2006-151, DEBORAH DENT, ADM'X OF THE ESTATES OF HELEN FOLLONI AND LAWRENCE FOLLONI

The plaintiff, Deborah Dent, administratrix of the Estates of

Brian R. Moushegian on the brief), for the defendant. Devine, Millimet & Branch, PA, of Manchester (Elaine M. Michaud and

Deborah A. Dent, by brief, pro se. to press. Errors may be reported by E-mail at the following address:

DEBORAH A. DENT, ADMINISTRATRIX OF THE ESTATES OF HELEN M.

editorial errors in order that corrections may be made before the opinion goes No. 2006-151 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as plaintiffs did not have the requisite expert testimony to support such a claim.

p. 2 would treat her there. As to count six, Exeter Hospital argued that the take Helen Folloni to Exeter Hospital because they knew that this physician physician was one of the defendant doctors, and the Folloni family chose to not employees or agents of the hospital; and (5) Folloni’s primary care

that the physicians on staff at Exeter Hospital were independent contractors,

Exeter Hospital, Folloni’s representative signed a consent form acknowledging individual practices, not Exeter Hospital; (4) prior to each of her admissions to Helen Folloni, as well as to their other patients, was billed to the physicians’

with significant brain damage. a brain hemorrhage and underwent surgery. She survived the surgery, but 2 transferred to Massachusetts General Hospital, where she was diagnosed with upon oversight by Exeter Hospital; (3) care provided by the three physicians to physicians was performed based upon their individual expertise, not based one was a solo practitioner; (2) direct medical treatment provided by the Associates, a professional association independent from Exeter Hospital, and following: (1) two of the doctors were employed by Exeter Family Medical defendant doctors were not agents of Exeter Hospital, for reasons including the

March 16.

referred to a neurologist for treatment during her March 15 admission. appropriate care for patients by failing to ensure that Helen Folloni was multiple physicians at Exeter Hospital, her condition deteriorated until she was breached its duty to maintain and enforce rules and procedures that ensured doctrine of respondeat superior. Count six claimed that Exeter Hospital

counts five and six. As to count five, the hospital argued that the three In April 2003, Exeter Hospital filed a motion for summary judgment on She was prescribed a blood thinner and was discharged from the hospital on

diagnosed her as having a stroke and conducted tests. Under the care of consent form previously signed by her husband. Physicians at Exeter Hospital vicariously liable for the alleged malpractice of physician defendants under the admission process, her son, Robert Folloni, signed on her behalf the same Exeter Hospital. Count five of the writ claimed that Exeter Hospital was Associates, and three doctors who treated Helen Folloni during her two visits to medical malpractice action against Exeter Hospital, Exeter Family Medical In March 2003, Helen and Lawrence Folloni (the Follonis) brought a

was that she had suffered a transitory ischemic attack, rather than a stroke. patients.” Multiple physicians attended to Helen Folloni and the final diagnosis the privilege to use certain of its facilities for the care and treatment of their

including weakness, dizziness, slurred speech, and confusion. During her On March 24, Helen Folloni returned to Exeter Hospital with symptoms

or agents of the hospital, but independent contractors who have been granted Practitioners (i.e. physicians) on the hospital’s Medical Staff are not employees and paying the doctor for those services. p. 3 hospital would be responsible for billing all charges related to the EKG services

licensing requirements and maintain insurance. It also provided that the

membership on the medical staff of the hospital, comply with state and federal

hospital’s patients. This agreement required the doctor to maintain active was for one doctor to interpret electrocardiogram (EKG) results for the for him to receive a fee from the hospital for his work. The second agreement

equipment to interpret electroencephalograms at Exeter Hospital and provided

defendant doctors. The first authorized one doctor to use hospital space and Follonis also produced evidence of two agreements, each signed by one of the the emergency department needing treatment, with some exceptions. The

of work for the hospital; and (5) provide services to every patient who arrived in

fees; and, for the emergency physicians, (4) provide a certain number of hours and federal licensing requirements; (3) annually submit a schedule of physician credentialing requirements of the hospital’s medical staff; (2) comply with state

