Gagliano v. Advanced Specialty Care, P.C. ( 2016 )

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VIVIAN GAGLIANO ET AL. v. ADVANCED
SPECIALTY CARE, P.C., ET AL.
(AC 37413)
Beach, Alvord and Gruendel, Js.
Argued April 12—officially released August 30, 2016
(Appeal from Superior Court, judicial district of
Danbury, Ozalis, J.)
Michael G. Rigg, for the appellant (defendant Dan-
bury Hospital).
Alinor C. Sterling, with whom, on the brief, was
Joshua D. Koskoff, for the appellees (plaintiffs).
Jennifer L. Cox and Jennifer A. Osowiecki filed a
brief for the Connecticut Hospital Association as ami-
cus curiae.
Roy W. Breitenbach and Michael J. Keane, Jr., filed
a brief for the Fairfield County Medical Association as
amicus curiae.
Opinion
ALVORD, J. The defendant, Danbury Hospital (hospi-
tal), appeals from the judgment of the trial court, ren-
dered 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 code-
fendant, 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 not-
withstanding 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 rele-
vant to this appeal. On July 23, 2008, the plaintiff under-
went 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 admit-
ted 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. Boda-
vula 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 con-
cerned that Dr. Bodavula was improperly using the opti-
cal 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. Gor-
don, 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 hospi-
tal 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 man-
ual 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 rele-
vant 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 bene-
fits. The section on benefits included details about rent-
free housing, vacation and sick leave, as well as insur-
ance. It also stated: ‘‘Danbury Hospital will provide a
salary to the Resident, as specified in the Danbury Hos-
pital Resident Agreement.’’ There was no evidence sub-
mitted 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 sup-
port services. This section included information on the
hospital pharmacy, instructions on how to order a con-
sultation from a cardiologist, and protocols for imple-
menting 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 pro-
vided 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 opportu-
nity 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 pro-
gram’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 pro-
cedures governing a resident’s participation in a surgi-
cal procedure. Dr. Gordon testified that it was within
his discretion to determine the resident’s level of
involvement during a surgical procedure. He also testi-
fied 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. Boda-
vula 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 evi-
dence 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 by the
chief resident. This appeal followed.
As the present case involves a motion to set aside the
verdict made in conjunction with a motion for judgment
notwithstanding the verdict, on the basis of the same
grounds, we will treat the two motions as one for pur-
poses of our resolution of the hospital’s claim. Mac-
chietto v. Keggi, 103 Conn. App. 769, 779, 930 A.2d 817,
cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). ‘‘Our
review of the trial court’s refusal to [grant the motions]
requires us to consider the evidence in the light most
favorable to the prevailing party, according particular
weight to the congruence of the judgment of the trial
judge and the jury, who saw the witnesses and heard
their testimony. . . . The verdict will be set aside and
judgment directed only if we find that the jury could not
reasonably and legally have reached their conclusion.’’
(Internal quotation marks omitted.) Suarez v. Dickmont
Plastics Corp., 242 Conn. 255, 277, 698 A.2d 838 (1997).
‘‘The standard governing our review of a motion for
judgment notwithstanding the verdict is the same as
the standard applied to a court’s decision to direct a
verdict because a motion for judgment notwithstanding
the verdict is not a new motion, but the renewal of a
motion for a directed verdict. . . . Whether the evi-
dence presented by the plaintiff was sufficient to with-
stand a motion for a directed verdict is a question of law,
over which our review is plenary.’’ (Citation omitted;
internal quotation marks omitted.) Millette v. Connecti-
cut Post Ltd. Partnership, 143 Conn. App. 62, 67–68,
70 A.3d 126 (2013). ‘‘The defendant must overcome a
high threshold to prevail on either a motion for a
directed verdict or a motion to set aside a judgment.
. . . A directed verdict is justified if . . . the evidence
is so weak that it would be proper for the court to set
aside a verdict rendered for the other party.’’ (Internal
quotation marks omitted.) Rawls v. Progressive North-
ern Ins. Co., 310 Conn. 768, 775, 83 A.3d 576 (2014).
Similarly, ‘‘[a] motion to set aside the verdict should
be granted if the jury reasonably and legally could not
have reached the determination that they did in fact
reach. . . . [Put differently], [i]f the jury, without con-
jecture, could not have found a required element of the
cause of action, it cannot withstand a motion to set
aside the verdict. . . . Thus, the role of the trial court
on a motion to set aside the jury’s verdict is not to sit
as [an added] juror, but, rather, to decide whether,
viewing the evidence in the light most favorable to the
prevailing party, the jury could reasonably have reached
the verdict that it did. . . . As a corollary, it is the
court’s duty to set aside the verdict when it finds that
it does manifest injustice, and is . . . palpably against
the evidence.’’ (Citations omitted; internal quotation
marks omitted.) Marciano v. Kraner, 126 Conn. App.
171, 177, 10 A.3d 572, cert. denied, 300 Conn. 922, 14
A.3d 1007 (2011).
