Saunders v. Lim, CV176036734

Beth SAUNDERS, Administratrix of the Estate of Eric S. Gagner v. Andrew LIM, M.D. et al.

No. CV176036734

Superior Court of Connecticut, Judicial District of New Britain, New Britain

June 12, 2018

UNPUBLISHED OPINION

OPINION

Swienton, J.

The plaintiff, Beth Saunders, administratrix of the estate of Eric S. Gagner, has brought a wrongful death action against the defendants, Andrew Lim, M.D., MEP of Bristol, LLC, and Bristol Hospital, Inc., for injuries and damages arising out of the treatment of the decedent, Eric S. Gagner. The plaintiff’s amended complaint dated August 2, 2017, asserts claims of medical negligence. The first count is directed against the defendants, Andrew Lim and MEP of Bristol. In the second count, the plaintiff claims Bristol Hospital is liable for Dr. Lim’s negligence based upon a theory of apparent agency. Bristol Hospital now moves for summary judgment because it asserts it cannot be held vicariously liable for the alleged negligence of Dr. Lim as a matter of law.

FACTUAL BACKGROUND

On February 15, 2016, the plaintiff brought her son, the decedent, to the emergency department of Bristol Hospital because the decedent was complaining of epigastric abdominal pain. The decedent was admitted to the emergency department and came under the care of Dr. Lim. After an evaluation by Dr. Lim, an ultrasound was performed which showed a heterogeneous appearance to the liver. Dr. Lim prescribed ondansetron and famotidine, discussed precautions with the plaintiff and the decedent, and discharged the decedent that day. The plaintiff alleges that Dr. Lim was negligent in that he failed to obtain a complete history of the decedent’s alcohol consumption habits; failed to order a CT scan of the abdomen and pelvis; failed to provide adequate warning to the decedent and the plaintiff concerning the dangers of excess alcohol; and failed to diagnose alcohol induced pancreatitis. The plaintiff claims that as a result of Dr. Lim’s negligence, the decedent returned to the emergency department on March 27, 2016, suffering from alcohol induced hemorrhagic pancreatitis, and died the following day. (Amended complaint ¶¶ 6, 7.)

The second count is against Bristol Hospital based upon a theory of apparent agency.^[1] The plaintiff alleges that Bristol Hospital held itself out to the decedent and public as having an emergency department available to provide emergency services; the decedent utilized the emergency department based upon such representations; and he relied on Bristol Hospital to select and provide him with competent and experienced emergency department physicians. The plaintiff claims that the decedent was unaware that Dr. Lim was not an employee of Bristol Hospital, but rather an employee of a contractor engaged by Bristol Hospital to provide the emergency department with physicians. (Amended complaint, second count, ¶¶ 3, 4.)

DISCUSSION

"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted to show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

"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." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issues of fact. 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 ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ..." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). "Mere assertions of fact ... are insufficient to establish the existence of an issue of material fact and, therefore, cannot refute evidence properly presented to the court in support of a motion for summary judgment." (Internal brackets and citations omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995).

The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o 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 ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence property presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

In considering a motion for summary judgment, it is not the court’s function to decide material facts or determine the credibility of evidence. See Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988). However, summary judgment is appropriate "if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "A summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." Id., 752. A verdict may be directed when the evidence, even when viewed in the light most favorable to the party opposing the motion, can only lead to the "conclusion ... embodied in the verdict as direct." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969).

The defendant, Bristol Hospital, contends that the plaintiff is unable to prove the requisite elements of her claims of apparent agency. In support of this contention, Bristol Hospital has submitted the deposition testimony of the plaintiff which it argues supports its position that neither the plaintiff nor the decedent chose Bristol Hospital based upon any representations made by the hospital- an element necessary to substantiate a claim of apparent agency.

The issue is whether Bristol Hospital can be held vicariously liable for Dr. Lim’s diagnosis and treatment of the decedent under a theory of apparent agency. "[I]t has never been the rule in this state that hospitals cannot be held vicariously liable for the medical malpractice of their agents or employees." (Footnote omitted.) Cefaratti v. Aranow, 321 Conn. 593, 610-11, 141 A.3d 752 (2016). "[V]icarious liability is premised upon the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 693 n.16, 849 A.2d 813 (2004). "Before vicarious liability can be imposed, however, there must be sufficient evidence produced to warrant a finding of agency between the parties. If there is a finding that the allegedly negligent actor is not an employee or agent, then the claim of vicarious liability must fail." (Internal quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C., 167 Conn.App. 826, 836-37, 145 A.3d 331 (2016).

"[I]t is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent’s employment ... An agent’s authority may be actual or apparent ... Actual authority exists when [an agent’s] action [is] expressly authorized ... or although not authorized, [is] subsequently ratified by the [principal]." (Internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 508, 4 A.3d 288 (2010). "Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations." Cefaratti v. Aranow, supra, 321 Conn. 607. In Cefaratti, our Supreme Court held that a hospital may be held vicariously liable for the medical malpractice of both its actual and apparent agents. Id., 611.

As earlier stated, the plaintiff...