L & V Contractors was not decided in the medical malpractice context and, more importantly, that case does not address Fireman's Fund ․ ‘ [Bordonaro v. Anesthesia Associates of Torrington, Superior Court, judicial district of Litchfield, Docket No. CV–10–6002739–S (October 23, 2012, Danaher, J.) ] [55 Conn. L. Rptr. 2]” (Citation omitted.)  Cadavid v. Rangiwala, supra.   Accordingly, the court concluded, “the Appellate Court's rulings in L & V Contractors, Mullen, and Davies, do not, as a matter of law, preclude the plaintiff's tort claims based on apparent authority ․” Id.

St. Raphael also refers to Tiplady v. Maryles, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–07–5003525–S (June 12, 2013, Genuario, J.), which was also decided in the wake of L & V Contractors.   In that case, which was before the court on a motion to set aside the verdict, the court explained, “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.”  Id. The court continued, “[w]hile not a medical malpractice case, L & 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.”  Id. Although the court recognized the lack of authority on point in hospital cases, it also noted that the issue was moot in Tiplady, as the jury had found that the doctor was not liable to the plaintiff.

The court thoroughly detailed the history of the trial courts' application of the doctrine of apparent authority to hospitals and their independent contractor physicians in Sandra Center v. Kost, Superior Court, judicial district of New Haven, Docket No. CV–08–5021444–S (August 4, 2011, Wilson, J.) (52 Conn. L. Rptr. 426).   The court in Sandra Center noted that Connecticut courts first considered the issue in LeConche v. Elligers, Superior Court, judicial district of Hartford, Docket No. CV–88–348312 (July 16, 1991, Stengel, J.) (4 Conn. L. Rptr. 373).   In LeConche, the court denied the hospital's motion for summary judgment on the ground that other jurisdictions allow claims to be brought against hospitals under the theory of apparent authority when hospitals hold themselves out to the public and to patients that their physicians are their employees, and it found the reasoning of these courts persuasive.  Id., 374.   In Sandra Center, the court noted that “since LeConche, no Connecticut appellate court has addressed whether a hospital can be held vicariously liable under a theory of apparent agency.”   Sandra Center v. Kost, supra, 431.   The court referred to Mullen and Davies, and noted that those cases were easily distinguishable.  “Mullen and Davies, however, were not cases in which a hospital was being sued for vicarious liability under a theory of apparent agency.   In Mullen, the issue was whether a religious institution could be held vicariously liable for the actions of a priest-psychologist ․ In Davies, the court looked at the tenuous relationship between a tour operator and an independent contractor that it contracted with to provide services to tourists around the world ․ In fact, the court in Davies distinguished itself from Superior Court cases where causes of actions were permitted against hospitals for acts of independent contractors who were held out to be employees.”  (Citations omitted;  internal quotation marks omitted.)  Id.

In Cadavid, the court also recognized that there are important policy reasons to consider on the issue of whether hospitals can be held vicariously liable for the negligence of independent physicians.  Cadavid v. Rangiwala, supra.   The court cited Francisco v. Hartford Gynecological Center, Superior Court, judicial district of Hartford–New Britain, Docket No. CV–92–0513841–S (March 1, 1994, Corradino, J.) (9 C.S.C.R 340, 341) [11 Conn. L. Rptr. 191], in which the court denied a defendant hospital's motion for summary judgment, reasoning that:  “There is no analytical reason not to extend [apparent authority] to the hospital situation, in fact there are several good policy reasons for doing so ․ It would be absurd to require ․ a patient to be familiar with the law of respondeat superior and so inquire of each person who treated him ․ whether he ․ is an employee of the hospital or an independent contractor ․ Similarly ․ 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 ․ The public should have a right to assume that the ․ hospital to which it goes for treatment exercises medical supervision and is responsible for the negligence of medical personnel providing services whether the hospital styles them as independent contractors or not.”  (Citations omitted;  internal quotation marks omitted.)

CONCLUSION

Based on the above the defendants' motions to strike counts three, four, and five of the plaintiff's revised complaint are denied.

Brian T. Fischer, J.

FOOTNOTES

FN1. Connecticut courts have applied the theory of apparent authority to various types of claims, most often to claims of breach of contract.   See Gordon v. Tobias, 262 Conn. 844, 817 A.2d 683 (2003) (finding defendant liable for overpayments made to brokerage in that brokerage had apparent authority to collect payments on mortgage defendant had on plaintiff's property);  LeBlanc v. New England Raceway, LLC, 116 Conn.App. 267, 976 A.2d 750 (2009) (finding defendants not liable for breach of contract in that real estate agent did not have apparent authority to bind defendants to contract to buy plaintiff's property);  Southern New England Telephone Co. v. Fairfaxx Corp., Superior Court, judicial district of New Haven, Docket No. CV–02 0468370–S (July 9, 2004, Jones, J.) (37 Conn. L. Rptr. 484) (finding defendant liable for breach of contract in that it held agent out as office manager, allowed agent to sign contracts, and never expressly informed plaintiff that agent was not authorized to sign contracts on his behalf)..  FN1. Connecticut courts have applied the theory of apparent authority to various types of claims, most often to claims of breach of contract.   See Gordon v. Tobias, 262 Conn. 844, 817 A.2d 683 (2003) (finding defendant liable for overpayments made to brokerage in that brokerage had apparent authority to collect payments on mortgage defendant had on plaintiff's property);  LeBlanc v. New England Raceway, LLC, 116 Conn.App. 267, 976 A.2d 750 (2009) (finding defendants not liable for breach of contract in that real estate agent did not have apparent authority to bind defendants to contract to buy plaintiff's property);  Southern New England Telephone Co. v. Fairfaxx Corp., Superior Court, judicial district of New Haven, Docket No. CV–02 0468370–S (July 9, 2004, Jones, J.) (37 Conn. L. Rptr. 484) (finding defendant liable for breach of contract in that it held agent out as office manager, allowed agent to sign contracts, and never expressly informed plaintiff that agent was not authorized to sign contracts on his behalf).

Fischer, Brian T., J.