Opinion
No. NNH CV08 5021444 S
August 4, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#197)
FACTS
The plaintiff, Sandra Center, commenced this action sounding in medical malpractice by service of process against the defendants, Jonathan Kost, Eugene Lucier, Connecticut Spine and Pain Center (Connecticut Spine) and Bristol Hospital. The operative complaint was filed on February 16, 2011. Counts one and two, against Kost and Lucier, respectively, allege that they were physicians engaged in the sub-speciality of pain management at Bristol Hospital under the name of Connecticut Spine and Pain Center and agents of each other. The complaint further alleges that on January 8, 2007, Kost and Lucier performed two procedures during which they unsuccessfully attempted to implant in the plaintiff a cervical spinal cord stimulator in order to treat her condition of reflex sympathetic dystrophy of the right arm. After those procedures, the plaintiff alleges that she experienced shocks and jolts and the spinal stimulator was removed on January 11, 2007. As a result of Kost and Lucier's negligence, the plaintiff experienced injuries and incurred expenses.
The plaintiff withdrew the action against Connecticut Spine on January 26, 2009. Thus, the remaining defendants are Kost, Lucier and Bristol Hospital.
Count three, against Bristol Hospital, alleges that Jonathan A. Kost, M.D., LLC (Kost LLC) employed Kost and Lucier. Kost LLC and Bristol Hospital co-owned the name Connecticut Spine and Pain Center. By co-owning Connecticut Spine, Bristol Hospital "held out to the public that the employees of Jonathan A. Kost, M.D., L.L.C. were the agents of Bristol Hospital." In support of the plaintiff's theory of agency, the complaint additionally alleges that the name Bristol Hospital and its address were printed on Connecticut Spine documents, Bristol Hospital provided employees and equipment to Connecticut Spine and Bristol Hospital received income as a result of procedures performed by employees of Kost LLC. Moreover, the complaint alleges that the plaintiff was never informed that Connecticut Spine was not a part of Bristol Hospital, neither the front entrance of Connecticut Spine nor the entrance from Bristol Hospital bore any statement that Connecticut Spine was not a part of the hospital, and no notification was given to those who entered Bristol Hospital that Connecticut Spine was not a part of the hospital. No one informed the plaintiff that either Kost or Lucier was not an employee or agent of Bristol Hospital and the plaintiff relied on the appearance of Connecticut Spine as a part of Bristol Hospital and the appearance of Kost and Lucier as agents or employees of Bristol Hospital. The complaint further alleges that as employees of Kost LLC, doing business under the firm name and style of Connecticut Spine, Kost and Lucier were agents of Bristol Hospital and were acting within the scope of their agency.
On October 15, 2010, Bristol Hospital filed a motion for summary judgment in which it alleges that there is no genuine issue of material fact that it is not vicariously liable for the alleged negligence of Kost and Lucier because they are independent contractors and not actual agents of the defendant. In support of its motion, Bristol Hospital attached a memorandum of law and submitted as evidence relevant portions of the depositions of Kost, the plaintiff and Karen Larsen as well as the lease agreement between Bristol Hospital and Kost LLC.
As Bristol Hospital is the only party to the motion for summary judgment, from hereon, it will be referred to as the defendant.
The plaintiff filed an objection to the defendant's motion on March 17, 2011, and submitted as evidence relevant portions of the depositions of Kost, an affidavit of the plaintiff, the lease agreement between the defendant and Kost LLC, and the defendant's responses to the plaintiff's request for admissions. The defendant filed a reply to the plaintiff's objection on April 21, 2011. The plaintiff filed a surreply on May 12, 2011, and an addendum to the surreply on May 31, 2011. The court heard oral argument on the motion on May 31, 2011.
The original motion for summary judgment was directed to the third substituted complaint that was filed on April 20, 2009. The defendant noted in its reply, however, that after filing the motion, the third amended third count of the third substituted complaint became operative and stated that "[t]he issues regarding the summary judgment motion remain the same." Thus, the court will treat the third amended third count of the third substituted complaint filed on February 16, 2011, as the operative complaint for the defendant's motion.
