Dent v. Exeter Hosp., Inc.

• Decision Date: 09 August 2007
• Docket Number: No. 2006–151.,2006–151.
• Citation: 155 N.H. 787,931 A.2d 1203
• Court: New Hampshire Supreme Court
• Parties: Deborah A. DENT, Administratrix of the Estates of Helen M. Folloni and Lawrence F. Folloni v. EXETER HOSPITAL, INC.

155 N.H. 787

931 A.2d 1203

Deborah A. DENT, Administratrix of the Estates of Helen M. Folloni and Lawrence F. Folloni

v.EXETER HOSPITAL, INC.

No. 2006–151.

Supreme Court of New Hampshire.

Submitted: May 10, 2007.

Opinion Issued: Aug. 9, 2007.

Rehearing Denied Oct. 1, 2007.

Deborah A. Dent, by brief, pro se.

Devine, Millimet & Branch, PA, of Manchester (Elaine M. Michaud and Brian R. Moushegian on the brief), for the defendant.

GALWAY, J.

The plaintiff, Deborah Dent, administratrix of the Estates of Helen M. Folloni and Lawrence F. Folloni, appeals an order of the Superior Court (McHugh, J.), granting summary judgment to the defendant, Exeter Hospital, Inc., and denying the Follonis' motion to amend their writ and add experts. We affirm.

The following facts are undisputed by the parties. On March 15, 2000, Helen Folloni arrived at Exeter Hospital exhibiting speech difficulty, confusion, and other mentally related afflictions. During her admission process, her husband, Lawrence Folloni, signed a form entitled "Consent for Diagnostic Services, Treatment and Release of Information" on behalf of his wife. The form stated, in pertinent part: "I understand that the Licensed Independent Practitioners (i.e.physicians) on the hospital's Medical Staff are not employees or agents of the hospital, but independent contractors who have been granted the privilege to use certain of its facilities for the care and treatment of their patients." Multiple physicians attended to Helen Folloni and the final diagnosis was that she had suffered a transitory ischemic attack, rather than a stroke

. She was prescribed a blood thinner and was discharged from the hospital on March 16.

On March 24, Helen Folloni returned to Exeter Hospital with symptoms including weakness, dizziness, slurred speech, and confusion. During her admission process, her son, Robert Folloni, signed on her behalf the same consent form previously signed by her husband. Physicians at Exeter Hospital diagnosed her as having a stroke

and conducted tests. Under the care of multiple physicians at Exeter Hospital, her condition deteriorated until she was transferred to Massachusetts General Hospital, where she was diagnosed with a brain hemorrhage and underwent surgery. She survived the surgery, but with significant brain damage.

In March 2003, Helen and Lawrence Folloni (the Follonis) brought a medical malpractice action against Exeter Hospital, Exeter Family Medical Associates, and three doctors who treated Helen Folloni during her two visits to Exeter Hospital. Count five of the writ claimed that Exeter Hospital was vicariously liable for the alleged malpractice of physician defendants under the doctrine of respondeat superior. Count six claimed that Exeter Hospital breached its duty to maintain and enforce rules and procedures that ensured appropriate care for patients by failing to ensure that Helen Folloni was referred to a neurologist for treatment during her March 15 admission.

In April 2003, Exeter Hospital filed a motion for summary judgment on counts five and six. As to count five, the hospital argued that the three defendant doctors were not agents of Exeter Hospital, for reasons including the following: (1) two of the doctors were employed by Exeter Family Medical Associates, a professional association independent from Exeter Hospital, and one was a solo practitioner; (2) direct medical treatment provided by the physicians was performed based upon their individual expertise, not based upon oversight by Exeter Hospital; (3) care provided by the three physicians to Helen Folloni, as well as to their other patients, was billed to the physicians' individual practices, not Exeter Hospital; (4) prior to each of her admissions to Exeter Hospital, Folloni's representative signed a consent form acknowledging that the physicians on staff at Exeter Hospital were independent contractors, not employees or agents of the hospital; and (5) Folloni's primary care physician was one of the defendant doctors, and the Folloni family chose to take Helen Folloni to Exeter Hospital because they knew that this physician would treat her there. As to count six, Exeter Hospital argued that the plaintiffs did not have the requisite expert testimony to support such a claim.

