Richardson v. Kalvoda

• Decision Date: 11 February 2014
• Docket Number: CIVIL ACTION DOCKET NO. CV-10-648
• Parties: GEORGETTE Y. RICHARDSON, Plaintiff v. SHARON KALVODA, et al., Defendants
• Court: Maine Superior Court

GEORGETTE Y. RICHARDSON, Plaintiff v. SHARON KALVODA, et al., Defendants

CIVIL ACTION DOCKET NO. CV-10-648

STATE OF MAINE CUMBERLAND, ss SUPERIOR COURT

Date: February 11, 2014

ORDER ON MOTION FOR

SUMMARY JUDGMENT

This matter is before the court on defendant Parkview Adventist Medical Center (PAMC)'s motion for summary judgment. Defendant PAMC alleges that it cannot be held liable for the actions of Dr. Donald Kalvoda because he was an independent contractor and not PAMC's agent. Plaintiff Georgette Richardson alleges that PAMC is liable under a theory of apparent agency. For the following reasons, the motion is denied.

BACKGROUND

Plaintiff first saw Dr. Kalvoda in March 2001 through a referral from her neurologist. (Def.'s Supp. S.M.F. ¶ 25; Pl.'s Opp. S.M.F. ¶ 51.) On 4/11/01, Dr. Kalvoda performed a carpal tunnel release on plaintiff's right hand. (Def.'s Supp. S.M.F. ¶ 26.) Some years later, plaintiff developed carpal tunnel in her left hand and returned to Dr. Kalvoda because she was familiar with his services from the 2001 surgery. (Def.'s Supp. S.M.F. ¶¶ 26-27.) On February 1, 2008, Dr. Kalvoda performed a carpal tunnel release on plaintiff's left hand at PAMC. (Def.'s Supp. S.M.F. ¶ 29.) This second surgery is the subject of plaintiff's claim.

Dr. Kalvoda entered into a lease agreement with PAMC on 7/1/97 that provided office space for his medical practice. (Def.'s Supp. S.M.F. ¶ 17.) Dr. Kalvoda was a member of the medical staff with clinical and surgical privileges at PAMC. (Def.'s Supp. S.M.F. ¶ 4.) Patients accessed Dr. Kalvoda's office by walking through the front entrance of PAMC. (Pl.'s Opp. S.M.F. ¶ 41.) From 2002 until 2010, Dr. Kalvoda was the only orthopedic surgeon who provided on-call services for PAMC, and he was the primary orthopedic surgeon for the hospital other than a period in 2004 to 2005 when PAMC employed an orthopedic surgeon. (Pl.'s Opp. S.M.F. ¶ 36.)

PAMC did not inform plaintiff at any time that Dr. Kalvoda was not an employee or agent of the hospital. (Pl.'s Opp. S.M.F. ¶ 55.) Plaintiff did not see any materials indicating Dr. Kalvoda was not an employee of PAMC. (Pl.'s Opp. S.M.F. ¶ 58.) Plaintiff read various PAMC publications placed in physicians' waiting rooms, which listed Dr. Kalvoda as an "active staff physician" at PAMC and the "President Elect for the Medical Staff Leadership at PAMC." (Pl.'s Opp. S.M.F. ¶ 49.)

On 9/1/06, Dr. Kalvoda contracted with PAMC to provide additional on-call orthopedic coverage for PAMC's patients, beyond his on-call obligations required by his staff privileges, in exchange for an abatement in rent on his office space. (Def.'s Supp. S.M.F. ¶¶ 19-21.) This on-call agreement specified that Dr. Kalvoda was an independent contractor and not an employee of PAMC. (Def.'s Supp. S.M.F. ¶¶ 22-23.)

In January 2010, Dr. Kalvoda became ill and was no longer able to see patients or provide on-call coverage to PAMC. (Def.'s Supp. S.M.F. ¶ 32) On April 6, 2010, PAMC hired Dr. Kalvoda as an employee on an as-needed basis tohelp him cover the costs of his malpractice insurance while he could not see patients and earn income. (Def.'s Supp. S.M.F. ¶ 34.) Dr. Kalvoda did not provide any medical services on behalf of PAMC from April 6, 2010 until his death on July 9, 2010. (Def.'s Supp. S.M.F. ¶ 35.)

PROCEDURAL HISTORY

Plaintiff filed her complaint on 10/24/12 against Dr. Kalvoda, the personal representative of the estate of Dr. Kalvoda, and PAMC. Defendant PAMC filed this motion for summary judgment on 9/6/13.

DISCUSSION

1. Standard of Review

"Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ¶ 9, 983 A.2d 382 (citing Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821). "An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶ 10, 956 A.2d 104 (citing Univ. of Me. Found. v. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871). To avoid summary judgment, the non-moving party cannot rely "merely upon conclusory allegations, improbable inferences, and unsupported speculation." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)). Disputes of material fact "must be resolved through fact-finding, even though the nonmoving party's likelihood ofsuccess is small." Curtis v. Porter, 2001 ME 158, ¶ 7, 784 A.2d 18 (citing Niehoff v. Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, ¶ 10, 763 A.2d 121, 124-25).