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendant first argues that Kost and Lucier are independent contractors. As such, the defendant argues, it cannot be held vicariously liable for their alleged negligent actions because they were not actual agents of the defendant. The plaintiff conceded the defendant's point at oral argument and responds that her claim of vicarious liability is not based on a claim of actual agency, but on one of apparent agency.
The defendant responds that even if the plaintiff could argue apparent agency, which she should not be allowed to do because she did not plead apparent agency or apparent authority in her complaint, Connecticut has not recognized apparent agency with respect to independent contractors. The defendant further argues that Connecticut courts, and the plaintiff, have used apparent agency and apparent authority interchangeably, though they are distinct concepts. Under the theory of apparent agency, the defendant asserts, the plaintiff must prove detrimental reliance, which the plaintiff has failed to do. The plaintiff responds by arguing that a plaintiff need not explicitly plead apparent authority in order to receive the benefit of the concept when agency is pleaded.
A. Actual Agency
The court first addresses the defendant's argument that it cannot be held vicariously liable under an actual agency theory for the alleged negligent acts of Kost and Lucier because they are independent contractors, not agents. "[I]t is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent's employment . . . Actual authority exists when [an agent's] action [is] expressly authorized . . . or . . . although not authorized, [is] subsequently ratified by the [principal]." (Internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, CT Page 16935 298 Conn. 495, 508, 4 A.3d 288 (2010). "[T]he three elements required to show the existence of an agency relationship include: (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 . . . The existence of an agency relationship is a question of fact . . . Some of the factors [used] . . . in assessing whether such a relationship exists 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, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal . . . Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543-44, 893 A.2d 389 (2006).
In the present case, the plaintiff conceded at oral argument that the defendant exercised no control over the doctors. Since control is one of the elements that must be proven in order to find an agency relationship, there is no genuine issue of material fact that there was no actual agency relationship between the doctors and Bristol Hospital and, therefore, summary judgment is entered in favor of the defendant on this issue.
At oral argument, the plaintiff conceded that the defendant had no authority of Kost, specifically. Since Kost and Lucier were similarly situated, the court will treat the admission as applying to Lucier as well.
B. Apparent Agency
The court next addresses the defendant's argument that since the plaintiff did not explicitly plead apparent agency in her complaint, she should be prohibited from raising the theory now, on summary judgment. "The purpose of a complaint or counterclaim is to limit the issues at trial, and such pleadings are calculated to prevent surprise . . . It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading] . . . Facts found but not averred cannot be made the basis for a recovery . . . Thus, it is clear that [t]he court is not permitted to decide issues outside of those raised in the pleadings." (Internal quotation marks omitted.) Breiter v. Breiter, 80 Conn.App. 332, 335, 835 A.2d 111 (2003).
"Since apparent authority is a legal basis for imposing vicarious liability on a principal for the activities of its apparent agent, th[e] allegation [that a party is the agent or employee of the defendant] is sufficient to encompass such a claim." Grasser v. Midstate Medical Center, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5002587 (January 12, 2009, Scholl, J.) ( 47 Conn. L. Rptr. 48, 51). See also Francisco v. Hartford Gynecological Center, Inc., Superior Court, judicial district of Hartford, Docket No. CV 92 0513841 (March 1, 1994, Corradino, J.) ( 11 Conn. L. Rptr 191, 193) (holding that there was a genuine issue of material fact as to whether apparent authority should apply when plaintiff alleged agency in complaint); LeConche v. Elligers, Superior Court, judicial district of Hartford, Docket No. CV 88 348312 (July 16, 1991, Stengel, J.) ( 4 Conn. L. Rptr. 477, 479) (same). Thus, in the present case, the plaintiff need not allege explicitly that Kost and Lucier are apparent agents of the defendant, nor allege facts to support the elements of apparent agency in order to argue the issue on a motion for summary judgment. The plaintiff need simply allege that they were agents or employees of the defendant. She has done so based on the allegations in her complaint that "Bristol Hospital held out to the public that employees of Jonathan A. Kost, M.D., L.L.C. were the agents of Bristol Hospital," that "[a]s such employee of Jonathan A. Kost, M.D., LLC . . . the defendant Dr. Jonathan Kost was the agent of the defendant Bristol Hospital, and was acting within the scope of his agency" and "[a]s such employee of Jonathan A. Kost, M.D., L.L.C . . . the defendant Dr. Eugene Lucier was the agent of the defendant Bristol Hospital, and was acting within the scope of his agency."
