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Gagliano v. Advanced Specialty Care, P.C.

Court of Appeals of Connecticut

August 30, 2016

VIVIAN GAGLIANO ET AL.
v.
ADVANCED SPECIALTY CARE, P.C., ET AL.

          Argued April 12, 2016

         Appeal from Superior Court, judicial district of Danbury, Ozalis, J.

          Michael G. Rigg, for the appellant (defendant Dan-bury Hospital).

          Alinor C. Sterling, with whom, on the brief, was Joshua D. Koskoff, for the appellees (plaintiffs).

          Jennifer L. Cox and Jennifer A. Osowiecki filed a brief for the Connecticut Hospital Association as amicus curiae.

          Roy W. Breitenbach and Michael J. Keane, Jr., filed a brief for the Fairfield County Medical Association as amicus curiae.

          Beach, Alvord and Gruendel, Js.

          OPINION

          ALVORD, J.

         The defendant, Danbury Hospital (hospital), appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the plaintiffs, Vivian Gagliano and her husband, Philip Gagliano, [1] on their negligence claims against the hospital and its codefendant, Dr. Venkata Bodavula.[2] On appeal, the hospital claims that the trial court erred by failing to grant its motions to set aside the verdict and for judgment notwithstanding the verdict. The hospital argues, and we agree, that insufficient evidence was presented from which the jury reasonably could have found that Dr. Bodavula was the hospital’s agent for purposes of assisting in the plaintiff’s surgery and, therefore, the hospital could not be held vicariously liable for the plaintiff’s injuries.[3] We reverse in part the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. On July 23, 2008, the plaintiff underwent hernia repair surgery at the hospital. The surgery was to be performed by Dr. Joseph R. Gordon, her physician, who had recommended the procedure to the plaintiff during an examination at his office.[4] Dr. Gordon was not employed by the hospital, but maintained staff privileges allowing him to attend to his patients admitted to the hospital.

         Prior to the start of the procedure, but without the plaintiff’s knowledge, a fourth year medical resident, Dr. Bodavula, was assigned to assist Dr. Gordon with the surgery. Dr. Bodavula was enrolled in the surgical medical residency program, sponsored by Sound Shore Medical Center in New York, which included rotations at the hospital.[5] Dr. Gordon asked Dr. Bodavula about his experience with a surgical device called an optical trocar, which was to be used in the surgery. Dr. Bodavula informed Dr. Gordon that he knew how to use the device. Under Dr. Gordon’s supervision, Dr. Bodavula performed the initial insertion of the device into the plaintiff’s abdomen.

         As the surgery proceeded, Dr. Gordon became concerned that Dr. Bodavula was improperly using the optical trocar. At that point, Dr. Gordon took over for Dr. Bodavula and completed the plaintiff’s surgery. Two days after the surgery, while recovering in the hospital, the plaintiff began to exhibit signs of infection and her body went into septic shock. It was discovered that the plaintiff’s colon had been perforated during the surgery. The plaintiff began to suffer from multiple organ failure and was subsequently connected to a ventilator before being rushed into surgery to repair the perforation.

         The plaintiff survived, but spent sixty-nine days in the hospital recovering from the perforation. Eight months after the initial surgery and due to the perforated colon, the plaintiff required surgery to remove part of her large intestine, and, as a result of the procedure, she developed permanent digestive problems. The trial court stated in its memorandum of decision that the plaintiff has difficulty being away from the bathroom for any length of time, is regularly in pain, has significantly reduced stamina and is unable to walk more than one-quarter of a mile.

         The plaintiffs filed negligence claims against Dr. Gordon, his practice, Advanced Specialty Care, P.C., Dr. Bodavula, and the hospital. The plaintiffs alleged that Dr. Gordon and Dr. Bodavula were agents of the hospital and, therefore, the hospital was vicariously liable for their actions. Prior to the commencement of trial, the plaintiffs settled with Dr. Gordon and Advanced Specialty Care, P.C., for an undisclosed sum. In May, 2014, a jury trial commenced to address the remaining claims against Dr. Bodavula and the hospital.

