GEORGETTE Y. RICHARDSON, Plaintiff,
SHARON KALVODA, et al., Defendants
ORDER ON MOTION FOR SUMMARY JUDGMENT
Nancy Mills, Justice, Superior Court.
This matter is before the court on defendant Parkview Adventist Medical Center (PAMC)'s motion for summary judgment. Defendant PAMC alleges that it cannot be held liable for the actions of Dr. Donald Kalvoda because he was an independent contractor and not PAMC's agent. Plaintiff Georgette Richardson alleges that PAMC is liable under a theory of apparent agency. For the following reasons, the motion is denied.
Plaintiff first saw Dr. Kalvoda in March 2001 through a referral from her neurologist. (Def.'s Supp. S.M.F. ¶ 25; Pl.'s Opp. S.M.F. ¶ 51.) On 4/11/01, Dr. Kalvoda performed a carpal tunnel release on plaintiff's right hand. (Def.'s Supp. S.M.F. ¶ 26.) Some years later, plaintiff developed carpal tunnel in her left hand and returned to Dr. Kalvoda because she was familiar with his services from the 2001 surgery. (Def.'s Supp. S.M.F. ¶¶ 26-27.) On February 1, 2008, Dr. Kalvoda performed a carpal tunnel release on plaintiff's left hand at PAMC. (Def.'s Supp. S.M.F. ¶ 29.) This second surgery is the subject of plaintiff's claim.
Dr. Kalvoda entered into a lease agreement with PAMC on 7/1/97 that provided office space for his medical practice. (Def.'s Supp. S.M.F. ¶ 17.) Dr. Kalvoda was a member of the medical staff with clinical and surgical privileges at PAMC. (Def.'s Supp. S.M.F. ¶ 4.) Patients accessed Dr. Kalvoda's office by walking through the front entrance of PAMC. (Pl.'s Opp. S.M.F. ¶ 41.) From 2002 until 2010, Dr. Kalvoda was the only orthopedic surgeon who provided on-call services for PAMC, and he was the primary orthopedic surgeon for the hospital other than a period in 2004 to 2005 when PAMC employed an orthopedic surgeon. (Pl.'s Opp. S.M.F. ¶ 36.)
PAMC did not inform plaintiff at any time that Dr. Kalvoda was not an employee or agent of the hospital. (Pl.'s Opp. S.M.F. ¶ 55.) Plaintiff did not see any materials indicating Dr. Kalvoda was not an employee of PAMC. (Pl.'s Opp. S.M.F. ¶ 58.) Plaintiff read various PAMC publications placed in physicians' waiting rooms, which listed Dr. Kalvoda as an "active staff physician" at PAMC and the "President Elect for the Medical Staff Leadership at PAMC." (Pl.'s Opp. S.M.F. ¶ 49.)
On 9/1/06, Dr. Kalvoda contracted with PAMC to provide additional on-call orthopedic coverage for PAMC's patients, beyond his on-call obligations required by his staff privileges, in exchange for an abatement in rent on his office space. (Def.'s Supp. S.M.F. ¶¶ 19-21.) This on-call agreement specified that Dr. Kalvoda was an independent contractor and not an employee of PAMC. (Def.'s Supp. S.M.F. ¶¶ 22-23.)
In January 2010, Dr. Kalvoda became ill and was no longer able to see patients or provide on-call coverage to PAMC. (Def.'s Supp. S.M.F. ¶ 32) On April 6, 2010, PAMC hired Dr. Kalvoda as an employee on an as-needed basis to help him cover the costs of his malpractice insurance while he could not see patients and earn income. (Def/s Supp. S.M.F. ¶ 34.) Dr. Kalvoda did not provide any medical services on behalf of PAMC from April 6, 2010 until his death on July 9, 2010. (Def.'s Supp. S.M.F. ¶ 35.)
Plaintiff filed her complaint on 10/24/12 against Dr. Kalvoda, the personal representative of the estate of Dr. Kalvoda, and PAMC. Defendant PAMC filed this motion for summary judgment on 9/6/13.
1. Standard of Review
"Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ¶ 9, 983 A.2d 382 (citing Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821). "An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶ 10, 956 A.2d 104 (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871). To avoid summary judgment, the non-moving party cannot rely "merely upon conclusory allegations, improbable inferences, and unsupported speculation." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)). Disputes of material fact "must be resolved through fact-finding, even ...