Notwithstanding this, the plaintiff has alleged facts to support a theory of apparent agency. The two elements that are required to establish apparent agency are: (1) the existence of a "semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses"; and (2) a demonstration that "the party seeking to impose liability upon the principal . . . acted in good faith based upon the actions or inadvertences of the principal." (Internal quotation marks omitted.) Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 140-41, 464 A.2d 6 (1983). In satisfaction of the first element, the plaintiff alleges in her complaint that Kost and Lucier were employees of Kost LLC and that Kost LLC and the defendant co-owned the name Connecticut Spine Pain Center. She further alleges that "[b]y co-owning the name Connecticut Spine Pain Center, Bristol Hospital held out to the public that the employees of Jonathan A. Kost, M.D., L.L.C. were the agents of Bristol Hospital." Additionally, she alleges that Connecticut Spine was physically a part of the defendant, that the defendant provided employees to Connecticut Spine, that the defendant received income as a result of procedures performed by employees of Kost LLC and that the defendant provided equipment to Connecticut Spine. In satisfaction of the second element, the plaintiff alleges that she was never informed that Connecticut Spine was not a part of the defendant or that Kost and Lucier were not agents or employees of the defendant. Moreover, the plaintiff alleges that she "relied on the appearance of the Connecticut Spine Pain Center as a part of Bristol Hospital and relied on the appearance of Dr. Kost and Dr. Lucier as agents or employees of Bristol Hospital." Therefore, the court concludes that the complaint is pleaded sufficiently to raise a theory of apparent agency in this motion.
The defendant also argues that Connecticut courts have not recognized the concept of apparent agency. It further asserts that even if apparent agency is recognized, (1) the plaintiff has used the language of apparent agency and apparent authority interchangeably and (2) based on the elements of apparent agency, she has not proven the element of detrimental reliance. "It is well established that [a]n agent's authority may be actual or apparent . . . Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses . . . Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal . . . The issue of apparent authority is one of fact to be determined based on two criteria . . . First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Citation omitted; internal quotation marks omitted.) Hogan v. Lagosz, 124 Conn.App. 602, 608, 6 A.3d 112, cert. denied, 299 Conn. 923, 11 A.3d 151 (2010); see also 1 Restatement (Third), Agency § 2.03, p. 113 (2006).
In the past, the courts have used Restatement (Second) Agency in reference to apparent agency and apparent authority. That restatement was superseded and replaced by the Restatement (Third) Agency in 2006. Thus, the court will refer to the Restatement (Third) Agency, but it should be noted that the relevant portions are substantially similar in content.
Apparent agency, or agency by estoppel, on the other hand, is established when "[a] person who has not made a manifestation that an actor has authority as an agent and who is not otherwise liable as a party to a transaction purportedly done by the action on that person's account is subject to liability to a third party who justifiably is induced to make a detrimental change in position because the transaction is believed to be on the person's account, if (1) the person intentionally or carelessly caused such belief, or (2) having notice of such belief and that it might induce others to change their position, the person did not take reasonable steps to notify them of the facts." 1 Restatement (Third), Agency § 2.05, p. 145-46 (2006). According to the comment to this section, "[t]he estoppel stated in this section protects third parties who justifiably rely on a belief that an actor is an agent and who act on that belief to their detriment. The doctrine is applicable when the person against whom estoppel is asserted has made no manifestation that an actor has authority as an agent but is responsible for the third party's belief that an actor is an agent and the third party has justifiably been induced by that belief to undergo a detrimental change in position. Most often the person estopped will be responsible for the third party's erroneous belief as the consequence of a failure to use reasonable care, either to prevent circumstances that foreseeably led to the belief, or to correct the belief once on notice of it. If the scope of the actor's power to bind the person estopped is in issue, the doctrine of apparent authority, stated in § 2.03, governs. The operative question is whether a reasonable person in the position of the third party would believe such an agent, as the actor appears to be, to have authority to do a particular act." 1 Restatement (Third), supra, § 2.05, comment (c).
"Apparent authority is the power held by an agent or other actor to affect a principal's legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations . . . The definition in this section . . . applies to actors who appear to be agents but are not . . ." 1 Restatement (Third), supra, § 2.03, p. 113.
