Sheila R. Kornstein, Executrix et al. v. Gregory S. Azia, M.D. (2016)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT No. 165, MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 145

In each of these cases, the plaintiff, Sheila R. Kornstein, Executrix, has sued the defendant, Lawrence & Memorial Hospital Corporation (hereinafter Hospital or defendant), on the grounds that it is vicariously liable for the conduct of its actual or apparent agents, Dr. Gregory S. Azia, Dr. Ronald Clement and/or Dr. Kathleen Kurowski.  The plaintiff claims that the defendant physicians deviated from the standard of care and that these deviations caused the injuries of which she complains.  The Hospital, relying upon the case of Cefaratti v. Aranow, 154 Conn.App. 1 (2014), claims it is entitled to summary judgment because it cannot be held liable on the doctrine of apparent agency and in fact, the defendant physicians were not its actual agents.  The plaintiff claims genuine issues of material fact prevent the granting of this motion.  Further the plaintiffs assert that the Hospital has a nondelegable duty with regard to patient care that requires the denial of these motions.

The court presumes the parties are familiar with the jurisprudence related to the resolution of motions for summary judgment.

Actual Agency.  The Hospital has submitted affidavits ¹ and excerpts of depositions ² to support its claim that there are no disputes as to the following facts:

1. Doctors Azia, Clement and Kurowski were not employees of the Hospital;

2. These physicians were practicing surgeons in private practices and each held privileges at the Hospital;

3. These physicians did not receive any compensation from the Hospital for services rendered to the plaintiff's decedent;

4. The Hospital has not consented to have these physicians act as an agent of the Hospital;

5. The Hospital has not exercised any control over the means and methods of any surgeon's practice of medicine;

6. The Hospital did not have the ability to control or direct, nor did it exercise any control or direction over the physician's care of the plaintiff's decedent at any time;  and

7. There was no understanding between the Hospital and any of the physicians that the Hospital had the right to control their care and treatment of the decedent.

The materials submitted by the plaintiff in opposition ³ to this motion for summary judgment establish that the Hospital provided staff to support Dr. Clement, Dr. Kurowski and Dr. Azia while they were providing services within the hospital and that those physicians used surgical equipment owned, maintained and controlled by the Hospital.  It is agreed that the defendant physicians held privileges to treat patients at the Hospital.  The plaintiff further asserts that the physicians carried Hospital ID cards while in the Hospital, were identified on the Hospital's website and other publications as holding hospital privileges and that the physicians were bound by the Hospital's Bylaws.  The plaintiff claims that these bylaws are a manifestation by the Hospital that medical staff, such as the defendant physicians were to act on its behalf as its agents.  Further, the bylaws sets forth certain specific responsibilities relating to the requirement of the medical staff to assume responsibility for the quality and appropriate patient care rendered by all practitioners authorized to practice in the hospital.  Finally, the plaintiff argues that the hospital was in control of the undertaking because it had general control over patient care including certain requirements such as the taking of a medical history and a physical examination.  The plaintiff urges that this conduct establishes that there is a genuine issue of material fact as to whether the physicians are the actual agents of the Hospital.

How is a Principal/Agent relationship created?  “Agency 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.”  Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132 (1983).  At trial, the plaintiff bears the burden of proof in establishing that there is a principal and agent relationship between the defendant, hospital, and the defendant, physicians.  For these motions the defendant bears the burden of demonstrating that there are no genuine issues of material fact that the plaintiff cannot prove a principal/agent relationship.

In order to establish an agency relationship, a plaintiff must prove:  “(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.”  1 Restatement (Second) Agency sec. 1 (1958).  This three-prong test has been cited in numerous Connecticut cases.

In the court's view the dispositive inquiry is the third prong of this test:  whether there was an understanding between the Hospital and the physicians that the Hospital would be in control of the undertaking.  “The existence of an agency relationship is a question of fact ․ Some the factors [used] ․ 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 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 ․ Finally, the labels used by the parties in referring to their relationship are not determinative;  rather, a court must look to the operative terms of their agreement or understanding.”  (Internal quotation marks omitted.)  Wesley v. Shaller Subaru, Inc., 277 Conn. 526, 543–44 (2006).

Some of these factors take on more importance in the Hospital/Physician relationship.  The mere fact that a physician holds privileges at a Hospital is not sufficient to support a finding of an agency relationship.  Cefaratti v. Aranow, 154 Conn.App. 1, 30 (2014).  The Hospital does provide instruments used by the physicians and Hospital staff do participate in the surgical suite during the course of operations or in the Emergency Room during the admitting process.  The Hospital does not pay the physicians and the physicians are engaged in a distinct occupation.  Any right that the Hospital might have to control or direct the conduct of the physician ceases at the time when there is an exercise of a physician's medical judgment with regard to a particular patient.  The Hospital may require a physical to be performed prior to surgery or that records of treatment be created in a particular time frame, but these requirements do not relate to the exercise of medical judgment.