         Dr. Bodavula was enrolled in the surgical residency program at Sound Shore Medical Center in New Rochelle, New York.[6] The program included rotations at Danbury Hospital. Dr. Bodavula testified that as a fourth year medical resident he spent approximately 50 percent of his time at the hospital. A rotation at the hospital would last one to two months. On the day of the plaintiff’s surgery, the chief resident of the surgical residency program assigned Dr. Bodavula to assist Dr. Gordon. There was no evidence presented as to whether the chief resident was an employee of the hospital, but Dr. Bodavula testified that in regard to the chief resident, ‘‘I’m also the same residence, as the same part of the same pool of residents.’’

         During his testimony, Dr. Bodavula was questioned about the hospital’s House Staff Manual (manual). Dr. Bodavula testified that he could not recall whether he had received a copy of the manual . Despite not being able to recall if he had received the manual, he believed that he was expected to comply with the obligations that it established.[7]

         Later in the trial, the hospital stipulated that the manual had been distributed to residents in 2008. The entire 231 page manual was admitted into evidence as a full exhibit. The trial court ruled that the manual was relevant to the question of whether Dr. Bodavula was an agent of the hospital. The manual was accompanied by a cover letter from the chief executive officer of the hospital: ‘‘This House Staff Manual has been developed as a guide to enlighten and clarify the many services and support functions available to members of the House Staff at Danbury Hospital, as well as to inform you of House Staff and Danbury Hospital policies. . . . I wish you a rewarding educational experience!’’

         The first section of the manual addressed resident policies, including selection to the program, resident evaluations, responsibilities, hospital safety, and benefits. The section on benefits included details about rent-free housing, vacation and sick leave, as well as insurance. It also stated: ‘‘Danbury Hospital will provide a salary to the Resident, as specified in the Danbury Hospital Resident Agreement.’’ There was no evidence submitted as to a ‘‘Residency Agreement’’ between Dr. Bodavula and the hospital. He testified that he was not paid by the hospital.

         The manual also covered the hospital’s clinical support services. This section included information on the hospital pharmacy, instructions on how to order a consultation from a cardiologist, and protocols for implementing patient telemetric monitoring. Another section of the manual, titled ‘‘Residency Program Information, ’’ provided details for eight distinct residency programs: anesthesiology, general practice dentistry, internal medicine, cardiovascular disease fellowship, obstetrics and gynecology, pathology, psychiatry, and surgery.

         The chapter on the surgical residency program provided an overview of the program: ‘‘Since 1999 Danbury Hospital has been an integrated part of the surgical residency at Sound Shore Medical Center in New Rochelle, NY. The residency is affiliated with New York Medical College. Ten general surgical residents from Sound Shore Medical Center rotate at Danbury Hospital at any given time. Surgical residents have an opportunity to study under attending surgeons who have had their own training at multiple academic institutions.’’

         This residency program section of the manual also established the hospital’s expectations that residents must satisfy in order to be deemed proficient at six core competencies required by a national accreditation organization. The section goes on to describe the program’s assessment procedures including surgical skills evaluation by faculty.[8] There was no evidence presented at trial that the faculty were employees or agents of the hospital.

         The manual did not address the regulations and procedures governing a resident’s participation in a surgical procedure. Dr. Gordon testified that it was within his discretion to determine the resident’s level of involvement during a surgical procedure. He also testified that throughout a surgical procedure he maintained the authority to end the resident’s participation: ‘‘[A]s the attending surgeon, I have to sometimes exert my authority and just take over, and I say, I’m taking over, and the resident steps aside.’’