We turn now to the doctrine of vicarious liability
under which the jury concluded that the hospital was
liable. ‘‘[V]icarious liability is premised upon the general
common law notion that one who is in a position to
exercise some general control over the situation must
exercise it or bear the loss. . . . Put differently, a fun-
damental premise underlying the theory of vicarious
liability is that an employer exerts control, fictional
or not, over an employee acting within the scope of
employment, and therefore may be held responsible
for the wrongs of that employee.’’ (Citation omitted;
internal quotation marks omitted.) Jagger v. Mohawk
Mountain Ski Area, Inc., 269 Conn. 672, 693 n.16, 849
A.2d 813 (2004). ‘‘Before vicarious liability can be
imposed, however, there must be sufficient evidence
produced to warrant a finding of agency between the
parties. If there is a finding that the allegedly negligent
actor is not an employee or agent, then the claim of
vicarious liability must fail.’’ Cefaratti v. Aranow, 154
Conn. App. 1, 29, 105 A.3d 265 (2014), rev’d on other
grounds, 321 Conn. 593, A.3d (2016).10
‘‘Agency is defined as the fiduciary relationship which
results from manifestation of consent by one person to
another that the other shall act on his behalf and subject
to his control, and consent by the other so to act. . . .
Thus, the three elements required to show the existence
of an agency relationship include: (1) a manifestation
by the principal that the agent will act for him; (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.’’ (Citation omitted;
internal quotation marks omitted.) Bellsite Develop-
ment, LLC v. Monroe, 155 Conn. App. 131, 142, 122 A.3d
640, cert. denied, 318 Conn. 901, 122 A.3d 1279 (2015).
‘‘Some of the factors listed by the Second
Restatement of Agency in assessing whether such a
relationship exists include: whether the alleged princi-
pal has the right to direct and control the work of
the agent; whether the agent is engaged in a distinct
occupation; whether the principal or the agent supplies
the instrumentalities, tools, and the place of work . . .
and the method of paying the agent. . . . In addition,
[a]n essential ingredient of agency is that the agent is
doing something at the behest and for the benefit of the
principal. . . . Finally, the labels used by the parties in
referring to their relationship are not determinative;
rather, a court must look to the operative terms of
their agreement or understanding.’’ (Citations omitted;
internal quotation marks omitted.) Beckenstein v. Pot-
ter & Carrier, Inc., 191 Conn. 120, 133–34, 464 A.2d 6(1983). ‘‘The burden of proving agency is on the party
asserting its existence.’’ New England Whalers Hockey
Club v. Nair, 1 Conn. App. 680, 683, 474 A.2d 810 (1984).
We conclude, as a matter of law, that the trial court
erred by denying the hospital’s motions to set aside
the verdict and render judgment notwithstanding the
verdict in the hospital’s favor. The plaintiffs produced
insufficient evidence 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 should not have been held
vicariously liable for the plaintiff’s injuries. Viewing the
evidence in the light most favorable to the plaintiffs,
the evidence presented was so lacking that it could not
establish that there was an understanding between Dr.
Bodavula and the hospital that the hospital would be
in control of Dr. Bodavula’s performance of the surgery.
The plaintiffs suggest that the evidence demonstrated
that the hospital controlled many aspects of a resident’s
work at the hospital and, therefore, the hospital must
have also been in control of a resident’s performance of
surgical procedures, regardless of whether an attending
physician was present and had overall responsibility
for the patient. It is plausible that some of the evidence,
viewed out of context, could have suggested an agency
relationship, but when the evidence is viewed in context
and focused on the plaintiff’s surgery alone, it was the
court’s duty to set aside the verdict because it was
palpably against the evidence presented.
Medical residency programs are unique in that they
have both academic and employment characteristics.
See Gupta v. New Britain General Hospital, 239 Conn.
574, 586–87, 687 A.2d 111 (1996). The evidence in this
case suggested that the nature of the medical resident’s
relationship to the hospital was controlled by a resi-
dency agreement, but that agreement was not intro-
duced into evidence. In fact, the plaintiffs did not
produce any direct evidence to support their position
that the hospital was in control of the surgical proce-
dure. Instead, the plaintiffs relied extensively on cir-
cumstantial evidence, including the content of the
hospital’s manual. The manual was entered into evi-
dence without the necessary context to determine
whether it contemplated an academic relationship or
an employment relationship, or both. It was most nota-
bly not established that the provisions of the manual
were intended to regulate surgical procedures. Further-
more, other circumstantial evidence produced by the
plaintiffs, e.g., security badges, could not lead to a rea-
sonable inference of agency by the jury.
The relationship between a resident and a hospital
is unique. See id., 586. As our Supreme Court noted in
Gupta, these types of relationships may be of a hybrid
nature, with both academic and employment features.
Id. By definition, agency is an agreement between par-
ties that authorizes the principal to control certain
aspects of the agent’s conduct. See Bellsite Develop-
ment, LLC v. Monroe, supra, 155 Conn. App. 142. During
the trial, the plaintiffs referred to the residency
agreement,11 and the manual that had been entered into
evidence referred to the residency agreement,12 but the
residency agreement itself was not entered into
evidence.