In this medical malpractice action the plaintiff asserts that the defendant physicians did not reasonably exercise their medical judgment consistent with a known standard of care.  The plaintiff alleges that the defendant Ronald E. Clement, M.D., was negligent and departed from the applicable standard of care in the treatment of the plaintiff, subsequent to the January 25, 2010 surgery, in one or more of the following ways:

a. in that he failed to adequately and properly assess the plaintiff's postoperative condition which revealed a persistent and worsening stenosis of the left internal carotid artery;  and/or

b. in that he failed to document an appropriate course of action in light of the abnormal postsurgical carotid artery ultrasound results;  and/or

c. in that he failed to take appropriate and timely measures to perform postoperative studies, including a CT angiogram;  and/or

d. in that he failed to timely treat the plaintiff's postoperative condition of persistent and worsening stenosis of the left internal carotid artery which he knew, or should have known, was needed given the abnormal postsurgical carotid artery ultrasound results;  and/or

e. in that he failed to perform the necessary surgical procedures to correct plaintiff's postoperative condition;  and/or

f. in that he allowed the plaintiff to be discharged on January 29, 2010, when he knew, or should have known, that under the circumstances of his postoperative condition he required further and timely treatment;  and/or

g. in that he caused or allowed the plaintiff to be discharged on aspirin when he knew, or should have known, that such treatment was inappropriate and/or insufficient given the abnormal postsurgical carotid artery ultrasound results;  and/or

h. in that he failed to provide appropriate coverage and/or refer the plaintiff for appropriate and adequate care and treatment of the plaintiff's postoperative course, which he knew, or should have known, was needed;  and/or -

i. in that he failed to recognize that the plaintiff's postoperative condition put him at risk for injury resulting from decreased blood supply to the brain.

The plaintiff alleges that Kathleen Kurowski, M.D., was negligent and departed from the applicable standard of care in the treatment of the plaintiff subsequent to the January 25, 2010, surgery in one or more of the following ways:

a. in that she failed to adequately and properly assess the plaintiff's postoperative condition which revealed a persistent and worsening stenosis of the left internal carotid artery;  and/or

b. in that she failed to document an appropriate course of action in light of the abnormal postsurgical carotid artery ultrasound results;  and/or

c. in that she failed to take appropriate and timely measures to perform postoperative studies, including CT angiogram;  and/or

d. in that she failed to timely treat the plaintiff's postoperative condition of persistent and worsening stenosis of the left internal carotid artery which she knew, or should have known, was needed given the abnormal postsurgical carotid artery ultrasound results;  and/or

e. in that she failed to perform, arrange and/or request that the necessary surgical procedure be performed to correct plaintiff's postoperative condition;  and/or

f. in that she caused or allowed plaintiff to be discharged on aspirin when she knew, or should have known, that such treatment was inappropriate and/or insufficient given the abnormal postsurgical carotid artery ultrasound results;  and/or

g. in that she allowed the plaintiff to be discharged when she knew, or should have known, that the circumstances of his postoperative condition he required further and timely treatment;  and/or

h. in that she failed to refer the plaintiff to a specialist for appropriate and adequate care of treatment of the plaintiff's postoperative course, which she knew, or should have known, was needed;  and/or

i. in that she failed to recognize that the plaintiff's underlying condition put him at risk for injury resulting from decreased blood supply to his brain;  and/or

j. in that she failed to appropriately and/or adequately communicate the plaintiff's postoperative complications to Dr. Clement.

The plaintiff alleges that Gregory S. Azia, M.D., was negligent and departed from the applicable standard of care in the treatment of the plaintiff in one or more of the following ways:

a. in that he failed to utilize a carotid artery shunt during the February 3, 2010, operative procedure although he knew, or should have known, that one was required in light of the plaintiff's history which included bilateral carotid vascular disease;  and/or

b. in that he failed to recognize and respond to the electro-encephalogram monitor which showed decreased blood supply changes prior and subsequent to clamping;  and/or

c. in that he failed to recognize that the plaintiff's underlying condition put him at risk for decreased blood supply during the operative procedure and necessitated adequate measures to prevent this risk;  and/or

d. in that he failed to recognize that the circulation to the plaintiff's right side of the brain was compromised and required action to protect brain circulation during the endarterectomy procedure.

It is evident that these allegations concern the exercise of a physician's judgment in the context of providing emergency medical care.  The liability allegations focus on conduct that is solely within the defendant physicians' control rather than conduct that might be controlled or directed by the defendant, Hospital.

