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LISA J. CEFARATTI v. JONATHAN S.
ARANOW, M.D., ET AL.
(AC 35659)
Beach, Sheldon and Bear, Js.
Argued March 20—officially released December 9, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
Kelly E. Reardon, with whom, on the brief, was
Robert I. Reardon, Jr., for the appellant (plaintiff).
Ellen M. Costello, for the appellees (named defendant
et al.).
S. Peter Sachner, with whom, on the brief, was Jason
T. Prueher, for the appellee (defendant Middlesex
Hospital).
Opinion
BEACH, J. The principal issue presented is whether
the statute of limitations in this medical malpractice
action may be tolled by application of either the doc-
trine of continuing treatment or the doctrine of continu-
ous course of conduct, or both. The action was brought
by the plaintiff, Lisa J. Cefaratti, against the defendants,
Jonathan Aranow, a licensed physician specializing in
general, bariatric, vascular, and thoracic surgery; Shore-
line Surgical Associates, P.C. (Shoreline), Aranow’s pro-
fessional corporation; and Middlesex Hospital
(hospital).1 The plaintiff appeals from the trial court’s
judgment granting the defendants’ motions for sum-
mary judgment. The plaintiff claims that: (1) the court
improperly rendered summary judgment for Aranow
and Shoreline because (A) genuine issues of material
fact existed as to whether the continuing course of
conduct doctrine applied to toll the statute of repose
set forth in General Statutes § 52-584,2 and (B) genuine
issues of material fact existed as to whether the continu-
ing treatment doctrine applied to toll the statute of
repose in § 52-584; (2) the court improperly declined
to recognize a ‘‘foreign object’’ exception to the statute
of repose; (3) the court improperly failed to consider
whether application of the statute of repose violated
the plaintiff’s constitutional right to access to the
courts; and (4) the court improperly granted the hospi-
tal’s motion for summary judgment because genuine
issues of material fact existed as to whether there was
an agency relationship between Aranow and the hospi-
tal. We reverse, in part, the judgment of the trial court.
The record, viewed in the light most favorable to the
nonmoving plaintiff for purposes of reviewing the trial
court’s rendering of summary judgment, reveals the
following facts and procedural history. On or about
August 20, 2003, the plaintiff met with Aranow and
discussed treatment options for her condition of morbid
obesity. After consultation and a physical examination,
Aranow recommended that the plaintiff undergo open
gastric bypass surgery. On or about December 8, 2003,
the plaintiff was admitted to the hospital where Aranow
performed open gastric bypass surgery.
On January 14, 2004, May 11, 2004, October 22, 2004,
May 10, 2005, November 16, 2005, December 17, 2007,
and May 20, 2009, the plaintiff received ‘‘follow-up medi-
cal care, examinations, treatment, and monitoring’’
from Aranow. This activity included the review of labo-
ratory test results, ordered by Aranow and conducted
by the hospital, on May 8, 2004, October 4, 2004, June
5, 2007, November 27, 2007, January 3, 2008, and March
9, 2009. Approximately one year after the surgery, the
plaintiff began experiencing abdominal pain with bowel
movements and constipation. She testified at her depo-
sition that each time she saw Aranow she told him
that she was experiencing abdominal pain. On or about
August 6, 2009, after being diagnosed with breast cancer
by another physician, the plaintiff submitted to a com-
puterized tomography (CT) scan of her chest, abdomen,
and pelvis. The CT scan revealed the presence of foreign
material in the plaintiff’s abdominal cavity. On Septem-
ber 9, 2009, the plaintiff attended an appointment with
Aranow, at which time Aranow informed the plaintiff
that a foreign object in her abdominal cavity was a
surgical sponge.
On August 5, 2010, the plaintiff brought this medical
malpractice action. An amended complaint, dated
November 30, 2010, included four counts. Count one
asserted a claim of medical negligence against Aranow
for leaving a surgical sponge inside the plaintiff’s abdo-
men during the open gastric bypass surgery performed
on December 8, 2003.3 Count three alleged that the
hospital was vicariously liable for Aranow’s negligence.
Count four alleged that Shoreline was liable for Ara-
now’s negligence. The plaintiff claimed that, as a result
of the defendants’ negligence, she incurred additional
medical expenses and suffered mental and physical
pain, including constipation, protrusion on the left side
of her stomach, abdominal pain, fatigue, nausea and
chronic pain requiring medication, including narcotics.
The plaintiff also claimed that she suffered a permanent
impairment of her earning capacity.
On October 1, 2012, the hospital filed a motion for
summary judgment as to counts two and three of the
plaintiff’s amended complaint. As to count three, alleg-
ing vicarious liability, the hospital argued that it was
entitled to judgment as a matter of law because: (1)
there was no genuine issue of material fact that the
plaintiff’s direct claim of medical negligence against it
was time barred and that the statute of repose in § 52-
584 was not tolled by the continuing course of conduct
doctrine or the continuing treatment doctrine, and
therefore the plaintiff’s derivative claim against the hos-
pital based on Aranow’s alleged negligence must fail;
and (2) even if the plaintiff’s claim against Aranow was
not barred, the hospital was not vicariously liable for
Aranow’s alleged negligence because there was no gen-
uine issue of material fact that Aranow was not an agent,
apparent agent, servant or employee of the hospital. On
November 30, 2012, the plaintiff filed an objection to
the hospital’s motion for summary judgment, along with
a supporting memorandum of law, and evidence in the
form of deposition testimony, affidavits, pamphlets, and
medical records. The plaintiff argued that summary
judgment was not appropriate because there were genu-
ine issues of material fact as to whether: (1) the statute
of repose in § 52-284, as applied to Aranow, was tolled
by the continuing course of conduct doctrine and/or
the continuing treatment doctrine; and (2) there was
an actual or apparent agency relationship between the
hospital and Aranow.
On December 13, 2012, Aranow and Shoreline filed
a joint motion for summary judgment as to counts one
and four of the plaintiff’s amended complaint. Aranow
and Shoreline argued that there was no genuine issue
of material fact that the plaintiff’s claim of medical
negligence against them was barred by the statute of
repose set forth in § 52-584. On January 16, 2013, the
plaintiff filed an objection to Aranow and Shoreline’s
motion for summary judgment along with a supporting
memorandum of law and evidence in the form of deposi-
tion testimony, letters, and medical records. The plain-
tiff argued that summary judgment was not appropriate
because there were genuine issues of material fact as
to whether the statute of repose was tolled by the con-
tinuing course of conduct doctrine and/or the continu-
ing treatment doctrine.
On January 22, 2013, the court, Aurigemma, J., heard
oral argument on the defendants’ motions for summary
judgment. On April 29, 2013, the court granted the defen-
dants’ motions for summary judgment as to all counts.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The plaintiff claims that the court improperly ren-
dered summary judgment with respect to her claims
of medical negligence against Aranow and Shoreline
because issues of material fact existed as to whether
the three year repose provision of § 52-584 was tolled
by the continuing course of conduct doctrine or the
continuing treatment doctrine.4
We set forth our standard of review. ‘‘The standards
governing our review of a trial court’s decision to grant
a motion for summary judgment are well established.
Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . .
‘‘On appeal, [w]e must decide whether the trial court
erred in determining that there was no genuine issue
as to any material fact and that the moving party is
entitled to judgment as a matter of law. . . . Because
the trial court rendered judgment for the [defendants]
as a matter of law, our review is plenary and we must
decide whether [the trial court’s] conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Citations omitted; internal quo-
tation marks omitted.) Davies v. General Tours, Inc.,
63 Conn. App. 17, 20–21, 774 A.2d 1063, cert. granted
on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001)
(appeal withdrawn October 18, 2001).
Our review of the plaintiff’s claims is ‘‘guided by the
law governing the statute of limitations on actions alleg-
ing medical malpractice. Section 52-584 requires such
actions to be brought within two years from the date
when the injury is first sustained or discovered or in
the exercise of reasonable care should have been dis-
covered . . . . The statute also establishes a repose
period under which no such action may be brought
more than three years from the date of the act or omis-
sion complained of . . . . [T]he relevant date of the
act or omission complained of, as that phrase is used
in § 52-584, is the date when the negligent conduct of
the defendant occurs and . . . not the date when the
plaintiff first sustains damage. . . . Therefore, an
action commenced more than three years from the date
of the negligent act or omission complained of is barred
by the statute of limitations contained in § 52-584,
regardless of whether the plaintiff had not, or in the
exercise of [reasonable] care, could not reasonably
have discovered the nature of the injuries within that
time period.’’ (Internal quotation marks omitted.) Mar-
tinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).
Our Supreme Court has recognized, however, that
‘‘the statute of limitations and [repose section] con-
tained in § 52-584 may be tolled, in the proper circum-
stances, under either the continuing course of conduct
doctrine or the continuing treatment doctrine, thereby
allowing a plaintiff to bring an action more than three
years after the commission of the negligent act or omis-
sion complained of.’’ Id., 355–56. ‘‘Despite the consider-
able similarities and overlap between the two doctrines,
however, they are analytically separate and distinct, and
the determination of whether to apply either doctrine in
a given case is conspicuously fact bound.’’5 Id., 356.
Because the continuing course of conduct doctrine
and the continuing treatment doctrine are separate and
distinct, we analyze separately the plaintiff’s claims that
the court incorrectly determined that there were no
genuine issues of material fact as to whether either
such doctrine applied to toll the statute of repose in
§ 52-584.
A
With respect to her claims of medical negligence
against Aranow and Shoreline, the plaintiff claims that
the court improperly rendered summary judgment
because it incorrectly determined that the plaintiff did
not present facts sufficient to create a genuine issue of
material fact as to whether the continuing course of
conduct doctrine applied to toll the statute of repose
in § 52-584. We disagree.
Under appropriate circumstances, the statute of
repose may be tolled under the continuing course of
conduct doctrine. Blanchette v. Barrett, 229 Conn. 256,
265, 640 A.2d 74 (1994). Our Supreme Court has estab-
lished a three part test for determining whether the
statute has been tolled. This test requires the plaintiff
to prove that the defendant physician: ‘‘(1) committed
an initial wrong upon the plaintiff; (2) owed a continuing
duty to the plaintiff that was related to the original
wrong; and (3) continually breached that duty.’’ Witt v.