radiology departments, which required physicians to: (1) meet the

evidence of agreements between the hospital and doctors in the emergency and

noted agreements that the hospital had with its doctors. They produced perform and the manner in which they prepare records. The Follonis further Procedure,” which required physicians to record the type of service they day to treat patients; and (2) the “Management of Information Policy and

and provide patient coverage and make a minimum of hospital rounds each physicians in the hospital to report their absences from the hospital premises Exeter Hospital, including: (1) the “Continuum of Care Policy,” which required

displaying the hospital’s name. the performance of staff physicians. They also relied upon policies set forth by Physicians’”; and (3) physicians working at Exeter Hospital wore badges ‘Exeter Hospital’s Emergency Department,’ ‘Exeter Hospital’s Internal Medicine Physician Services’ Division” and “embraces them as part of its operation, e.g.,

ongoing quality assurance program to monitor the quality of patient care and restrict their practices to the confines of their licenses; and (2) maintain an before granting them staff privileges to ensure that they are licensed and advertising “lumps all of its privileged physicians together in a single ‘Core provided the premises in which the physicians worked; (2) the hospital’s that certain facts showed apparent authority, such as: (1) Exeter Hospital the doctors’ negligence under the doctrine of apparent authority. They alleged The Follonis also argued that Exeter Hospital was vicariously liable for

Organizations, which required Exeter Hospital to: (1) screen all physicians

compliance with the Joint Commission for Accreditation of Healthcare agency relationship. To support this claim, the Follonis noted the hospital’s control over the defendant physicians, and thus acted as their principal in an

the motion for summary judgment. They argued that Exeter Hospital exerted Later in April, the Follonis filed a memorandum of law in opposition to is not preserved for appellate review. p. 4 a non-delegable duty to Helen Folloni; Exeter Hospital contends that this issue

add new experts because, 4

turn. court erred in not allowing the jury to determine whether Exeter Hospital owed authority to act on behalf of Exeter Hospital. Finally, Dent argues that the trial that the trial court erred in ruling that the physicians did not have apparent control over its physicians and was otherwise their employer. Dent also argues from which a reasonable juror could have found that the hospital exercised judgment to Exeter Hospital because the Follonis adduced sufficient evidence Dent first argues that the trial court erred in granting summary trial court found. Finally, the court denied the motion to amend the writ and offered no opinion upon the hospital’s negligence through its personnel, the I. Vicarious Liability testimony support such a claim. The two experts disclosed by the plaintiffs because they failed to satisfy New Hampshire’s requirement that expert

order, challenging each of the court’s three rulings. We address each issue in Dent, as administratrix of the Follonis’ estates, appeals the trial court’s

defendants. supplied evidence of Exeter Hospital’s direct liability. court based this ruling upon, proceedings, would call for different evidence, and would prejudice the thus, Exeter Hospital could not be vicariously liable for their negligence. The inter alia, the motion came too late in the that the physicians who treated Helen Folloni were independent contractors;

Folloni, and to add expert witnesses to their witness list. plaintiffs could not maintain their direct negligence claim against the hospital radiologist at Exeter Hospital misinterpreted the results of a test done on Helen contested before the trial court. On count six, the trial court ruled that the persons authorized to consent for Helen Folloni. This authority was not Lawrence Folloni and Robert Folloni signed the hospital’s consent form as diagnosis and treatment remained exclusively with the physicians and that

recognizes that hospitals and physicians band together to provide services and require expert testimony. The enterprise theory, the Follonis argued, motion to amend the writ and add experts. On count five, the trial court ruled The trial court granted the motion for summary judgment and denied the

that Exeter Hospital was negligent under respondeat superior because a In June, the Follonis filed a motion to amend their writ by adding a claim

