Estate of Cordero v. Christ Hosp.

• Decision Date: 29 October 2008
• Docket Number: No. A-1289-07T1,A-1289-07T1
• Citation: 958 A.2d 101,403 N.J. Super. 306
• Parties: ESTATE OF Ramona CORDERO, by Gabina CORDERO, Administratrix ad prosequendum, and Nicolas Cordero, individually, Plaintiffs-Appellants, v. CHRIST HOSPITAL, Defendant-Respondent, and Selvia G. Zaklama, M.D., Patrick McGovern, M.D. and Hudson Anesthesia Group, Defendants.
• Court: New Jersey Superior Court

958 A.2d 101

403 N.J. Super. 306

ESTATE OF Ramona CORDERO, by Gabina CORDERO, Administratrix ad prosequendum, and Nicolas Cordero, individually, Plaintiffs-Appellants, v. CHRIST HOSPITAL, Defendant-Respondent, and Selvia G. Zaklama, M.D., Patrick McGovern, M.D. and Hudson Anesthesia Group, Defendants.

No. A-1289-07T1

Superior Court of New Jersey, Appellate Division.

Argued September 9, 2008.

Decided October 29, 2008.

Brian E. Mahoney, Chatham, argued the cause for appellants (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Michael B. Zerres, of counsel; Mr. Mahoney, on the brief).

Nan Gallagher, Springfield, argued the cause for respondent (Hardin, Kundla, McKeon & Poletto, attorneys; Patrick J. Clare, of counsel; Ms. Gallagher, on the brief).

Before Judges SKILLMAN, GRAVES and GRALL.

The opinion of the court was delivered by

GRALL, J.A.D.

Plaintiffs, the estate and husband of Ramona Cordero, appeal from an order granting summary judgment in favor of defendant Christ Hospital on claims of fraudulent concealment of evidence and vicarious liability for the negligence of defendant Dr. Selvia G. Zaklama. Dr. Zaklama, an anesthesiologist and a member of defendant Hudson Anesthesia Group, practices in Christ Hospital pursuant to the hospital's contract with Hudson. Dr. Zaklama attended to Ramona Cordero (Cordero) during surgery performed at Christ Hospital. Plaintiffs' claims against Dr. Zaklama and Hudson were settled, and their claim against defendant Dr. Patrick McGovern, a surgeon, was dismissed.

Plaintiffs contend the evidence was adequate to permit a jury to find Christ Hospital liable for Dr. Zaklama's negligence under a theory of "apparent authority," which applies when a "hospital, by its actions, has held out a particular physician as its agent and/or employee and ... a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital." Basil v. Wolf, 193 N.J. 38, 67, 935 A.2d 1154 (2007) (quoting and approving Arthur v. St. Peters Hosp., 169 N.J.Super. 575, 581, 405 A.2d 443 (Law Div.1979)). Based on the absence of evidence that Christ Hospital "actively held out" Dr. Zaklama as its agent or "misled Cordero into believing" Dr. Zaklama was its agent, or that Cordero was misled, the trial court dismissed plaintiffs' claim.

We hold that when a hospital provides a doctor for a patient and the totality of the circumstances created by the hospital's action and inaction would lead a patient to reasonably believe the doctor's care is rendered in behalf of the hospital, the hospital has held out that doctor as its agent. We also hold that when a hospital patient accepts a doctor's care under such circumstances, the patient's acceptance in the reasonable belief the doctor is rendering treatment in behalf of the hospital may be presumed unless rebutted.

I

The facts viewed in the light most favorable to plaintiffs are as follows. On the morning of September 14, 2003, Cordero, a fifty-one-year-old insulin-dependent diabetic, woke up vomiting. When her condition did not improve, she sought care in Christ Hospital's emergency room. She was diagnosed with renal failure, admitted to Christ Hospital and underwent dialysis while there. Surgery to implant a catheter that would facilitate ongoing dialysis was done on September 22.

Dr. Zaklama, who is on the staff of Christ Hospital's anesthesiology department through Hudson's contract with Christ Hospital, was on call on September 22. Dr. Zaklama was assigned, randomly, to provide services during Cordero's procedure. Dr. Zaklama did not meet Cordero or any member of her family before September 22.

Dr. Zaklama had one brief conversation with Cordero before the procedure. The doctor gave this account: "I just introduced myself, `I am Dr. so and so who is the anesthesia [sic] and I'm going to take care of you.'" Dr. Zaklama wore no identification to disclose her affiliation with Hudson and did not tell Cordero that Christ Hospital assumed no responsibility for the care she would provide. Christ Hospital's website identifies Dr. Zaklama as a member of its anesthesia department without reference to Hudson.