Though the concepts of apparent agency and apparent authority are distinct, the Connecticut Supreme Court in City Bank v. Thorp, 78 Conn. 211, 217, 61 A. 428 (1905), relying on a United States Supreme Court opinion, Bronson's Executor v. Chappell, 79 U.S. (Wall.) 681, 683, 20 L.Ed. 436 (1871), and another Connecticut Supreme Court opinion, Union Trust Co. v. McKeon, 76 Conn. 508, 513, 57 A. 109 (1904), held that "[w]hether the subject is treated as an agency by estoppel, or as one of apparent or ostensible authority, the principle is the same and the law is well settled."
Since City Bank, Connecticut courts in a variety of settings have used the definition of apparent authority, rather than the definition of apparent agency, in stating the elements for apparent agency. See, e.g., Hallas v. Boehmke Dobosz, Inc., 239 Conn. 658, 686 A.2d 491 (1997) (negligent failure to provide insurance); Davies v. General Tours, Inc., 63 Conn.App. 17, 774 A.2d 1063, cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001) (negligence of travel agency); Aube v. Middlesex Hospital, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 04 4010594 (October 3, 2008, Scholl, J.) (negligent interpretation of pap smear); WE 470 Murdock v. Cosmos Real Estate, Superior Court, judicial district of New Haven, Docket No. CV 05 4003327 (May 31, 2007, Rubinow, J.) (breach of contract in purchase of real estate); Litchfield Feed Grain, LLC v. Glyndon Valley Health Products, Superior Court, judicial district of Litchfield, Docket No. CV 02 0087023 (September 21, 2006, Sheedy, J.) (breach of contract for pet food distribution); Doe v. Advisors Healthcare, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 02 0170300 (March 24, 2005, Sheedy, J.) (negligence of nursing home to prevent sexual contact); Logan v. Smith, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 00 0503179 (August 7, 2001, Aurigemma, J.) (violation of care of duty of psychiatrist). Thus, in Connecticut, apparent agency is defined by apparent authority and the two elements that are required to establish apparent agency are: (1) the existence of a "semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses"; and (2) a demonstration that "the party seeking to impose liability upon the principal . . . acted in good faith based upon the actions or inadvertences of the principal." (Internal quotation marks omitted.) Beckenstein v. Potter Carrier, Inc., supra, 191 Conn. 140-41.
Importantly, Connecticut courts have not required a plaintiff to prove detrimental reliance, a necessary element for apparent agency under the Restatement. 1 Restatement (Third), supra, § 2.05 (person liable for acts of apparent agent to "a third party who justifiably is induced to make a detrimental change in position"). At most, Connecticut courts have required that a plaintiff make a showing of reasonable, or good faith, reliance. See Beckenstein v. Potter Carrier, Inc., supra, 191 Conn. 140-41; 1 Restatement (Third), supra, § 2.03 (principal liable "when a third party reasonably believes the [agent] has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations"); see also, e.g., Kafri v. Greenwich Hospital Assn., United States District Court, Docket No. 3:98cv720 (D.Conn. 2000); Menzie v. Windham Community Memorial Hospital, 774 F.Sup. 91, 97 (D.Conn. 1991); Spaulding v. Rovner, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X08 CV 04 4001232 (April 3, 2009, Jennings, J.) ( 47 Conn. L. Rptr. 544, 547); LeConche v. Elligers, supra, 4 Conn. L. Rptr 478; but see Minskoff v. American Express Travel Related Services Co., 98 F.3d 703, 708 (2nd Cir. 1996) (required showing of detrimental reliance under New York law); Francisco v. Hartford Gynecological Center, Inc., supra, 11 Conn. L. Rptr. 193 (plaintiff not required to make showing of any kind of reliance).