St. Vincent’s Medical Center, 252 Conn. 363, 370, 746
A.2d 753 (2000). Thus, if there is no genuine issue of
material fact with respect to any one of the three prongs
of the Witt test, summary judgment is appropriate.
With regard the first prong of the Witt test, the plain-
tiff alleged in her complaint that Aranow committed an
initial wrong upon the plaintiff by failing to remove all
instruments and/or surgical sponges from the plaintiff’s
abdominal cavity, to assure that the instrument and
sponge count was accurate, to perform the open gastric
bypass surgery in such a manner as to assure the health
and well-being of the plaintiff, to perform the open
gastric bypass surgery with the skill required of a gen-
eral surgeon, to locate the foreign materials in the oper-
ative site prior to closing, and to use proper technical
skill in performing the gastric bypass surgery because
he left foreign materials in the plaintiff’s abdominal
cavity. In support of these allegations, the plaintiff sub-
mitted a written opinion letter from a board certified
surgeon stating that Aranow acted negligently in leaving
the sponge in the plaintiff. Aranow did not present any
evidence contradicting the plaintiff’s contentions.
Accordingly, for the purpose of summary judgment,
there was no genuine issue of material fact as to
whether the plaintiff could satisfy the first prong of the
Witt test.
The parties differ on the second prong of the Witt
test, that is, whether Aranow owed a continuing duty
to the plaintiff that was related to the alleged original
wrong of leaving a surgical sponge inside the plaintiff’s
abdomen during the performance of gastric bypass sur-
gery. ‘‘In order to satisfy the second prong of the Witt
test, the plaintiff must demonstrate that the defendant
breached a duty related to the negligent act or omission
complained of, which duty remain[s] in existence after
commission of the original wrong related thereto. That
duty must not have terminated prior to commencement
of the period allowed for bringing an action for such a
wrong. . . . Where [our appellate courts] have upheld
a finding that a duty continued to exist after the cessa-
tion of the act or omission relied upon, there has been
evidence of either a special relationship between the
parties giving rise to such a continuing duty or some
later wrongful conduct of a defendant related to the
prior act.’’ (Emphasis added; internal quotation marks
omitted.) Martinelli v. Fusi, supra, 290 Conn. 359.6
‘‘The existence of a duty is a question of law . . . .’’
(Internal quotation marks omitted.) Golden v. Johnson
Memorial Hospital, Inc., 66 Conn. App. 518, 526, 785
A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990
(2001). For the purpose of this appeal, we assume, with-
out deciding, that Aranow owed the plaintiff a continu-
ing duty to discover and to remedy his alleged initial
wrong by virtue of a special ongoing physician-patient
relationship between them. See, e.g., Blanchette v. Bar-
rett, supra, 229 Conn. 280 (physician had duty to moni-
tor plaintiff’s condition after negative diagnosis where
there was ongoing relationship).
Assuming that Aranow owed the plaintiff a continuing
duty to discover and to remedy his alleged initial wrong,
we reach the third prong of the Witt test: whether the
plaintiff submitted evidence sufficient to create a genu-
ine issue of material fact as to whether Aranow continu-
ally breached that duty at some point in time after the
commission of the original alleged wrong. See Witt v.
St. Vincent’s Medical Center, supra, 252 Conn. 373
(examining evidence of subsequent wrongful conduct).
The plaintiff did not submit evidence sufficient to
create a genuine issue of material fact as to whether
Aranow continually breached a duty owed to her at
some point after the commission of the original alleged
wrong.7 In her objection to Aranow and Shoreline’s
motion for summary judgment, the plaintiff claimed
that Aranow continually breached the continuing duty
he owed to her to discover and remedy the initial wrong
of leaving a surgical sponge in her abdomen by ‘‘failing
to properly examine and follow up with the plaintiff to
determine that a surgical sponge had been left behind.’’
The plaintiff contends that even if Aranow did not have
actual knowledge that a surgical sponge had been left
in her abdominal cavity, she had informed him that she
was experiencing postsurgical abdominal pain and that,
on the basis of this information, he should have ordered
exploratory tests that would have revealed the presence
of the surgical sponge, and his failure to do so consti-
tuted a breach of the continuing duty he owed to the
plaintiff.
In support of her statement that she notified Aranow
of the abdominal pain she experienced, the plaintiff
submitted her deposition testimony, in which she testi-
fied that during ‘‘almost every visit postsurgically,’’
starting approximately one year after surgery when it
became apparent to her that ‘‘something was different,’’
she reported her symptoms to Aranow. ‘‘[I]t felt like
somebody was stabbing me, and I told [Aranow] that
whenever I had to have a bowel movement it felt like
somebody was twisting something inside of me and I
described it exactly like that and he would palpate and
tell me that everything was fine.’’
The plaintiff, however, did not submit evidence sup-
porting her assertion that, on the basis of the facts of
this case, Aranow’s not ordering exploratory tests in
response to her complaints of abdominal pain
amounted to a breach of a continuing duty owed to
her.8 Similarly, the plaintiff did not submit expert testi-
mony on the issue of whether, in light of the facts of
this case, Aranow’s failure to order exploratory tests
did not meet the applicable standard of care. See, e.g.,
Sherwood v. Danbury Hospital, 252 Conn. 193, 207–208
n.13, 746 A.2d 730 (2000) (when determining whether
defendant breached duty owed to plaintiff in cases
sounding in professional negligence, plaintiff required
to present evidence from expert where knowledge of
duty beyond experience of ordinary fact finder). This
court has consistently held that conclusory statements
are not sufficient to create a genuine issue of material
fact for the purpose of summary judgment. See, e.g.,
Chadha v. Charlotte Hungerford Hospital, 97 Conn.
App. 527, 540, 906 A.2d 14 (2006). Here, the plaintiff’s
arguments regarding the third prong of the Witt test
lack evidentiary support and amount to conclusory
statements insufficient to withstand summary
judgment.
We therefore conclude that the court properly deter-
mined that the continuing course of conduct doctrine
did not apply to toll the statute of repose in § 52-584
because the plaintiff did not submit sufficient evidence
to create a genuine issue of material fact as to all three
elements of the Witt test. There must be a continuing
breach of the duty of care to satisfy the third element;
here, there is no evidence that, after the initial surgery,
Aranow’s conduct failed to meet the applicable stan-
dard of care.9
B
The plaintiff also claims that the court improperly
rendered summary judgment in favor of Aranow and
Shoreline because it incorrectly determined that the
plaintiff did not present evidence sufficient to create a
genuine issue of material fact as to whether the continu-
ing treatment doctrine applied to toll the statute of
repose.10 Specifically, she argues that she submitted
sufficient evidence to create a genuine issue of material
fact as to whether she was receiving ongoing treatment
for an ‘‘identifiable medical condition,’’ that is, morbid
obesity. We agree.
The continuing treatment doctrine ‘‘focuses on the
plaintiff’s reasonable expectation that the treatment for
an existing condition will be ongoing, while the [contin-
uing course of conduct doctrine] focuses on the defen-
dant’s duty to the plaintiff arising from his knowledge
of the plaintiff’s condition.’’ (Emphasis omitted; internal
quotation marks omitted.) Martinelli v. Fusi, supra,
290 Conn. 356.
In order to establish a continuing course of treatment
for purposes of tolling the statute of repose set forth
in § 52-284, the plaintiff must establish: ‘‘(1) that the
plaintiff had an identifiable medical condition that
required ongoing treatment or monitoring; (2) that the
defendant provided treatment or monitoring of that con-
dition after the allegedly negligent conduct, or that the
plaintiff reasonably could have anticipated that the
defendant would do so; and (3) that the plaintiff brought
the action within the appropriate statutory period after
the date that treatment terminated.’’ (Footnotes omit-
ted.) Grey v. Stamford Health Systems, 282 Conn. 745,
754–55, 924 A.2d 831 (2007). Thus, we must determine
whether there is no genuine issue of material fact as
to any of the three prongs of the Grey test.
The court concluded that the continuing treatment
doctrine could not serve to toll the statute of repose
because the plaintiff did not produce sufficient evidence
regarding the first prong of the Grey test, that is, she
did not present evidence that she had an ‘‘identifiable
medical condition’’ that required ‘‘ongoing treatment or
monitoring.’’11 In its memorandum of decision, the court
reasoned that because Aranow did not have knowledge
of the retained surgical sponge, it was not an identifiable
medical condition requiring ongoing treatment: ‘‘[T]he
plaintiff could have no reasonable expectation that she
was being treated for a condition of which no one
was aware.’’
The parties’ arguments focus on the first and second
prongs of the Grey test. With regard to the first prong of
the Grey test, the parties disagree as to the ‘‘identifiable
medical condition’’ for which the plaintiff sought treat-
ment from Aranow. The plaintiff argues that we must
view the preoperative, operative, and postoperative
treatment that she received from Aranow from the
broad perspective of treatment for morbid obesity. The
plaintiff submitted evidence, in the form of medical
records, deposition testimony, and letters, demonstra-
ting that she sought and received treatment for morbid
obesity from Aranow. She argues that this evidence is
sufficient to create a genuine issue of material fact
as to whether her morbid obesity was an ‘‘identifiable
medical condition that required ongoing treatment.’’ In
contrast, Aranow argues that the plaintiff cannot satisfy
the first prong of the Grey test because a ‘‘retained
surgical sponge’’ is not an identifiable medical condition
requiring ongoing treatment.
In support of her assertion that she was being treated
by Aranow for morbid obesity, an identifiable medical
condition, the plaintiff points to medical records dating
from her initial consultation with Aranow during which
he diagnosed morbid obesity and discussed with her
different options for treating this condition, including
gastric bypass surgery. In support of her contention
that the condition of morbid obesity required ongoing
treatment, she cites a letter written by Aranow and
addressed to Dr. Janice Oliveri, the plaintiff’s primary
care physician, in which Aranow informed Oliveri that
he had diagnosed the plaintiff to be morbidly obese and
stated that ‘‘[t]he multiple morbidities that this patient
suffered can clearly be dramatically improved, if not
cured entirely, by the weight loss that follows bariatric
surgery.’’12 She also points to a series of ‘‘postoperative
follow-up notes’’ from eight postoperative visits with
Aranow.13 The bottom portion of each postoperative
note indicated that it was ‘‘to be completed by M.D.’’