Hospital’s direct liability under the “enterprise theory,” proof of which does not Finally, the Follonis argued that they had ample evidence of Exeter provides further support for the trial court’s ruling. p. 5 services performed by these physicians went to them, rather than the hospital, employed by associations not part of Exeter Hospital and that the bills for Further, the undisputed facts that the doctors were either self-employed or

diagnosis and treatment of patients remained exclusively with the doctors. practitioner, and a neurologist who did not practice in either the emergency or the physicians on how to care for their patients. Decisions regarding the apply to the three defendant physicians, because they are an internist, a family “Continuum of Care Policy,” were administrative in nature and did not instruct departments. As the hospital points out, however, these agreements do not court aptly observed that the policies cited by the Follonis, such as the that Exeter Hospital has with its physicians in the emergency and radiology before the trial court, such as the control evidenced in the written agreements Dent argues that significant evidence of an agency relationship was

the agent shall or shall not do. it turns upon the principal manifesting some continuous prescription of what

relationship, either actual or apparent. Considering actual agency, the trial In the case before us, the evidence presented fails to show an agency exert some control over the agent’s actions.” the agent’s consent to so act; and (3) the understanding that the principal is to 154 N.H. 592, 604 (2006) (quotation omitted). reasonably believe that the agent is authorized to act.” Boynton v. Figueroa, one. “exists where the principal so conducts itself as to cause a third party to apparent authority incorporates the three factual elements listed above and

the principal does not mean actual or physical control at every moment; rather, Monadnock PR-24 Training Council, 147 N.H. 754, 758-59 (2002). Control by or implied from the parties’ conduct or other evidence of intent. Herman v. actual authority and consent to act with such authority may be either express

(1) authorization from the principal that the agent shall act for him or her; (2) Id. “Rather, the necessary factual elements to establish agency involve: in the light most favorable to the non-moving party. does not turn solely upon the parties’ belief that they have or have not created fact. VanDeMark, 153 N.H. at 760. An agency relationship, or lack thereof, Whether an agency relationship has been established is a question of

Va. Surety Co., 153 N.H. 371, 373 (2006). the trial court’s application of the law to the facts de novo. Tech-Built 153 v. outcome of the litigation under the applicable substantive law. Id. We review issue of fact is “material” for purposes of summary judgment if it affects the

any genuine issue of material fact, and if the moving party is entitled to Corp., 153 N.H. 753, 756 (2006). If our review of the evidence does not reveal

the affidavits and other evidence, and all inferences properly drawn from them, When reviewing a trial court’s grant of summary judgment, we consider apparent authority, they are important factors to consider in the analysis. p. 6 Although such disclaimers are not automatically dispositive on the issue of

use certain of its facilities for the care and treatment of their patients.”

hospital, but independent contractors who have been granted the privilege to would indicate apparent authority. She argues that the defendant physicians physicians) on the hospital’s Medical Staff are not employees or agents of the Further, Dent alleges little evidence of actions by Exeter Hospital that stated, “I understand that the Licensed Independent Practitioners (i.e. its behalf. See id. at 211. or she reasonably believed that the hospital authorized the physician to act on patient whose authorized representatives signed such a form to claim that he doctor was an independent contractor and not a hospital employee. Ct. 1998), appeal denied, 707 N.E.2d 1239 (Ill. 1999). It is difficult for any James by James v. Ingalls Memorial Hosp., 701 N.E.2d 207, 210-11 (Ill. App.

began with one of her authorized representatives signing a form that expressly As for apparent authority, both of Helen Folloni’s visits to Exeter Hospital

compensation test in the instant case. at 758. Accordingly, we decline Dent’s invitation to employ the workers’ Hospital contracting for services interpreting EKG’s specifically stated that the relationship VanDeMark, 153 N.H. at 760-61; Boynton, 154 N.H. at 604; Herman, 147 N.H. test described above to determine whether an agency relationship exists. See purposes of vicarious liability. We have consistently used the three-pronged Instead, the question before us is whether an agency relationship existed for The instant case does not present a question of workers’ compensation.

entitled to workers’ compensation. Id. at 221-23. determined that the cab drivers were employees of the taxi service and were Id. at 221 (emphasis added). We then listed and considered eleven factors and the factors set forth in the New Hampshire Department of Labor regulations.”