During Cordero's operation, the surgeon implanted the catheter without incident, but while the surgeon was dictating his report in the operating room he noticed that Cordero's blood pressure and heart rate had dropped. He alerted Dr. Zaklama, who was still with Cordero. Dr. Zaklama was unable to stabilize the patient, and Christ Hospital's "Code" team was summoned. Although Cordero was resuscitated, she suffered brain damage and never regained consciousness. She remained in a vegetative state until she died approximately three-and-one-half years later.

II

Generally, a principal is immune from liability for the negligence of "an independent contractor, or that of its employees, in the performance of the contracted services." Basil, supra, 193 N.J. at 62, 935 A.2d 1154; Restatement (Second) of Torts § 409 (1965). There are exceptions to that general rule. See id. at comment b (noting that the exceptions are generally "stated ... as particular detailed rules for particular situations").

The exception at issue here is based on what our courts have termed "apparent authority."¹ "[A]pparent authority imposes liability on the principal `not as the result of the reality of a contractual relationship but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists.'" Basil, supra, 193 N.J. at 67, 935 A.2d 1154 (quoting Arthur, supra, 169 N.J.Super. at 580, 405 A.2d 443 and noting that the passage quoted "best explain[s]" apparent authority).

Imputation of liability based on apparent authority prevents a principal from "choos[ing] to act through agents whom it has clothed with the trappings of authority and then determin[ing] at a later time whether the consequences of their acts offer an advantage." Restatement (Third) of Agency, § 2.03 comment c (2006). On that ground, a principal is vicariously liable for its agent's tortious conduct "when actions taken by [an] agent with apparent authority constitute the tort...." Id. at § 7.08; see id. at comment b (discussing the rationale for tort liability based on apparent authority). When a hospital's conduct permits a patient to "properly assume" a doctor is rendering treatment in behalf of the hospital, principles of apparent authority prohibit the hospital from avoiding liability by relying on "secret limitations ... in a private contract between the hospital and the doctor." Mduba v. Benedictine Hosp., 52 A.D.2d 450, 384 N.Y.S.2d 527, 529 (1976).

With few exceptions, courts considering the issue have concluded that liability for a doctor's negligence should be imputed to a hospital when apparent authority, as defined in that jurisdiction, is established. See Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 145, 150-53 (Ind.1999) (recognizing, discussing and following the trend in cases decided by other jurisdictions); Burless v. W. Va. Univ. Hosp., Inc., 215 W.Va. 765, 601 S.E.2d 85 (2004) (same); Kashishian v. Port, 167 Wis.2d 24, 481 N.W.2d 277 (1992) (same); but see Austin v. Litvak, 682 P.2d 41, 54 (Colo.1984) (concluding that the doctor, who has "sole and final control" should have sole responsibility); Tolman v. IHC Hosps., Inc., 637 F.Supp. 682, 684 (D.Utah 1986) (following Austin).

Under decisions of our courts, apparent authority is demonstrated when the "`hospital, by its actions, has held out a particular physician as its agent and/or employee and ... a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital.'" Basil, supra, 193 N.J. at 67, 935 A.2d 1154 (quoting and approving Arthur, supra, 169 N.J.Super. at 581, 405 A.2d 443).² In this case, the trial court erred in concluding that Christ Hospital was entitled to summary judgment because there was no evidence that the hospital actively held out Dr. Zaklama or misled Cordero and no proof that Cordero was misled.

The trial court read the conditions for liability stated in Arthur too strictly. The facts of Arthur demonstrate that a hospital can act to "hold out" a doctor as its agent without actively misrepresenting the doctor's agency or affirmatively misleading the patient. In that case, a patient sought treatment in the hospital's emergency room for an injured wrist, was sent to the radiology department for an x-ray and was erroneously advised that there was no fracture. Arthur, supra, 169 N.J.Super. at 577-78, 405 A.2d 443. The only evidence of action by the hospital "holding out" the doctors to the patient was that the hospital provided doctors to treat an emergency. Id. at 577-78, 583, 405 A.2d 443.

The Arthur court assessed whether the hospital's conduct amounted to holding out the doctors by considering the totality of the circumstances created by the hospital's action — establishing and staffing an emergency room — and its inaction — failing to give the patient notice of the doctor's independence or an opportunity to select a different doctor. Viewing the resulting "factual setting" from the perspective of a reasonable patient in the same situation, who would not be aware of the doctors' status, the court concluded that the evidence was sufficient to support an inference that the hospital held out the doctors in a manner that would lead a reasonable patient to assume that the doctors were rendering care in its behalf. Id. at 582-83, 405 A.2d 443.

The Arthur court's consideration of the hospital's entire course of conduct and the impression it would convey to a reasonable patient in the same situation is consistent with section 2.03 of the Restatement (Third) of Agency and with section 429 of the Restatement (Second) of Torts, upon which the court relied in Arthur, supra, 169 N.J.Super. at 581, 405 A.2d 443. Un...