The bottom portions included a section comparing the
patient’s current weight and preoperative weight, a sec-
tion detailing tests done during the examination, a sec-
tion for noting improvements, a planning and
recommendation section, and a section indicating when
the patient’s next visit was scheduled to occur. All of the
notes submitted by the plaintiff contained indications
of the plaintiff’s current and preoperative weight and
notations regarding Aranow and the plaintiff’s and Ara-
now’s plan for the plaintiff’s recovery.
On the basis of the pleadings, affidavits, and record
before us, we conclude that the evidence submitted by
the plaintiff was sufficient to create a genuine issue
of material fact as to whether she had an identifiable
medical condition that required ongoing treatment and
monitoring. Aranow’s letter to Oliveri, together with
the sections of the ‘‘postoperative follow-up notes’’
regarding plans and recommendations for the future,
provide support for the plaintiff’s contention that her
condition of morbid obesity required ongoing treatment
and monitoring that was not necessarily completed
when Aranow finished the gastric bypass surgery.
With regard to the second prong of the Grey test, the
plaintiff argues that she submitted evidence, in the form
of medical records and testimony, sufficient to create
a genuine issue of material fact as to whether Aranow
provided ongoing treatment or monitoring for her con-
dition of morbid obesity or that the plaintiff reasonably
could have anticipated that he would do so.14 In support
of her contention that she reasonably believed that Ara-
now would provide ongoing treatment or monitoring,
the plaintiff submitted her own deposition testimony
in which she indicated that she believed that Aranow
would provide ongoing treatment and monitoring for
her condition of morbid obesity and for issues relating
to the gastric bypass surgery. In support of her con-
tention that Aranow did in fact provide ongoing treat-
ment for her condition of morbid obesity, the plaintiff
points to the ‘‘postoperative follow-up notes,’’ which
indicate that the plaintiff had appointments with Ara-
now at least once per year, and that, at each visit,
Aranow made notes about her weight, ordered tests,
and conveyed plans and recommendations for the
future relating to the plaintiff’s condition of morbid
obesity. The defendants, on the other hand, argue that
the plaintiff did not receive ongoing treatment for an
identifiable medical condition. Supporting this asser-
tion is Aranow’s deposition testimony, in which he
stated that the plaintiff’s postoperative appointments
were solely and specifically related only to her gastric
bypass operation. On the basis of the pleadings, affida-
vits, and evidence submitted to the trial court in the
record before us, we conclude that there is a genuine
issue of material fact as to the second prong of the
Grey test, that is, whether Aranow provided the plaintiff
with ongoing treatment and monitoring for the condi-
tion of morbid obesity.
Because we find there are genuine issues of material
fact as to the first and second prongs15 of the Grey test,
we conclude that the court improperly determined that
the plaintiff did not present evidence sufficient to create
a genuine issue of material fact as to whether the contin-
uing treatment doctrine applied to toll the statute of
repose set forth in § 52-584. Summary judgment, then,
was erroneously granted as to Aranow and Shoreline
on that claim.
II
The plaintiff next claims that the court erred in declin-
ing to recognize a ‘‘foreign object’’ exception to the
statute of repose contained in § 52-584.16 The plaintiff
argues that the doctrine of equitable tolling permits the
court to carve out such an exception and that more
than one-half of the states have adopted a foreign object
exception. We disagree.
We ordinarily apply a deferential standard of review
to a trial court’s equitable determinations: ‘‘The determi-
nation of what equity requires in a particular case, the
balancing of the equities, is a matter for the discretion
of the trial court. . . . Our standard of review is
whether the trial court abused its discretion. . . . In
determining whether the trial court has abused its dis-
cretion, we must make every reasonable presumption
in favor of the correctness of its action.’’ (Internal quota-
tion marks omitted.) Fernandes v. Rodriguez, 90 Conn.
App. 601, 609, 879 A.2d 897, cert. denied, 275 Conn. 927,
883 A.2d 1243 (2005), cert. denied, 547 U.S. 1027, 126
S. Ct. 1585, 164 L. Ed. 2d 312 (2006).
The plaintiff’s argument, however, requires us first
to determine whether Connecticut courts have adopted
the common-law foreign object exception as it has been
applied by the courts of some of our sister states. This
determination is a question of law over which our
review is plenary. See, e.g., Fadner v. Commissioner
of Revenue Services, 281 Conn. 719, 730, 917 A.2d 540
(2007) (whether Connecticut courts have adopted com-
mon-law doctrine of equitable recoupment, as applied
by federal judiciary to tax appeals, presents question
of law over which review is plenary).
Connecticut courts have not recognized a foreign
object exception to § 52-584. The fact that several other
states’ legislative bodies have enacted foreign object
exceptions to their respective statutes of limitations for
professional negligence claims does not compel our
compliance. If our legislature thought it wise to toll the
statute of repose for claims involving foreign objects,
it is surely capable of doing so. See, e.g., Ecker v. West
Hartford, 205 Conn. 219, 241, 530 A.2d 1056 (1987)
(‘‘There is no reason, constitutional or otherwise, which
prevents the legislature from establishing a three year
time period that runs from the date of the act or omis-
sion complained of, as was done here, even though at
that date no person had sustained damage and therefore
no cause of action had come into existence. . . . It is
not the function of the court to alter a legislative policy
merely because it produces unfair results. . . . Individ-
ual rights and remedies must at times and of necessity
give way to the interests and needs of society.’’ [Cita-
tions omitted]).
The policy considerations are best left to the legisla-
ture. We conclude that the court did not err in declining
to create a foreign object exception to the statute of
repose provided for in § 52-584.
III
The plaintiff claims that § 52-584 violates the ‘‘open
courts’’ provision of article first, § 10, of the Connecticut
Constitution by denying her the ability to bring a claim
and thus leaving her without redress for her injuries.
The plaintiff argues that should it be determined that
the continuing course of conduct and treatment doc-
trines do not apply to this case,17 § 52-584 will deprive
her of the right to bring a claim of professional negli-
gence without providing a reasonable alternative. The
plaintiff argues that while this court has ‘‘refused to
find the statute unconstitutional in other cases, such
as Golden [v. Johnson Memorial Hospital, Inc.,] supra,
66 Conn. App. 533–42, and Neuhaus [v. DeCholnoky,
83 Conn. App. 576, 589–95, 850 A.2d 1106 (2004), rev’d
in part on other grounds, 280 Conn. 190, 905 A.2d 1135
(2006)] the facts of this case, and of any ‘foreign object’
case, warrant a reconsideration of these rulings.’’ We
disagree.
Certain general principles govern our review of the
plaintiff’s state constitutional claim. First, ‘‘[t]he consti-
tutionality of a statute presents a question of law over
which our review is plenary.’’ (Internal quotation marks
omitted.) Kerrigan v. Commissioner of Public Health,
289 Conn. 135, 155, 957 A.2d 407 (2008). Second, it is
‘‘well established that a validly enacted statute carries
with it a strong presumption of constitutionality, [and
that] those who challenge its constitutionality must sus-
tain the heavy burden of proving its unconstitutionality
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) Id. Third, ‘‘[e]very presumption is to be given
in favor of the constitutionality of the statute.’’ (Internal
quotation marks omitted.) Golden v. Johnson Memorial
Hospital, Inc., supra, 66 Conn. App. 533. ‘‘Therefore,
[w]hen a question of constitutionality is raised, courts
must approach it with caution, examine it with care,
and sustain the legislation unless its invalidity is clear.’’
(Internal quotation marks omitted.) Kerrigan v. Com-
missioner of Public Health, supra, 155.
Article first, § 10, of the constitution of Connecticut,
provides: ‘‘All courts shall be open, and every person,
for an injury done to him in his person, property or
reputation, shall have remedy by due course of law,
and right and justice administered without sale, denial
or delay.’’ ‘‘Article first, § 10, has been viewed as a
limitation upon the legislature’s ability to abolish com-
mon law and statutory rights that existed in 1818, when
article first, § 10, was adopted, and which were incorpo-
rated in that provision by virtue of being established
by law as rights the breach of which precipitates a
recognized injury . . . . Therefore, where a right
existed at common law or by statute in 1818 and became
incorporated into the Connecticut constitution by the
adoption of article first, § 10, the legislature may restrict
or abolish such incorporated right only where it pro-
vides a reasonable alternative to the enforcement of
such right.’’ (Citations omitted; internal quotation
marks omitted.) Ecker v. West Hartford, supra, 205
Conn. 234.
Section 52-584 provides in relevant part: ‘‘No action
to recover damages for injury to the person . . .
caused by negligence . . . or by malpractice of a physi-
cian, surgeon . . . [or] hospital . . . may be brought
more than three years from the date of the act or omis-
sion complained of . . . .’’ ‘‘Statutes of repose are con-
stitutional enactments that involve a balancing of the
hardship caused by the potential bar of a just claim
with the advantage of barring stale claims. . . . When
a right exists at common law, a statute of repose func-
tions only as a qualification on the remedy to enforce the
preexisting right.’’ (Internal quotation marks omitted.)
Golden v. Johnson Memorial Hospital, Inc., supra, 66
Conn. App. 534–35. ‘‘Reasonable conditions on a cause
of action do not amount to a violation of the constitu-
tion. . . . A strict and inflexible interpretation of arti-
cle first, § 10, could affect the legislature’s ability to
pass, enact and repeal laws. Such an encumbrance upon
the legislature would freeze common law rights in per-
petuity.’’ (Citation omitted; internal quotation marks
omitted.) Sanborn v. Greenwald, 39 Conn. App. 289,
304, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d
1186 (1995).
