I. Firm News

Thomas Paschos & Associates would like to wish everyone a safe and Happy Thanksgiving,

We are pleased to announce that that the Firm has been admitted as a member of the International Society of Primerus Law Firms. For information on this organization, please visit www.Primerus.com.

Additionally, we are pleased to announce that Thomas Paschos, Esquire, has been duly certified as an arbitrator by ARIAS U.S. (AIDA Reinsurance & Insurance Arbitration Society). For information on this organization, please visit www.arias-us.com.

Thomas Paschos, Esquire, is scheduled to speak in Fort Washington, Pennsylvania, on December 19, 2008. The seminar, sponsored by HMS/HalfMoon, LLC, is entitled “Minimizing Engineering Liability Exposure" .Mr. Paschos will speak on the topic of understanding and preventing professional negligence actions.

II. Professional Liability

Hospitals May Be Liable for Contract Doctors Under the Doctrine of “Apparent Authority”.

In Cordero v. Christ Hospital, --- A.2d ---, 2008 WL 4725443 (N.J. Super. A.D. Oct., 29, 2008), Plaintiffs, the estate and husband of Ramona Cordero, filed an action against Christ Hospital, alleging, among other things, vicarious liability for negligence of anesthesiologist during surgery. The trial court granted summary judgment in favor of the hospital regarding the vicarious liability claims for negligence on the claims of defendant Dr. Selvia G. Zaklama. The Court held that there was an absence of evidence that Christ Hospital “actively held out” Dr. Zaklama as its agent or “misled Cordero into believing” Dr. Zaklama was its agent, or that Cordero was misled. Plaintiffs appealed, contending the evidence was adequate to permit a jury to find Christ Hospital liable for Dr. Zaklama's negligence under a theory of “apparent authority.”

Cordero, a fifty-one-year-old insulin-dependent diabetic, underwent surgery to implant a catheter at Christ Hospital on September 22, 2003. Dr. Selvia Zaklama, who was on the staff of Christ Hospital's anesthesiology department through Hudson Anesthesia Group's contract with Christ Hospital, was on call on September 22. Dr. Zaklama was assigned, randomly, to provide services during Cordero's procedure. Dr. Zaklama did not meet Cordero or any member of her family before September 22.

Dr. Zaklama had one brief conversation with Cordero before the procedure where she introduced herself as the anesthesiologist who would be taking care of Ms. Cordero. Dr. Zaklama wore no identification to disclose her affiliation with Hudson and did not tell Cordero that Christ Hospital assumed no responsibility for the care she would provide. Christ Hospital's website identified Dr. Zaklama as a member of its anesthesia department without reference to Hudson.o:p>

During Cordero's operation, the surgeon implanted the catheter without incident, but her blood pressure and heart rate dropped. Dr. Zaklama, who was still with Cordero, was unable to stabilize the patient. Although Cordero was resuscitated, she suffered brain damage and never regained consciousness. She remained in a vegetative state until she died approximately three-and-one-half years later.

Generally, a hospital is immune from liability for the negligence of an independent contractor, or that of its employees, in the performance of the contracted services. There is an exception to the general rule where the doctor's or the hospital's actions or inactions lead a person to believe the doctor is acting with the "apparent authority" of the hospital.

The Court, citing the Restatement (Third) of Agency, § 2.03

Imputation of liability based on apparent authority prevents a principal from ‘choos[ing] to act through agents whom it has clothed with the trappings of authority and then determin[ing] at a later time whether the consequences of their acts offer an advantage’. . . .When a hospital's conduct permits a patient to ‘properly assume’ a doctor is rendering treatment in behalf of the hospital, principles of apparent authority prohibit the hospital from avoiding liability by relying on ‘secret limitations ... in a private contract between the hospital and the doctor.’

The Court stated, that “apparent authority is demonstrated when the hospital, by its actions, has held out a particular physician as its agent and/or employee and a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital.” “Active or explicit misrepresentations of agency by the principal are not required. A principal can manifest assent to a person's action on its behalf by employing an independent contractor and sending that contractor to render performance requested by another without disclosing the relationship.”

The Court set forth the following circumstances to consider when determining whether the hospital's conduct would lead a patient to reasonably believe that the doctor acts on the hospital's behalf:

“whether the hospital supplied the doctor; the nature of the medical care and whether the specialty . . . is typically provided in and an integral part of medical treatment received in a hospital; any notice of the doctor's independence from the hospital or disclaimers of responsibility; the patient's opportunity to reject the care or select a different doctor; the patient's contacts with the doctor prior to the incident at issue; and any special knowledge about the doctor's contractual arrangement with the hospital.”