2. Apparent Agency

Plaintiff concedes that Dr. Kalvoda was not an employee of PAMC and that any agency relationship was not based on actual authority, either express or implied. (Pl.'s Opp'n to Def.'s Mot. Summ. J., 7.) The issue is whether Dr. Kalvoda was PAMC's apparent agent.

The Law Court has not addressed "whether a theory of apparent agency can be advanced to hold a hospital liable for the professional negligence of an independent-contractor physician."¹ Levesque v. Cent. Me. Med. Ctr., 2012 ME 109, ¶ 10 n.7, 52 A.3d 933. In Levesque, the Law Court listed the four elements of apparent agency:

(1) the defendant either intentionally or negligently held a person out as their agent for services, (2) the plaintiff did in fact believe the person to be an agent of the defendant, (3) the plaintiff relied on the defendant's manifestation of agency, and (4) the plaintiff's reliance was justifiable.

Levesque, 2012 ME 109, ¶ 10 n.7, 52 A.3d 933 (citing Williams v. Inverness Corp., 664 A.2d 1244, 1246-47 (Me. 1995); see also Restatement (Second) of Agency § 267(1958) ("One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.").

The Law Court has also cited the Restatement (Third) of Agency, as authority on issues related to vicarious liability. See Fitzgerald, 2009 ME 115, ¶ 11, 983 A.2d 382; Picher v. Roman Catholic Bishop of Portland, 2009 ME 67, ¶ 32, 974 A.2d 286 ("[O]n remand, the court may look to these sections [of the Restatement (Third) of Agency] to provide the appropriate framework for analyzing the vicarious liability issues raised in this case."). The Restatement (Third) of Agency lowers the justifiable reliance standard to a reasonable belief standard:

Apparent authority is the power held by an agent or other actor to affect a principal's legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations.

Restatement (Third) of the Law of Agency § 2.03 (2006). Although the Law Court listed the elements from the Restatement (Second) in Levesque, the apparent agency issue was not addressed in that case and the Law Court did not explicitly reject the new Restatement's definition of apparent authority. Levesque, 2012 ME 109, ¶ 10, 52 A.3d 933. Because the Law Court has cited other sections of the Restatement (Third) of Agency, it is reasonable to assume the Law Court would follow the new definition for apparent agency in this context.

Courts in other jurisdictions have held that hospitals can be held liable for independent-contractor physicians' negligence under apparent agencyprinciples. Jones v. Healthsouth Treasure Valley Hosp., 206 P.3d 473, 480 (Idaho 2009); Estate of Cordero v. Christ Hosp., 958 A.2d 101, 107-08 (N.J. Super. Ct. App. Div. 2008); York v. Rush-Presbyterian-St. Luke's Med. Ctr., 854 N.E.2d 635, 662 (Ill. 2006); Simmons v. Tuomey Reg'l Med. Ctr., 533 S.E.2d 312, 323 (S.C. 2000). These courts emphasize the importance of the fact that the hospital referred the patient to the medical practitioner, who the patient assumed was an employee of the hospital. Jones, 206 P.3d at 480 ("[A] hospital may be found vicariously liable . . . for the negligence of independent personnel assigned by the hospital to perform support services." (emphasis added)); York, 854 N.E.2d at 660 ("[T]he critical distinction is whether the patient relied on the hospital for the provision of care or, rather, upon the services of a particular physician."); Estate of Cordero, 958 A.2d at 107 (imposing liability "when a hospital provides a doctor for its patient" and, based on the circumstances, the patient "reasonably believes the doctor's care is rendered on behalf of the hospital."); Simmons, 533 S.E.2d at 323 (limiting its holding "to those situations in which a patient seeks services at the hospital as an institution, and is treated by a physician who reasonably appears to be a hospital employee").

The Maine Superior Court also has considered the question of hospital liability based on apparent authority in several cases. Blake v. Andalkar, 2000 Me. Super. LEXIS 178, at *3 (July 31, 2000) (finding plaintiff failed to raise an issue of material fact on apparent agency); Delong v. MaineGeneral Med. Ctr., 2008 Me. Super. LEXIS 235, at *9 (Sept. 25, 2008) (same); Ricci v. Barr, 2012 Me. Super. LEXIS 152, at *11-12 (July 17, 2012) (same); Vincent v. Molin, 2004 WL 1925494 *3 (Me. Super. June 23, 2004) (finding plaintiff raised a genuine issue of material fact on issue of apparent agency) White v. MaineGeneral Med. Ctr., CV-09-06 at 11 (Me. Super. Ct., Cumb. Cnty., Sept. 24, 2010) (same) (Pl.'s Mem. Ex. A.) In White, similar to the cases from other jurisdictions, "the plaintiff played no role in selecting which doctors at MGMC would care for him." White, CV-09-06, at *11.

Plaintiff's case lacks the crucial element present in most cases imposing liability on a hospital on the basis of...