Our Supreme Court has ‘‘specifically determined that
a lawsuit commenced more than three years from the
date of the negligent act or omission complained of is
barred by the statute of limitations, § 52-584, regardless
of whether the plaintiff had not or, in the exercise of
care, could not reasonably have discovered the nature
of the injuries within that time period. Stein v. Katz,
213 Conn. 282, 285, 567 A.2d 1183 (1989); Catz v.
Rubenstein, 201 Conn. 39, 49–50, 513 A.2d 98 (1986);
McDonald v. Haynes Medical Laboratory, Inc., 192
Conn. 327, 334, 471 A.2d 646 (1984).’’ Blanchette v. Bar-
rett, supra, 229 Conn. 265.
In Golden, nine years after the statute of limitations
had expired, the plaintiff brought a professional negli-
gence claim against a pathologist and hospital for
alleged negligence in failing to diagnose Hodgkin’s dis-
ease. Golden v. Johnson Memorial Hospital, Inc.,
supra, 66 Conn. App. 521–22. The trial court granted
the defendants’ motions for summary judgment and the
plaintiff appealed. On appeal, the plaintiff argued that
§ 52-584 deprived him of his right to bring a claim of
medical negligence without providing a reasonable
alternative. Id., 533. Specifically, he argued that the
application of § 52-584 entirely deprived him of his right
to redress because it unconstitutionally barred his
action before he was able to discover his injury. Id.,
537. This court held that the plaintiff had not been
deprived entirely of his right to redress. Id. This court
explained: ‘‘His right to redress is limited to a specified
period of time. The common-law right that the plaintiff
claims was abridged by the application of § 52-584 is the
right to bring an action in tort for medical malpractice
against a hospital and a pathologist. Section 52-584
restricts the right to bring an action for medical negli-
gence only to the extent that it restricts the time for
bringing the action, which we conclude is reasonable
. . . .’’ Id. This court continued: ‘‘In light of our Supreme
Court’s previous decisions, we cannot agree with the
plaintiff’s argument. A common-law cause of action may
be limited by the statute of limitations, regardless of
whether the cause of action was discovered or could
have been discovered within the time prescribed.’’
Id., 537–38.
In Neuhaus v. DeCholnoky, supra, 83 Conn. App. 591,
we held that § 52-584 did not violate the open courts
provision. This court noted that we had previously held
in Golden that § 52-584 did not violate the open courts
provision, and the facts of Neuhaus were reasonably
similar to the facts in Golden. Id. The plaintiffs in both
cases had claimed that they could not have discovered
their injuries within the three year statute of repose
period and that they were therefore prevented by the
imposition of the statutory time limit from exercising
a common-law right. This court found no constitu-
tional violation.
Here, the plaintiff argues that her claim is factually
distinguishable from Golden and Neuhaus, such that
reconsideration of our precedent is warranted. We dis-
agree. ‘‘A common-law cause of action may be limited
by the statute of limitations, regardless of whether the
cause of action was discovered or could have been
discovered within the time prescribed.’’ Golden v. John-
son Memorial Hospital, Inc., supra, 66 Conn. App. 537–
38. The plaintiff has not indicated, nor can we surmise,
how her factual situation is significantly different from
those of Golden and Neuhaus. We are bound, then, by
our clearly established precedent.
IV
The plaintiff’s final claim is that the court improperly
rendered summary judgment in favor of the hospital
because it incorrectly determined that no agency rela-
tionship existed between Aranow and the hospital. In
addition to her claim that there was a genuine issue of
material fact as to whether an actual agency relation-
ship existed, the plaintiff asserts that there is a genuine
issue of material fact as to whether the hospital may
be held liable under the doctrine of apparent agency
for medical negligence, if any, committed by Aranow.
The hospital argues that even if the statute of repose in
§ 52-584 does not bar the plaintiff’s medical negligence
claim against Aranow, the court properly determined
that the plaintiff’s vicarious liability claim against the
hospital must fail because the plaintiff failed to show
that Aranow was an agent, actual or apparent, of the
hospital.
A
The plaintiff argues that the court incorrectly con-
cluded that no actual agency relationship existed
between Aranow and the hospital. The plaintiff argues
that ‘‘the court disregarded evidence presented by the
plaintiff regarding the extent of this relationship and
instead considered only two self-serving affidavits
offered by the . . . hospital regarding its relationship
with [Aranow].’’ We disagree; the plaintiff did not sub-
mit evidence sufficient to create a genuine issue of
material fact as to whether an actual agency relation-
ship existed between Aranow and the hospital.
Pursuant to the theory of vicarious liability, a princi-
pal can be held liable for the negligent acts of its agent.
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. See generally Alvarez v. New Haven Register,
Inc., 249 Conn. 709, 720–21, 735 A.2d 306 (1999).
‘‘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
. . . .’’18 (Internal quotation marks omitted.) Beck-
enstein v. Potter & Carrier, Inc., 191 Conn. 120, 132,
464 A.2d 6 (1983), quoting 1 Restatement (Second),
Agency § 1 (1958). In order to establish an agency rela-
tionship, a plaintiff must prove: ‘‘(1) a manifestation
by the principal that the agent will act for him;19 (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.20 [See 1
Restatement (Second), supra, § 1, comment (b)].’’
(Footnotes added; internal quotation marks omitted.)
Beckenstein v. Potter & Carrier, Inc., supra, 133. Our
Supreme Court has held that ‘‘[a]n essential ingredient
of agency is that the agent is doing something at the
behest and for the benefit of the principal.’’ (Internal
quotation marks omitted.) Id.
In the context of a medical malpractice action, our
Superior Court has consistently held that the fact that
a physician holds staff privileges at a hospital is not
itself sufficient to support a finding that an agency rela-
tionship was created. See, e.g., Griffin v. St. Vincent’s
Medical Center, Superior Court, judicial district of Fair-
field, Docket No. CV-06-5005220-S (January 11, 2011);
Spaulding v. Rovner, Superior Court, judicial district of
Stamford-Norwalk, Complex Litigation Docket, Docket
No. X08-CV-04-4001232-S (April 3, 2009) (47 Conn. L.
Rptr. 544, 547–49); Walker v. Temple Surgical Center,
Superior Court, judicial district of Waterbury, Docket
No. CV-06-5005306-S (November 3, 2008).
In the present case, the plaintiff alleged in her com-
plaint that the ‘‘[h]ospital’s medical staff, nursing staff,
agents, servants and/or employees, including . . . Ara-
now, were held out to the general public as agents,
servants and/or employees of the . . . [h]ospital, act-
ing within the scope of their authority and/or with[in]
the course of their employment and the . . . [h]ospital
is liable for their conduct and their consequences.’’
(Emphasis added.)
The plaintiff also offered evidence, in the form of
deposition testimony, affidavits, and printouts from the
Middlesex Hospital Center for Weight Loss Surgery
website (website), which, she argues, demonstrates
that there is a genuine issue of material fact as to
whether there was an actual agency relationship
between Aranow and the hospital. The evidence offered
by the plaintiff included: (1) the website homepage,
which featured a photograph of Aranow and listed Ara-
now as the founder and medical director of the Middle-
sex Hospital Center for Weight Loss Surgery; (2) the
text of the website describing Aranow as part of ‘‘our
team,’’ which included ‘‘experienced and specialized
nurses and other caregivers’’ who will ‘‘be on hand to
monitor your health and progress’’ after surgery; (3) the
text of the website advertising weight loss information
sessions conducted by Aranow, and the plaintiff’s depo-
sition testimony, in which she stated that Aranow gave
seminars that every prospective weight loss surgery
patient had to attend before making an appointment
with Aranow; (4) Aranow’s curriculum vitae, which
stated that he served as the founder and director of
Middlesex Hospital Center for Weight Loss Surgery;
(5) the plaintiff’s deposition testimony that she always
understood Aranow to be employed by the hospital,
and her sworn affidavit in which she stated that she
relied on the belief that Aranow was employed by the
hospital in electing to undergo gastric bypass surgery
by Aranow at the hospital; and (6) Aranow’s deposition
testimony in which he stated that he was the ‘‘founding
member’’ of the Middlesex Hospital Center for Weight
Loss Surgery, that he and the hospital worked together
to establish that center—complete with psychologists,
dieticians, nursing staff, and sufficient technology—and
that he and the hospital had established the center prior
to his performing weight loss procedures at the hospital,
and that he and the hospital worked together.
In its brief in support of its motion for summary
judgment, the hospital argued that Aranow was ‘‘a pri-
vate attending general surgeon providing care and treat-
ment to patients in his private office in Middletown
. . . with medical staff privileges at [the] hospital.’’ In
support of its argument, the hospital submitted two
affidavits. The first affidavit, signed by the vice presi-
dent of human resources at the hospital, stated that
Aranow was not an agent of the hospital and did not
have an employment contract with the hospital. The
second affidavit, signed by the hospital’s chief financial
officer, stated that Aranow did not receive any compen-
sation from the hospital for his services.
The court concluded that: ‘‘In this case there is no
evidence that the hospital consented to have Dr. Ara-
now act as its agent or that it exercised any control
over the means and methods of his practice of medicine.
. . . [T]here is no evidence to establish that the profes-
sional services provided by Dr. Aranow to the plaintiff,
whether in his private offices at Shoreline or while the
plaintiff was at the hospital, were controlled by the
hospital or that it controlled the manner in which Dr.
Aranow performed surgery.
‘‘The plaintiff argues that the hospital’s website touts
Dr. Aranow as the ‘founder’ of the Center for Weight
Loss [Surgery] and refers to Dr. Aranow as being part
of its staff. She also argues that the hospital vested
Dr. Aranow with authority to conduct informational
seminars on its premises to educate prospective candi-
dates about bariatric surgery. None of these arguments
supports the third element of Beckenstein, that is, that
the hospital controlled or directed the manner in which
Dr. Aranow performed surgery. Therefore, even if the
statute of limitations did not bar the plaintiff’s suit
against Dr. Aranow, the hospital would not be liable
for his conduct under an agency theory.’’
