Frank G. Heath et al. v. Day Kimball Hospital et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT DAY KIMBALL HOSPITAL'S MOTION FOR SUMMARY JUDGMENT (# 249)

Pursuant to Practice Book § 17–49, the defendant Day Kimball Hospital (“the Hospital”) has moved for summary judgment.   For the reasons set forth below, the motion must be denied.

I. FACTS AND PROCEDURAL BACKGROUND

This action arises from emergency room treatment provided to the plaintiff Frank G. Heath on March 9, 2009.   On that date, Mr. Heath was taken by ambulance to the Emergency Department at Day Kimball Hospital after his wife found him in their home, unable to speak, with one arm and one leg paralyzed.

The plaintiffs allege that the Hospital, acting through the two co-defendant doctors Jack Millard and Roger Nelson (both of whom are alleged to be the “servant, agent, apparent agent, and/or employee” of the Hospital), negligently failed to properly diagnose and treat Mr. Heath for a stroke and, as a result, he has suffered various and severe injuries, including incapacitation.   Generally, the plaintiffs allege that Dr. Nelson failed to properly evaluate Mr. Heath and failed to recognize the symptoms of and diagnose an acute stroke and administer clot-dissolving medication, and that Dr. Millard failed to properly interpret a CT scan of the head and report the presence of intra-cranial blood clotting.

Issues of negligence or causation are not contested in this motion.   The Hospital seeks summary judgment only on the basis that Drs. Nelson and Millard were not agents or apparent agents of the Hospital, and therefore the Hospital cannot be held vicariously liable for their medical negligence.

The Hospital has brought forth the following undisputed evidence in support of its motion:

Dr. Nelson and Dr. Millard were not employed by the Hospital.

Dr. Nelson and Dr. Millard had no written agreement or contract of employment with the Hospital.

The Hospital did not pay or compensate Drs. Nelson or Millard for medical services provided to patients of the Hospital.

Dr. Nelson was employed by NES Medical Services (“NES”), a corporate entity that had an exclusive contract with the Hospital to provide all of the emergency medicine physicians for the Hospital.

Dr. Millard was employed by Team Health TeleRadiology, Inc. (“Team Radiology”) a corporate entity that had an exclusive contract with the Hospital to provide diagnostic radiology services for the Hospital.

In opposition, the plaintiffs point to the following evidence in sworn testimony and documentary exhibits, which appears also to be undisputed:

The delivery of medical care within the Hospital is governed by the Hospital's Board of Directors, which has final authority over decisions as to whether a particular physician is competent to serve on the Hospital's Medical Staff.

Both Dr. Nelson and Dr. Millard were members of the Hospital's Medical Staff.

Drs. Nelson and Millard were required to abide by the Bylaws of the Hospital Medical Staff (which were promulgated by the Hospital), as well as the policies, rules and regulations of the Hospital.

The agreement between NES and the Hospital required NES to supply properly qualified and credentialed emergency medicine physicians for the Hospital, and required the Hospital to supply all necessary technical, clerical and nursing support personnel for those physicians, as well as facilities and equipment.

Dr. Nelson was required to follow Hospital policies concerning treatment of patients in the Emergency Department.

Dr. Nelson relied on Hospital records in his treatment of patients and made entries to Hospital records.

Dr. Nelson was required to follow hospital treatment protocols, including hospital protocols that specifically outlined the appropriate response to stroke.

The agreement between Team Radiology and the Hospital required Team Radiology to supply physicians, radiologists and technicians necessary to provide diagnostic imaging services on an exclusive, full-time basis for the Hospital, and required the Hospital to supply all necessary technical, clerical and nursing personnel, as well as facilities and equipment.

Dr. Millard worked full-time at the Hospital, and no other location.

Dr. Millard rendered his final report interpreting the CT scan for Mr. Heath on letterhead bearing only the name of the Hospital, with no reference whatsoever to Team Radiology

Additional facts will be supplied as necessary to the analysis herein.

II. ANALYSIS

A. Summary Judgment, Generally

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.   The party moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Internal quotation marks omitted.)  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

In reviewing the evidence offered, the trial court must “view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).   When deciding a summary judgment motion, the trial court may not decide issues of material fact, but only determine whether such genuine issues exist.   Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

B. Discussion:  Actual Agency

In moving for summary judgment, the Hospital argues that it cannot be held vicariously liable for the acts or omissions of Drs. Nelson and Millard because the undisputed facts demonstrate that Nelson and Millard were not servants or agents of Day Kimball Hospital.   Specifically, the Hospital argues that there is no genuine issue of material fact regarding the required proof for an agency relationship, as set forth in Beckenstein v. Potter and Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983), and therefore the Hospital is entitled to summary judgment on any claim that Nelson and Millard were “actual agents” of Day Kimball Hospital.

