VIVIAN GAGLIANO ET AL.
ADVANCED SPECIALTY CARE, P.C., ET AL.
February 22, 2018
to recover damages for, inter alia, the defendants'
alleged medical malpractice, and for other relief, brought to
the Superior Court in the judicial district of Danbury, where
the action was withdrawn as against the named defendant et
al.; thereafter, the case was tried to the jury before
Ozalis, J.; verdict for the plaintiffs;
subsequently, the court denied the motions to set aside the
verdict, for remittitur and for judgment notwithstanding the
verdict filed by the defendant Danbury Hospital et al.;
thereafter, the court, Ozalis, J., rendered judgment
in accordance with the verdict, from which the defendant
Danbury Hospital appealed to the Appellate Court,
Beach, Alvord and Gruendel,
Js., which reversed in part the trial court's
judgment and remanded the case with direction to render
judgment for the defendant Danbury Hospital, and the
plaintiffs, on the granting of certification, appealed to
this court. Reversed in part; judgment
C. Sterling, with whom were Katherine L. Mesner-Hage and, on
the brief, Joshua D. Koskoff, for the appellants
Michael G. Rigg, for the appellee (defendant Dan-bury
Breitenbach and Michael J. Keane, Jr., filed a brief for the
Fairfield County Medical Association as amicus curiae.
Kathryn Calibey, Sean J. Stokes and Brendan Faulkner filed a
brief for the Connecticut Center for Patient Safety as amicus
Jennifer L. Cox and Jennifer A. Osowiecki filed a brief for
the Connecticut Hospital Association as ami-cus curiae.
Palmer, McDonald, D'Auria, Mullins and Kahn, Js. [*]
primary issue in this medical malpractice action is whether
there was sufficient evidence from which the jury reasonably
could have found that the defendant surgical resident,
Venkata Bodavula, was an actual agent of the defendant
hospital, Danbury Hospital, when he negligently performed a
surgical procedure under the supervision of a member of the
hospital's clinical faculty who was also the
plaintiff's private physician. Upon our grant of
certification, Vivian Gagliano (plaintiff) and her husband,
Philip Gagliano (collectively, plaintiffs), appeal from the
judgment of the Appellate Court reversing the trial
court's judgment, in part, as to the hospital's
vicarious liability for Bodavula's negligence. We
conclude that the trial court properly determined that there
was sufficient evidence to establish such an agency
relationship, and that imposing vicarious liability on the
hospital for Bodavula's actions was not improper.
opinion of the Appellate Court sets forth the following facts
that the jury reasonably could have found, which we
supplement in part I of this opinion, and procedural history.
‘‘On July 23, 2008, the plaintiff underwent
hernia repair surgery at the hospital. The surgery was to be
performed by [Joseph R. Gordon], her physician, who had
recommended the procedure to the plaintiff during an
examination at his office. [Gordon] was not employed by the
hospital, but maintained staff privileges allowing him to
attend to his patients admitted to the hospital.
to the start of the procedure, but without the
plaintiff's [specific] knowledge, a fourth year
[surgical] resident, [Bodavula], was assigned to assist
[Gordon] with the surgery. . . . [Gordon] asked [Bodavula] about
his experience with a surgical device called an optical
trocar, which was to be used in the surgery. [Bodavula]
informed [Gordon] that he knew how to use the device. Under
[Gordon's] supervision, [Bodavula] performed the initial
insertion of the device into the plaintiff's abdomen.
the surgery proceeded, [Gordon] became concerned that
[Bodavula] was improperly [applying too much force in] using
the optical trocar. At that point, [Gordon] took over for
[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.
[As a consequence, the plaintiff ultimately sustained life
threatening and life altering injuries.] . . .
[plaintiff and her husband, respectively] filed negligence
[and loss of consortium] claims against [Gordon], his
practice, Advanced Specialty Care, P.C., [Bodavula], and the
hospital. The plaintiffs alleged that [Gordon] and [Bodavula]
were [actual or apparent] agents of the hospital, and,
therefore, the hospital was vicariously liable for their
actions. Prior to the commencement of trial, the plaintiffs
settled with [Gordon] and Advanced Specialty Care, P.C., for
an undisclosed sum. In May, 2014, a jury trial commenced to
address the remaining claims against [Bodavula] and the
trial, evidence was adduced establishing that Bodavula] was
enrolled in the surgical residency program at Sound Shore
Medical Center in New Rochelle, New York. The program
included rotations at Danbury Hospital. [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 [Bodavula] to assist [Gordon].
There was no evidence presented as to whether the chief
resident was an employee of the hospital, but [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.'
his testimony, [Bodavula] was questioned about the
hospital's House Staff Manual (manual). [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.
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 [Bodavula] was an agent of the hospital.
. . .
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 [the hospital's
provision of] rent-free housing [or a housing stipend],
vacation and sick leave, as well as [professional liability,
health, disability, and life] insurance. It also stated:
‘Danbury Hospital will provide a salary to the
[r]esident, as specified in the Danbury Hospital Resident
Agreement.' There was no evidence submitted as to a
‘Residency Agreement' between [Bodavula] and the
hospital. He testified that he was not paid by the hospital.
. . .
section of the manual, titled ‘Residency Program
Information,' provided details for eight distinct
residency programs . . . [including] surgery.
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, [New York]. The
residency is affiliated with New York Medical College. Ten
general surgical residents from Sound Shore Medical Center
rotate at Dan-bury Hospital at any given time. Surgical
residents have an opportunity to study under attending
surgeons who have had their own training at multiple academic
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. .
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 ...