Richardson v. Kalvoda

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STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

DOCKET NO.~CY-10~6f.8 I

iVM- Ct~Ny '--aI' '/c;o 1t/

GEORGETTE Y. RICHARDSON,

Plaintiff

v. ORDER ON MOTION FOR

SUMMARY JUDGMENT

SHARON KAL VODA, et al.,

Defendants

This matter is before the court on defendant Parkview Adventist Medical

Center (P AMC)' s motion for summary judgment. Defendant P AMC alleges that

it cannot be held liable for the actions of Dr. Donald Kalvoda because he was an

independent contractor and not P AMC' s agent. Plaintiff Georgette Richardson

alleges that P AMC 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. err 25; Pl.'s Opp. S.M.F. err 51.) On 4/11/01, Dr.

Kalvoda performed a carpal tunnel release on plaintiff's right hand. (Def.'s Supp.

S.M.F. err 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. errerr 26-27.) On February 1, 2008, Dr. Kalvoda

performed a carpal tunnel release on plaintiff's left hand at PAM C. (De£.' s Supp.

S.M.F. err 29.) This second surgery is the subject of plaintiff's claim.

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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. err 17.) Dr.

Kalvoda was a member of the medical staff with clinical and surgical privileges

at P AMC. (Def.'s Supp. S.M.F. err 4.) Patients accessed Dr. Kalvoda's office by

walking through the front entrance of PAMC. (Pl.'s Opp. S.M.F.Cf[41.) From 2002

until 2010, Dr. Kalvoda was the only orthopedic surgeon who provided on-call

services for P AMC, and he was the primary orthopedic surgeon for the hospital

other than a period in 2004 to 2005 when P AMC employed an orthopedic

surgeon. (Pl.'s Opp. S.M.F.Cf[36.)

P AMC 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. 155.) Plaintiff did not see

any materials indicating Dr. Kalvoda was not an employee of PAMC. (Pl.'s Opp.

S.M.F. err 58.) Plaintiff read various P AMC 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. 149.)

On 9/1/06, Dr. Kalvoda contracted with PAMC to provide additional on-

call orthopedic coverage for P AMC' 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. errerr 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.Cf[Cf[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. 1 32) On

April 6, 2010, PAMC hired Dr. Kalvoda as an employee on an as-needed basis to

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help him cover the costs of his malpractice insurance while he could not see

patients and earn income. (Def.'s Supp. S.M.F. <J[ 34.) Dr. Kalvoda did not provide

any medical services on behalf of P AMC from April 6, 2010 until his death on

July 9, 2010. (Def.'s Supp. S.M.F. <J[ 35.)

PROCEDURAL HISTORY

Plaintiff filed her complaint on 10124112 against Dr. Kalvoda, the

personal representative of the estate of Dr. Kalvoda, and P AMC. Defendant

P AMC filed this motion for summary judgment on 9 I 6 I 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, <J[ 9, 983 A.2d

382 (citing Dyer v. Dep't of Transp., 2008 ME 106, <J[ 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, <J[ 10, 956 A.2d 104 (citing Univ. of Me. Found. v. Fleet Bank of Me., 2003

ME 20, <J[ 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, <J[ 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 of

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success 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 P AMC 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 P AMC' 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

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Defendant PAMC argues as a threshold matter that the Court should not entertain plaintiff's

theory of apparent agency. Def.'s Mem. 7-8; Def.'s Reply Mem. 1-5. The defendant relies on

Gafner v. Down East Community Hospital, in which the Law Court declined to adopt the

"corporate liability" cause of action in Maine. Gafner v. Down E. Cmty. Hosp., 1999 ME 130, <J[ 44,

735 A.2d 969. Defendant argues that because the Law Court has not applied apparent agency to a

hospital-physician relationship, this Court cannot adopt this new cause of action following the

Law Court's reasoning in Gafner.

Defendant PAMC's reliance on Gafner in this context is misplaced. In Gafner, the Law

Court considered whether to adopt a cause of action referred to as corporate liability, which

encompasses "theories of liability predicated upon a more general obligation of hospitals to

insure the quality of care within the institution." Gafner, 1999 ME 130, <J[ 31, 735 A.2d 969.

