The Connecticut Supreme Court has issued a decision that may create significant additional risk for hospitals who utilize non-employee physicians to provide care to admitted patients. In Connecticut, for some years there has been inconsistent treatment at the trial court level regarding whether Connecticut hospitals may be liable for the negligent acts of non-employee healthcare providers while providing care and treatment within the hospital. On June 6, 2016, the Connecticut Supreme Court explicitly held for the first time that hospitals may be held liable in tort for the acts or omissions of non-employees in certain circumstances.
In Cefaratti v. Aranow, the Court held that the doctrine of "apparent agency" is a viable theory to hold a principal (hospital) liable for the negligence of a non-agent third-party (surgeon).
The Cefaratti case involved a claim of medical malpractice in which the plaintiff alleged that the defendant surgeon left a surgical sponge in the plaintiff's abdominal cavity following gastric bypass surgery. The plaintiff sued both her surgeon and the hospital where the surgery was performed.
The plaintiff alleged that the defendant surgeon was an "apparent agent" of the hospital. However, the defendant hospital claimed that the plaintiff had no viable claim for vicarious liability because the doctor was not an agent of the hospital and because the doctrine of apparent agency was not recognized in Connecticut tort actions.
The trial court agreed with the hospital and the plaintiff appealed. The Connecticut Appellate Court affirmed the judgment of the trial court. Thereafter,the plaintiff petitioned for certification to the Connecticut Supreme Court, which heard the appeal.
The Supreme Court held that the doctrine of apparent agency applied to hold a principal (hospital) liable for the negligence of a non-employee (surgeon), if the plaintiff establishes several criteria. The standard clarified by the Court allows for two distinct ways in which a plaintiff can prove that a principal (hospital or health care organization) is liable for the acts of a non-agent actor (physician or other health care provider) or an agent acting beyond the scope of his/her responsibility.
First, the Court held that a plaintiff may establish apparent agency by proving that:
- The principal held itself out as providing certain services;
- The plaintiff selected the principal on the basis of its representations; and
- 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.
Alternatively, the plaintiff may establish apparent agency by proving that:
- 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;
- The plaintiff knew of these acts by the principal, and actually and reasonably believed that the agent possessed the necessary authority; and
- The plaintiff detrimentally relied on the principal's acts, i.e. the plaintiff would not have dealt with the agent-tortfeasor if the plaintiff had known that the tortfeasor was not the principal's agent or employee.
These two standards contemplate the apparent agency question from two different perspectives. The first standard is focused on the role the principal plays in the selection of an individual who will provide a service to a potential plaintiff. In the hospital setting, the test may extend liability to the hospital when the hospital is selecting the health care provider who will treat the potential plaintiff when the plaintiff has entrusted the hospital to do so.
The second standard is focused on the perspective of the plaintiff- instituting a test requiring the plaintiff to show that he or she relied on a principal's overtures, to his or her detriment. In other words, when a hospital has held out a particular provider as its agent, the plaintiff must prove that he or she would not have undergone treatment if he or she had known that no true agency relationship existed. As the Court stated, "it would make little sense to hold a principal vicariously liable for the negligence of a person who was not an agent or an employee of the principal when the plaintiff would have dealt with the apparent agent regardless of the principal's representations."
We expect this decision to most directly affect hospitals who utilize non-employee physicians to staff certain departments and/or services, including "on-call" physicians. Specifically, the Cefaratti decision may have a significant impact on hospitals where patients are admitted and the hospital subsequently arranges services for that patient from a privately employed physician specialist (e.g. a surgeon), while admitted to the hospital.
The Cefaratti decision should not have as much of an impact when the claim is made against a privately employed attending physician with privileges at the hospital who admits his or her patient to the hospital.
The Connecticut Supreme Court decision in Cefaratti has made it clear that claims based on apparent agency can be maintained against hospitals. The decision also makes clear that in order to prevail on such claims, plaintiffs must prove all of the elements of one of the two above standards. We expect plaintiffs to continue to bring apparent agency claims, but anticipate many plaintiffs to have difficulty meeting the standards outlined by the Court. To read the full opinion, click here.
Carmody Torrance Sandak &; Hennessey LLP regularly represents health care providers and entities in defense of claims of medical malpractice, and advises on proactive risk mitigation strategies and practices, including counsel on vicarious liability issues.
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