The plaintiff argues on appeal that there is a genuine
issue of material fact as to the third element of the
Beckenstein test, that is, whether the hospital had a
right to control Aranow’s actions. She argues that
because the hospital held out Aranow ‘‘to the public as
the founder and director of its Center for Weight Loss
Surgery,’’ if Aranow ‘‘behaved in a manner that the . . .
hospital found to be inappropriate or harmful, there
can be no doubt that the . . . hospital would take steps
to discipline him. By way of example, if [Aranow] was
found to be over-prescribing narcotics to patients, or
performing risky, experimental surgeries, the . . . hos-
pital would certainly make efforts to stop him. Thus,
the plaintiff has created a genuine issue of material fact
as to the third element of the Beckenstein test . . . .’’
We agree with court that the plaintiff has not pre-
sented evidence sufficient to create an issue of material
fact regarding the third element of Beckenstein. Allega-
tions, speculation and conclusory statements of fact
are not sufficient to withstand summary judgment. See
Chadha v. Charlotte Hungerford Hospital, supra, 97
Conn. App. 540. The plaintiff did not present any evi-
dence indicating that the hospital had the right to con-
trol Aranow’s conduct. The plaintiff did not present
evidence that there was a contract between Aranow
and the hospital for the provision of services, nor did the
plaintiff present evidence of any sort of understanding
between the hospital and Aranow that the hospital had
a right to control Aranow’s performance of surgery or
prescription of medication.
The hospital presented evidence that there was no
employment contract between the hospital and Aranow
and evidence that the hospital did not provide any com-
pensation to Aranow. The plaintiff did not present any
evidence to counter these affidavits sufficient to create
a genuine issue of material fact. Therefore, we conclude
that the court properly determined, as a matter of law,
that there was no actual agency relationship between
Aranow and the hospital.
B
The plaintiff’s final claim is that the court incorrectly
determined that the hospital could not be held liable
for Aranow’s alleged negligence on an apparent agency
theory as a matter of law and, in any event, that there
was no apparent agency relationship between the hospi-
tal and Aranow. The plaintiff contends that the court
improperly relied on L & V Contractors, LLC v. Heritage
Warranty Ins. Risk Retention Group, Inc., 136 Conn.
App. 662, 670, 47 A.3d 887 (2012), for the proposition
that the doctrine of apparent authority cannot be used
to impose tort liability on an alleged principal, and that
the court failed to consider our Supreme Court’s deci-
sion in Fireman’s Fund Indemnity Co. v. Longshore
Beach & Country Club, Inc., 127 Conn. 493, 18 A.2d
347 (1941), which implied the contrary. The plaintiff
further contends that she presented evidence, in the
form of affidavits and testimony, sufficient to create a
genuine issue of material fact as to whether the hospital
may be held liable for Aranow’s negligence under the
doctrine of apparent authority.
The hospital argues that the court properly concluded
that the hospital could not be held liable as a matter
of law pursuant to the doctrine of apparent authority.
The hospital maintains that, in Connecticut, the doc-
trine of agency by estoppel, or apparent authority, has
never been used to attach tort liability. See Davies v.
General Tours, Inc., supra, 63 Conn. App. 31; Mullen
v. Horton, 46 Conn. App. 759, 772, 700 A.2d 1377 (1997).
In its memorandum of decision, the court concluded
that even if the statute of limitations did not bar the
plaintiff’s claims against Aranow, the hospital could not
be held vicariously liable under a theory of apparent
authority. In so ruling, the court relied on L & V Contrac-
tors, LLC. Because we are bound by that precedent,
we conclude that the court properly rendered summary
judgment in favor of the hospital.
We begin with a review of the legal principles underly-
ing the doctrine of apparent authority, also known as
the doctrine of agency by estoppel. ‘‘Apparent and
ostensible authority is such authority as a principal
intentionally, or by want of ordinary care, causes or
allows a third person to believe that the agent pos-
sesses.21 This authority to act as agent may be conferred
if the principal affirmatively or intentionally, or by lack
of ordinary care, causes or allows third persons to act
on an apparent agency. It is essential to the application
of the above general rule that two important facts be
clearly established: (1) that the principal held the agent
out to the public as possessing sufficient authority to
embrace the particular act in question . . . and (2) that
the person dealing with the agent knew of the facts and
acting in good faith had reason to believe and did believe
that the agent possessed the necessary authority. The
apparent power of an agent is to be determined by the
acts of the principal and not by the acts of the agent;
a principal is responsible for the acts of an agent within
his apparent authority only where the principal himself
by his acts or conduct has clothed the agent with the
appearance of authority, and not where the agent’s own
conduct has created the apparent authority. The liability
of the principal is determined in any particular case,
however, not merely by what was the apparent author-
ity of the agent, but by what authority the third person,
exercising reasonable care and prudence, was justified
in believing that the principal had by his acts under the
circumstances conferred upon his agent.’’ (Footnote
added; internal quotation marks omitted.) Fireman’s
Fund Indemnity Co. v. Longshore Beach & Country
Club, Inc., supra, 127 Conn. 496–97.
The law in Connecticut regarding the applicability of
the doctrine of apparent authority to actions in tort
is not entirely clear. We begin with Fireman’s Fund
Indemnity Co., in which our Supreme Court first
addressed the issue of the applicability of the doctrine
of apparent authority to actions brought in tort. In that
case, the issue before the court was whether a tortfea-
sor’s employer could properly be held liable for the
tortfeasor’s negligence pursuant to the doctrine of
apparent authority.
The facts of Fireman’s Fund Indemnity Co. are as
follows. The defendant country club, located on an inlet
of Long Island Sound, employed young men, who wore
green uniforms, to park members’ cars upon arrival at
the club and to deliver their cars upon leaving the club.
Id., 494. Their income was wholly derived from the tips
they received. The plaintiff’s subrogor, a club member
and automobile owner (member)22 arrived at the club
one Sunday afternoon to play golf. Upon his arrival, he
surrendered his car to a parking attendant, as was his
custom, who parked the car near an inlet of Long Island
Sound. After the member finished playing golf, the
attendant delivered his car to him. When the member
informed the attendant that he was not then leaving,
the attendant returned the car to the same place he had
originally parked it. Id., 495. The member ate dinner at
the club, after which, at approximately 10 p.m., he went
out onto the porch of the clubhouse to find a parking
attendant and found no parking attendants available.
James Plant, a watchman employed by the defendant,
who had finished his work and eaten dinner in the
clubhouse kitchen, walked past the plaintiff. Plant was
wearing a blue uniform. The member asked Plant if he
could drive a car, to which Plant replied ‘Yes.’ The
member offered him a fifty cent tip in exchange for
Plant’s retrieving the member’s car and bringing it to
him. Plant agreed and departed, but did not return. Id.
After a search, member’s car was found submerged
in the waters of the inlet. Id. Plant was in the driver’s
seat, drowned. Evidence submitted at trial indicated
that Plant was employed by the defendant as a watch-
man to patrol the grounds from 9 a.m. to 5 p.m. on
certain days, and from 12 p.m. to 10 p.m. on Saturdays
and Sundays, after which he ate in the clubhouse
kitchen. His duty was to prevent nonmembers from
entering the defendant club. In exchange for his work
he was paid $60 a month and received certain meals.
Evidence submitted at trial indicated that Plant did not
have any authority to park cars or to deliver cars for
members when the plaintiff engaged him. There was
no testimony that Plant had ever parked or delivered a
car for a member at any other time, and it was unknown
whether Plant was capable of driving and parking
cars. Id.
Applying the test for apparent authority to the facts
found, our Supreme Court concluded that Plant did
not act within the ‘‘apparent or ostensible scope of his
authority.’’ Id., 497. The court focused on the defen-
dant’s representations in concluding that ‘‘the plaintiff
failed to establish that the defendants held Plant out
to the members as possessing sufficient authority to
embrace the particular act in question, or knowingly
permitted him to act as having such authority; or that
[the member] acting in good faith had reason to believe
and did believe that Plant possessed the necessary
authority. The defendants’ liability is determined by
what authority [the member], exercising reasonable
care and prudence, was justified in believing that the
defendants had by their acts under the circumstances
conferred on Plant.’’ Id., 497–98. Our Supreme Court,
therefore, concluded that the facts of the case were not
sufficient to establish apparent authority. Id., 498.
Fireman’s Fund Indemnity Co. held only that the
facts of that case were insufficient to create apparent
authority. Our Supreme Court did not hold or even
mention the possibility that the doctrine of apparent
authority applied only to actions in contract and was
not available to actions in tort; nor, of course, did it
hold to the contrary. The issue of whether vicarious
liability could be used to hold a principal liable in tort
was simply not an issue in the case.
This court addressed the issue of the applicability of
the doctrine of apparent authority to actions in tort on
several occasions. In Mullen v. Horton, supra, 46 Conn.
App. 759, this court dealt with the issue of the applicabil-
ity of the doctrine of apparent authority to actions in
tort in the context of sexual abuse. In that case, the
defendants were a Roman Catholic priest (priest), who
was ordained by and an agent of the Oblate order
(Oblate). The priest was also a practicing psychologist
who performed weekly priestly duties at St. Matthew’s
Church in Tolland, where the plaintiff was a parishioner.
In August, 1988, the plaintiff sought treatment from the
priest for psychological, emotional, and marital prob-
lems because of his joint status as a Roman Catholic
priest and a psychologist. The plaintiff was treated by
the priest at a therapy center where he maintained
an office, as well as at a spiritual retreat center in
Willimantic. In February, 1989, the priest began a sexual
relationship with the plaintiff. Sexual encounters
occurred during the counseling sessions until February,
1992. In 1993, the plaintiff filed a seven count complaint
against the priest and the Oblate. The Oblate filed a
motion for summary judgment, arguing that there was
no genuine issue of material fact as to whether it was
vicariously liable for the priest’s alleged misconduct
under either the doctrine of respondeat superior or the
doctrine of apparent authority. Id., 760–61. This court
held that with the trial court properly found that no
genuine issue of material fact existed as to whether the
Oblate was vicariously liable for the priest’s actions
under the doctrine of apparent authority.23 This court
explained: ‘‘In other states, the doctrine of apparent
authority has been used to hold a principal, who repre-
sents that another is his servant or agent and thereby
causes a third person to rely justifiably on the care or
skill of such agent, vicariously liable for harm caused
to the third person by the lack of care or skill of his
servant or agent. See 1 Restatement (Second), Agency
§ 267, pp. 578–79 (1958); see also Mehlman v. Powell,
281 Md. 269, 272–75, 378 A.2d 1121 (1977); Sanders v.
Rowan, 61 Md. App. 40, 50–58, 484 A.2d 1023 (1984);
McClellan v. Health Maintenance, 413 Pa. Super. 128,
135–39, 604 A.2d 1053 (1992). In Connecticut, however,
the doctrine of apparent authority has never been used
in such a manner. Thus, because we are bound by Con-
necticut precedent; see Conway v. Wilton, 238 Conn.