The burden of proving agency is on the party asserting its existence.   Under § 1 of 1 Restatement (Second) of Agency (1958), [a]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act ․ Thus, the 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 citations omitted;  internal quotation marks omitted.)

L and V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn.App. 662, 667 (2012).

“[T]he existence of an agency relationship is a question of fact ․ Some of the factors ․ in assessing whether such a relationship exists include:  whether the alleged principal has the right to direct and control the work of the agent;  whether the agent is engaged in a distinct occupation;  whether the principal or the agent supplies the instrumentalities, tools, and the place of work;  and the method of paying the agent ․ In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal ․” (Citation omitted;  internal quotation marks omitted.)  National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 678, 949 A.2d 1203 (2008).

Having reviewed the proofs and arguments provided by both parties, it is clear that the Hospital has not met its burden of showing the absence of any genuine issue as to all the material facts which, under the applicable substantive law, entitle it to a judgment as a matter of law based on the lack of an agency relationship.

As to the first and second elements required to show the existence of agency (a manifestation by the principal that the agent will act for him and an acceptance by the agent of the undertaking), the Hospital–NES and Hospital–Team Radiology contractual arrangements, of themselves, are sufficient to create a genuine issue of material fact.   See Corey v. Eastern Connecticut Health Network Inc., Superior Court, judicial district of Hartford, Docket No. CV09 5031120 (July 22, 2011, Sheldon, J.);   Bordanaro v. Anesthesia Associates of Torrington, Superior Court, judicial district of Litchfield, Docket No. CV1060027395 (October 23, 2012, Danaher, J.) [55 Conn. L. Rptr. 2]. A finder of fact could reasonably conclude from those contracts that the Hospital intended NES and Team Radiology and their employees to act on the Hospital's behalf as the exclusive providers of emergency medicine services and diagnostic imaging services to the Hospital's patients, and that those entities accepted that undertaking.   There is also additional evidence regarding this relationship from which a jury could reasonably find manifestation and acceptance, such as the fact that the Drs. Nelson and Millard recorded and reported their medical findings on patient records maintained by and belonging to the Hospital (i.e., Hospital letterhead and official Hospital medical records) ¹ and delivered their medical treatment within the Hospital in surroundings not in any way labeled or set apart as unconnected with the Hospital, while attired in garb similar to that of Hospital employees, and wearing identification bearing the name of the Hospital, and not of any other practice group or health care provider.²

The third element required to show the existence of agency is proof of an understanding between the parties that the principal will be in control of the undertaking.   The Hospital asserts that there is no genuine issue of material fact as to its claims that “the Hospital lacked the right to direct or control the practice of medicine or the providing of medical care to patients by Nelson and Millard” (Defendant's Memorandum in Support of Motion for Summary Judgment at p. 2) and “at no time did the Hospital exert any control over the practice of emergency medicine, or the rendering of care to patients in the emergency department by any of its named alleged agents.”  (Defendant's Memorandum in Support of Motion for Summary Judgment at pp. 5–6.)   The plaintiffs argue that within the service agreements between the Hospital and NES and Team Radiology, as well as the Hospital bylaws, rules, procedures, regulations and standard protocols there is substantial evidence of the Hospital's right to control (and de facto control of) the delivery of medical care.  (See Plaintiffs' September 27, 2013 Opposition to Summary Judgment at pp. 16–18.)   That evidence, the plaintiffs suggest, is more than sufficient to create a genuine issue of material fact.   The court agrees with the plaintiffs.

In the context of this particular relationship, the “undertaking” is the provision of medical services.   The Hospital narrowly interprets “control of the undertaking” and argues that the understanding between the parties cannot possibly be that the Hospital “controls the undertaking,” because the Hospital does not (and cannot by law) control the clinical decisions made by physicians.

Having read the relevant case authority and the commentary to the pertinent sections of the Restatement (Second) Agency, it is evident that the indicia of a principal's control necessary to support a finding of agency are not so narrowly defined as the Hospital suggests.   The law does not require proof that the principal look over the agent's shoulder and direct the agent in how to do his work.   For example, the Commentary to Restatement (Second) Agency § 220(2) gives the following illustrations:

․ if the worker is using his employer's tools or instrumentalities, especially if they are of substantial value, it is normally understood that he will follow the directions of the owner in their use, and that the owner is a master.