         After the plaintiffs rested their case, each defendant moved for a directed verdict. The trial court denied the motions. The jury returned a verdict in favor of the plaintiffs. The jury awarded the plaintiff $902, 985.04 in economic damages and $9.6 million in noneconomic damages. Philip Gagliano was awarded $1.5 million in loss of consortium damages. The jury found that Dr. Bodavula was an actual agent of the hospital.[9] Dr. Bodavula and the hospital were found liable for 80 percent of the plaintiffs’ damages. The remaining 20 percent of liability was assigned to Dr. Gordon.

         After the verdict, the hospital and Dr. Bodavula filed separate motions to set aside the verdict, for judgment notwithstanding the verdict, and remittitur. The court denied the six motions. With respect to the hospital’s motions, the trial court found that there was sufficient evidence to support the jury’s finding that Dr. Bodavula was an agent of the hospital when he operated on the plaintiff. Specifically, the court found that credible evidence was presented to the jury that showed that Dr. Bodavula: wore a hospital badge; treated patients according to the instructions of the chief resident; reported to and was evaluated by hospital staff; was required to follow hospital obligations, protocols and rules; and was assigned to the plaintiff’s surgery by the chief resident. This appeal followed.

         As the present case involves a motion to set aside the verdict made in conjunction with a motion for judgment notwithstanding the verdict, on the basis of the same grounds, we will treat the two motions as one for purposes of our resolution of the hospital’s claim. Macchietto v. Keggi, 103 Conn.App. 769, 779, 930 A.2d 817, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). ‘‘Our review of the trial court’s refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.’’ (Internal quotation marks omitted.)Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 277, 698 A.2d 838 (1997).

         ‘‘The standard governing our review of a motion for judgment notwithstanding the verdict is the same as the standard applied to a court’s decision to direct a verdict because a motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict. . . . Whether the evidence presented by the plaintiff was sufficient to with-stand a motion for a directed verdict is a question of law, over which our review is plenary.’’ (Citation omitted; internal quotation marks omitted.) Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 67-68, 70 A.3d 126 (2013). ‘‘The defendant must overcome a high threshold to prevail on either a motion for a directed verdict or a motion to set aside a judgment. . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.’’ (Internal quotation marks omitted.) Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 775, 83 A.3d 576 (2014).

         Similarly, ‘‘[a] motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that they did in fact reach. . . . [Put differently], [i]f the jury, without conjecture, could not have found a required element of the cause of action, it cannot withstand a motion to set aside the verdict. . . . Thus, the role of the trial court on a motion to set aside the jury’s verdict is not to sit as [an added] juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. . . . As a corollary, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence.’’ (Citations omitted; internal quotation marks omitted.) Marciano v. Kraner, 126 Conn.App. 171, 177, 10 A.3d 572, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).

         We turn now to the doctrine of vicarious liability under which the jury concluded that the hospital was liable. ‘‘[V]icarious liability is premised upon the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss. . . . Put differently, a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee.’’ (Citation omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 693 n.16, 849 A.2d 813 (2004). ‘‘Before vicarious liability can be imposed, however, there must be sufficient evidence produced to warrant a finding of agency between the parties. If there is a finding that the allegedly negligent actor is not an employee or agent, then the claim of vicarious liability must fail.’’ Cefaratti v. Aranow, 154 Conn.App. 1, 29, 105 A.3d 265 (2014), rev’d on other grounds, 321 Conn. 593, A.3d (2016).[10]

         ‘‘Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. . . . Thus, the 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.’’ (Citation omitted; internal quotation marks omitted.) Bellsite Development, LLC v. Monroe, 155 Conn.App. 131, 142, 122 A.3d 640, cert. denied, 318 Conn. 901, 122 A.3d 1279 (2015).

         ‘‘Some of the factors listed by the Second Restatement of Agency 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.’’ (Citations omitted; internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133-34, 464 A.2d 6 (1983). ‘‘The burden of proving agency is on the party asserting its existence.’’ New England Whalers Hockey Club v. Nair, 1 Conn.App. 680, 683, 474 A.2d 810 (1984).