for the purposes of workers’ compensation through reference to

Additionally, the agreement between one of the defendant doctors and Exeter case, we held that “[w]e determine the existence of an employee-employer contractual relationship between Hospital and Contractor’s Physicians . . . .” workers’ compensation for its taxi drivers. City Cab, 139 N.H. at 220. In that as the “Contractor,” and they clearly stated that “there shall be no direct an agency relationship existed, but whether a taxi service had to secure the agency test. In City Cab, however, the question before us was not whether many factors, and the trial court focused too narrowly on the “control” prong of independent contractors or employees of the hospital requires consideration of N.H. 220, 221 (1994), to support her argument that whether the doctors were Dent relies upon our holding in Petition of City Cab of Manchester, 139

and various professional associations of physicians, designated in the contracts radiology departments. Further, the agreements were between Exeter Hospital providing expert testimony.

p. 7 issues raised on appeal that were not presented in the trial court.

that the Follonis failed to meet their burden under RSA 507-E:2 (1997) of Dent argues, and, therefore, no expert is required. Exeter Hospital responds available only part-time. These allegations do not involve medical decisions, adoption of certain cost-containment policies, such as having MRI equipment

was developed, however. We have consistently held that we will not consider

its failure to promulgate and enforce certain policies and procedures, and its is liable for its failure to supervise and train Helen Folloni’s treating physicians, produce expert testimony in support of the claim. She argues that the hospital motion for summary judgment based, in part, upon the Follonis’ failure to Dent next argues that the trial court erred in granting Exeter Hospital’s

II. Direct Negligence the writ, as well as the remainder of the record, reveals that no such argument vicarious liability claim in the original writ filed by the Follonis. Our review of review it. See McKenzie, 154 N.H. at 776. Dent argues that the non-delegable duty theory was subsumed within the court, we conclude that this issue is not preserved for appeal and decline to failed to show that the issue of non-delegable duty was raised before the trial Adjustment, 154 N.H. 773, 776 (2007); Sup. Ct. R. 16(3)(b). Because Dent has raised before the trial court. See McKenzie v. Town of Eaton Zoning Bd. of our review, but also of demonstrating that issues raised on appeal were first appellant, Dent bears the burden not only of providing a record sufficient for Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 274 (2003). As the

however, reveal no instance in which the physicians are referred to as

Exeter Hospital that the plaintiffs did not raise this issue before the trial court. As to Dent’s argument regarding non-delegable duty, we agree with

apparent authority as between Exeter Hospital and the defendant physicians. alleged agent. conclude that there was sufficient evidence to establish either actual or authority inquiry is upon the representations of the alleged principal, not the Viewing the above evidence in the light most favorable to Dent, we cannot

physicians as part of its operation . . . .” The referenced advertisements, refers to them as if they were its employees, and repeatedly embraces physicians into a single category entitled ‘Core Physician Services’ Division, Hospital, Dent argues that an advertisement from the hospital “lumps all Hospital, 71 P.3d 833, 841 (Alaska 2003). As for the representations of Exeter v. St. James Assoc., 129 N.H. 681, 683 (1987); Fletcher v. South Peninsula

See Boynton, 154 N.H. at 604; see also Daniel Webster Council

upon Exeter’s specialists for consultations; however, the focus of the apparenthad offices on Exeter’s premises, wore Exeter’s identification badges, and relied p. 8 8 assistant, registered or licensed practical nurse, (Emphasis added.)

the performance of such services . . . . provider, whether resulting from negligence, error, or omission in course of professional services rendered by a medical care the time the medical care in question was rendered; and or undesired consequences arising out of or sustained in the III. “Medical injury” or “injury” means any adverse, untoward

providing medical care or services . . . . other health care agency licensed by the state or otherwise lawfully

II. “Medical care provider” means a physician, physician’s

to recover damages on account of medical injury. accordance with such standard; and medical care provider, whether based in tort, contract or otherwise, I. “Action for medical injury” means any action against a

507-E:1 (1997) defines the following terms: medical care provider’s profession or specialty thereof, if any, at RSA 507-E’s purview, the definitions in the statute provide otherwise. RSA Although Dent attempts to characterize the negligence claim as beyond expert testimony of a competent witness or witnesses: suffered injuries which would not otherwise have occurred. (c) That as a proximate result thereof, the injured person