․ if the work is done upon the premises of the employer with machinery by workmen who agree to obey general rules for the regulation of conduct by employees, the inference is strong that such workmen are servants of the owner.

․ skilled artisans employed by a manufacturing establishment, many of whom are specialists, with whose method of accomplishing results the employer neither has knowledge nor the desire to interfere, are servants.

In the present case, it appears undisputed that the Hospital supplied the support personnel, supplies, equipment, and place of work for Drs. Nelson and Millard, all circumstances which have been found to create a genuine issue of fact as to the existence of an agency relationship in a hospital setting.   See, e.g., Corey v. Eastern Connecticut Health Network, Inc., supra.   In addition, all the physicians working within the Hospital, including the physicians that worked for NES and Team Health, were required to follow bylaws, policies and procedures and regulations established by the Hospital, evidence which has also been found to create a genuine issue of fact as to the existence of an agency relationship.   See, e.g. Bordanaro v. Anesthesia Associates of Torrington, supra;  Joh v. Schmidt, Superior Court, Judicial District of Hartford, Complex Litigation Docket at Hartford, Docket No. X09CV06–5006361, (December 19, 2007, Shortall, J.) [44 Conn. L. Rptr. 760].

Finally, all of the physicians that worked for NES and Team Health were required to follow standard protocols for diagnosis and treatment developed or adopted by the hospital.   As the evidence offered by the plaintiffs suggests, these treatment protocols were often very specific, detailing the treatment to be provided for certain diagnoses and the method for calculating and administering the dosage of drugs and medications.³  This evidence is sufficient to create a dispute of fact even under the Hospital's exceedingly narrow definition of “control of the undertaking”—it would suggest that to some degree the Hospital does control the clinical decisions of the physicians treating patients within the Hospital.

Viewing the evidence in the light most favorable to the plaintiff, the court concludes that the Hospital has not met its burden of “showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   The Hospital's claim that “at no time did the Hospital exert any control over the practice of emergency medicine, or the rendering of care to patients in the emergency department by any of its named alleged agents” (Defendant's Memorandum in Support of Motion for Summary Judgment at pp. 5–6) is genuinely in dispute.   Thus, Hospital's motion for summary judgment on the grounds that Nelson and Millard were not actual agents of Day Kimball Hospital is denied.

C. Discussion:  Apparent Agency/Apparent Authority and Tort Liability

The existence of material facts as to the plaintiffs' claim of actual agency precludes the entry of summary judgment in this case.   However, the parties have extensively briefed and argued questions related to apparent agency or apparent authority ⁴ and, in the interests of fully exploring the issues pertinent to this lawsuit, the court will address that portion of the parties' arguments.   The Hospital argues that Connecticut law does not recognize the doctrine of apparent agency to hold a hospital vicariously liable for the medical negligence of non-employee physicians.   The plaintiffs argue that the doctrine of apparent agency has been long recognized in Connecticut and fully applies to situations of medical negligence by non-employee physicians in a hospital setting.   At the center of the parties' diametrically opposed views on the subject are two appellate level decisions that seem to come down on different sides of the issue.

In Fireman's Fund Ind. Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 18 A.2d 347 (1941), the Supreme Court first spoke on the subject of whether a tortfeasor's employer could be held liable for the tortfeasor's negligence pursuant to the doctrine of apparent authority.   There, the defendant, a yacht club, employed several valets for the purpose of offering parking service to its members.   The defendant also employed the tortfeasor, but as a night watchman, not a valet.   The night watchman had just completed his shift when the plaintiff, seeing that no valets were available, asked if the tortfeasor would retrieve his car.   After agreeing to do so, the night watchman negligently drove the car into the yacht basin, causing the vehicle to become completely submerged in the Long Island Sound.   The plaintiff sought to recover from the yacht club for injuries to the vehicle, but following a trial, judgment was entered for the defendant.   The Supreme Court upheld the judgment of the trial court because “[t]he plaintiff failed to establish that the defendants held [the night watchman] out to the [plaintiff] as possessing sufficient authority to embrace the particular act in question ․ or that [the plaintiff] acting in good faith had reason to believe and did believe that [the night watchman] possessed the necessary authority.”  Id., 497–98.   The 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.   It is essential to the application of the above general rule that two important facts be clearly established:  (1) That the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority;  and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe, and did believe, that the agent possessed the necessary authority.