653, 658–59, 680 A.2d 242 (1996); Jolly, Inc. v. Zoning
Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831
(1996); we conclude that the doctrine of apparent
authority is inapplicable to this case.’’ Mullen v. Horton,
supra, 46 Conn. App. 771–72.
In Davies v. General Tours, Inc., supra, 63 Conn.
App. 34, this court held that the plaintiff, who injured
her ankle when she stepped into deep sand while exiting
a tour bus parked on the side of a Moroccan highway,
had not ‘‘set forth facts sufficient to establish an agency
relationship between the defendant [domestic tour
operator] and Recep [a Morrocan travel agency] that
would permit her to hold the defendant liable for the
acts or omissions of Recep or its employees.’’ Id., 34.
In Davies, this court stated: ‘‘The plaintiff cites two
Superior Court decisions in support of her proposition
that her cause of action against the defendant, under
a theory of apparent agency, should proceed to trial.
We are not persuaded. Those cases, at most, permitted
causes of action against hospitals for the acts or omis-
sions of independent contractors who were held out
by the hospitals to be employees, not partners.24 We
have found no Connecticut authority favoring the plain-
tiff’s proposition that this same reasoning should apply
to the tenuous relationship between a tour operator
and an independent contractor that it contracted with
to provide services to tourists around the world.’’
(Emphasis in original; footnote omitted.) Id., 32–33.
This court’s decisions in Mullen and Davies, when
read in conjunction with our Supreme Court’s decision
in Fireman’s Fund Indemnity Co., held that the facts
of those cases did not justify the imposition of vicarious
liability and stated that the doctrine of apparent author-
ity had not yet been affirmatively recognized by our
appellate courts to be applicable to tort cases. Although
Mullen may have implied that the doctrine is simply
not available to create liability in tort, Davies appears
to leave the door open.25
More recently, however, this court discussed whether
apparent authority applies to tort liability in L & V
Contractors, LLC v. Heritage Warranty Ins. Risk
Retention Group, Inc., supra, 136 Conn. App. 662. In
L & V Contractors, LLC, the plaintiff sought to hold
the defendant AAMCO Transmissions, Inc. (AAMCO),
an alleged principal, liable for the actions of its alleged
agent, a repair shop, under various theories of tort liabil-
ity including conversion, statutory theft, and fraudulent
and negligent misrepresentation. Id., 665. The plaintiff’s
insurer brought the plaintiff’s vehicle, which needed
various repairs, to a repair shop that utilized the
AAMCO name. Id., 665–66. After the plaintiff’s insurer
failed to pay for the repairs, the repair shop obtained
a mechanic’s lien against the vehicle. Id., 664. When the
plaintiff attempted to pay for the repairs itself, the repair
shop represented to the plaintiff that the vehicle had
been sold to cover the cost of the repairs despite the
fact that it actually had not been sold. Id. The trial court
concluded that AAMCO was liable for the actions of
the repair shop under the doctrine of apparent author-
ity. Id., 666. This court reversed, holding that apparent
authority did not apply in the context of tort liability or
in the absence of a pre-existing relationship. Id., 669–70.
In L & V Contractors, LLC, we explained: ‘‘Connecti-
cut . . . has yet to apply the doctrine of apparent
authority to allow for a principal to be held liable to a
third person who was harmed by the tortious conduct
of a person held out as the principal’s agent. In Mullen
v. Horton, [supra, 46 Conn. App. 771] . . . this court
observed that other states have used the doctrine of
apparent authority to hold a principal, who represents
that another is his servant or agent and thereby causes
a third person to rely justifiably on the care or skill of
such agent, vicariously liable for harm caused to the
third person by the lack of care or skill of his servant
or agent. The court, however, noted that the doctrine
had never been used in such a manner in Connecticut
and, therefore, concluded that the doctrine of apparent
authority was inapplicable to the case before it. . . .
‘‘In Davies v. General Tours, Inc., [supra, 63 Conn.
App. 31] . . . this court again determined that the doc-
trine of apparent authority should not be used to hold
a principal liable for the tortious conduct of a person
held out as its agent. Citing Mullen, we determined that
apparent authority is not a viable ground on which to
premise liability against a [principal] sued for the torts
of an alleged agent. . . .
‘‘In the present case, the claims against AAMCO
sound in tort and are based on the tortious conduct of
[the repair shop], which the plaintiff alleges AAMCO
held out as its agent. Because this court has held that
the doctrine of apparent authority cannot be used to
hold a principal liable for the tortious actions of its
alleged agent, we conclude that the trial court erred in
determining that [the repair shop] had apparent author-
ity to bind AAMCO.’’ (Citations omitted; internal quota-
tion marks omitted.) L & V Contractors, LLC v.
Heritage Warranty Ins. Risk Retention Group, Inc.,
supra, 136 Conn. App. 669–70.
The hospital contends that L & V Contractors, LLC,
controls and holds that apparent authority can never
be used to establish vicarious liability for actions in
tort brought in Connecticut. The plaintiff contends that
Fireman’s Fund Indemnity Co., and this court’s deci-
sions in Davies and Mullen, along with numerous Supe-
rior Court cases, suggest that Connecticut courts have
not directly barred the application of the doctrine of
apparent agency to actions in tort. The plaintiff also
contends that Fireman’s Fund Indemnity Co. controls,
because this court’s arguably contrary decision in L &
V Contractors, LLC, does not mention our Supreme
Court’s decision in Fireman’s Fund Indemnity Co. The
plaintiff argues that to that effect she has submitted
evidence sufficient to create a genuine issue of material
fact as to whether the hospital held out Aranow as its
apparent agent and whether the plaintiff relied on this
representation.26
We cannot overlook the clear language in our deci-
sion in L & V Contractors, LLC, which states: ‘‘the
doctrine of apparent authority cannot be used to hold
a principal liable for the tortious actions of its alleged
agent . . . .’’ L & V Contractors, LLC v. Heritage War-
ranty Ins. Risk Retention Group, Inc., supra, 136 Conn.
App. 670. ‘‘It is settled policy . . . that one panel of
this court, on its own, cannot overrule the precedent
established by a previous panel’s holding.’’ State v.
Eleck, 130 Conn. App. 632, 645, 23 A.3d 818 (2011), aff’d,
314 Conn. 123, A.3d (2014). Because we are bound
by our decision in L & V Contractors, LLC, we conclude
that the trial court correctly determined that the hospi-
tal could not be held vicariously liable for Aranow’s
alleged negligence based on a theory of apparent agency
and conclude that, therefore, the court’s rendering of
summary judgment as to the hospital was proper.
The judgment is reversed in part with respect to Ara-
now and Shoreline only as to the plaintiff’s claim that
the continuing course of treatment doctrine applied to
toll the statute of repose in § 52-584, and the case is
remanded with direction to deny the motion for sum-
mary judgment as to that claim and for further proceed-
ings according to law. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The pleadings establish that Aranow practiced medicine at and was an
employee or agent of Shoreline, and was a member of the medical staff at
the hospital.
2
General Statutes § 52-584 provides: ‘‘No action to recover damages for
injury to the person, or to real or personal property, caused by negligence,
or by reckless or wanton misconduct, or by malpractice of a physician,
surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be
brought but within two years from the date when the injury is first sustained
or discovered or in the exercise of reasonable care should have been discov-
ered, and except that no such action may be brought more than three
years from the date of the act or omission complained of, except that a
counterclaim may be interposed in any such action any time before the
pleadings in such action are finally closed.’’
‘‘The three year period specifies the time beyond which an action under
§ 52-584 is absolutely barred, and the three year period is, therefore, a statute
of repose.’’ Rosato v. Mascardo, 82 Conn. App. 396, 402, 844 A.2d 893 (2004);
see also Barrett v. Montesano, 269 Conn. 787, 794, 849 A.2d 839 (2004) (‘‘the
three year provision in § 52-584 is the repose section of the statute of
limitations’’ [emphasis omitted; internal quotation marks omitted]).
3
Count two of the complaint is not at issue in this appeal. Count two
asserted a direct claim of medical negligence against the hospital, alleging
that the operating room nursing staff was negligent on December 8, 2003,
because they failed to properly conduct the sponge count and allowed a
surgical sponge to be left in the plaintiff’s abdomen. Any possible negligence
on the part of the hospital directly is not at issue on appeal.
4
On appeal, the plaintiff concedes that the statute of repose in § 52-584
has run with respect to her claims against the defendants. She argues,
however, that there are genuine issues of material fact as to whether the
statute of repose in § 52-584 was tolled by the continuing course of conduct
doctrine and the continuing treatment doctrine.
5
‘‘These doctrines share similar supporting rationales. The continuing
course of conduct doctrine reflects the policy that, during an ongoing rela-
tionship, lawsuits are premature because specific tortious acts or omissions
may be difficult to identify and may yet be remedied. Similarly, [t]he policy
underlying the continu[ing] treatment doctrine seeks to maintain the physi-
cian/patient relationship in the belief that the most efficacious medical care
will be obtained when the attending physician remains on a case from onset
to cure. . . .
