In its opinion published on June 14, 2016, the Connecticut Supreme Court, in a four-to-three decision, adopted and applied the apparent agency doctrine in a Connecticut medical malpractice case.
At issue was whether the defendant surgeon, who was not an employee of the defendant hospital where the plaintiff had gastric bypass surgery, could be found to be the apparent agent of the hospital so that the hospital may be held liable to the plaintiff for the defendant surgeon’s negligence in leaving a sponge in the plaintiff’s abdomen following surgery.
Before the defendant surgeon accepted the plaintiff as his patient, he had required the plaintiff to attend a seminar that the surgeon conducted at the defendant hospital. The plaintiff also attended a number of informational sessions at the defendant hospital that were conducted by the defendant surgeon’s staff. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by the defendant hospital that stated that “the health care team who will be caring for you has developed an education program that is full of important information” and further stated, “‘[t]he team will go over every aspect of your stay with us. We will discuss what you should do at home before your operation, what to bring with you, and events on the day of the surgery.” The plaintiff assumed that the defendant surgeon was an employee of the defendant hospital because he had privileges there, and the plaintiff alleged that she relied on this belief when she chose to undergo surgery at the defendant hospital.
The plaintiff subsequently filed her Connecticut medical malpractice lawsuit alleging that the defendant surgeon had negligently failed to remove a surgical sponge from her abdominal cavity during the gastric bypass surgery, and that the defendant hospital was vicariously liable for his medical negligence because it had held him out as its agent or employee. The defendant hospital filed a motion for summary judgment in which it contended that the plaintiff’s claim of vicarious liability was barred because the defendant hospital was not the defendant surgeon’s employer and the doctrine of apparent agency has not been recognized as a basis for tort liability in Connecticut as a matter of law.
The plaintiff opposed the hospital’s motion for summary judgment, claiming that the doctrine of apparent agency has been recognized in Connecticut, and further contending that there was a genuine issue of material fact as to whether the defendant hospital had held out the defendant surgeon as its agent or employee and whether the plaintiff had acted in reliance on her belief that that was the case.
The trial court concluded that the doctrine of apparent agency has not been recognized in Connecticut and granted the hospital’s motion for summary judgment. The plaintiff appealed to the Appellate Court, which was not successful. The plaintiff then appealed to the Connecticut Supreme Court.
The Connecticut Supreme Court discussed the difference between the doctrine of apparent agency and the doctrine of apparent authority, explaining that the doctrine of apparent authority expands the authority of an actual agent, while the doctrine of apparent agency creates an agency relationship that would not otherwise exist.
The Connecticut Supreme Court stated that it has consistently assumed that the doctrine of respondeat superior may be applied to hold hospitals vicariously liable for the medical malpractice of their agents and employees. Because a hospital may be held vicariously liable for the medical malpractice of its agents and employees under the doctrine of respondeat superior, it may also be held vicariously liable under the doctrine of apparent agency.
With regard to the detrimental reliance issue, the Connecticut Supreme Court stated that under certain circumstances, proof of detrimental reliance is not required to establish an apparent agency in tort actions. The Connecticut Supreme Court stated that cases in which the plaintiff accepted a principal’s offer of services and the principal then chose the specific person who would provide the services have contractual overtones, and that detrimental reliance is implicit in a contractual relationship. However, when the plaintiff selected the specific person who provided the services and caused the injury on the basis of the plaintiff’s knowledge of the person’s skills and reputation, the plaintiff must demonstrate an actual and reasonable belief in the principal’s representations that the person was its agent, and must also show detrimental reliance on those representations (i.e., a change of position to his detriment in reliance on the representation) to establish apparent agency.
Establishing Apparent Agency
The Connecticut Supreme Court stated: “we adopt the following alternative standards for establishing apparent agency in tort cases. First, the plaintiff may establish apparent agency by proving that: (1) the principal held itself out as providing certain services; (2) the plaintiff selected the principal on the basis of its representations; and (3) the plaintiff relied on the principal to select the specific person who performed the services that resulted in the harm complained of by the plaintiff. Second, the plaintiff may establish apparent agency in a tort action by proving the traditional elements of the doctrine of apparent agency, as set forth in our cases involving contract claims, plus detrimental reliance. Specifically, the plaintiff may prevail by establishing that: (1) the principal held the apparent agent or employee out to the public as possessing the authority to engage in the conduct at issue, or knowingly permitted the apparent agent or employee to act as having such authority; (2) the plaintiff knew of these acts by the principal, and actually and reasonably believed that the agent or employee or apparent agent or employee possessed the necessary authority; and (3) the plaintiff detrimentally relied on the principal’s acts, i.e., the plaintiff would not have dealt with the tortfeasor if the plaintiff had known that the tortfeasor was not the principal’s agent or employee. We emphasize that this standard is narrow, and we anticipate that it will be only in the rare tort action that the plaintiff will be able to establish the elements of apparent agency by proving detrimental reliance.”
The Connecticut Supreme Court held: “There is no real dispute that the plaintiff in the present case cannot meet the first standard, and [the defendant hospital] claims that the plaintiff has not established detrimental reliance on its representations. Because we have adopted the detrimental reliance standard for the first time in this opinion, however, we believe that fairness requires us to remand the case to the trial court so that the plaintiff may have an opportunity to present evidence that she detrimentally relied on her belief that [the defendant surgeon] was [the defendant hospital’s] agent or employee. We emphasize that, to meet this burden, the plaintiff must set forth facts and evidence capable of raising a reasonable inference that she would not have allowed [the defendant surgeon] to perform the surgery if she had known that he was not [the defendant hospital’s] agent or employee.”
Source Cefaratti v. Aranow, SC 19443.
In a separate opinion addressing the application of the statute of limitations to the plaintiff’s medical malpractice case, the Connecticut Supreme Court held that to establish that there are genuine issues of material fact as to whether the continuing course of treatment doctrine tolled the statute of limitations, the plaintiff was required only to present evidence that her abdominal discomfort was caused by the sponge and that she sought continuing treatment for her discomfort from the defendant surgeon, not that she knew about and sought treatment for the presence of the sponge, concluding that the plaintiff has established that there is a genuine issue of material fact as to whether the doctrine applies.
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