The apparent power of an agent is to be determined by the acts of the principal, and not by the acts of the agent;  a principal is responsible for the acts of an agent within his apparent authority only where the principal by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent's own conduct and statements have created the apparent authority.   The liability of the principal is determined in any particular case, however, not merely by what was the apparent authority of the agent, but by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent.”  (Internal quotation marks omitted.)   Id.

Thus, although an agency relationship did exist between the defendant and the tortfeasor, the scope of that relationship did not include the actual authority to retrieve the plaintiff's car and the plaintiff was unable to otherwise establish liability under the doctrine of apparent authority.

More recently, the Appellate Court discussed whether apparent authority applies to tort liability in L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2013).   There, the court explained:

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.   In Mullen 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 had 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.   (Internal quotation marks omitted.)  Id., 669–70.

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 Mullen, 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.

L & V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., supra, 136 Conn.App. 670 (internal quotation marks omitted).

In L & V Contractors, the plaintiff sought to hold an alleged principal liable for the actions of its alleged agent under various theories of tort liability including conversion, statutory theft, and fraudulent and negligent misrepresentation.   There, the plaintiff's insurance company brought the plaintiff's vehicle, which needed various repairs, to a repair shop that utilized the name of the defendant, even though the repair shop was an independent contractor.   After the plaintiff's insurance company failed to pay for the repairs, the repair shop executed a mechanic's lien against the vehicle.   When the plaintiff attempted to pay for the repairs himself, the repair shop represented to the plaintiff that the vehicle had been sold to cover the cost of the repairs despite the fact that it had not.   The Superior Court concluded after a bench trial that the defendant was liable for the actions of the repair shop under the doctrine of apparent authority.   The Appellate Court, after concluding that apparent authority did not apply in the context of tort liability or in the absence of a pre-existing relationship, reversed.

The Hospital contends that L & V Contractors controls, and stands for the proposition that apparent authority cannot apply to establish vicarious liability for tort.   To the extent L & V Contractors appears to conflict with Fireman's Fund, the Hospital suggests that the two cases are distinguishable, and therefore do not conflict.   More specifically, the Hospital maintains that Fireman's Fund (1) addressed a situation in which there was a pre-existing agency relationship and (2) found that the plaintiff had failed to establish the elements of apparent authority such that the court never reached the issue of whether the doctrine was applicable.   The Hospital insists that because a case stands only for the points of law explicitly covered in the decision, Fireman's Fund is inapplicable to the present case and the court is bound by L & V Contractors.

This court disagrees with the Hospital and does not take the view that L & V Contractors controls the outcome of the present motion on issues of apparent agency for the following reasons.   First, although the Hospital is correct in its assertion that the court in Fireman's Fund did not specifically and directly state that the doctrine of apparent authority applied to tort liability, the Hospital is in its view that this renders Fireman's Fund of no precedential value.   The court in Fireman's Fund did not specifically address whether apparent authority applied to tort claims because no party challenged that the doctrine could so apply.   Instead, the applicability of the principal to tort liability was presumed—which is confirmed by the very fact that the court's analysis is based upon its examination of whether the plaintiff in that case had presented evidence sufficient to establish the elements of apparent authority.   Had the Supreme Court been of the view that apparent authority is or was inapplicable in the context of negligence, such analysis would have been unnecessary.   Accordingly, it is illogical to conclude that Fireman's Fund cannot be invoked for the proposition that the doctrine of apparent authority applies to tort liability.

Second, that Fireman's Fund applies the doctrine of apparent agency in the context of tort law was recently acknowledged by the Supreme Court itself.   In Hanson v. Transportation General, Inc., 245 Conn. 613, 617 n.5, 716 A.2d 857 (1998), the Supreme Court stated as follows:

This appeal does not involve the rights of a third party tort victim to recover against Metro for the misconduct of one of its drivers on the basis of the principles of actual, implied, or apparent authority.   See, e.g., Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132–41, 464 A.2d 6 (1983) (discussing agency principles in contract case);  Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 496–97, 18 A.2d 347 (1941) (applying similar agency principles in tort action).

Thus, the Supreme Court has acknowledged and referenced Fireman's Fund 's application of the doctrine of apparent authority in tort without raising any concern whatsoever as to the validity of that decision.

