Important Connecticut Supreme Court Decision Clarifies Apparent Agency in Medical Malpractice Claims.
We've all seen the billboards and other advertisements hospitals use to generate business by promoting themselves as providing quality care through their physicians. But how is the public to know what the particular contractual or employment relationships are between a hospital and the doctors who practice medicine within its walls?
Circumstances commonly arise in which an injured plaintiff seeks to have a hospital held vicariously liable for a physician’s malpractice. An important Advance Release Opinion from the Connecticut Supreme Court, Cefaratti v. Aranow et al. (SC 19443), clarifies that hospitals may be vicarious liability for the negligence of their apparent agents, including non-employee physicians (just as they may be held vicariously liable for malpractice by their agents).
The doctrine of apparent agency recognizes the fundamental fairness in binding a principal who benefits because of the public's belief – which the principal has fostered – that they are dealing with an agent of the principal. See Cohen v. Holloways, 158 Conn. 395, 407 (1969); see, e.g. Restatement (Second) of Torts § 429 (2000); Restatement (Second) of Agency § 267 (1994).
In Cefaratti, the Supreme Court observed, “it has never been the rule in this state that hospitals cannot be held vicariously liable for the medical malpractice of their agents and employees;” and stated that “[b]ecause 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.” SC19443, at p. 9 (emphasis added)
The decision shows, unequivocally, that Connecticut law is in line with the modern trend across the country.
Importantly, the Cefaratti decision also makes clear that when the hospital is the very reason that the plaintiff and physician encountered one another, the plaintiff need not prove "detrimental reliance" (i.e. that he or she relied on some particular representation by the hospital about the physician if not for which that facility would not have been chosen ) in order to prevail as to vicarious liability.
On this issue, after thoughtfully reviewing the national case law, the Supreme Court stated, “we ultimately are persuaded by the cases that have concluded that, under certain circumstances, proof of detrimental reliance is not required to establish an apparent agency in tort actions.”
It observed that many of the courts to have considered such claims “have concluded that an apparent agency is established when the plaintiff proves that he or she looked to the principal to provide services and the principal, not the plaintiff, selected the specific person who actually provided the services and caused the plaintiff’s injury.” Id. at p. 11 (citing, in n. 26, a plethora of such cases from across the country) (emphasis added).
The Cefaratti court explained further:
"These courts have not required the plaintiff to establish detrimental reliance on the principal’s representations that the tortfeasor was the principal’s agent or employee, i.e. that the plaintiff would not have accepted the tortfeasor’s services if the plaintiff had known that the tortfeasor was not the principal’s agent. Indeed, many cases have held that the plaintiff is not even required to present affirmative evidence that he or she actually and reasonably believed that the tortfeasor was the principal’s agent or employee. Rather, the cases appear to hold that such belief may be presumed from the fact that the plaintiff chose the principal and the principal chose the specific person who provided the services, and the fact the principal was the actual cause of the relationship between the plaintiff and the tortfeasor that resulted in injury is sufficient justification to apply the doctrine. See, e.g., Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 152 (Ind. 1999) ('if the hospital has failed to give meaningful notice [that the provider of care was an independent contractor], if the patient has no special knowledge regarding the arrangement the hospital has made with its physicians, and if there is no reason that the patient should have known of these employment relationships, then reliance is presumed')."
Cefaratti, p. 11 (emphasis added) (internal citation and footnote omitted)
The Supreme Court in Cefaratti also explained in detail why it found persuasive those cases which did not require a plaintiff to present affirmative evidence that he or she actually and reasonably believed that the tortfeasor was the principal’s agent or employee:
- Cases in which the plaintiff accepted a principal’s (e.g. a hospital’s) offer of services and the hospital then chose the specific person who would provide the services have contractual overtones and detrimental reliance is implicit in a contractual relationship;
- When an entity (e.g. a hospital) has held itself out as providing certain services to the public such as marketing itself and profiting therefrom, and has selected the specific individual who will provide those services to particular members of the public, it is not unfair to hold the hospital liable for the individual’s negligence; and
- Holding principals (e.g. hospitals) liable under such circumstances “is consistent with the fundamental purposes of the tort compensation system of deterring wrongful conduct and shifting the blame to the party who is in the best position to prevent the injury.”
Id., at pp. 11-12 (citing Mendillo v. Board of Ed., 246 Conn. 456, 482 (1998) and an opinion from the Wisconsin Supreme Court determining that “holding a hospital liable under these circumstances ‘provides a stronger incentive to the hospital to monitor and control physicians. This will result in higher quality medical care since the hospital is in the best position to enforce strict adherence to policies regarding public safety . . . .”) (emphasis added)
In sum, the sensible Cefaratti opinion takes down a roadblock defendant-hospitals often seek to impose.
It also clarifies that, under Connecticut law, where a plaintiff selects or is brought to a hospital, the hospital may be held vicariously liable for malpractice by physicians selected by the hospital without requiring the plaintiff to present affirmative evidence that
- he or she actually and reasonably believed that the tortfeasor was the principal’s agent or employee; or
- that the plaintiff would not have accepted the tortfeasor’s services if the plaintiff had known that the tortfeasor was not the principal’s agent.
As Alinor Sterling, Esq. (whose hard work was instrumental in bringing about this overdue clarification of Connecticut law) succinctly explained in the November 2013 CTLA Forum:
"It is unfair for a hospital to market itself by impressing the public with the quality of its care, but then later disavow its caregivers as independent contractors. How is the public to know which doctors are hospital employees and which are “independent contractors”? It is, after all, the hospital that knows and the hospital that chooses how to represent itself."
Under Cefarrati, it is now clear again that Connecticut law recognizes this reality.
The majority opinion was written by Chief Justice Rogers, and joined by Justices Palmer, McDonald and Vertefeuille. A dissent authored by Justice Zarella was joined by Justices Espinosa and Robinson. Kelly E. Reardon, Esq. ably and zealously represented the plaintiff in the underlying proceeding and on appeal.