At a minimum, to determine any agency relationship,
let alone one involving a medical resident, ‘‘a court
must look to the operative terms of their agreement
or understanding.’’ (Internal quotation marks omitted.)
Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn.
133–34. In the context of a medical residency program,
the residency agreement is a critical tool to aid the
finder of fact in determining whether an agency relation-
ship existed. In Gupta, Chief Justice Peters looked to
the residency agreement to determine a medical resi-
dent’s employment status for purposes of his claim that
he was an employee under contract with New Britain
General Hospital and that he had been wrongly dis-
missed. Gupta v. New Britain General Hospital, supra,
239 Conn. 582. After interpreting the agreement, Chief
Justice Peters concluded that the resident’s relationship
to the hospital and the hospital’s decision to dismiss
him was an academic decision. Id., 584–85.
In Gupta, the nature of the medical resident’s rela-
tionship to the hospital, as it related to the claim in
question, was integral to the resolution of the case.
Determining whether the plaintiff resident in that case
was acting as an employee or a student was an exercise
similar to the resolution of whether the resident was
an agent of the hospital for purposes of assisting in
the plaintiff’s surgery.13 An assessment of a resident’s
employment status ‘‘is purely a question of law’’ and
‘‘must take into account the language of the residency
agreement as well as any circumstances that might illu-
minate our interpretation of this language.’’14 Id., 582.
‘‘In the absence of any question of fact, the proper
characterization of the residency agreement, as a matter
of law, implicates a number of factors, including the
language of the agreement, the purpose of the parties
in entering into the agreement, and the institutional
setting of the agreement.’’ Id., 583. Without the resi-
dency agreement, this foundational analysis could not
be performed in this case.
The glaring absence of the residency agreement was
all the more relevant because the surgical residency
program was managed and shared among several orga-
nizations and parties.15 As the manual stated, this was an
integrated residency program involving three separate
organizations: the hospital, Sound Shore Medical Cen-
ter, and New York Medical College.16 In addition, faculty
physicians with hospital privileges supervised residents
during surgical procedures and evaluated their perfor-
mance.17 Critical factual evidence regarding the com-
plex relationships involved in this surgical residency
program was not presented at trial. The plaintiffs were
not under any requirement to enter the residency
agreement into evidence. However, without the resi-
dency agreement, the jury was left with an incomplete
picture of the residency program and the precise nature
of the hospital’s relationship with its residents, includ-
ing Dr. Bodavula, in order to allow for a finding of
agency.
The plaintiffs did not present any evidence that spe-
cifically showed that Dr. Bodavula had agreed to act
or was authorized to act as an agent of the hospital
during the plaintiff’s surgery. The critical question was
whether the hospital had a right to control Dr. Bodavu-
la’s performance of the surgery. See Cefaratti v. Ara-
now, supra, 154 Conn. App. 34. There was not sufficient
evidence to satisfy the burden of proof of agency.18
The evidence suggested that only Dr. Gordon was ‘‘in
control’’ of Dr. Bodavula during the course of the plain-
tiff’s surgery. The hospital did not dictate how Dr. Gor-
don was to utilize the assistance of the resident, and
there was no evidence of standard procedures that regu-
lated the conduct of Dr. Gordon and Dr. Bodavula in
relation to the surgery.19
At all times, the only conclusion rationally drawn
from the evidence was that Dr. Gordon was in command
of the plaintiff’s surgery.20 Dr. Gordon testified: ‘‘[T]his
is a resident in training and I’m his instructor, I’m watch-
ing his moves very carefully, and I’m standing, literally,
right behind him, over his shoulder . . . .’’ The plain-
tiffs did not produce any evidence to contradict Dr.
Gordon’s testimony that he, and not the hospital, was
in control of Dr. Bodavula’s performance of the surgical
tasks in the operating room.21 It was the plaintiffs’ bur-
den to prove agency. See New England Whalers Hockey
Club v. Nair, supra, 1 Conn. App. 683.
Instead, the plaintiffs attempted to prove that an
agency relationship existed by presenting circumstan-
tial evidence, including the hospital’s house staff man-
ual.22 We conclude that this reliance was misplaced
for purposes of determining agency.23 The manual was
insufficient to permit a finding that an agency relation-
ship existed between the hospital and Dr. Bodavula
regarding the plaintiff’s surgery. A close and careful
reading of the manual reveals no contractual language
or agreement between the parties creating an agency
relationship for purposes of assisting in surgical proce-
dures. Rather, the manual was controlled by the resi-
dency agreement and in fact referred to the residency
agreement for specific details. As the benefits section
of the manual stated: ‘‘Danbury Hospital will provide a
salary to the Resident, as specified in the Danbury
Hospital Resident Agreement.’’ (Emphasis added.)