‘‘Specifically, the primary difference between the doctrines is that the
[continuing treatment doctrine] focuses on the plaintiff’s reasonable expec-
tation that the treatment for an existing condition will be ongoing, while
the [continuing course of conduct doctrine] focuses on the defendant’s duty
to the plaintiff arising from his knowledge of the plaintiff’s condition. . . .
Accordingly, when the plaintiff had no knowledge of a medical condition
and, therefore, had no reason to expect ongoing treatment for it from the
defendant, there is no reason to apply the [continuing treatment] doctrine.
. . . In contrast, under the continuing course of conduct doctrine, if the
defendant had reason to know that the plaintiff required ongoing treatment
or monitoring for a particular condition, then the defendant may have had
a continuing duty to warn the plaintiff or to monitor the condition and the
continuing breach of that duty tolls the statute of limitations, regardless of
whether the plaintiff had knowledge of any reason to seek further treatment.’’
(Citation omitted; emphasis in original; internal quotation marks omitted.)
Martinelli v. Fusi, supra, 290 Conn. 356–57.
6
The plaintiff submits that Aranow owed her a continuing duty to discover
and remedy the initial wrong. She claims that the court erred in concluding
that Aranow did not owe her a continuing duty. In support of her claim the
plaintiff makes two arguments. First, the plaintiff argues that the court erred
because it considered only one way in which a continuing duty may arise,
that is, later wrongful conduct, and the court should have considered ‘‘the
ongoing special relationship between the [plaintiff and Aranow], as patient
and physician, which our courts have held can create a duty sufficient to
satisfy the second prong of the Witt test regardless of whether [Aranow]
had ‘actual knowledge’ of the original wrong. The plaintiff claims that the
court ‘‘incorrectly held that, under the continuing course of conduct doctrine,
the statute of limitations would not be tolled unless the [Aranow] had ‘actual
knowledge’ that a surgical sponge was left in the plaintiff’s abdominal cavity
during the gastric bypass surgery in December of 2003.’’
In granting summary judgment in favor of the defendants, the court con-
cluded that the plaintiff did not present evidence sufficient to create a
genuine issue of material fact as to the second prong of the Witt test, that
is, whether Aranow owed her a continuing duty related to the alleged original
wrong of leaving a surgical sponge inside the plaintiff’s abdomen during
the performance of gastric bypass surgery. In its memorandum of decision,
the court reasoned that Aranow did not have a continuing duty to the plaintiff
because the plaintiff did not present any evidence creating a genuine issue
of material fact as to whether Aranow had actual knowledge of, or reason
to suspect, the alleged initial wrong—that is, the retained sponge in the
plaintiff’s abdomen—or engaged in some later wrongful conduct.
The court reasoned: ‘‘The defendants have submitted evidence that at the
time of the surgical procedure, Dr. Aranow was informed by the hospital
staff, who were responsible for the surgical sponge count, that the sponge
count was correct. There is no evidence that any defendant had reasons to
suspect that the sponge count was incorrect or that their care of the plaintiff
was in any way negligent. Without such evidence there is no factual basis
on which to allege that any defendant had actual knowledge of a suspected
retained sponge in the plaintiff’s abdomen which they failed to make known
to the plaintiff and, therefore, no basis to toll the statute of limitations under
. . . the continuing course of . . . conduct doctrine. . . .
‘‘Unlike Witt, this is not a case where the defendants suspected that the
plaintiff had any type of a concerning condition about which they failed to
advise the plaintiff. The defendants, therefore, did not commit ‘some later
wrongful conduct’ related to their prior acts which might implicate the Witt
exception, triggering the continuing duty to warn.’’
The plaintiff argues that the court misinterpreted our case law to include
a requirement that a defendant doctor possess actual knowledge as a prereq-
uisite for finding that the defendant doctor owed a continuing duty to the
plaintiff. The plaintiff argues that Connecticut courts have imposed only an
‘‘actual knowledge’’ requirement in cases where there is no ongoing physi-
cian-patient relationship. See, e.g., Martinelli v. Fusi, supra, 290 Conn. 363.
According to the plaintiff, it follows that in cases where an ongoing physician-
patient relationship exists, that relationship alone is sufficient to find a
continuing duty and there is no requirement that the physician have ‘‘actual
knowledge’’ that he committed a prior wrong.
Second, the plaintiff argues that she presented evidence such that there
is a genuine issue of material fact as to whether Aranow had an ongoing
duty to the plaintiff by virtue of an ongoing special relationship as physician
and patient. The plaintiff points to her medical records, which indicate that
she was being treated for morbid obesity, and that, following the gastric
bypass surgery, she continued to attend appointments with Aranow at least
once a year and on at least eight separate occasions.
In response, Aranow contends that the court properly determined that
the statute of repose in § 52-584 is not tolled by the continuing course of
conduct doctrine unless there is evidence that the physician had actual
knowledge of the initial wrong. Accordingly, he argues that here, because
there was uncontested evidence demonstrating that he did not have actual
knowledge of the initial wrong, the statute of repose cannot be tolled.
Aranow points to his own deposition testimony and that of hospital staff,
which demonstrate that he was informed by the hospital staff, who were
responsible for the sponge count, that the sponge count was correct. Aranow
argues that summary judgment was appropriate because the plaintiff failed
to submit any evidence in rebuttal which could create a genuine issue of
material fact as to whether he had actual knowledge of the retained sponge
in the plaintiff’s abdominal cavity.
7
In her amended complaint, the plaintiff did not allege that Aranow
breached a continuing duty owed to her. She alleged that Aranow was
negligent, and breached the duty of care owed to the plaintiff, in failing to
locate and remove all instruments and/or surgical sponges from her abdomi-
nal cavity, in failing to ensure that the sponge count was accurate, and in
failing to perform the gastric bypass surgery in such a manner as to ensure
the health and well-being of the plaintiff. Nowhere in her amended complaint
does the plaintiff allege that Aranow breached a continuing duty owed to
the plaintiff after the initial alleged wrong.
8
The plaintiff submitted Aranow’s deposition testimony in which he states
that he treated another patient who had a retained surgical instrument in
their abdomen following a gastric bypass procedure and that, in that case,
he ordered a CT scan that ultimately revealed the presence of the instrument,
which was subsequently removed. This evidence, however, is irrelevant to
the issue of whether Aranow breached a continuing duty owed to the plaintiff
in this case. The plaintiff does not allege that the facts of her case mirror
the facts of the other patient’s case. In fact, the plaintiff has provided no
evidence about the facts and circumstances giving rise to Aranow’s discovery
of the instrument in his other patient. Therefore we have no basis on which
to compare Aranow’s failure to order exploratory tests in this case with his
choice to order exploratory tests in other cases.
9
It is useful to contrast the factual situation in Witt v. St. Vincent’s Medical
Center, supra, 252 Conn. 363. In Witt, the defendant pathologist examined
tissue from a biopsy performed on the plaintiff in 1983, and he reported
apparently benign lymphoid hyperplasia. Id., 365. The plaintiff was diagnosed
with lymphatic cancer eleven years later. In an addendum to the later report,
the defendant wrote that he had been concerned at the time (of the initial
reading) that the plaintiff ‘‘might be evolving a small lymphocytic lymphoma/
CCL.’’ Id. Our Supreme Court held that there was a genuine issue as to the
continuing breach of duty because the initial knowledge of a potential
problem could be found to have triggered a duty to warn and to report the
initial concerns. A jury could find that the duty was continually breached.
Id., 376. The court held that the situation was analogous to that of a physician
who, after an initial diagnosis, learns that the first diagnosis was incorrect. Id.
In the present case, there is no evidence of such continuing breach. There
is no genuine issue as to Aranow’s lack of knowledge of the presence of
the sponge, and there is no evidence that his failure to diagnose the presence
of the sponge fell below the applicable standard of care.
10
The plaintiff claims that the court incorrectly determined that that the
continuing treatment doctrine did not apply because: (1) the court incor-
rectly concluded that the ‘‘identifiable medical condition’’ required to satisfy
the first prong of Grey v. Stamford Health System, Inc., 282 Conn. 745, 924
A.2d 831 (2007), was limited to the surgical sponge itself, rather than the
plaintiff’s overarching condition of morbid obesity; (2) the court made an
improper factual determination that the plaintiff’s testimony that she com-
plained to Aranow about postoperative stomach pain was not credible, and
from this concluded that the plaintiff did not present any evidence that she
was being treated for an identifiable medical condition; and (3) the court,
in analyzing the second prong of Grey, improperly focused on Aranow’s
beliefs about whether he provided continued treatment, although our law
requires the court to focus on the plaintiff’s reasonable beliefs and expecta-
tions about whether she was receiving continuing treatment and monitoring.
11
In her memorandum of law opposing Aranow and Shoreline’s motion
for summary judgment, the plaintiff argued that she satisfied all three prongs
of the Grey test because: (1) she submitted medical records, letters, testi-
mony, and other evidence tending to show that her gastric bypass surgery
was only one part of her treatment for her condition of morbid obesity, an
identifiable medical condition, that required ongoing postsurgical treatment
and monitoring; (2) she submitted evidence in the form of deposition testi-
mony, pamphlets, and medical records, tending to show that she reasonably
could have anticipated that Aranow, the physician who diagnosed her condi-
tion of morbid obesity, advised her about and performed the surgery, and
worked with her to develop a comprehensive plan for overcoming her
morbid obesity, would continue to provide care and monitoring regarding
her condition of morbid obesity post-surgery; and (3) she brought the action
on August 5, 2010, less than three years after Aranow’s ongoing treatment
ended by the discovery of the foreign material on August 6, 2009, and
subsequent treatment to remove it.
12
At the time of Aranow’s diagnosis of the plaintiff, he indicated that
the plaintiff also suffered from diabetes, hypertension, arthritis, urinary
incontinence, depression, and hyperlipidemia.
13
The top portion of the postoperative note, which appears to be filled
out by the patient, includes several categories such as a section asking the
patient to describe the visit as ‘‘routine’’ or ‘‘other.’’ The plaintiff indicated
on each note that the purpose of her visit was ‘‘routine.’’
