William Ural v . Clifford Levy CV-01-215 06/30/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William Ural, M.D., and Sue Ural

v. Civil N o . 01-215-B Opinion N o .

Clifford M . Levy, M.D., Concord Orthopedics, P.A., Keith R. Nichols, M.D., Anesthesia Associates, P.A., R. Sanborn, C.R.N.A., and Concord Hospital

MEMORANDUM AND ORDER

The plaintiffs, Doctor William Ural and his wife, allege

that the defendants negligently administered anesthesia to D r .

Ural during spine surgery. As a result, D r . Ural contends that

he suffered irreversible damage to his vision. The plaintiffs

claim that Concord Hospital is vicariously liable for the acts of

defendants Keith R. Nichols, M.D., and R. Sanborn, C.R.N.A.

Concord Hospital moves for summary judgement, arguing that D r .

Nichols and Sanborn were not employees of the Hospital and

otherwise lacked the actual or apparent authority to act as its

agents. I grant the Hospital’s motion (Doc. N o . 1 9 ) . I. BACKGROUND1

Dr. Ural is a urologist who operated a solo practice in

Middlebury, Vermont. Apparently in need of spine surgery, D r .

Ural selected Clifford Levy, M.D., to perform the operation.

Prior to his surgery, D r . Ural met with D r . Levy to discuss the

procedure. D r . Levy proposed to perform the spine surgery at

Concord Hospital because he had staff privileges there. D r . Ural

agreed. Although the operation did indeed take place at Concord

Hospital, it is undisputed that D r . Levy is not an employee,

agent or representative of Concord Hospital, and that his office

is wholly separate and distinct from the Hospital.

Dr. Nichols and Sanborn, employees of defendant Anesthesia

Associates, provided the anesthesia services for D r . Ural’s

surgery. Anesthesia Associates and its employees provide such

services to Concord Hospital under an agreement which states that

Anesthesia Associates is an independent contractor who “ . . .

agrees that neither i t , nor any of its Providers, employees or

agents, will hold themselves out or represent to anyone that they

or any of them are agents, employees or other representatives of

1 The background facts are cast in the light most favorable to the non-moving party.

-2- the [Concord] Hospital.” D r . Ural does not recall whether D r .

Nichols or Sanborn ever held themselves out as employees or

agents of Concord Hospital. The plaintiffs do not dispute the

fact that D r . Nichols and Sanborn were not employees or actual

agents of Concord Hospital.

One day prior to surgery, D r . Ural signed a Concord Hospital

consent form that stated “I understand that many of the

physicians on staff of this hospital are not employed by the

hospital, nor are they agents of the hospital. They are

independent practitioners.” Although D r . Ural did not read the

entire consent form and could not recall its terms, he

nonetheless intended to go through with the operation “in spite

of the fact that [he] didn’t read the consent form.”

On the day of surgery, Sanborn met with Ural in the pre-

operative “holding” room. Sanborn testified at his deposition

that he did not consider himself an employee of the Hospital and

did not tell Ural that he was employed by the Hospital. However,

he also testified that he told D r . Ural that he was “a certified

registered nurse anesthetist working in the department of

anesthesia at Concord Hospital.” D r . Levy also spoke with D r .

Ural prior to the operation. D r . Levy did not recall what he

-3- told D r . Ural, but he testified that he ordinarily tells patients

that anesthesia will be provided by individuals who “work at the

hospital,” but are not employed by the hospital.

The plaintiffs’ complaint alleges that the negligent conduct

of D r . Nichols and Sanborn in providing anesthesia caused D r .

Ural’s injuries. They argue that D r . Nichols and Sanborn were

agents of the Hospital under the theory of apparent authority.

As such, they conclude that the Hospital is vicariously liable

for the acts of D r . Nichols and Sanborn.

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, 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.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v . Liberty Lobby, Inc.,

4 2 , 250 (1986). A material fact is one that affects the

outcome of the suit. See id. at 248.

-4- In ruling upon a motion for summary judgment, I must

construe the evidence in the light most favorable to the non-

movant. See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir.

2001). The party moving for summary judgment, however, “bears

the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v . Catrett,

1 7 ,

323 (1986). Once the moving party has properly supported its

motion, the burden shifts to the nonmoving party to “produce

evidence on which a reasonable finder of fact, under the

appropriate proof burden, could base a verdict for i t ; if that

party cannot produce such evidence, the motion must be granted.”

Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94 (1st

Cir. 1996) (citing Celotex,

; Anderson,

4 9 ) . Neither conclusory allegations, improbable inferences,

or unsupported speculation are sufficient to defeat summary

judgment. See Carroll v . Xerox Corp.,

3 1 , 236-37 (1st

Cir. 2002).

-5- III. ANALYSIS

Apparent authority may arise when the acts and appearances

of a principal lead a reasonably prudent person to believe that

an agency relationship exists between the principal and another.

Demetracopoulos v . Strafford Guidance Ctr.,

(1987). Such authority must be “induced by the principal’s acts

or conduct,” and not from the representations of the alleged

agent.

(quotation omitted); see also Daniel Webster Council,

Inc. v . S t . James Ass’n, Inc.,

8 1 , 683 (1987). In

evaluating a claim of apparent authority, a court must ascertain

whether a reasonably prudent person “in the exercise of

reasonable diligence and sound discretion, under similar

circumstances with the party dealing with the agent, and with

like knowledge,” would be justified in assuming that the actions

of the principal vested the alleged agent with the authority to

perform the act in question. Demetracopoulos,

(quotation omitted); Daniel Webster Council, Inc.,

; see also Restatement (Second) of Agency § 27 (1958)

(“apparent authority to do an act is created as to a third person

by written or spoken words or any other conduct of the principal

-6- which, reasonably interpreted, causes the third person to believe

that the principal consents to have the act done on his behalf”

by the purported agent).

The plaintiffs have failed to present a genuine issue of

material fact that Concord Hospital vested D r . Nichols and

Sanborn with apparent authority. Based on the record before m e ,

there is no evidence that Concord Hospital performed any act or

maintained any appearances which would lead a reasonable person

to conclude that Anesthesia Associates and its employees had the

apparent authority to provide services at the behest of the

Hospital.

The only evidence presented that D r . Nichols and Sanborn

were agents of the Hospital flows from the statement of Sanborn

that he worked “in the department of anesthesia at Concord

Hospital.” Of course, apparent authority must flow from the acts

or appearances of the principal (Concord Hospital), not the

alleged agent (Sanborn). See Demetracopoulos,

;

Daniel Webster Council, Inc.,

. Also, D r . Ural

does not recall Sanborn’s statement. His reason for believing

that Anesthesia Associates and its employees were “related” to

-7- Concord Hospital is based solely on an unsupported assumption,

not any particular act or appearance of the Hospital. Aside from

mere assumption, there is no evidence in the record indicating

what caused D r . Ural to believe that the Hospital consented to

have the anesthesia services provided on its behalf by D r .

Nichols and Sanborn.

Furthermore, D r . Ural selected D r . Levy, who is not an

employee or agent of the Hospital, to perform the surgery. Dr.

Levy proposed that the operation be performed at Concord Hospital

because he had privileges there. D r . Ural met with D r . Levy at

his office, not at the Hospital, and discussed the operation and

its risks. D r . Levy testified that he most likely informed D r .

Ural that the individuals that assist him with operations were

not employed by the Hospital, but that he trusted them and

recommended their services. Lastly, D r . Levy had D r . Ural sign a

consent form that indicated that many of the physicians on staff

at the Hospital were not its employees or agents. Under the

circumstances, a reasonably prudent person “in the exercise of

reasonable diligence and sound discretion, under similar

circumstances . . . and with like knowledge,” would not be

-8- justified in assuming that the actions of the Hospital vested D r .

Nichols or Sanborn with the authority to perform the act in

question. Demetracopoulos,

; Daniel Webster

Council, Inc.,

.

IV. CONCLUSION

For the reasons stated above, Concord Hospital did not vest

Dr. Nichols or Sanborn with apparent authority. Accordingly, I

grant the Hospital’s motion for summary judgment (Doc. N o . 1 9 ) .

SO ORDERED.

Paul Barbadoro Chief Judge

June 3 0 , 2003

cc: Leslie C . Nixon, Esq. Mark Hoffman, Esq. Lawrence S . Smith, Esq. Robert M . Larsen, Esq. Christine Desmarais-Gordon, Esq.

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