In the context of the residency program, the manual
was insufficient to support the existence of an agency
relationship in the conduct of surgery. In Gupta, Chief
Justice Peters employed a functional analysis: ‘‘Because
of the hybrid nature of the residency agreement, we
conclude that the agreement is more properly interpre-
ted, under any particular set of circumstances, by a
functional analysis of its terms in relationship to the
nature of the alleged breach, rather than by an overarch-
ing search for the purpose or purposes of the parties.’’
Gupta v. New Britain General Hospital, supra, 239
Conn. 586. Chief Justice Peters noted: ‘‘Arthur Corbin
commented perceptively on the utility of a judicial
search for the principal purpose of a contract when he
wrote: ‘How is a court to discover what was the princi-
pal purpose of the parties or whether they had any? It
is certain, in practically all business transactions, that
they had different purposes, at least in part. Their princi-
pal purpose, or their separate and diverse purposes,
can not be determined by a process that is wholly inde-
pendent of the words of the agreement.’ ’’ Id., 586 n.11.
In this case, the jury was left to determine the princi-
pal purpose of the parties’ relationship solely through
the 231 page manual, without ‘‘the language of the resi-
dency agreement’’; id., 582; and without context. The
manual did not describe the relationship between aca-
demics and work, or explain where the line between
the two diverse roles was drawn.24 As a result, the jury
was not in a position to consider whether the hospital
had the right to control Dr. Bodavula’s performance of
the surgery because, as the court in Gupta noted, if
this was an academic relationship then the right to
control test was not appropriate. ‘‘We have used the
right to control test to distinguish between an indepen-
dent contractor and an employee. . . . That test has
no relevance, however, to the criteria for differentiation
between a student and an employee. Indeed, it is a
premise of the right to control test that what is at issue
is the control of the means and methods of work . . .
thus assuming the very point that is presently at issue.’’
(Citations omitted; internal quotation marks omitted.)
Id., 588. There is an inherent level of control in the
academic setting, but it is a different nature and degree
of control than is present in the employer-employee
relationship.25 For example, in the academic setting the
term ‘‘evaluate’’ generally means that a person will be
graded on their work,26 but in the employment setting
it can refer to a method used to control a person’s work.
The plaintiffs highlighted for the jury’s consideration a
section of the manual that referenced ‘‘surgical skills
evaluations,’’ but without necessary context there was
no way for the jury to determine whether this evaluation
was an academic or employment exercise and, thus,
whether it created an agency relationship between the
resident and the hospital.
The scope and applicability of the manual limited its
effectiveness for a finding of agency. The scope of the
manual focused on protocols, not control of resident
performance and execution of surgical procedures. The
trial court, in its ruling, cited to the manual as requiring
Dr. Bodavula to comply with the hospital’s ‘‘obligations,
protocols, and rules,’’ but the section of the manual that
was referenced applied generally to all of the residency
programs at the hospital. The chapter on the surgical
residency program provided more tailored guidance.
The introduction stated: ‘‘Surgical residents have an
opportunity to study under attending surgeons who
have had their own training at multiple academic institu-
tions.’’ (Emphasis added.) The duties and responsibili-
ties listed in the surgery chapter of the manual pertained
to seeing and evaluating general surgery in-patients out-
side of the operating room. These inpatient surgical
resident duties included conducting morning rounds,
ordering laboratory testing, and updating progress
notes. The duties did not include participating in surgi-
cal procedures. In fact, satisfactory completion of the
listed duties was a prerequisite to observing and partici-
pating in surgical procedures.27 Surgical residents
would be evaluated on their manual dexterity in the
operating room and their overall surgical skills, but
these evaluations appeared to be a part of the resident’s
academic ascension.28
There were also general issues of applicability per-
taining to the manual that, again, limited its effective-
ness for a finding of agency. It was unclear which
provisions of the manual applied to surgical residents.29
Eight diverse residency programs were discussed in the
manual. Some of the residency programs were organic
to the hospital, yet others, including the surgery pro-
gram, were shared across other organizations.30
In its memorandum of decision, the court concluded
that ‘‘[the hospital’s] manual belies its contentions that
it had no ability to control, assign and/or structure the
work that Dr. Bodavula would do in its organization.’’
As support, the trial court cited to the manual to con-
clude that Dr. Bodavula received from the hospital: a
salary, rent-free housing, vacation time, sick time, and
professional liability insurance. However, Dr. Bodavula
testified that the hospital did not pay him,31 and no
evidence was presented to show that Dr. Bodavula was
provided housing,32 or to show that he received any
employment benefits.33 There is no question that the
hospital exercised some level of control over some of
Dr. Bodavula’s activities that were conducted at the
hospital. However, the circumstances of this case raise
a more specific question: whether the hospital was ‘‘in
control’’ of Dr. Bodavula’s performance of the plaintiff’s
surgery. The plaintiffs presented insufficient evidence
to properly allow for the question to be affirmatively
answered.
The remaining circumstantial evidence that was pre-
sented was not sufficient to support a finding of agency.