Apparent authority is not a new cause of action and has been recognized in Maine for years. See

~ Twin Island Dev. Corp. v. Winchester, 512 A.2d 319, 326-27 (Me. 1986) (upholding a jury

finding of apparent authority). Moreover, the Gafner court explicitly stated that the term

corporate liability did not "incorporate concepts of vicarious liability." Gafner, 1999 ME 130, <J[

31, 735 A.2d 969.

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(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, <JI

11, 983 A.2d 382; Picher v. Roman Catholic Bishop of Portland, 2009 ME 67, <J[ 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, <J[ 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 agency

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principles. 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-

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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 apparent authority. Plaintiff was not

referred to Dr. Kalvoda by PAMC. She was referred by her neurologist, Bernard

P. Vigna, M.D. Dr. Vigna worked with Peter A. Bridgman, M.D., who provided

services to PAMC. (Pl.'s Opp. S.M.F. <JI 51.) She returned to Dr. Kalvoda in 2008

because he had previously operated on her in 2001. (Def.'s Supp. S.M.F. <JI<JI 25-

28.) She stated she was familiar with Dr. Kalvoda from her previous surgery he

performed. (Def.'s Supp. S.M.F. <JI 28.)

Many of P AMC' s actions plaintiff relies on for support are insufficient to

raise an issue of material fact because plaintiff fails to show that she based her

belief on those actions. See Restatement (Third) of Agency § 2.03 cmt. c

("Apparent authority holds a principal accountable for the results of third-party

beliefs about an actor's authority to act as an agent when the belief is reasonable

and traceable to a manifestation of the principal.") Plaintiff states that P AMC's

website listed Dr. Kalvoda as an orthopedic surgeon at PAMC. (Pl.'s Opp. S.M.F.

<JI 46.) The website printout offered by plaintiff is from September 2008, more

than six months after the surgery. (Pl.'s Opp. S.M.F. <JI 46; Exhibit E.) Plaintiff

does not state that she visited PAMC's website before her surgery. In addition,

plaintiff states that Dr. Kalvoda would periodically present lectures sponsored

by P AMC, but nothing in the record establishes that plaintiff was aware of these

lectures before the surgery. (Pl.'s Opp. S.M.F. <JI 48.) Plaintiff claims that when

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P AMC advertised the specialty services at the hospital, it included a picture of

Dr. Kalvoda. 2 (Pl.'s Opp. S.M.F. err 47.) Again, plaintiff does not state that she ever

viewed such advertisements. (Pl.'s Opp. S.M.F. err 48.) Plaintiff states Dr. Kalvoda

was the President of the Physician Hospital Organization at P AMC, but plaintiff

does not state she was aware of this fact prior to her surgery or explain what that

title means. 3 (Pl.'s Opp. S.M.F. <J[ 39.) The fact the hospital's address listed on

plaintiff's surgery discharge papers was the same as Dr. Kalvoda's address on

his letterhead would not have been known to plaintiff before surgery. (Pl.'s Opp.

S.M.F. <J[ 54.) Similarly, action taken by PAMC in July 2010 is irrelevant. (Pl.'s

Opp. S.M.F. err 50.)

Other facts plaintiff relies on are irrelevant because they concern actions

taken by Dr. Kalvoda. Libby v. Concord Gen. Mut. Ins. Co., 452 A.2d 979, 982

(Me. 1982) ("Apparent authority exists only when the 'conduct of the principal

leads a third person to believe that a given party is his agent."' (quoting Brown v.

Manchester, 384 A.2d 449, 453 n.4 (Me. 1978)). Dr. Kalvoda's failure to inform

plaintiff that he was not an agent of the hospital or that his forms failed to

disclose that he was an independent contractor are insufficient to raise an issue

of material fact. (Pl.'s Opp. S.M.F. errerr 55, 57.)

The facts on which plaintiff properly relies to establish apparent agency,

include: (1) Dr. Kalvoda' s office is located in P AMC, (2) plaintiff's surgery was

2

In addition to not establishing reliance for this fact, plaintiff's record citation does not support

that PAMC definitely used Dr. Kalvoda's picture to advertise its specialty services apart from the

Lifestyle Choices lectures. See Lewis Dep. 18:6-23.

3

Plaintiff cites to a website to define physician hospital organization. Because the content of this

site is not admissible in this form at trial, the court cannot rely on this at the summary judgment

stage. See Levine v. R.B.K. Caly Corp., 2001 ME 77, <J[ 6, 770 A.2d 653 ("A statement of material

facts must be numbered, concise, and contain specific record references to each proffered fact.