From the submissions in support of and in opposition to the motion for summary judgment there are no genuine issues of material fact that the conduct upon which liability is founded relates to specific actions of specific physicians in the delivery of specific care to a specific individual the plaintiff's decedent.  The Hospital did not have the right to interfere with the physicians' medical judgments in the diagnosis and care of the plaintiff's decedent.

There is no evidence supporting the proposition that the Hospital sought or the physicians agreed that the Hospital would control their exercise of their judgment in the provision of care to an individual patient.  The court concludes that there are no genuine issues of material facts.  The defendant physicians were not the agents of the Hospital under the circumstances complained of by the plaintiff.

The court need not address the issue of whether the Hospital had a nondelegable duty to the plaintiff.  Any such duty, if it existed, would not relate to the issues in this case which relates to the exercise of a physician's medical judgment.

Apparent Agency.

With regard to the apparent agency theory of liability, this court finds that there are no genuine issues of material fact and that the Hospital's motion for summary judgment with regard to that theory of liability must be sustained.  “The doctrine of apparent authority cannot be used to hold a principal liable for the tortuous actions of its alleged agents.”  L & V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., supra, 136 Conn.App. 670.

The defendants' motion for summary judgment is granted.

Cosgrove, J.

FOOTNOTES

FN1. The affidavit of Daniel Rissi, M.D. is submitted in support of the Hospital's motions for summary judgment.  The affiant states that he is the vice president and chief medical and clinical operations officer for the defendant;  during the times relevant to the claims made by the plaintiff, neither Dr. Azia, Dr. Clement or Dr. Kurowski were employees of the defendant;  that each of these defendants held medical staff privileges at Lawrence & Memorial but none of them received any compensation from Lawrence & Memorial for the clinical services that were rendered to the plaintiff, David Kornstein.The affidavit asserts that the Hospital never consented for these physicians to act as the agents of the Hospital and, further, that it has not exercised any control over the means and methods of the defendants' practice of medicine.  Further, the affiant asserts the Hospital did have the ability to control or direct the physicians' care or treatment of Mr. Kornstein and finally that there was no understanding between Lawrence & Memorial and the physicians that the defendant had any ability to control the care and treatment of David Kornstein.  It asserts that while the physicians had privileges to practice medicine within the confines of the Hospital, the physicians were not the agents of the hospital because the hospital could not control the medical judgments of the physicians in rendering care.  It further supports its motions by affidavits or excerpts from depositions of the defendant physicians..  FN1. The affidavit of Daniel Rissi, M.D. is submitted in support of the Hospital's motions for summary judgment.  The affiant states that he is the vice president and chief medical and clinical operations officer for the defendant;  during the times relevant to the claims made by the plaintiff, neither Dr. Azia, Dr. Clement or Dr. Kurowski were employees of the defendant;  that each of these defendants held medical staff privileges at Lawrence & Memorial but none of them received any compensation from Lawrence & Memorial for the clinical services that were rendered to the plaintiff, David Kornstein.The affidavit asserts that the Hospital never consented for these physicians to act as the agents of the Hospital and, further, that it has not exercised any control over the means and methods of the defendants' practice of medicine.  Further, the affiant asserts the Hospital did have the ability to control or direct the physicians' care or treatment of Mr. Kornstein and finally that there was no understanding between Lawrence & Memorial and the physicians that the defendant had any ability to control the care and treatment of David Kornstein.  It asserts that while the physicians had privileges to practice medicine within the confines of the Hospital, the physicians were not the agents of the hospital because the hospital could not control the medical judgments of the physicians in rendering care.  It further supports its motions by affidavits or excerpts from depositions of the defendant physicians.

FN2. The plaintiff has submitted portions of depositions of the defendant physicians in response for this motion for summary judgment.  The depositions excerpts do not contradict the affidavit of Dr. Rissi in any material or genuine manner..  FN2. The plaintiff has submitted portions of depositions of the defendant physicians in response for this motion for summary judgment.  The depositions excerpts do not contradict the affidavit of Dr. Rissi in any material or genuine manner.

FN3. The plaintiff support her opposition to the motion for summary judgment with excerpts from the defendant physicians' depositions and information from the hospital's website as well as portions of the rules, regulations or bylaws of the Hospital.  She also provided to the court copies of disclosure and interrogatory responses filed by the defendant, Hospital..  FN3. The plaintiff support her opposition to the motion for summary judgment with excerpts from the defendant physicians' depositions and information from the hospital's website as well as portions of the rules, regulations or bylaws of the Hospital.  She also provided to the court copies of disclosure and interrogatory responses filed by the defendant, Hospital.

Cosgrove, Emmet L., J.