The plaintiffs produced evidence to show that Dr. Boda-
vula was directed to the plaintiff’s surgery by the chief
resident of the surgical residency program, but the
plaintiffs did not present any evidence to show that
the chief resident was an agent of the hospital for the
purpose of the conduct of surgery. In the memorandum
of decision, the trial court cited to evidence that Dr.
Bodavula was assigned to the plaintiff’s surgery by the
chief resident and saw patients according to the chief
resident’s instructions. According to the hospital’s man-
ual, the chief resident had authority to set the ‘‘precise
structure of the rotation . . . .’’ However, testimony
from Dr. Bodavula and Dr. Gordon indicated that the
chief resident’s relationship to the hospital was similar
in nature to Dr. Bodavula’s relationship.34 Given the
uncertainty of the chief resident’s relationship to the
hospital, he or she could not serve as the link to a finding
that there was express authority for Dr. Bodavula to
act as the hospital’s agent during the plaintiff’s surgery.
Finally, the trial court cited as support for its judg-
ment that Dr. Bodavula wore a Danbury Hospital badge,
but this evidence does not aid the analysis for determin-
ing agency. Hospitals regularly control access for secu-
rity purposes. A grant of access to the hospital has no
bearing on how surgery is performed. Dr. Bodavula’s
hospital badge does not prove that there was an under-
standing between him and the hospital that the hospital
had the right to control Dr. Bodavula during the plain-
tiff’s surgery.
The plaintiffs failed to produce sufficient evidence
from which the jury reasonably could have concluded
that Dr. Bodavula was an agent of the hospital for pur-
poses of assisting in the plaintiff’s surgery. As such, the
hospital should not have been held vicariously liable.
Viewing the evidence in the light most favorable to the
plaintiffs, we conclude that the evidence was ‘‘so weak
that it would be proper for the court to set aside [the]
verdict rendered’’ in favor of the plaintiffs. (Internal
quotation marks omitted.) Rawls v. Progressive North-
ern Ins. Co., supra, 310 Conn. 775. The trial court’s
ruling, denying the hospital’s motion to set aside the
verdict or to render judgment notwithstanding the ver-
dict, relied almost exclusively on the hospital’s manual.
The manual, which Dr. Bodavula claimed he could not
recall receiving, did not serve as a contract between him
and the hospital, did not appear to be fully applicable to
the surgical residency program, and did not address
control over a resident during a surgical procedure. The
trial court erred by not granting the hospital’s motions
to set aside the verdict and for judgment notwithstand-
ing the verdict.
The judgment is reversed only as to the defendant
hospital and the case is remanded with direction to
render judgment for the hospital. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
Throughout this opinion, when we refer to the plaintiff in the singular
form we are referring to Vivian Gagliano.
2
Prior to the commencement of the trial, the Gaglianos settled their claims
with and withdrew the complaint against Dr. Joseph R. Gordon, the attending
physician responsible for the plaintiff’s surgery, and his practice, Advanced
Specialty Care, P.C. Dr. Bodavula did not appeal from the trial court’s
judgment.
3
Because we have concluded that there was insufficient evidence to
establish agency between the hospital and the medical resident, we decline
to review the hospital’s claim that, as a matter of law, it could not be
held vicariously liable because a state statute precludes it from practicing
medicine or controlling the medical decisions of licensed medical profes-
sionals.
4
Dr. Gordon had two offices and neither was located at the hospital.
5
‘‘A residency training program provides medical school graduates with
the clinical training necessary for board certification in specialty or subspeci-
alty areas. . . . A residency is, in many respects, part of an educational
continuum begun in medical school. . . . [R]esidents are physicians in tran-
sition . . . . The ultimate objective of the residency program is to educate
the physician in the healing arts. Rather than relying on book study alone,
a residency program achieves this result by involving the physician in day-
to-day patient care and specialized clinical activities.’’ (Citations omitted;
internal quotation marks omitted.) Gupta v. New Britain General Hospital,
239 Conn. 574, 587, 687 A.2d 111 (1996).
6
On May 29, 2013, Sound Shore Medical Center filed for bankruptcy. The
Bankruptcy Court approved a stipulation limiting Sound Shore Medical
Center’s financial liability, for Dr. Bodavula’s alleged negligence, to the
amount of any available insurance coverage. The plaintiffs’ counsel
addressed the stipulation with the trial court in this case: ‘‘There’s one
collateral issue that we’ve bundled into this, which is that, as the court is
aware, plaintiffs signed a stipulation, with Dr. Bodavula, in order to proceed
against him, outside of the—or with the permission of the bankruptcy court.
[Danbury Hospital is] not a beneficiary to that agreement, it doesn’t affect
the hospital’s liability in any way, and we just needed to confirm that with
the hospital, on the record, such that, in the event there’s a verdict against
the hospital and it is in excess of—Dr. Bodavula’s million dollar policy, the
hospital’s responsible for, basically, dollar one, after a million, assuming that,
obviously, the jury finds agency, but that those two liabilities are separate.’’
