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Gagliano v. Advanced Specialty Care, P.C.

Supreme Court of Connecticut

August 14, 2018

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

          Argued February 22, 2018

         Procedural History

         Action 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and for other relief, brought to the Superior Court in the judicial district of Danbury, where the action was withdrawn as against the named defendant et al.; thereafter, the case was tried to the jury before Ozalis, J.; verdict for the plaintiffs; subsequently, the court denied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 directed.

          Alinor C. Sterling, with whom were Katherine L. Mesner-Hage and, on the brief, Joshua D. Koskoff, for the appellants (plaintiffs).

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

          Roy W. 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 curiae.

          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. [*]

          OPINION

          McDONALD, J.

         The 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.

         The 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.

         ‘‘Prior 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.[1] . . . [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.

         ‘‘As 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.] . . .

         ‘‘The [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 hospital.

         ‘‘[At 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.'

         ‘‘During 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.

         ‘‘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 [Bodavula] was an agent of the hospital. . . .

         ‘‘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 [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. . . .

         ‘‘Another section of the manual, titled ‘Residency Program Information,' provided details for eight distinct residency programs . . . [including] 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, [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 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. . . .

         ‘‘[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 ...


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