Connecticut courts first addressed the issue of whether apparent agency was an appropriate theory for vicarious liability when the purported agent was an independent contractor in a hospital context in LeConche v. Elligers, supra, 4 Conn. L. Rptr. 478. The plaintiffs filed a medical malpractice action against three doctors, a hospital and a medical practice and alleged that the doctors were agents of the hospital. Id., 477. The hospital filed a motion for summary judgment on the ground that there was no genuine issue of material fact that the doctors were not agents of the hospital. Id., 478. The plaintiffs argued that the doctors were the "ostensible agents of the defendant hospital, and, therefore, the defendant hospital should be estopped from denying liability." (Internal quotation marks omitted.) Id. After noting that other jurisdictions had held that "where a hospital holds out to the public or to its patients that physicians associated with it are its employees, the hospital may be held liable for the negligence of such physicians under the doctrine of ostensible agency, apparent authority or agency by estoppel," the court concluded that "the reasoning of courts in other jurisdictions . . . under said theories are persuasive." Id., 479. As a result, the court denied the hospital's motion on the issue of apparent authority. Id.
That same year, the court in Menzie v. Windham Community Memorial Hospital, supra, 774 F.Sup. 96-97, also addressed the issue of vicarious liability of a hospital based on the theory of apparent agency. In that case, the plaintiff brought a medical malpractice suit against two doctors and the hospital where he was treated for injuries he received in connection with a motorcycle accident. Id., 93. After finding that the doctors were not actual agents of the hospital, the court then analyzed the plaintiff's alternative argument of apparent agency. Id., 96-97. Even while noting that the law concerning apparent agency was "rife with speculation, suggesting the need for a more definitive reading of Connecticut laws," the court, relying on LeConche, applied the two-part test for apparent agency and found that the plaintiff failed to meet the second prong, reasonable reliance. Id., 97.
This court's research revealed that since LeConche, no Connecticut appellate court has addressed whether a hospital can be held vicariously liable under a theory of apparent agency. Two Connecticut Appellate Court cases, Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1997), and Davies v. General Tours, Inc., supra, 63 Conn App. 17, are sometimes cited in vicarious liability cases against hospitals for the general proposition that while other jurisdictions have used apparent agency to hold "a principal . . . vicariously liable for harm caused to the third person by the lack of care or skill of his servant or agent," "the doctrine of apparent authority has never been used in such a manner" in Connecticut. Mullen v. Horton, supra, 771-72. See Pierzga v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 09 5006121 (October 6, 2010, Roche, J.); Spaulding v. Rovner, supra, 47 Conn. L. Rptr 547. Mullen and Davies, however, were not cases in which a hospital was being sued for vicarious liability under a theory of apparent agency. In Mullen, the issue was whether a religious institution could be held vicariously liable for the actions of a priest-psychologist. Mullen v. Horton, supra, 771. In Davies, the court looked at "the tenuous relationship between a tour operator and an independent contractor that it contracted with to provide services to tourists around the world." Davies v. General Tours, Inc., supra, 33. In fact, the court in Davies distinguished itself from Superior Court cases where causes of actions were permitted against hospitals for acts of independent contractors who were held out to be employees. Id., 32-33.
Additionally, the court in Kafri v. Greenwich Hospital Assn., supra, Docket No. 3:98cv720, disagreed with the defendant's reading of Mullen that "when the Appellate Court found that there could be no apparent agency claim against the religious institution because the doctrine had never been used in such a manner in Connecticut, it intended to preclude all novel claims of apparent authority." Id. The court continued, stating "[t]his court, along with numerous other courts, finds no reason why the doctrine of apparent agency should not apply to hold a hospital liable for the negligence of an independent contractor . . . Moreover, the modern trend is to permit the use of an apparent agency theory to hold a hospital liable for the negligence of a doctor/independent contractor when there has been a holding out of the doctor by the hospital and reasonable reliance thereon by the plaintiff." (Citations omitted.) Id.
Despite the lack of appellate guidance, numerous Superior Court decisions have addressed, based on the two-part test enunciated in Beckenstein and expanded to hospitals in LeConche, whether a hospital can be held vicariously liable under a theory of apparent agency. See Spaulding v. Rovner, supra, 47 Conn. L. Rptr. 547-48 (list of Superior Court cases where apparent agency claims were made). In light of the substantial weight of Superior Court authority, this court concludes that Connecticut courts have recognized the concept of apparent agency as an appropriate theory for plaintiffs to allege vicarious liability of hospitals for the acts of independent contractors. Moreover, detrimental reliance is not an element for apparent agency, as defined in Beckenstein and LeConche, only reasonable reliance. Beckenstein v. Potter Carrier, Inc., supra, 191 Conn. 140-41; LeConche v. Elligers, supra, 4 Conn. L. Rptr. 478.