         We conclude, as a matter of law, that the trial court erred by denying the hospital’s motions to set aside the verdict and render judgment notwithstanding the verdict in the hospital’s favor. The plaintiffs produced insufficient evidence from which the jury reasonably could have found that Dr. Bodavula was the hospital’s agent for purposes of assisting in the plaintiff’s surgery and, therefore, the hospital should not have been held vicariously liable for the plaintiff’s injuries. Viewing the evidence in the light most favorable to the plaintiffs, the evidence presented was so lacking that it could not establish that there was an understanding between Dr. Bodavula and the hospital that the hospital would be in control of Dr. Bodavula’s performance of the surgery. The plaintiffs suggest that the evidence demonstrated that the hospital controlled many aspects of a resident’s work at the hospital and, therefore, the hospital must have also been in control of a resident’s performance of surgical procedures, regardless of whether an attending physician was present and had overall responsibility for the patient. It is plausible that some of the evidence, viewed out of context, could have suggested an agency relationship, but when the evidence is viewed in context and focused on the plaintiff’s surgery alone, it was the court’s duty to set aside the verdict because it was palpably against the evidence presented.

         Medical residency programs are unique in that they have both academic and employment characteristics. See Gupta v. New Britain General Hospital, 239 Conn. 574, 586-87, 687 A.2d 111 (1996). The evidence in this case suggested that the nature of the medical resident’s relationship to the hospital was controlled by a residency agreement, but that agreement was not introduced into evidence. In fact, the plaintiffs did not produce any direct evidence to support their position that the hospital was in control of the surgical procedure. Instead, the plaintiffs relied extensively on circumstantial evidence, including the content of the hospital’s manual. The manual was entered into evidence without the necessary context to determine whether it contemplated an academic relationship or an employment relationship, or both. It was most notably not established that the provisions of the manual were intended to regulate surgical procedures. Furthermore, other circumstantial evidence produced by the plaintiffs, e.g., security badges, could not lead to a reasonable inference of agency by the jury.

         The relationship between a resident and a hospital is unique. See id., 586. As our Supreme Court noted in Gupta, these types of relationships may be of a hybrid nature, with both academic and employment features.

By definition, agency is an agreement between parties that authorizes the principal to control certain aspects of the agent’s conduct. See Bellsite Development, LLC v. Monroe, supra, 155 Conn.App. 142. During the trial, the plaintiffs referred to the residency agreement, [11] and the manual that had been entered into evidence referred to the residency agreement, [12] but the residency agreement itself was not entered into evidence.

         At a minimum, to determine any agency relationship, let alone one involving a medical resident, ‘‘a court must look to the operative terms of their agreement or understanding.’’ (Internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn. 133-34. In the context of a medical residency program, the residency agreement is a critical tool to aid the finder of fact in determining whether an agency relationship existed. In Gupta, Chief Justice Peters looked to the residency agreement to determine a medical resident’s employment status for purposes of his claim that he was an employee under contract with New Britain General Hospital and that he had been wrongly dismissed. Gupta v. New Britain General Hospital, supra, 239 Conn. 582. After interpreting the agreement, Chief Justice Peters concluded that the resident’s relationship to the hospital and the hospital’s decision to dismiss him was an academic decision. Id., 584-85.

         In Gupta, the nature of the medical resident’s relationship to the hospital, as it related to the claim in question, was integral to the resolution of the case. Determining whether the plaintiff resident in that case was acting as an employee or a student was an exercise similar to the resolution of whether the resident was an agent of the hospital for purposes of assisting in the plaintiff’s surgery.[13] An assessment of a resident’s employment status ‘‘is purely a question of law’’ and ‘‘must take into account the language of the residency agreement as well as any circumstances that might illuminate our interpretation of this language.’’[14] Id., 582. ‘‘In the absence of any question of fact, the proper characterization of the residency agreement, as a matter of law, implicates a number of factors, including the language of the agreement, the purpose of the parties in entering into the agreement, and the institutional setting of the agreement.’’ Id., 583. Without the residency agreement, this foundational analysis could not be performed in this case.