7
The following colloquy occurred between the plaintiffs’ counsel and
Dr. Bodavula:
‘‘[The Plaintiffs’ Counsel]: Okay. And, they gave you a manual, correct?
‘‘[Dr. Bodavula]: I don’t—I don’t remember.
‘‘[The Plaintiffs’ Counsel]: Well, it was a while ago, but let me show you,
do you recall that, in your residency, you would be provided manuals, in
this case, from the Danbury Hospital? . . .
‘‘[Dr. Bodavula]: I don’t—they must have given, during the orientation,
but I don’t remember, specifically, and I did—I don’t know whether I kept
it or—
‘‘[The Plaintiffs’ Counsel]: Okay. So, if there was a house staff manual,
it’s—you understand that you would be expected to live up to the obligations
in that manual, correct?
‘‘[Dr. Bodavula]: Yes.’’
8
The following colloquy occurred between the plaintiffs’ counsel and
Dr. Gordon:
‘‘[The Plaintiffs’ Counsel]: And, when the house staff manual refers to
faculty, it’s referring to the teaching faculty at the hospital, right?
‘‘[Dr. Gordon]: Yes.
‘‘[The Plaintiffs’ Counsel]: And that would have included you in 2008 for
the surgical residency program, correct?
‘‘[Dr. Gordon]: I believe so.’’
9
The interrogatories provided to the jury first asked if Dr. Bodavula was
negligent in his performance while assisting with the plaintiff’s surgery.
Because the jury answered yes, the jury was required to determine whether
the hospital would be held liable. The form stated: ‘‘Do you find that Dr.
Bodavula was an actual agent of Danbury Hospital as of July 23, 2008? . . .
If yes . . . you have reached a verdict against Danbury Hospital in favor
of Vivian and Phil Gagliano.’’ The jury marked the line indicating yes.
Once there has been a finding of agency, vicarious liability attaches to
the principal. See Cefaratti v. Aranow, 154 Conn. App. 1, 29, 105 A.3d 265(2014), rev’d on other grounds, 321 Conn. 593, A.3d (2016). On the
basis of the jury’s finding of agency, the hospital was vicariously liable for
the plaintiff’s injuries that were caused by Dr. Bodavula’s negligence.
10
In Cefaratti v. Aranow, 321 Conn. 593, 609, A.3d (2016), our
Supreme Court recently held that ‘‘both the doctrine of apparent authority
and the doctrine of apparent agency may be applied in tort actions.’’ The
Supreme Court specifically stated: ‘‘[W]e adopt the following alternative
standards for establishing apparent agency in tort cases. First, the plaintiff
may establish apparent agency by proving that: (1) the principal held itself
out as providing certain services; (2) the plaintiff selected the principal on
the basis of its representations; and (3) the plaintiff relied on the principal
to select the specific person who performed the services that resulted in
the harm complained of by the plaintiff. Second, the plaintiff may establish
apparent agency in a tort action by proving the traditional elements of the
doctrine of apparent agency, as set forth in our cases involving contract
claims, plus detrimental reliance.’’ Id., 624.
Although the plaintiffs’ operative complaint in the present case included
an allegation that Dr. Bodavula was an ‘‘apparent agent’’ of the hospital,
the interrogatories completed by the jury indicate that it expressly found
that he was an actual agent of the hospital. The plaintiffs have not filed a
cross appeal or otherwise raised any claim regarding the propriety of that
determination. The issue of apparent agency, therefore, is not at issue in
this appeal.
11
While discussing jury instructions, the plaintiffs’ counsel stated: ‘‘The
first element, just on the Judicial [Branch] website in terms of stock jury
instructions, is that there must have been an agreement that the agent would
act for, on behalf of, the principal, and, in this case, in the provision of [the]
residency agreement.’’
12
The manual referred to the residency agreement under the personnel
policies and procedures section: ‘‘Personnel policies not covered in the
Resident Agreement, the House Staff Manual or residency-specific handbook
will conform to those established by the Danbury Hospital’s Personnel Policy
and Practice Manual.’’
13
Generally, an employee is considered to be an agent for his or her
employer. See Young v. Bridgeport, 135 Conn. App. 699, 708, 42 A.3d 514(2012) (‘‘The fundamental distinction between an employee and an indepen-
dent contractor depends upon the existence or nonexistence of the right
to control the means and methods of work. . . . It is not the fact of actual
interference with the control, but the right to interfere, that makes the
difference between an independent contractor and a servant or agent.’’
[Internal quotation marks omitted.]). Our courts have not addressed whether
a student acting within the scope of that particular academic relationship
may be an agent for a school. But see Doe v. Yale University, 252 Conn.
641, 683–84, 748 A.2d 834 (2000) (‘‘Depending on the evidence adduced, a
medical resident who is to be educated and trained also may be an employee
for purposes of the [Workers’ Compensation] [A]ct. [General Statutes § 31-
275 et seq.].’’).