The record references must refer to evidence of a quality that could be admissible at trial."

(internal citations and emphasis omitted)).

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performed at PAMC/ (3) P AMC did not disclose at any time that Dr. Kalvoda

was not an employee or agent of the hospital, (4) plaintiff did not see any

materials indicating Dr. Kalvoda was not an employee of PAMC, and (5) plaintiff

read publications from P AMC that listed Dr. Kalvoda as a staff physician and

President Elect of the Medical Staff Leadership at the hospital. 5 (Pl.'s Opp. S.M.F.

<J[<J[ 41, 49, 56, 58; Def.'s Supp. S.M.F. <J[ 29.)

Of the cases cited by plaintiff, only Vincent involves facts potentially

similar to those in this case. 6 In Vincent, the court, in denying the hospital's

motion for summary judgment, relied on "evidence that Dr. Molin was the

director of the Mercy Hospital Breast Health Resource Center, that Dr. Molin's

office was located in Mercy Hospital, that Dr. Molin was understood by Vincent

to be the head of Mercy's breast cancer center, and that Vincent relied on Dr.

Molin's connection with Mercy." Vincent, 2004 WL 1925494, at *3. The court

specifically noted the doctor's title: "If Mercy vested Dr. Molin with the title of

director of the 'Mercy Hospital Breast Health Resource Center,' there is an issue

for trial as to whether Marcy [sic] led Vincent to justifiably believe that Dr. Molin

was an agent of the hospital." Id.

4

Although plaintiff states that almost all of Dr. Kalvoda' s surgeries were performed at P AMC,

there is no suggestion the plaintiff was aware of that fact. (Pl.'s Opp. S.M.F. <J[ 42.)

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Facts 1 - 4 are insufficient, alone, for a trier-of-fact to conclude plaintiff reasonably believed Dr.

Kalvoda was PAMC's apparent agent for several reasons. Private doctors routinely practice in

hospitals as independent contractors, and the legislature has promulgated specific regulations for

this relationship. Gafner, 1999 ME 130, <J[ 39, 735 A.2d 969 ("[T]he legislature has considered the

relationship between hospitals and physicians and has placed very specific duties upon

hospitals."). Accordingly, a physician practicing in a hospital does not necessarily support a

reasonable belief that the physician is an employee of that hospital. P AMC' s failure to explicitly

inform plaintiff that Dr. Kalvoda was not an employee is less critical here because PAMC did not

refer plaintiff to Dr. Kalvoda.

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It is unclear from the facts as described in Vincent how the patient came to see the doctor but the

justice relied on other information for support. Vincent v. Molin, 2004 WL 1925494 *3 (Me. Super.

June 23, 2004).

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In this case, plaintiff read various P AMC publications placed in

physicians' waiting rooms, which listed Dr. Kalvoda as an "active staff

physician" at P AMC and the "President Elect for the Medical Staff Leadership at

PAMC." 7 This fact, considered with the location of Dr. Kalvoda' s office, the

location of plaintiff's surgery, PAMC' s failure to disclose, and plaintiff's failure

to see, any information that Dr. Kalvoda was not an employee of P AMC, is

sufficient to raise a genuine issue of material fact with regard to whether plaintiff

justifiably believed Dr. Kalvoda was an agent of PAMC. (Pl.'s Opp. S.M.F. 'li'li 41,

49, 56, 58; Def.'s Supp. S.M.F. 'li 29.) Summary judgment for the defendant is not

appropriate. See Curtis, 2001 ME 158, 'li 7, 784 A.2d 18.

The entry is

Defendant Parkview Adventist Medical Center's

Motion for Summary Judgment is DENIED.

Date: February 11, 2014

ncy Mills

Justice, Superior

7

The statement of fact does not include the allegation that plaintiff read the publications. In the

paragraph of the plaintiff's affidavit referenced in the statement of fact, plaintiff does state she

read the publications from 1995, 1997, and 1999. (Pl.'s Opp. S.M.F. <JI 49; Pl.'s Aff. <JI 9.) See HSBC

Bank USA, N.A. v. Gabay, 2011 ME 101, <JI 8, 28 A.3d 1158 (explaining that the court need

"consider only the material facts set forth, and the portions of the record referred to, in the

statements of material facts.") The court will consider the statement in the affidavit on this

important issue.

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