         The glaring absence of the residency agreement was all the more relevant because the surgical residency program was managed and shared among several organizations and parties.[15] As the manual stated, this was an integrated residency program involving three separate organizations: the hospital, Sound Shore Medical Center, and New York Medical College.[16] In addition, faculty physicians with hospital privileges supervised residents during surgical procedures and evaluated their performance.[17] Critical factual evidence regarding the complex relationships involved in this surgical residency program was not presented at trial. The plaintiffs were not under any requirement to enter the residency agreement into evidence. However, without the residency agreement, the jury was left with an incomplete picture of the residency program and the precise nature of the hospital’s relationship with its residents, including Dr. Bodavula, in order to allow for a finding of agency.

         The plaintiffs did not present any evidence that specifically showed that Dr. Bodavula had agreed to act or was authorized to act as an agent of the hospital during the plaintiff’s surgery. The critical question was whether the hospital had a right to control Dr. Bodavula’s performance of the surgery. See Cefaratti v. Ara-now, supra, 154 Conn.App. 34. There was not sufficient evidence to satisfy the burden of proof of agency.[18]The evidence suggested that only Dr. Gordon was ‘‘in control’’ of Dr. Bodavula during the course of the plaintiff’s surgery. The hospital did not dictate how Dr. Gordon was to utilize the assistance of the resident, and there was no evidence of standard procedures that regulated the conduct of Dr. Gordon and Dr. Bodavula in relation to the surgery.[19]

         At all times, the only conclusion rationally drawn from the evidence was that Dr. Gordon was in command of the plaintiff’s surgery.[20] Dr. Gordon testified: ‘‘[T]his is a resident in training and I’m his instructor, I’m watching his moves very carefully, and I’m standing, literally, right behind him, over his shoulder . . . .’’ The plaintiffs did not produce any evidence to contradict Dr. Gordon’s testimony that he, and not the hospital, was in control of Dr. Bodavula’s performance of the surgical tasks in the operating room.[21] It was the plaintiffs’ burden to prove agency. See New England Whalers Hockey Club v. Nair, supra, 1 Conn.App. 683.

         Instead, the plaintiffs attempted to prove that an agency relationship existed by presenting circumstantial evidence, including the hospital’s house staff manual.[22] We conclude that this reliance was misplaced for purposes of determining agency.[23] The manual was insufficient to permit a finding that an agency relation- ship existed between the hospital and Dr. Bodavula regarding the plaintiff’s surgery. A close and careful reading of the manual reveals no contractual language or agreement between the parties creating an agency relationship for purposes of assisting in surgical procedures. Rather, the manual was controlled by the residency agreement and in fact referred to the residency agreement for specific details. As the benefits section of the manual stated: ‘‘Danbury Hospital will provide a salary to the Resident, as specified in the Danbury Hospital Resident Agreement.’’ (Emphasis added.)

         In the context of the residency program, the manual was insufficient to support the existence of an agency relationship in the conduct of surgery. In Gupta, Chief Justice Peters employed a functional analysis: ‘‘Because of the hybrid nature of the residency agreement, we conclude that the agreement is more properly interpreted, under any particular set of circumstances, by a functional analysis of its terms in relationship to the nature of the alleged breach, rather than by an overarching search for the purpose or purposes of the parties.’’ Gupta v.New Britain General Hospital, supra, 239 Conn. 586. Chief Justice Peters noted: ‘‘Arthur Corbin commented perceptively on the utility of a judicial search for the principal purpose of a contract when he wrote: ‘How is a court to discover what was the principal purpose of the parties or whether they had any? It is certain, in practically all business transactions, that ...


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