14
The plaintiffs claim that Dr. Bodavula’s relationship with the hospital
was ‘‘in the nature of an employment relationship.’’
15
As an example, Dr. Gordon testified that he conducted evaluations of
surgical residents. These completed evaluations were shared not only with
the hospital faculty, but also with the Sound Shore Medical Center residency
program director:
‘‘[The Hospital’s Counsel]: And [the Sound Shore Medical Center residency
program director would] come to Danbury Hospital?
‘‘[Dr. Gordon]: On occasion.
‘‘[The Hospital’s Counsel]: And you’d have meetings with the surgeons?
‘‘[Dr. Gordon]: Yes.
‘‘[The Hospital’s Counsel]: And you would be asked to give your verbal
assessment of residents?
‘‘[Dr. Gordon]: Yes.
‘‘[The Hospital’s Counsel]: To the head of the program out of Sound Shore
Medical Center?
‘‘[Dr. Gordon]: Yes.’’
16
The following colloquy occurred between the plaintiffs’ counsel and
Dr. Gordon:
‘‘[The Plaintiffs’ Counsel]: Who, in your understanding, had authority for
the responsibility and oversight of the administration of the hospital’s resi-
dency program? . . .
‘‘[Dr. Gordon]: . . . It depends on the residency program—I think, it’s
different for different departments, so if you’re speaking, specifically, toward
surgery, the authority is split, as I understood it, between Sound Shore
Medical Center and Danbury Hospital.’’
17
The following colloquy occurred between the plaintiffs’ counsel and
Dr. Gordon:
‘‘[The Plaintiffs’ Counsel]: Okay. Do you remember how you provided it,
evaluation of the residents’ performance in 2008?
‘‘[Dr. Gordon]: There were occasional evaluation meetings, where I would
attend and offer input, and we also, as—as stated here, provide appropriate
verbal feedback to the specific residents.’’
18
‘‘An employer may exercise control over the general results and also
the immediate results from time to time, without creating an agency relation-
ship.’’ Cefaratti v. Aranow, supra, 154 Conn. App. 30 n.20.
19
The following colloquy occurred between the hospital’s counsel and
Dr. Gordon:
‘‘[The Hospital’s Counsel]: . . . [T]he hospital doesn’t give you a list of
questions that you must ask the resident before you make a decision to
allow him to use an instrument, correct?
‘‘[Dr. Gordon]: Yes.’’
Relative to guidelines as to how residents were to perform surgical proce-
dures and as to progressive responsibilities for residents, the following
colloquy occurred:
‘‘[The Hospital’s Counsel]: . . . Is there anything that you have seen
today, anything that’s been shown to you by [the plaintiffs’ counsel] that
indicates in any detail or shows any factors as to how [residents] would
correctly perform surgical procedures—how [residents] would go about
achieving this goal?
‘‘[Dr. Gordon]: No.
‘‘[The Hospital’s Counsel]: Okay. And with respect to this progressive
responsibilities that we’ve seen in—in this trial, and it’s no doubt an
important aspect of the goal of training residents so they can become doc-
tors—full-fledged doctors, is that correct?
‘‘[Dr. Gordon]: Yes.
‘‘[The Hospital’s Counsel]: Fully licensed in—in training doctors?
‘‘[Dr. Gordon]: Yes.
‘‘[The Hospital’s Counsel]: Okay. But the decisions—the—that are made as
to what are appropriate progressive responsibilities are made by individual
physicians based on their discussions with the resident, their assessment
of their skills, and their experience, correct?
‘‘[Dr. Gordon]: Yes.
‘‘[The Hospital’s Counsel]: And there are no specific guidelines that you’ve
seen published by Danbury Hospital that you can go to that tells you how
to go about making that assessment?
‘‘[Dr. Gordon]: That’s right.’’
20
On the basis of the evidence presented at trial, Dr. Gordon was not an
agent of the hospital. See Cefaratti v. Aranow, supra, 154 Conn. App. 30(‘‘the fact that a physician holds staff privileges at a hospital is not itself
sufficient to support a finding that an agency relationship was created’’).
21
During Dr. Gordon’s testimony, counsel for the hospital asked: ‘‘No on[e]
employed at Danbury Hospital or no representative of Danbury Hospital,
instructed you to let or have Dr. Bodavula use the bladeless optical trocar
on [the plaintiff], on July 23rd, 2008, correct?’’ Dr. Gordon replied: ‘‘Correct.’’
22
The plaintiffs’ expert witness testified about his understanding of the
manual:
‘‘[The Hospital’s Counsel]: Okay. And, they’re basically, as I understand
it, based on the cover letter, [the manual is] for the residents, correct, to
give them an introduction into what’s to be expected of them and—and
also, you know, just even simple things, like, how to find their way around
the hospital and record keeping, et cetera?
‘‘[The Plaintiffs’ Expert Witness]: Yes, sir, they deal with record keeping
and they deal with where to get uniforms, they deal with both the practical
things of everyday life as a resident, as well as the policies that the residents
are supposed to follow.’’