Third, the Appellate Court in L & V Contractors did not address or even acknowledge Fireman's Fund. Accordingly, the Appellate Court's statement that “the doctrine [of apparent agency] had never been used in [the context of tort liability] in Connecticut,” upon which the Hospital's arguments rely, carries little weight because the statement ignores the fact that the Fireman's Fund court did use the doctrine in the tort context and concluded that the plaintiff had failed to meet his burden of proof under that doctrine.

Fourth, numerous decisions of the Superior Court since L & V Contractors have concluded that case is not binding as to whether apparent agency may be used to establish vicarious liability for medical malpractice.   See, e.g., Gagliano v. Advanced Specialty Care, Superior Court, judicial district of Danbury, Docket No. CV–10–6003939–S (October 2, 2013, Ozalis, J.) (L & V Contractors did not overrule Fireman's Fund and does not preclude apparent agency in the context of medical malpractice);  Sheehy v. Griffin Hospital, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–12–6011638–S (September 30, 2013, Brazzel–Massaro, J.) [56 Conn. L. Rptr. 697] (same);  Cadavid v. Ranginwala, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–12–6014019 (June 24, 2013, Tobin, J.) (56 Conn. L. Rptr. 318) (same);  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) (same);  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) (same).⁵  Thus, there is persuasive Superior Court authority lending support to this court's position that the Appellate Court's ruling in L and v. Contractors does not, as a matter of law, preclude a tort claim based on apparent agency.

Finally, although the Hospital is correct that the holding of L & V Contractors is clear and unequivocal, and that this court does not have the authority to overrule that holding, this court does not seek to “overturn” Appellate Court precedent, and it does not do so here.   Rather, this court has been asked to decide what principles will govern its ruling on summary judgment when faced with conflicting lines of Appellate and Supreme Court authority.   Having encountered such a situation, the court must follow the view of the Supreme Court.  “[I]t is manifest to our hierarchical judicial system that [our Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by [its] precedent.”  State v. Hernaiz, 140 Conn.App. 848, 855, cert. denied, 308 Conn. 928 (2013).

For the reasons stated above, the court finds that Connecticut law recognizes a claim against a hospital for medical negligence of non-employee physicians based upon a theory of apparent agency.

III. CONCLUSION

For the foregoing reasons, the defendant Day Kimball Hospital's Motion for Summary Judgment is denied.

BY THE COURT,

Sheridan, J.

FOOTNOTES

FN1. See, e.g., Exhibit P to Plaintiffs' 9/27/2013 Opposition to Motion for Summary Judgment:  “Day Kimball Hospital Department of Diagnostic Imaging Final Report.”.  FN1. See, e.g., Exhibit P to Plaintiffs' 9/27/2013 Opposition to Motion for Summary Judgment:  “Day Kimball Hospital Department of Diagnostic Imaging Final Report.”

FN2. See, e.g., deposition testimony of Dr. Nelson attached as Exhibit A to Plaintiffs' 9/27/2013 Opposition to Motion for Summary Judgment, pp. 142–43 (while working in the Emergency Department, Nelson wore scrubs and a badge with his name and the words “Day Kimball Hospital”)..  FN2. See, e.g., deposition testimony of Dr. Nelson attached as Exhibit A to Plaintiffs' 9/27/2013 Opposition to Motion for Summary Judgment, pp. 142–43 (while working in the Emergency Department, Nelson wore scrubs and a badge with his name and the words “Day Kimball Hospital”).

FN3. See, e.g., Exhibit Q to Plaintiffs' 9/27/2013 Opposition to Motion for Summary Judgment:  “rTPA for Stroke Protocol Work Sheet.”.  FN3. See, e.g., Exhibit Q to Plaintiffs' 9/27/2013 Opposition to Motion for Summary Judgment:  “rTPA for Stroke Protocol Work Sheet.”

