Dr. Tan is a solo practitioner. Thus, Mrs. Dymburt saw Dr. Tan for office visits throughout the months of her pregnancy. Dr. Tan charges a single fee for all of her services through delivery.
Mrs. Dymburt was due to deliver her child on May 9, 1995. She had an office visit with Dr. Tan on May 8, 1995, and in fact, went into labor the next day.
Being a solo practitioner, Dr. Tan participates in a coverage arrangement with two other doctors, Dr. Rao and Dr. Kim. The three doctors alternate weekends so that each doctor works every third weekend. The covering doctor does not receive remuneration for the work performed upon patients of another doctor.
On May 9, 1995, Dr. Rao was on call, covering for both Dr. Tan and Dr. Kim. Thus, when Mrs. Dymburt checked into St. Peter's Hospital, Dr. Rao attended to her and handled the delivery of her child. Dr. Rao began treating Mrs. Dymburt at about 11:50 p.m. and delivered her baby approximately six hours later by cesarian section. Mrs. Dymburt's child was born with terminal brain damage and died on May 20, 1995. Mrs. Dymburt suffered a ruptured bladder and uterus. It is plaintiffs' contention that Mrs. Dymburt's injuries and her child's death were caused by the negligence of defendants Drs. Tan and Rao.
Dr. Tan brings this motion for partial summary judgment arguing that she is only liable for her own negligence, if any, and that any negligence found against Dr. Rao may not be imputed to her as a matter of law.
Standard of Review
Pursuant to Fed. R. Civ. P. 56(c), summary judgment shall be granted 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 a judgment as a matter of law." Id. In making this determination, a court must draw all inferences in favor of the non-movant. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 fn.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). Whether a fact is "material" is determined by the substantive law defining the claims. United States v. 225 Cartons, 871 F.2d 409, 419 (3d Cir. 1989).
When deciding a motion for summary judgment, the judge's function is not to weigh the evidence to determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). An issue is "genuine" if a reasonable jury could hold in the non-movant's favor with regard to that issue. Id. at 248. A fact is "material" if it influences the outcome of the action under the governing substantive law. Id. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. Id. at 249; Radich v. Goode, 886 F.2d 1391, 1395 (3d Cir. 1989).
When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party has carried its burden of establishing the absence of any genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). When the non-moving party's evidence in opposition to a properly supported motion for summary judgment is merely "colorable" or "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511. The non-moving party must come forward with more than a mere scintilla of evidence in its favor. Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 413 (3d Cir. 1990).
When a non-moving party who bears the burden of proof at trial has failed, in opposition to a motion for summary judgment, to raise a disputed factual issue as to any essential element of his or her claim, summary judgment should be granted because "a complete failure of proof concerning an essential element of the [non-moving] party's case renders all other facts immaterial." Celotex, 477 U.S. at 322-233, 106 S. Ct. at 2552.
"An agency relationship is created when one party consents to have another act on its behalf, with the principal controlling and directing the acts of the agent." Sears Mortgage Corp. v. Rose, 134 N.J. 326, 337, 634 A.2d 74 (1993) (citing Arcell v. Ashland Chem Co., 152 N.J. Super. 471, 494-95, 378 A.2d 53(1977)); 2A C.J.S. Agency § 37 (1972); Restatement (Second) of Agency § 1 (1958).
The Third Circuit recently clarified the law of agency in AT&T Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421 (3d Cir. 1994.) According to the Third Circuit an agent may be a servant or an independent contractor.
A servant is a person who is employed to perform personal services for another in his affairs, and who, in respect to his physical movements in the performance of the service, is subject to the other's control or right of control. Persons who render service but retain control over the manner of doing it are not servants.
Winback at 1435 (quoting Sanders v. Rowan, 61 Md. App. 40, 484 A.2d 1023, 1028 (1984) (quoting Globe Indem. Co. v. Victill Corp., 208 Md. 573, 119 A.2d 423, 427 (1956))).