(b) That the medical care provider failed to act in

(a) The standard of reasonable professional practice in the

burden of proving by affirmative evidence which must include I. In any action for medical injury, the plaintiff shall have the

RSA 507-E:2 provides, in pertinent part:

to incorporate in the statute. Id. at 776-77. legislature might have said or add language that the legislature did not see fit it for further indication of legislative intent, and we refuse to consider what the When a statute’s language is plain and unambiguous, we need not look beyond where possible, ascribe the plain and ordinary meanings to the words used. Id. considered as a whole. Id. We first examine the language of the statute, and, arbiters of the legislature’s intent as expressed in the words of the statute Matter of Giacomini & Giacomini, 151 N.H. 775, 776 (2005). We are the final We review a trial court’s interpretation of a statute de novo. In the witnesses.

p. 9 have required additional discovery regarding the claim and the expert

substantially different evidence. June 6, 2005, because of this medical emergency. The court then postponed Lawrence Folloni. The trial court had postponed the May 9, 2005 trial date to

experts because,

was thus unfair and prejudicial to the Follonis. Exeter Hospital argues that the a collective state of unreadiness for trial,” and that the trial court’s strict ruling opposing party, introduce an entirely new cause of action, or call for “missed virtually every court or rule-imposed deadline,” that all “parties were in amendment of pleadings is permitted unless the changes would surprise the that it is necessary for the prevention of injustice . . . .” Accordingly, liberal that the trial court granted due to a medical emergency experienced by the court shall deem just and reasonable, when it shall appear to the court inter alia, they appeared to be capitalizing on a continuance In its order, the trial court denied the Follonis’ motion to amend and add

unless it is an unsustainable exercise of discretion. Id. sound discretion of the trial court. Id. We will not overturn that decision liberally permitted, the decision to grant or deny a motion to amend rests in the Human Servs., 154 N.H. 228, 236 (2006). Although amendment of pleadings is

decline to address Dent’s argument regarding the “enterprise theory” of this issue, we affirm the trial court’s ruling. Based upon this conclusion, we Dent argues that all parties had, throughout the course of the litigation, Exeter Hospital misinterpreted the results of a test done on Helen Folloni. negligent under the doctrine of respondeat superior because a radiologist at amendment to pleadings “in any stage of the proceedings, upon such terms as add experts. The Follonis moved to add a claim that Exeter Hospital was Under RSA 514:9 (2007), a trial court may permit a substantive

concluded that Exeter Hospital was entitled to judgment as a matter of law on testimony for “any action for medical injury.” As the trial court correctly claims fall squarely within the purview of RSA 507-E:2, which requires expert professional services rendered by” Exeter Hospital. Accordingly, the Follonis’ exercised its discretion by denying the Follonis’ motion to amend their writ and The final issue on appeal is whether the trial court unsustainably

suffered an “adverse consequence arising out of or sustained in the course of and the plaintiffs alleged a “medical injury,” as they alleged that Helen Folloni hospitals are explicitly included in the definition of “medical care provider,” Exeter Hospital fits within the definition of “action for medical injury”: Under the above definitions, the Follonis’ negligence action against p. 10 10

came after the close of discovery, would cause prejudice to the defendants.

management and supervision of pretrial discovery,

amendment would require significant new evidence and, given that the request

this assertion. Given the broad discretion that trial courts enjoy in the discovery was not closed by June 6; however, she cites no evidence to support court had closed discovery by the date of the request. Dent argues that BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

Follonis’ motion. discovery deadline. Accordingly, we affirm the trial court’s denial of the caused the May trial to be continued.” The trial court found that allowing the (2007), we see no reason to rule that the trial court erred by holding to its able to be made only because of the fortuity of the plaintiff’s illness which Realty Trust v. A&T Forest Prods., 155 N.H. ___, ___, 917 A.2d 1221, 1232 experts. In its ruling on the motion, the trial court stated, “[T]he request . . . is see Blagbrough Family

substantially new evidence, but also significantly more discovery. The trial It is clear that deposing multiple expert witnesses would require not only

the June 6 date. On June 8, the Follonis filed their motion to amend and add the trial to October, because the defendants’ medical experts could not make