Later in April, the Follonis filed a memorandum of law in opposition to the motion for summary judgment. They argued that Exeter Hospital exerted control over the defendant physicians, and thus acted as their principal in an agency relationship. To support this claim, the Follonis noted the hospital's compliance with the Joint Commission for Accreditation of Healthcare Organizations, which required Exeter Hospital to: (1) screen all physicians before granting them staff privileges to ensure that they are licensed and restrict their practices to the confines of their licenses; and (2) maintain an ongoing quality assurance program to monitor the quality of patient care and the performance of staff physicians. They also relied upon policies set forth by Exeter Hospital, including: (1) the "Continuum of Care Policy," which required physicians in the hospital to report their absences from the hospital premises and provide patient coverage and make a minimum of hospital rounds each day to treat patients; and (2) the "Management of Information Policy and Procedure," which required physicians to record the type of service they perform and the manner in which they prepare records. The Follonis further noted agreements that the hospital had with its doctors. They produced evidence of agreements between the hospital and doctors in the emergency and radiology departments, which required physicians to: (1) meet the credentialing requirements of the hospital's medical staff; (2) comply with state and federal licensing requirements; (3) annually submit a schedule of physician fees; and, for the emergency physicians, (4) provide a certain number of hours of work for the hospital; and (5) provide services to every patient who arrived in the emergency department needing treatment, with some exceptions. The Follonis also produced evidence of two agreements, each signed by one of the defendant doctors. The first authorized one doctor to use hospital space and equipment to interpret electroencephalograms

at Exeter Hospital and provided for him to receive a fee from the hospital for his work. The second agreement was for one doctor to interpret electrocardiogram (EKG) results for the hospital's patients. This agreement required the doctor to maintain active membership on the medical staff of the hospital, comply with state and federal licensing requirements and maintain insurance. It also provided that the hospital would be responsible for billing all charges related to the EKG services and paying the doctor for those services.

The Follonis also argued that Exeter Hospital was vicariously liable for the doctors' negligence under the doctrine of apparent authority. They alleged that certain facts showed apparent authority, such as: (1) Exeter Hospital provided the premises in which the physicians worked; (2) the hospital's advertising "lumps all of its privileged physicians together in a single ‘Core Physician Services' Division" and "embraces them as part of its operation, e.g., ‘Exeter Hospital's Emergency Department,’ ‘Exeter Hospital's Internal Medicine Physicians' "; and (3) physicians working at Exeter Hospital wore badges displaying the hospital's name.

Finally, the Follonis argued that they had ample evidence of Exeter Hospital's direct liability under the "enterprise theory," proof of which does not require expert testimony. The enterprise theory, the Follonis argued, recognizes that hospitals and physicians band together to provide services and contain costs; such banding together was evident in this case and, thus, supplied evidence of Exeter Hospital's direct liability.

In June, the Follonis filed a motion to amend their writ by adding a claim that Exeter Hospital was negligent under respondeat superior because a radiologist at Exeter Hospital misinterpreted the results of a test done on Helen Folloni, and to add expert witnesses to their witness list.

The trial court granted the motion for summary judgment and denied the motion to amend the writ and add experts. On count five, the trial court ruled that the physicians who treated Helen Folloni were independent contractors; thus, Exeter Hospital could not be vicariously liable for their negligence. The court based this ruling upon, inter alia, that all decisions regarding patient diagnosis and treatment remained exclusively with the physicians and that Lawrence Folloni and Robert Folloni signed the hospital's consent form as persons authorized to consent for Helen Folloni. This authority was not contested before the trial court. On count six, the trial court ruled that the plaintiffs could not maintain their direct negligence claim against the hospital because they failed to satisfy New Hampshire's requirement that expert testimony support such a claim. The two experts disclosed by the plaintiffs offered no opinion upon the hospital's negligence through its personnel, the trial court found. Finally, the court denied the motion to amend the writ and add new experts because, inter alia, the motion came too late in the proceedings, would call for different evidence, and would prejudice the defendants.

Dent, as administratrix of the Follonis' estates, appeals the trial court's order, challenging each of the court's three rulings. We address each issue in turn.

I. Vicarious Liability

Dent first argues that the trial court erred in granting summary judgment to Exeter Hospital because the Follonis adduced sufficient evidence from which a reasonable juror could have found that the hospital exercised control over its physicians and was otherwise their employer. Dent also argues that the trial court erred in ruling that the physicians did not have apparent authority to act on behalf of Exeter...