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Connecticut Allows Hospital Apparent Agency Based on Reliance; Sponge Left After Gastric Bypass


A woman decided to undergo gastric bypass surgery. She selected the surgeon who performed the procedure because he had performed the procedure on her partner’s mother with good results and her research determined that he was considered to be the best gastric bypass surgeon in the state.

 

Before the surgeon would accept the woman as a patient and perform the surgery, she was required to attend a seminar that the surgeon conducted at a hospital. In addition, she attended a number of informational sessions at the same hospital that were conducted by the surgeon’s staff. She received a pamphlet at one of the informational sessions that had been prepared by the hospital and that stated that “the health care team who will be caring for you has developed an education program that is full of important information.” In addition, the pamphlet stated that “[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 surgery.” The woman assumed that the surgeon was an employee of the hospital because he had privileges there, and she relied on this belief when she chose to undergo surgery at the hospital.

 

The woman underwent gastric bypass surgery performed by the surgeon at the hospital. About six years later, after being diagnosed with breast cancer by another physician, the woman underwent a computerized tomography (CT) scan of her chest, abdomen, and pelvis. The CT scan revealed the presence of foreign material in her abdominal cavity. The following month she met with the surgeon, who informed her that the object in her abdominal cavity was a surgical sponge.

 

The woman sued the surgeon and hospital for medical malpractice alleging that the surgeon had negligently failed to remove the surgical sponge from her abdominal cavity during the gastric bypass surgery. The complaint further alleged that the hospital was both directly liable for its own negligence during the surgery and vicariously liable for the surgeon’s negligence, because the hospital had held the surgeon out to the public as its agent or employee.

 

The hospital filed a motion for summary judgment claiming, among other things, that the woman did not have a viable claim of vicarious liability against it because the surgeon was not its actual agent or employee and the doctrine of apparent agency was not recognized in tort actions in Connecticut.

 

The Superior Court, Judicial District of Middlesex, entered summary judgment in favor of the hospital on the vicarious liability claim. The trial court concluded that the doctrine of apparent agency had not been recognized in Connecticut. The Appellate Court affirmed.

 

The woman petitioned for certification of appeal, which was granted on the following issue: “Did the Appellate Court properly conclude that the doctrine of apparent authority does not apply to actions sounding in tort?”

 

The Supreme Court of Connecticut answered that question in the negative, reversing the lower courts, and remanding to the trial court to provide the woman with an opportunity to establish that there is a genuine issue of material fact as to each element of the doctrine. The court held that the doctrine of apparent agency may apply to hold the hospital vicariously liable and, as a matter of first impression, apparent agency may be proven by, among other things, detrimental reliance.

 

The doctrine of apparent agency may apply to hold the hospital vicariously liable. Regardless of whether there is an actual agency relationship between the defendant and the direct tortfeasor or only an apparent agency, if the defendant has justified the belief of a third party that the person assuming to be his or her agent was authorized to do what was done, it is no answer for the defendant to say that no authority had been given, or that it did not reach so far, and that the third party had acted upon a mistaken conclusion; if a loss is to be borne, the author of the error must bear it. The doctrine of apparent agency may be applied to hold a principal vicariously liable for the negligence of a person whom the principal has held out as its agent or employee, overruling L and V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2012), Davies v. General Tours, Inc., 63 Conn.App. 17, 774 A.2d 1063 (2001), and Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1987). The court reasoned that if a principal may be held liable under the doctrine of apparent authority for the acts of an actual agent who is acting beyond his or her authority, i.e., who is not acting under the control of the principal, when the principal’s conduct has led the plaintiff reasonably to believe that the agent was acting within his or her authority and the plaintiff has detrimentally relied on that belief, then a principal may be held liable when the principal lacks control over an apparent agent. 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.

 

As a matter of first impression, apparent agency may be proven by, among other things, detrimental reliance. When a plaintiff selects the specific person who provides the services and causes 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 also detrimental reliance on those representations to establish apparent agency. The court adopted two possible methods a plaintiff may establish apparent agency in tort cases. One way a plaintiff may establish apparent agency is 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. A second way a plaintiff may establish apparent agency is by proving 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. The court reasoned that because it adopted the detrimental reliance standard for the first time in this opinion, fairness required the court to remand the case to the trial court so that the woman may have an opportunity to present evidence that she detrimentally relied on her belief that the surgeon was the hospital’s agent or employee. The court noted that, to meet this burden, the woman must set forth facts and evidence capable of raising a reasonable inference that she would not have allowed the surgeon to perform the surgery if she had known that he was not the hospital’s agent or employee.

 

The Supreme Court of Connecticut reversed the lower courts’ rulings in favor of the hospital on the ground that the doctrine of apparent authority did not apply to actions sounding in tort and remanded to the trial court to provide the woman with an opportunity to establish that there was a genuine issue of material fact as to each element of the doctrine.

 

See: Cefaratti v. Aranow, 2016 WL 3162815 (Conn., June 14, 2016) (not designated for publication).

 

See also Medical Law Perspectives, June 2016 Report: How Risky Is Going to the Hospital? The Dangers and Liabilities of Healthcare-Associated Infections

 

See also Medical Law Perspectives, October 2015 Report: Unclean, Unsterile, Unsafe: Risks of Injury from Unsterilized Medical Equipment

 

See also Medical Law Perspectives, June 2015 Report: Gastric Bypass, Sleeve Gastrectomy, Lap Banding and More: Risks of Patient Injury and Provider Malpractice in Weight-Loss Surgery 

 

 

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