Gagliano v. Advanced Specialty Care, P.C.

• Citation: 145 A.3d 331,167 Conn.App. 826
• Decision Date: 30 August 2016
• Docket Number: No. 37413.,37413.
• Court: Appellate Court of Connecticut
• Parties: Vivian GAGLIANO et al. v. ADVANCED SPECIALTY CARE, P.C., et al.

167 Conn.App. 826

145 A.3d 331

Vivian GAGLIANO et al.

v.ADVANCED SPECIALTY CARE, P.C., et al.

No. 37413.

Appellate Court of Connecticut.

Argued April 12, 2016.

Decided Aug. 30, 2016.

Michael G. Rigg, Hartford, for the appellant (defendant Danbury Hospital).

Alinor C. Sterling, with whom, on the brief, was Joshua D. Koskoff, Bridgeport, for the appellees (plaintiffs).

Jennifer L. Cox and Jennifer A. Osowiecki, Hartford, filed a brief for the Connecticut Hospital Association as amicus curiae.

Roy W. Breitenbach and Michael J. Keane, Jr., filed a brief for the Fairfield County Medical Association as amicus curiae.

BEACH, ALVORD and GRUENDEL, Js.

ALVORD

, J.

The defendant, Danbury Hospital (hospital), appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the plaintiffs, Vivian Gagliano and her husband, Philip Gagliano,¹ on their negligence claims against the hospital and its codefendant, Dr. Venkata Bodavula.² On appeal, the hospital claims that the trial court erred by failing to grant its motions to set aside the verdict and for judgment notwithstanding the verdict. The hospital argues, and we agree, that insufficient evidence was presented from which the jury reasonably could have found that Dr. Bodavula was the hospital's agent for purposes of assisting in the plaintiff's surgery and, therefore, the hospital could not be held vicariously liable for the plaintiff's injuries.³ We reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On July 23, 2008, the plaintiff underwent hernia

repair surgery at the hospital. The surgery was to be performed by Dr. Joseph R. Gordon, her physician, who had recommended the procedure to the plaintiff during an examination at his office.⁴ Dr. 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 knowledge, a fourth year medical resident, Dr. Bodavula, was assigned to assist Dr. Gordon with the surgery. Dr. Bodavula was enrolled in the surgical medical residency program, sponsored by Sound Shore Medical Center in New York, which included rotations at the hospital.⁵ Dr. Gordon asked Dr. Bodavula about his experience with a surgical device called an optical trocar

, which was to be used in the surgery. Dr. Bodavula informed Dr. Gordon that he knew how to use the device. Under Dr. Gordon's supervision, Dr. Bodavula performed the initial insertion of the device into the plaintiff's abdomen.

As the surgery proceeded, Dr. Gordon became concerned that Dr. Bodavula was improperly using the optical trocar

. At that point, Dr. Gordon took over for Dr. 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. The plaintiff began to suffer from multiple organ failure and was subsequently connected to a ventilator before being rushed into surgery to repair the perforation.

The plaintiff survived, but spent sixty-nine days in the hospital recovering from the perforation. Eight months after the initial surgery and due to the perforated colon

, the plaintiff required surgery to remove part of her large intestine, and, as a result of the procedure, she developed permanent digestive problems. The trial court stated in its memorandum of decision that the plaintiff has difficulty being away from the bathroom for any length of time, is regularly in pain, has significantly reduced stamina and is unable to walk more than one-quarter of a mile.

The plaintiffs filed negligence claims against Dr. Gordon, his practice, Advanced Specialty Care, P.C., Dr. Bodavula, and the hospital. The plaintiffs alleged that Dr. Gordon and Dr. Bodavula were agents of the hospital and, therefore, the hospital was vicariously liable for their actions. Prior to the commencement of trial, the plaintiffs settled with Dr. Gordon and Advanced Specialty Care, P.C., for an undisclosed sum. In May, 2014, a jury trial commenced to address the remaining claims against Dr. Bodavula and the hospital.

Dr. Bodavula was enrolled in the surgical residency program at Sound Shore Medical Center in New Rochelle, New York.⁶ The program included rotations at Danbury Hospital. Dr. 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 Dr. Bodavula to assist Dr. Gordon. There was no evidence presented as to whether the chief resident was an employee of the hospital, but Dr. 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, Dr. Bodavula was questioned about the hospital's House Staff Manual (manual). Dr. 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.⁷

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 Dr. Bodavula was an agent of the hospital. The manual was accompanied by a cover letter from the chief executive officer of the hospital: “This House Staff Manual has been developed as a guide to enlighten and clarify the many services and support functions available to members of the House Staff at Danbury Hospital, as well as to inform you of House Staff and Danbury Hospital policies.... I wish you a rewarding educational experience!”

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 rent-free housing, vacation and sick leave, as well as insurance. It also stated: “Danbury Hospital will provide a salary to the Resident, as specified in the Danbury Hospital Resident Agreement.” There was no evidence submitted as to a “Residency Agreement” between Dr. Bodavula and the hospital. He testified that he was not paid by the hospital.

The manual also covered the hospital's clinical support services. This section included information on the hospital pharmacy, instructions on how to order a consultation from a cardiologist, and protocols for implementing patient telemetric monitoring. Another section of the manual, titled “Residency Program Information,” provided details for eight distinct residency programs: anesthesiology, general practice dentistry, internal medicine, cardiovascular disease

fellowship, obstetrics and gynecology, pathology, psychiatry, and 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, NY. The residency is affiliated with New York Medical College. Ten general surgical residents from Sound Shore Medical Center rotate at Danbury 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.⁸ There was no evidence presented at trial that the faculty were employees or agents of the hospital.

The manual did not address the regulations and procedures governing a resident's participation in a surgical procedure. Dr. 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 authority and just take over, and I say, I'm taking over, and the resident steps aside.”

After the plaintiffs rested their case, each defendant moved for a directed verdict. The trial court denied the motions. The jury returned a verdict in favor of the plaintiffs. The jury awarded the plaintiff $902,985.04 in economic damages and $9.6 million in noneconomic damages. Philip Gagliano was awarded $1.5 million in loss of consortium damages. The jury found that Dr. Bodavula was an actual agent of the hospital.⁹ Dr. Bodavula and the hospital were found liable for 80 percent of the plaintiffs' damages. The remaining 20 percent of liability was assigned to Dr. Gordon.

After the verdict, the hospital and Dr. Bodavula filed separate motions to set aside the verdict, for judgment notwithstanding the verdict, and remittitur. The court denied the six motions. With respect to the hospital's motions, the trial court found that there was sufficient evidence to support the jury's finding that Dr. Bodavula was an agent of the hospital when he operated on the plaintiff. Specifically, the court found that credible evidence was presented to the jury that showed that Dr. Bodavula: wore a hospital badge; treated patients according to the instructions of the chief resident; reported to and was evaluated by hospital staff; was required to follow hospital obligations, protocols and rules; and was assigned to the plaintiff's surgery...