The Court held that Christ Hospital put in place a system under which Dr. Zaklama arrived, without explanation, on the day of Cordero's surgery to provide specialized care in the hospital's operating room. The doctor had no prior contact with the patient. The Court found that Christ Hospital created a misimpression of agency and a reasonable patient in Cordero's position would have every reason to believe and little reason to doubt that Dr. Zaklama was rendering care on the hospital’s behalf. Therefore, it was held that the evidence was sufficient to permit a jury to find that Christ Hospital, by its conduct, held out Dr. Zaklama as its agent.

III. Employment Litigation

Affirmative Action Guidelines Alone Do Not Suggest Discrimination

In Hunter v. Rowan University, 2008 WL 4874469 (3d. Cir. N.J. Nov. 12, 2008), Hunter, a Caucasian female, began full-time employment at Rowan in 1994. In 1995, James Tracey, the Dean of the College of Engineering, hired her to work in the Office of the Dean as an “Administrative Assistant 1” (“AA1”). Hunter served as an AA1 through the remainder of Dean Tracey's tenure at the College. While serving as an AA1 to Dean Tracey, Hunter received positive performance reviews.

Shortly after arriving in 2000, the new dean of the College of Engineering, Diane Dorland, advised Hunter that she would serve with the College's Outreach Coordinator. Her status, pay, and benefits as an AA1 did not change. Shortly after Hunter moved to her new responsibilities, the Outreach Coordinator went on maternity leave and Hunter assumed many of her duties as well. After Hunter expressed concerns about her workload to Dean Dorland, Assistant Dean Steven Chin agreed to assume the functions of the Outreach Coordinator and became Hunter's immediate supervisor. Dean Dorland, however, retained ultimate supervisory authority over Hunter and was also responsible for making recommendations to Rowan about whether to renew her contract.

In 2001, Hunter received several unsatisfactory reviews from Chin. Despite also receiving a few positive reviews, Dean Dorland recommended that Rowan not renew Hunter’s contract. Rowan accepted this recommendation.

In May 2003, Dean Dorland hired Maria Perez-Colon, a Hispanic woman, as an AA1 to work in the Office of the Dean at the College of Engineering.

Hunter filed a complaint against Rowan and Diane Dorland, Dean of the College of Engineering, alleging, among other things, various forms of unlawful discrimination based on race. Hunter asserted that the defendants had engaged in reverse racial and national origin discrimination, in violation of 42 U.S.C. §§ 1981 and 1983 and the New Jersey Law Against Discrimination (the “NJLAD”). She also alleged that the defendants had engaged in a conspiracy to carry out racial discrimination in violation of 42 U.S.C. § 1985. The District Court granted summary judgment for Defendants on Hunter's federal and state law claims.

On appeal, Hunter argued that a reasonable jury could find that Rowan's decision not to renew her contract was a product of discrimination because, first, the College of Engineering's administrative staff was exclusively white and a new Dean would want to diversify the staff; second, Chin was Asian-American, and Rowan's Provost and its President, who made the final decision not to renew her contract, were African-American; third the College's affirmative action guidelines were used to hire Perez-Colon; and fourth, Rowan surreptitiously recreated Hunter's extinguished AA1 position after her departure.

The Court held that Hunter's first assertion, that Dean Dorland was particularly eager to “satisfy Rowan's ... need to ‘diversify’ its staff,” was purely speculative. As to the second assertion, the Court found that neither Chin's race, nor the race of Rowan's Provost and President, establish that the decision to fire Hunter was motivated by racial animus.

The Court also found that, although affirmative action guidelines may have been considered when Perez-Colon was hired, Hunter had provided no evidence suggesting that those guidelines were used at her expense. The Court noted that Perez-Colon was hired months after Hunter's transfer out of the College of Engineering and two years after she left the office of the Dean, Finally, the C ourt found that the notion that the timing of an opening in the Dean's Office was suspicious was not supported by the record. Rowan advertised for the administrative assistant position long after Hunter had last served in that office.

Based on the above, the Court held that Hunter “adduced only her speculation and disappointment to meet her initial McDonnell Douglas burden. That is insufficient.”