23
We note that circumstantial evidence itself can be sufficient: ‘‘It has
been repeatedly stated that there is no legal distinction between direct and
circumstantial evidence so far as probative force is concerned.’’ (Internal
quotation marks omitted.) State v. Stephens, 111 Conn. App. 473, 479, 959
A.2d 1049 (2008), cert. denied, 290 Conn. 910, 964 A.2d 547 (2009).
24
We make no assumptions as to whether the residency agreement would
or would not support a finding of an agency relationship between the hospital
as a residency site and the surgical resident.
25
‘‘Gupta involved the dismissal of a medical resident for poor perfor-
mance. This court used a ‘functional analysis’ of the residency agreement
to determine that its purpose was educational. In other words, the purpose
of a residency and the residency agreement is to educate a medical student,
albeit in the context of a job at a hospital. Dismissal for poor performance
was therefore an educational decision, akin to giving a poor grade to a
student in class. This academic decision deserves deference from the
courts.’’ Craine v. Trinity College, 259 Conn. 625, 663, 791 A.2d 518 (2002).
26
‘‘Evaluation of [a medical student’s] performance in the [clinical] area
is no less an academic judgment because it involves observation of her
skills and techniques in actual conditions of practice, rather than assigning
a grade to her written answers on an essay question.’’ (Internal quotation
marks omitted.) Board of Curators of University of Missouri v. Horowitz,
435 U.S. 78, 95, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978) (Powell, J., concurring).
27
The manual stated: ‘‘Participation in the [operating room] is contingent
upon complete care of the patients on the nursing floors.’’
28
The surgical residency chapter of the house manual listed ‘‘practice-
based learning and improvement’’ as a core competency to be completed
during the course of the program. Achievement of this competency would
include assessment of a resident’s manual dexterity, ‘‘evaluated in the
operating room and on the surgical floors by Attending Surgeons and Chief
Residents as reflected by operative technique, performance of basic bedside
procedures and quality of assistance during complex operative procedures.’’
29
Commenting on the imprecision of the manual, the plaintiffs’ counsel
stated during closing argument: ‘‘[The surgical residents] even had to listen
to the dental staff, evidently.’’
30
The programs were wideranging: the anesthesiology residency was inte-
grated with Westchester County Medical Center; the psychiatry residency
program was part of the New York Medical College Department of Psychiatry
residency consortium; as it pertains to this case, the surgical residency was
integrated with Sound Shore Medical Center and New York Medical College;
and the other residency programs were dedicated to only Danbury Hospital.
31
The plaintiffs did not challenge Dr. Bodavula’s testimony regarding the
source of his pay, nor did they present any evidence to contradict that
testimony. The section of the manual that pertained to compensation
referred to the residency agreement for specifics about a resident’s salary.
32
The manual states: ‘‘The Resident is provided rent-free housing, as avail-
able, by means of an annual lottery. The rental is established by separate
agreement with the Facilities Department. The Hospital will provide a sub-
sidy for off-campus housing secured independently by the Resident.’’ During
his testimony, Dr. Bodavula was not asked whether he was receiving rent-
free housing. Also, neither party presented a housing agreement between
Dr. Bodavula and the hospital facilities department.
33
Dr. Bodavula testified that only 50 percent of his residency work
occurred at Danbury Hospital. The sponsoring hospital, Sound Shore Medical
Center in New Rochelle, New York, was the alternate site of his training.
34
Dr. Bodavula’s testimony suggested that he and the chief resident had
a similar employment status:
‘‘[The Plaintiffs’ Counsel]: . . . [Y]ou were assigned to [the plaintiff’s]
surgery by somebody from the hospital, true?
‘‘[Dr. Bodavula]: He’s part of my res—I mean, the whole program. . . .
The chief resident.
‘‘[The Plaintiffs’ Counsel]: Right.
‘‘[Dr. Bodavula]: The fifth year resident or the chief resident.
‘‘[The Plaintiffs’ Counsel]: Okay. He was at Danbury Hospital and he
assigned you this surgery, true?
‘‘[Dr. Bodavula]: Yes. . . .
‘‘[The Plaintiffs’ Counsel]: . . . [Y]ou did . . . what the Danbury Hospi-
tal resident told you, true?
‘‘[Dr. Bodavula]: He’s—when you use the word Danbury Hospital resident,
what do you mean? . . .
‘‘[The Plaintiffs’ Counsel]: The chief resident who was working at Dan-
bury Hospital?
‘‘[Dr. Bodavula]: Okay. So, I’m also the same residence, as the same part
of the same pool of residents.’’
Dr. Gordon’s testimony also indicated that the hospital did not directly
oversee surgical resident assignments:
‘‘[The Plaintiffs’ Counsel]: . . . [I]t was determined by somebody at the
hospital, as to whether or not there would be an assistant resident surgeon
there, is that correct?
‘‘[Dr. Gordon]: It’s—yes, it’s determined by the resident staff themselves.’’