Beauregard v. Peebles

Decision Date30 January 2015
Docket NumberMICV2012-00570
PartiesTheresa Beauregard v. Douglas Peebles, M.D. et al No. 129350
CourtMassachusetts Superior Court

Filed February 3, 2015

MEMORANDUM AND ORDER DENYING METRO WEST MEDICAL CENTER'S MOTION FOR SUMMARY JUDGMENT

Kenneth W. Salinger, Justice of the Superior Court.

Theresa Beauregard claims that negligence by her surgical anesthesiologist, Dr. Douglas Peebles, caused her to suffer permanent paraplegia. Defendant VHS Acquisition Subsidiary 9 Inc. d/b/a Metrowest Medical Center (the " Hospital") waited until weeks before trial to seek summary judgment on the ground that it cannot be held vicariously liable for Dr. Peebles' alleged negligence. The Court exercises its discretion to decide this motion on the merits, rather than deny it as untimely, because if the Hospital were correct then the trial and jury deliberations would be materially simplified by resolving the claims against the Hospital.

The Court concludes that the common-law rule holding a principal vicariously liable for tortious actions by an agent acting under apparent authority from the principal applies with full force to hospitals and physicians. If an injured patient can prove that she reasonably relied upon some indication by the hospital that a physician was acting as its employee or authorized agent, then the hospital will be vicariously liable for the physician's negligence even if the doctor was neither employed by nor under the control of the hospital. In this case, a jury could find that Ms. Beauregard reasonably believed that the Hospital had indicated that Dr Peebles was its employee or agent, that she reasonably relied upon that representation in agreeing to undergo surgery at the Hospital, and that the Hospital is therefore liable for any injury caused by Dr. Peebles' alleged negligence. The Hospital's motion for summary judgment will therefore be DENIED.

1. Undisputed Material Facts

The following are undisputed facts, as demonstrated in the evidentiary materials submitted in connection with the pending motion, or reasonable inferences that a jury could draw from those facts. In evaluating the motion for summary judgment, the Court " must . . . draw all reasonable inferences" from the evidence presented " in favor of the nonmoving party, " as a jury would be free to do at trial. Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119, 928 N.E.2d 327 (2010). It has done so.

Ms. Beauregard underwent surgery at the Metrowest Medical Center for an aortobifemoral bypass graft on October 5, 2011. Dr. Peebles was the attending anesthesiologist for this surgery. Dr. Peebles provided Ms. Beauregard with general anesthesia during the bypass procedure. He also placed an epidural catheter in the thoracic region of her spine for use in controlling post-operative pain. Dr. Peebles administered morphine via the epidural catheter near the end of the surgery. Another physician removed the catheter the next day. Approximately five and half hours after the catheter was removed, Ms. Beauregard could no longer move either of her legs. It appears that this paraplegia is permanent.

Ms. Beauregard claims that Dr. Peebles negligently placed the epidural catheter, that in doing so he injured her spinal cord, and that this negligence is the cause of her injuries.

At the time of this surgery, Dr. Peebles was employed by Metrowest Anesthesiology, Inc., not by the Hospital. Dr. Peebles nonetheless served as the Hospital's Chief of Anesthesia. He spent roughly 20 percent of his work time on administrative matters related to his responsibilities as Chief of Anesthesia.

Ms. Beauregard decided to undergo the surgery at the Hospital based on her surgeon's recommendation. She did not independently hire Dr. Peebles as her anesthesiologist. Instead, she understood that Dr. Peebles was employed by the Hospital and had been assigned to her surgery by the Hospital. Ms. Beauregard read and signed a " Conditions of Treatment Agreement" six days before the surgery. The Agreement stated in part that:

I have been informed and understand that many of the physicians providing services to me in this facility are independent contractors and are not employees. Specifically the radiologists and cardiologists are not employees or agents of this facility unless otherwise identified.

The Agreement also stated that:

I acknowledge the care I receive while in this facility is under the direction of my physician(s). This facility is not responsible for the acts or omissions of my physician(s).

When Ms. Beauregard met with Dr. Peebles shortly before the surgery, he wore a white lab coat that had both his name and the Hospital's name or insignia on it. Ms. Beauregard has stated under the pains and penalties of perjury that she would not have consented to surgery at the Hospital if she had known that Dr. Peebles was not employed by the Hospital.

