The Lawletter Vol 41 No 10
The Connecticut Supreme Court has clarified the circumstances under which a hospital may be held vicariously liable for malpractice by a physician who has staff privileges at the hospital but who is not an employee thereof. In Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016), a patient brought a medical malpractice action against a surgeon ("Dr. Aranow") and a hospital ("Middlesex"), alleging that Dr. Aranow left a surgical sponge inside her abdomen during a gastric bypass surgery and that Middlesex was vicariously liable for Dr. Aranow's negligence. Prior to undergoing surgery at the hospital, the plaintiff patient went to Middlesex to attend several informational sessions, which were conducted by the staff of the independent professional corporation that employed Dr. Aranow. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by Middlesex. The pamphlet 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 plaintiff assumed that Dr. Aranow was an employee of Middlesex because he had privileges there, and she relied on this belief when she chose to undergo surgery at Middlesex. Id. at 598, 141 A.3d at 755 (footnote omitted).
The trial court granted Middlesex's motion for summary judgment, on the ground that Dr. Aranow was not a hospital employee and that Connecticut has not adopted the doctrine of apparent agency. Under that doctrine, a principal may be held vicariously liable for another party's negligence, even in the absence of an agency relationship, if the principal holds the party out as having authority to perform an act, and the person dealing with that party believes that he or she possesses such authority. Id. at 602, 141 A.3d at 758. Relying principally on Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 18 A.2d 347 (1941), the Cefaratti court concluded that both the apparent agency doctrine and the related doctrine of apparent authority had, in fact, been recognized in tort actions.
The court also addressed a matter of first impression: whether the Fireman's Fund Indemnity standard, which does not require proof of a plaintiff's detrimental reliance on an apparent agency relationship, should apply in tort cases. The court decided that, in most tort cases, proof of detrimental reliance would not be required. An exception applies, however, when it is the plaintiff who selects a particular person to provide services. The court summarized its holding as follows:
[W]e 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; see Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra, 127 Conn. at 496-97, 18 A.2d 347; 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.
321 Conn. at 624-25, 141 A.3d at 771.
The practical effect of the court's ruling is that, in many cases, a hospital can be held vicariously liable for malpractice by a physician who is an independent contractor rather than a hospital employee, as long as the hospital selected the physician who treated the patient.