FN4. The parties dispute whether Connecticut recognizes a meaningful distinction between the doctrine of “apparent agency” and the doctrine of apparent authority.   The Hospital argues that there is a conceptual distinction between apparent agency and apparent authority, contending that apparent agency creates an agency relationship that does not otherwise exist, whereas apparent authority expands the existing authority of an actual agent.   The Hospital contends that this distinction is important because it leads to the conclusion that apparent authority does not and cannot apply in the absence of a pre-existing agency relationship and, further, that apparent authority is a common-law or evidentiary doctrine, and does not apply in the tort context.   The Hospital also takes the position that apparent agency requires a showing of detrimental reliance by a plaintiff, and there is no evidence here by which the plaintiff could make such a showing.   The plaintiffs respond that the terms “apparent authority” and “apparent agency” are generally interchangeable in Connecticut's jurisprudence.On this issue, Center v. Kost, Superior Court, judicial district of New Haven, Docket No. CV–08–5021444–S (August 4, 2011, Wilson, J.), is instructive.   There, the court noted:  “[t]hough the concepts of apparent agency and apparent authority are distinct, the Connecticut Supreme Court in City Bank v. Thorp, 78 Conn. 211, 217, 61 A. 428 (1905) ... held that [w]hether the subject is treated as an agency by estoppel, or as one of apparent or ostensible authority, the principle is the same and the law is well settled.”  (Citation omitted;  internal quotation marks omitted.)   Id., 430.   The court continued:  “[s]ince City Bank, Connecticut courts in a variety of settings have used the definition of apparent authority, rather than the definition of apparent agency, in stating the elements of apparent agency.”  Id. See also, Wellons v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV–09–5014713–S (May 10, 2012, Sheridan, J.) (the undersigned followed the reasoning in Center v. Kost when addressing the issue of whether vicarious liability in tort can be based on the doctrine of apparent authority).Accordingly, the court's view is that the terms “apparent authority” and “apparent agency” refer, in general, to the same set of circumstances where a principal causes or allows a third person to believe that the agent possesses authority to act on behalf of and for the benefit of the principal, even though no express agency relationship may exist..  FN4. The parties dispute whether Connecticut recognizes a meaningful distinction between the doctrine of “apparent agency” and the doctrine of apparent authority.   The Hospital argues that there is a conceptual distinction between apparent agency and apparent authority, contending that apparent agency creates an agency relationship that does not otherwise exist, whereas apparent authority expands the existing authority of an actual agent.   The Hospital contends that this distinction is important because it leads to the conclusion that apparent authority does not and cannot apply in the absence of a pre-existing agency relationship and, further, that apparent authority is a common-law or evidentiary doctrine, and does not apply in the tort context.   The Hospital also takes the position that apparent agency requires a showing of detrimental reliance by a plaintiff, and there is no evidence here by which the plaintiff could make such a showing.   The plaintiffs respond that the terms “apparent authority” and “apparent agency” are generally interchangeable in Connecticut's jurisprudence.On this issue, Center v. Kost, Superior Court, judicial district of New Haven, Docket No. CV–08–5021444–S (August 4, 2011, Wilson, J.), is instructive.   There, the court noted:  “[t]hough the concepts of apparent agency and apparent authority are distinct, the Connecticut Supreme Court in City Bank v. Thorp, 78 Conn. 211, 217, 61 A. 428 (1905) ... held that [w]hether the subject is treated as an agency by estoppel, or as one of apparent or ostensible authority, the principle is the same and the law is well settled.”  (Citation omitted;  internal quotation marks omitted.)   Id., 430.   The court continued:  “[s]ince City Bank, Connecticut courts in a variety of settings have used the definition of apparent authority, rather than the definition of apparent agency, in stating the elements of apparent agency.”  Id. See also, Wellons v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV–09–5014713–S (May 10, 2012, Sheridan, J.) (the undersigned followed the reasoning in Center v. Kost when addressing the issue of whether vicarious liability in tort can be based on the doctrine of apparent authority).Accordingly, the court's view is that the terms “apparent authority” and “apparent agency” refer, in general, to the same set of circumstances where a principal causes or allows a third person to believe that the agent possesses authority to act on behalf of and for the benefit of the principal, even though no express agency relationship may exist.

FN5. For a contrary view, see Tiplady v. Maryles, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–07–5003525–S (June 12, 2013, Genuario, J.) (although L & V Contractors and Fireman's Fund may be reconciled, L & V Contractors precludes vicarious liability for medical malpractice when based upon apparent authority);  Wood v. Club, LLC, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–13–6016946–S (May 9, 2013, Adams, J.) (L & V Contractors stands for proposition that apparent authority does not apply in the absence of a pre-existing agency relationship)..  FN5. For a contrary view, see Tiplady v. Maryles, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–07–5003525–S (June 12, 2013, Genuario, J.) (although L & V Contractors and Fireman's Fund may be reconciled, L & V Contractors precludes vicarious liability for medical malpractice when based upon apparent authority);  Wood v. Club, LLC, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–13–6016946–S (May 9, 2013, Adams, J.) (L & V Contractors stands for proposition that apparent authority does not apply in the absence of a pre-existing agency relationship).

Sheridan, David M., J.