On August 10, 2018, the Connecticut Supreme Court affirmed a $12 million medical malpractice verdict against a hospital based on its vicarious liability for a surgical resident’s medical negligence that injured the plaintiff.
The Connecticut Supreme Court stated that the primary issue in the Connecticut medical malpractice action was whether there was sufficient evidence from which the jury reasonably could have found that the defendant surgical resident was an actual agent of the defendant hospital when he negligently performed a surgical procedure under the supervision of a member of the hospital’s clinical faculty who was also the plaintiff’s private physician. The Connecticut Supreme Court concluded that the trial court properly determined that there was sufficient evidence to establish such an agency relationship, and that imposing vicarious liability on the hospital for the defendant resident’s actions was not improper.
The Underlying Facts
On July 23, 2008, the plaintiff underwent hernia repair surgery at the defendant hospital. The surgery was to be performed by the plaintiff’s physician, who had recommended the procedure to the plaintiff during an examination at his office. The plaintiff’s physician was not employed by the defendant hospital, but maintained staff privileges allowing him to attend to his patients admitted to the defendant hospital.
Prior to the start of the procedure, but without the plaintiff’s specific knowledge, the defendant fourth year surgical resident was assigned to assist the plaintiff’s physician with the surgery.
The plaintiff’s physician asked the defendant resident about his experience with a surgical device called an optical trocar, which was to be used in the surgery. The resident informed the physician that he knew how to use the device. Under the physician’s supervision, the resident performed the initial insertion of the device into the plaintiff’s abdomen.
As the surgery proceeded, the physician became concerned that the resident was improperly applying too much force in using the optical trocar. At that point, the physician took over for the resident and completed the plaintiff’s surgery.
Two days after the surgery, while recovering in the hospital, the plaintiff began to exhibit signs of infection, and her body went into septic shock. It was discovered that the plaintiff’s colon had been perforated during the surgery. As a consequence, the plaintiff ultimately sustained life threatening and life altering injuries.
The plaintiff and her husband subsequently filed their Connecticut medical malpractice lawsuit. Prior to trial, the plaintiffs settled with the defendant physician for an undisclosed sum and the trial thereafter proceeded against the resident and the hospital.
The Connecticut medical malpractice jury awarded the plaintiff $902,985.04 in economic damages and $9.6 million in noneconomic damages. The jury also awarded her husband $1.5 million in loss of consortium damages. In its responses to interrogatories, the jury found that the defendant resident was an actual agent of the hospital. The jury determined that the defendant resident and the defendant hospital were liable for 80 percent of the plaintiffs’ damages. The remaining 20 percent of liability was assigned by the jury to the defendant physician who had settled before trial.
The Connecticut Supreme Court stated that the existence of an agency relationship is a question of fact which may be established by circumstantial evidence based upon an examination of the situation of the parties, their acts, and other relevant information. Three elements are required to show the existence of an agency relationship: (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.
There are various factors to be considered in assessing whether an agency relationship exists which 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, an essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal.
With regard to the present case, the Connecticut Supreme Court stated that there can be no doubt that the “undertaking” must include the defendant resident’s performance of the surgery (“[i]t is, after all, the sole negligent act on which liability was premised”). Nonetheless, the Connecticut Supreme Court agreed with the plaintiffs that the “undertaking” properly can be viewed more broadly as the surgical residency, such that evidence related to the hospital’s general right to direct and control the defendant resident’s conduct as a medical resident could bear on the defendant hospital’s right to control his surgical performance.
The Connecticut Supreme Court further stated that it is only the general right to control, and not the actual exercise of specific control, that must be established. Agents may be vested with considerable discretion and independence in how they perform their work for the principal’s benefit, yet still be deemed subject to the principal’s general right to control.
The Connecticut Supreme Court noted that the testimony of the defendant resident and defendant physician established the following facts: the chief surgical resident assigned the defendant resident to the plaintiff’s surgery; the defendant physician did not request a resident and did not need a second surgeon to assist him; the defendant physician did not believe that it was in his patient’s best interest to allow a resident to participate, but he did so to advance the hospital’s expectation of involving its residents to the extent that it was safe to do so; the defendant physician understood that part of his responsibility as clinical faculty included his evaluation of resident performance; the defendant physician acknowledged that, once a resident shows up in the operating room, he puts on the additional hat of being clinical faculty; the defendant physician believed that use of the optical trocar was part of the defendant resident’s educational experience; and, the defendant physician provided the defendant resident with instruction and supervision on the use of that device while the defendant resident performed the surgical procedure.
The Connecticut Supreme Court held: “This evidence provides a sufficient basis for the jury to have concluded that the hospital had the general right to control [the defendant resident] as a resident, such that he was the hospital’s actual agent prior to and after he entered the operating room. The hospital agreed to oversee the provision of a specific medical education for residents in exchange for the provision of low cost labor and the prestige attached to being a teaching hospital. The hospital fulfilled that obligation by implementing systems whereby residents were provided opportunities to participate in progressively more difficult tasks, charging its faculty with executing that mission. Hospital officials overseeing the program had the right to constrain the activities in which [the defendant resident] could participate and to take disciplinary action against him should he fail to provide patient care that satisfied the hospital’s standards, which in turn could jeopardize his ability to complete the residency program and become a board certified surgeon.”
“A reasonable inference from the evidence is that the chief surgical resident who assigned [the defendant resident] to the plaintiff’s surgery also was acting in furtherance of the hospital’s obligations to surgical residents … Moreover, it was eminently reasonable for the jury to conclude that [the defendant physician] was charged with fulfilling the hospital’s obligation to afford surgical residents with the opportunity to participate in progressively more difficult surgical procedures.”
“The mere fact that the hospital did not dictate the precise conditions under which [the defendant physician] could permit [the defendant resident] to participate in the surgery or the limits thereto does not compel the conclusion that the hospital surrendered its general right to control [the defendant resident’s] participation in such procedures. As we previously indicated, there is ample authority recognizing that agents may be vested with considerable discretion and independence in how they perform their work for the principal’s benefit, yet still be deemed subject to the principal’s general right to control.”
“Holding hospitals vicariously liable continues to support this state’s sound public policy of encouraging hospitals to formulate and implement effective quality control policies and to exercise better oversight of their employees and agents.”
“Finally, we underscore that the question before us is not whether residents or physicians generally are per se agents of hospitals. Rather, it is simply whether there was sufficient evidence in the present case to support the jury’s finding that [the defendant resident] was the hospital’s actual agent. Given the unfettered use that the jury was permitted to make of the manual and other evidence, we are persuaded that there was sufficient evidence to support the jury’s finding of actual agency. Similarly, we decline to create a per se rule that would absolve teaching hospitals of liability for the negligent acts of their employees and agents.”
Source Gagliano v. Advanced Specialty Care, P.C., SC 19804.
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