"All agents who are not servants are 'independent contractors'. Moreover, all non-agents who contract to do work for another are also termed 'independent contractors'". Winback at 1435. Generally, independent contractors are self-employed, are not paid a salary, do not use the instrumentality of the principal, are skilled laborers, and work unsupervised. Id. at 1435-37; See, Baldasarre v. Butler, 132 N.J. 278, 291, 625 A.2d 458 (1993); See also, Warren A. Seavey, Agency, § 84 at 142 (1964).
The distinction between servants and independent contractors is significant due to the liability implications for the principal. "If the principal is the master of an agent who is his servant, the fault of the agent, if acting within the scope of his employment, will be imputed to the principal by reason of respondeat superior." Baldasarre at 291. (quoting JMB Enter. v. Atlantic Employers Ins., 228 N.J. Super. 610, 617, 550 A.2d 764 (1988). Whereas, the principal, owner, or employer will not be held liable for the torts of an independent contractor. Winback at 1435. With regard to an independent contractor-agent, a principal may be liable for the misrepresentations, fraud or deceit committed by its independent contractor-agent "upon matters which the principal might reasonably expect would be the subject of representations, provided the other party has no notice that the representations are unauthorized." Sanders v. Rowan, 61 Md. App. 40, 484 A.2d 1023, 1029 (quoting Restatement (Second) of Agency § 258).
The Court finds that Dr. Tan and Dr. Rao were not engaged in an agency relationship. Thus, Dr. Rao's liability resulting from her own negligence may not be imputed on Dr. Tan. Both doctors are independent contractors in the sense that they are solo practitioners deriving their livelihood from their own practices, are highly skilled, and work without supervision of the other. In fact, the purpose of the coverage arrangement was specifically to enable them to take time away from their practice, and it is clear to this Court that physicians are not expected nor should they be encouraged to work twenty-four hours a day, seven days a week. Furthermore, plaintiffs have not alleged any misrepresentations or deceit by Dr. Rao that would bring about liability based upon an independent contractor-agency theory. Thus, the Court rejects plaintiffs' argument that Dr. Rao was the agent of Dr. Tan, thereby justifying the imputation of any liability found against Dr. Rao upon Dr. Tan.
An agency relationship need not exist for the doctrine of apparent authority to apply. "Apparent authority arises in those situations where the principal causes persons with whom the agent deals to reasonably believe that the agent has authority." The doctrine is a way of creating an agency relationship because it "imposes liability, not as the result of the reality of a contractual relationship but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists. Arthur v. St. Peters Hospital, 169 N.J. Super. 575, 580, 405 A.2d 443 (1979).
In Arthur, the plaintiff was treated in the emergency room of a hospital for an injured wrist. The plaintiff was x-rayed and then released upon a negative finding. However, later the plaintiff learned that his wrist was in fact fractured. As a result the plaintiff sued the doctors who treated him and read the x-ray and the hospital. The hospital filed for summary judgment arguing that the treating physicians were independent contractors. The Court denied the hospital's motion based on the doctrine of apparent authority finding that the hospital failed to establish the independent contractor status of the physicians and that the facts permitted the inference that the hospital held the emergency room doctors out as employees. Arthur at 584.
The Court finds that the relationship between Dr. Tan and Dr. Rao is not akin to the relationship between a hospital and its emergency room physicians. The Court points out that the court in Arthur took judicial notice of the following facts:
Generally people who seek medical help through the emergency room facilities of modern-day hospitals are unaware of the status of the various professionals working there. Absent a situation where the patient is directed by his own physician or where the patient makes an independent selection as to which physicians he will use while there, it is the reputation of the hospital itself upon which he would rely. Also, unless the patient is in some manner put on notice of the independent status of the professionals with whom it might be expected to come into contact, it would be natural for him to assume that these people are employees of the hospital.