2. Discussion

The typical grounds for suing a hospital for medical malpractice are not open to Ms. Beauregard on the facts of this case. First, if a physician is a hospital employee, then the hospital is liable under the doctrine of respondeat superior for any injury or harm caused by negligence of the physician that occurred within the scope of her employment by the hospital. Dias v. Brigham Medical Assocs., Inc., 438 Mass. 317, 321-22, 780 N.E.2d 447 (2002). That is true even if the hospital had no " right to direct and control" the physician's activities. Id. at 322. Ms. Beauregard cannot prevail under this theory because it is undisputed that Dr. Peebles was not employed by the Hospital, but instead was employed by Metrowest Anesthesiology, Inc. Second, if a physician is not a hospital employee, but the hospital exercises sufficient control over the " details of the physician's physical activities" --such as which patients the physician sees, where she works, and the hours she keeps--the hospital may be liable for injuries caused by the doctor's negligence " even though a hospital can never control the independent medical judgment of a physician." Hohenleitner v. Quorum Health Res., Inc., 435 Mass. 424, 433, 758 N.E.2d 616 (2001); accord Hopper v. Callahan, 408 Mass. 621, 634, 562 N.E.2d 822 (1990). Ms. Beauregard cannot avoid summary judgment under this theory either because she has been unable to muster any evidence that the Hospital had or exercised any right to control the details of Dr. Peebles' practice.

But there is another theory under which the Hospital may be liable for injuries caused by the negligence of a physician or other medical caregiver who was neither employed by nor subject to the control of the Hospital.

2.1. Hospital Liability for Acts of Apparent Agents

The majority rule in other states is that hospitals may be held liable for the negligence of physicians who are independent contractors if the patient can prove that he reasonably relied on some representation or manifestation by the hospital that the physician was its employee or agent, and the negligence occurred while the doctor was acting within the scope of her apparent authority. In almost every state whose highest appellate court has considered the issue, hospitals may be held vicariously liable under such a theory of apparent agency. See, e.g., Seneris v. Haas, 45 Cal. 2d 811, 291 P.2d 915, 926-27 (Cal. 1955) (applying principal to anesthesiologist); Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 361 S.E.2d 164, 166-67 (Ga. 1987); Jones v. HealthSouth Treasure Valley Hosp., 147 Idaho 109, 206 P.3d 473, 477-80 (Idaho 2009); Gilbert v. Sycamore Municipal Hosp., 156 Ill.2d 511, 622 N.E.2d 788, 792-96, 190 Ill.Dec. 758 (Ill. 1993) Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147-53 (Ind. 1999); Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256-57 (Ky. 1985); Bradford v. Jai Medical Systems Mgd. Care Organizations, Inc., 439 Md. 2, 93 A.3d 697, 706-08 (Md. 2014); Grewe v. Mt. Clemens Gen'l Hosp., 404 Mich. 240, 273 N.W.2d 429, 433-34 (Mich. 1978); Butler v. Domin, 2000 MT 312, 302 Mont. 452, 15 P.3d 1189, 1196-98 (Mont. 2000); Basil v. Wolf, 193 N.J. 38, 935 A.2d 1154, 1172 (N.J. 2007); Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 490 N.E.2d 823, 827-28, 499 N.Y.S.2d 904 (N.Y. 1886); Renown Health v. Vanderford, 235 P.3d 614, 617-18 (Nev. 2010); Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 1994 Ohio 519, 628 N.E.2d 46, 53-54 (Ohio 1994); Roth v. Mercy Health Center, Inc., 2011 OK 2, 246 P.3d 1079, 1089-90 (Okl. 2011); Eads v. Borman, 351 Ore. 729, 277 P.3d 503, 514 (Or. 2012) (en banc); George v. Fadiani, 772 A.2d 1065, 1069 (R.I. 2001); Simmons v. Tuomey Reg'l Med. Ctr., 341 S.C. 32, 533 S.E.2d 312, 322 (S.C. 2000); Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 436 (Tenn. 2008); Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 949 (Texas 1998); Mohr v. Grantham, 172 Wn.2d 844, 262 P.3d 490, 498-99 (Wash. 2011) (en banc); Burless v. West Virginia Univ. Hosp., Inc., 215 W.Va. 765, 601 S.E.2d 85, 93-96 (W.Vir. 2004); Kashishian v. Port, 167 Wis.2d 24, 481 N.W.2d 277, 281-86 (Wisc. 1992); Sharsmith v. Hill, 764 P.2d 667, 672 (Wy. 1988); but see Sanchez v. Medicorp Health Sys., 270 Va. 299, 618 S.E.2d 331, 335-36 (Va. 2005). Some intermediate appellate courts have reached the same conclusion in other states. See, e.g., Kristensen-Kepler v. Cooney, 39 So.3d 518 (Fla. 4th Dist. Ct.App. 2010); Diggs v. Novant Health, Inc., 177 N.C.App. 290, 628 S.E.2d 851, 862 (N.C. Ct.App. 2006); but see Cefaratti v. Aranow, 154 Conn.App. 1, 45 (Conn.App. 2014).

Although the Supreme Judicial Court has taken note of this line of cases, see Dias, 438 Mass. at 323, it appears that neither the SJC nor the Massachusetts Appeals Court has yet decided whether a hospital that imbues a physician with apparent authority to act as its agent can be...

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