Following its 2016 decision in Cefaratti v. Aranow, where a hospital was held to be vicariously liable for the negligence of a non-employee physician who held hospital privileges, the Supreme Court of Connecticut recently decided that there was sufficient evidence to find a teaching hospital vicariously liable for the negligence of a surgical resident during a procedure which resulted in serious injuries to the patient.
In Gagliano v. Advanced Specialty Care, P.C., the Court disagreed with the Appellate Court’s finding of insufficient evidence to establish an agency relationship. Both courts noted that three elements are required to show the existence of an agency relationship: (1) a manifestation by the principal (i.e., the hospital) that the agent (the resident) will act for the principal; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking. The Appellate Court determined that the plaintiff’s evidence was insufficient to establish an understanding that the hospital would be in control of the resident’s performance during the surgery, but the Connecticut Supreme Court found that the term “undertaking” encompassed not only the resident’s performance of the surgery, but also the surgical residency itself, such that evidence that related to the hospital’s general right to direct and control the resident’s conduct as a medical resident could bear on the hospital’s right to control his surgical performance. The Court noted that only the general right to control, and not the actual exercise of specific control, must be established; in other words, agents may be vested with considerable discretion and independence in how they perform their work for the principal’s benefit, and yet still be deemed subject to the principal’s general right to control.
The hospital staff manual provided support for the Court’s decision. For example, the manual stated that the hospital’s executive vice president was charged with responsibility for the oversight and administration of the hospital’s residency programs and that all patient care had to be supervised by qualified faculty provided by the hospital. The Court also took witness testimony into account, including the testimony of the plaintiff’s standard of care expert that accreditation for teaching hospitals requires that residents be subject to the hospital’s quality control policies. The patient’s attending physician testified that while he did not believe that it was in his patient’s best interest to allow a resident to participate, he did so to advance the hospital’s expectation of involving its residents and that he understood that part of his responsibility as clinical faculty included his evaluation of resident performance. The Court also noted that while the hospital consent form authorized a surgical resident to participate in her surgery, the form also prominently displayed the hospital’s name and logo and provided no other indication that the residents listed on the form had any other affiliation.
The Court made clear that it was not deciding whether residents and physicians are “per se” agents of hospitals– only that the evidence in this case was sufficient to support the finding of an agency relationship. However, citing its earlier decision in Cefaratti, the Court noted that “[h]olding hospitals vicariously liable continues to support this state’s sound public policy of encouraging hospitals to formulate and implement effective quality control policies and to exercise better oversight of their employees and agents.” The Court also dismissed the notion that its decision would have a chilling effect on the number and scope of residency training opportunities, finding that residency programs provide teaching hospitals with both direct financial benefits (including federal funding for resident salaries, benefits and professional liability insurance) and indirect benefits (such as prestige in the health care community and a group of highly trained, low cost physicians who can provide round-the-clock care to hospital patients).