The defendant's final argument is that the plaintiff has not produced evidence of apparent agency. The defendant primarily relies on the depositions of the plaintiff, Kost and Larsen, a nurse at Connecticut Spine, in support of its argument. In her deposition, the plaintiff states that she was referred to Kost specifically, not the defendant, and that she was referred to Kost because he offered a specialized service. She states that she did not seek the services of the defendant nor rely on the defendant to assign a physician to her for pain management services. Moreover, she knew that Kost was a part of Connecticut Spine, where she received all of her treatment, and that neither Kost nor Lucier ever told her that the defendant was in charge of or directing their treatment. Kost testified in his deposition that the defendant and the doctors bill separately for their own component of the service rendered to patients and that based on the forms completed by the plaintiff, she understood that she was referred to Connecticut Spine because the consent forms were for Connecticut Spine, not the defendant. In Larsen's deposition, she testified that every new patient receives a packet that describes what Connecticut Spine is and describes how the billing process works. Specifically, the patient is informed by written notice that the defendant and the doctors bill separately for any procedures that the patient would receive.
The court notes that the defendant, in its own motion for summary judgment, improperly appears to place the burden on the plaintiff. "[I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008). Thus, the court must first determine whether the defendant has met its burden before it considers whether the plaintiff has submitted evidence to create a genuine issue of material fact.
The plaintiff also presented evidence through the submission of the deposition of Kost and an affidavit of the plaintiff. According to that evidence, Connecticut Spine was physically located within the defendant's facility and the plaintiff was never informed that Connecticut Spine and the defendant were separate entities. Although there were separate entrances for Connecticut Spine and the defendant from the outside, the directional signs did not differentiate between it and Connecticut Spine. There was no notification that Connecticut Spine was not a part of the defendant and no statement within the Connecticut Spine office to alert those entering that it was not a part of the defendant. The plaintiff was never informed that the doctors were not employees of the defendant and, in fact, believed that Connecticut Spine was a part of the defendant. She states in her affidavit that she was referred to a pain management doctor at Bristol Hospital. Moreover, per Dr. Kost's deposition testimony, the hospital provided approximately twenty employees, including clerical personnel, an x-ray technician, medical assistants and a business manager (Plaintiff's Ex. A, p. 30). In addition, security and building maintenance and repair were provided by the hospital. ( Id.) The name, The Connecticut Spine Pain Center, is co-owned by the hospital and Jonathan Kost, M.D., LLC. ( Id.). Whenever the center performed a service the hospital billed for the use of its facilities and for medications. ( Id., pp. 24-25). The hospital supplies all of the technical equipment, such as all of the equipment needed for various procedures in the treatment rooms. ( Id. p. 38). In addition, the plaintiff's affidavit states that she did not receive any bills from Jonathan A. Kost, M.D., LLC or from Dr. Kost or Dr. Lucier, or from Connecticut Spine and Pain Center. (Plaintiff's Ex. B.)
The plaintiff also submitted the defendant's response to her request for admissions which included attached exhibits. Exhibit 1 is a copy of the Connecticut Spine website that shows that a "Bristol Hospital" sign is located underneath the Connecticut Spine sign. Exhibit 2 is a Bristol Hospital acknowledgment of informed consent form that authorized Lucier to perform the procedure at issue in this action. Exhibit 3 is the health insurance claim form for Kost's bill for the procedure which notes that the services were rendered at "Bristol Hospital Outpatient" and that the form should be sent to workers' compensation, GAB Robbins, the workers' compensation administrator for the plaintiff's employer.
Based on the evidence submitted by both parties, there are genuine issues of fact as to whether the defendant can be found vicariously liable for the actions of Kost and Lucier under a theory of apparent agency. Specifically, there is a question of fact as to whether the defendant held out the doctors as employees or agents and whether it was reasonable for the plaintiff to believe that the doctors were agents or employees of the defendant. Therefore, the defendant's motion for summary judgment is denied.
CONCLUSION
Based on the foregoing reasons, the defendant's motion for summary judgment on the ground of actual agency is granted, however, on the ground of apparent agency, the motion is denied.