14
Aranow argues that the plaintiff did not submit any evidence that Aranow
provided continuing treatment other than treatment for the plaintiff’s condi-
tion of a ‘‘retained surgical sponge.’’ The failure, however, of a physician
to make the correct diagnosis as to the underlying condition, while continu-
ing to treat or to monitor the symptoms, such as abdominal pain, does not
mean, for purposes of continuity, that there has not been treatment or
monitoring. Miccio v. Gerdis, 120 App. Div. 3d 639, 640, 990 N.Y.S.2d 863
(2014). Thus, a physician cannot defeat the application of the continuous
treatment doctrine merely because of his failure to make a correct diagnosis
as to the underlying condition, where he treated or monitored the patient
continuously over the relevant time period for symptoms that are ultimately
traced to that condition. Id.
15
The third prong of the Grey test is not at issue in this appeal.
16
In states that have adopted a foreign object exception, that exception
generally provides that when a foreign object is unintentionally left in a
plaintiff’s body during a medical procedure, the statute of limitations is
tolled until such time as the plaintiff discovers, or in the exercise of reason-
able diligence should have discovered, the presence of the foreign object.
See, e.g., Massachusetts General Laws, ch. 260, § 4, and New York Civil
Practice Law and Rules § 214-a.
17
We note that although in further proceedings it may be found that the
continuing treatment doctrine tolls the statute of repose, it also may turn out
that the doctrine is unavailing. We therefore reach the constitutional issue.
18
The determination of whether one is an employee or an independent
contractor ‘‘depends upon the existence or nonexistence of the right to
control the means and method of work.’’ Beaverdale Memorial Park, Inc.
v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 (1940). Liability will generally
not be imposed on the employer for the negligence of an independent
contractor because of the absence of the right to control. See Pelletier v.
Sordoni/Skanska Construction Co., 264 Conn. 509, 528, 825 A.2d 72 (2003)
(‘‘[o]rdinarily, an employer of an independent contractor, absent an act of
negligence on his own part, is not liable for the negligent acts of the contrac-
tor’’ [internal quotation marks omitted]); see also D. Wright & J. FitzGerald,
Connecticut Law of Torts (2d Ed. 1968) § 67.
19
In determining whether the parties intended to form an agency relation-
ship, the ‘‘operative terms’’ of any agreement between the parties should
be examined. Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn. 133–34;
see also Darling v. Burrone Bros. Inc., 162 Conn. 187, 195, 292 A.2d 912
(1972).
20
With respect to the issue of control, our Supreme Court has held that
‘‘independent ownership of a substantial enterprise’’ is an important factor
to consider because ‘‘an independent owner is less likely to submit to the
control of others in the operation of its business than a non-owner.’’ (Internal
quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., supra, 191
Conn. 137. An employer may exercise control over the general results and
also the immediate results from time to time, without creating an agency
relationship. Darling v. Burrone Bros. Inc., 162 Conn. 187, 193, 292 A.2d
912 (1972).
Other factors our courts have considered when analyzing the issue of
control include: (1) whether the alleged agent is engaged in a distinct occupa-
tion or business; see, e.g., Beckenstein v. Potter & Carrier, Inc., supra, 191
Conn. 137; (2) the kind of occupation, with respect to whether the work is
typically done under the direction of the employer or without supervision;
see, e.g., Northwestern Mutual Life Ins. Co. v. Tone, 125 Conn. 183, 192, 4
A.2d 640 (1939); (3) the skill required to perform the work; see, e.g., Darling
v. Burrone Bros. Inc., supra, 162 Conn. 193–97; and (4) the method of
payment, whether by the time or by the job; see, e.g., Bourgeois v. Cacciapu-
oti, 138 Conn. 317, 319–21, 84 A.2d 122 (1951).
21
1 Restatement (Second), Agency § 267, pp. 578–79 (1958) provides: ‘‘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.’’
22
The plaintiff insurer apparently paid for the loss of the member’s car
and was subrogated to the member’s right to bring an action against the
defendant club, which allegedly was vicariously liable for the tort of the
club’s employee. Fireman’s Fund Indemnity Co. v. Longshore Beach &
Country Club, Inc., supra, 127 Conn. 493–94.
23
The court found that there was a genuine issue as to liability under
the doctrine of respondeat superior. Mullen v. Horton, supra, 46 Conn.
App. 762–71.
24
The plaintiff in Davies alleged that the defendant had held out Recep
to be its partner. Davies v. General Tours, Inc., supra, 63 Conn. App. 27.
25
The proposition that apparent agency may be used to hold a principal
liable to a third person who was harmed by the tortious conduct of a person
held out as the principal’s agent is well established in New York. See, e.g.,
Hannon v. Seigel-Cooper Co., 167 N.Y. 244, 60 N.E. 597 (1901) (defendant
department store represented and advertised itself as carrying on practice
of dentistry in one of its departments, when department was actually leased
by Hayes who employed Dr. Cooney to render professional dental services,
defendant was held vicariously liable for plaintiff’s alleged injuries from Dr.
Cooney via doctrine of apparent agency; ‘‘here the plaintiff had a right to
rely not only on the presumption that the defendant would employ a skillful
dentist as its servant, but also on the fact that if that servant, whether skillful
or not, was guilty of any malpractice, she had a responsible party to answer
therefor in damages’’). Similarly, as noted in Mullen, several other states
accept apparent agency as a means of imposing vicarious liability in tort
actions. Mullen v. Horton, supra, 46 Conn. App. 771–72.
Several other states also recognize that apparent agency is a valid means
of establishing liability in medical malpractice. See, e.g., Seneris v. Haas,
45 Cal. 2d 811, 831–32, 291 P.2d 915 (1955); Mehlman v. Powell, 281 Md.
269, 272–75, 378 A.2d 1121 (1977); Howard v. Park, 37 Mich. App. 496,
499–502, 195 N.W.2d 39, leave to appeal denied, 387 Mich. 782 (1972); Stratso
v. Song, 17 Ohio App. 3d 39, 46–48, 477 N.E.2d 1176 (1984); McClellan v.
Health Maintenance Organization, 413 Pa. Super. 128, 135–39, 604 A.2d
1053, leave to appeal denied, 532 Pa. 664, 616 A.2d 985 (1992); Adamski v.
Tacoma General Hospital, 20 Wn. App. 98, 112–16, 579 P.2d 970 (1978).
In the medical malpractice field, the proposition that the doctrine of
apparent agency is available for actions in tort finds support in 40A Am.
Jur. 2d. 496 Hospitals and Asylums § 40 (2008), which provides: ‘‘[U]nder
certain circumstances, a hospital may be held vicariously liable for the acts
of physicians, even if they are independent contractors, if these physicians
act with the apparent authority of the hospital.’’ This proposition also finds
support in numerous Connecticut Superior Court decisons.
Since this court’s opinion in L & V Contractors, LLC, in July, 2012, our
Superior Court has issued numerous decisions expressly or impliedly holding
that L & V Contractors, LLC, is inapplicable in the medical malpractice
context, thus allowing plaintiffs to bring claims of vicarious liability based
on the doctrine of apparent agency. See, e.g., Bordonaro v. Anesthesia
Associates of Torrington, Superior Court, judicial district of Litchfield,
Docket No. CV-10-6002739-S (October 23, 2012) (55 Conn. L. Rptr. 2, 5–6)
(denying motion for summary judgment based upon challenge to apparent
agency theory); Cadavid v. Ranginwala, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-12-6014019-S (June 24, 2013) (56 Conn.
L. Rptr. 318, 319–20) (denying motion to strike similar claim); Sheehy v.
Griffin Hospital, Superior Court, judicial district of Ansonia-Milford, Docket
No. CV-12-6011638-S (September 30, 2013) (56 Conn. L. Rptr. 697, 699–700)
(same); Lohnes v. Hospital of St. Raphael, Superior Court, judicial district
of New Haven, Docket No. CV-12-6034275-S (November 20, 2013) (57 Conn.
L. Rptr. 177, 180–81) (denying hospital’s motion to strike); Heath v. Day
Kimball Hospital, Superior Court, judicial district of Hartford, Docket No.
X04-CV-11-6026678-S (December 16, 2013) (57 Conn. L. Rptr. 381, 381–86)
(denying hospital’s motion for summary judgment; ‘‘Connecticut law recog-
nizes a claim against a hospital for medical negligence of non-employee
physicians based upon a theory of apparent agency’’); Ntumbanzondo v.
Chau, Superior Court, judicial district of New Haven, Docket No. CV-11-
6017893-S (January 7, 2014) (57 Conn. L. Rptr. 415, 418–20) (denying hospi-
tal’s motion for summary judgment claiming absence of cause of action
for apparent agency); Passmore v. Day Kimball Hospital, Superior Court,
judicial district of Windham, Docket No. CV-11-6004320-S (May 29, 2014)
(denying hospital’s motion to dismiss and holding that language in L & V
Contractors, LLC, upon which hospital relied did not control case because
it was legally and factually distinguishable).
26
With respect to her assertion that the hospital held out Aranow as an
apparent agent to the public, the plaintiff points to information on the
hospital’s website, testimony, and affidavits.
The plaintiff points to information set forth on the hospital’s website,
under the heading Middlesex Hospital Center for Weight Loss Surgery,
including: (1) the homepage, which features a photograph of Aranow and
lists Aranow as the center’s founder and medical director; (2) the description
of Aranow as part of ‘‘our team’’ that includes ‘‘experienced and specialized
nurses and other caregivers’’ who will ‘‘be on hand to monitor your health and
progress’’ after surgery; and (3) the advertisement of weight loss information
sessions conducted by Aranow, which, as the plaintiff testified in her deposi-
tion, every prospective weight loss surgery patient had to attend before
making an appointment with Aranow.
She also points to testimony and affidavits, including her own testimony
that stated that she always understood Aranow to be employed by the
hospital.
With respect to her assertion that she relied on the hospital’s representa-
tions in choosing to undergo gastric bypass surgery with Aranow at the
hospital, the plaintiff relies on her sworn affidavit in which she stated that
she relied on the belief that Aranow was employed by the hospital in electing
to undergo gastric bypass surgery with Aranow at the hospital.