SONG C. LOPEZ-KRIST, Individually and as Parent and Next Friend of N.R.J-L, a minor, Plaintiffs,
RALPH T. SALVAGNO, M.D., Defendants
Ellen L. Hollander United States District Judge
In this medical malpractice case, Song Lopez-Krist, individually and as parent and next friend of her minor son N.R.J-L (the “minor”), plaintiffs, filed suit against Ralph Salvagno, M.D.; his professional association, the Center for Joint Surgery and Sports Medicine, P.A. (“JSSM”); and Meritus Medical Center, Inc. (“Meritus”),  arising out of the above-the-knee amputation of the minor’s right leg on September 24, 2010. See Complaint, ECF 1. Plaintiffs allege that Dr. Salvagno, an orthopedic surgeon, breached the standard of care in his treatment of N.R.J-L, and that Dr. Salvagno’s negligence was the proximate cause of the amputation. Id. Plaintiffs also seek to hold Meritus vicariously liable for Dr. Salvagno’s alleged negligence, claiming that Dr. Salvagno was the actual or apparent agent of Meritus.
Plaintiffs and Meritus have filed competing motions for summary judgment, both related to agency. Plaintiffs filed a Motion for Partial Summary Judgment on the issue of apparent authority (“Lopez-Krist Motion, ” ECF 68), accompanied by a Memorandum (“Lopez-Krist Memo, ” ECF 68-1), and exhibits. Claiming that Dr. Salvagno was an independent contractor, Meritus filed a Motion for Summary Judgment on the issues of actual and apparent authority (“Meritus Motion, ” ECF 70), supported by a Memorandum (“Meritus Memo, ” ECF 70-1), and exhibits. No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I will deny both of them.
A. Injury and Treatment
On September 14, 2010, N.R.J-L, then a fourteen year-old boy, suffered an injury to his right leg. Affidavit of N.R.J-L (“N.R.J-L Aff., ” ECF 68-7) ¶ 2; Patient Care Report, ECF 83-2 at 1. He was transported by ambulance to the emergency room at the Washington County Hospital (“Hospital”). His mother, Lopez-Krist, arrived at the Hospital shortly thereafter. N.R.J-L Aff. ¶ 3; Affidavit of Song C. Lopez-Krist (“Lopez-Krist Aff., ” ECF 68-6) ¶ 2. N.R.J-L was initially examined by Dr. John Min-Yi Lee. N.R.J-L Aff. ¶ 3; Lopez-Krist Aff. ¶ 3; Patient Care Report at 3. Dr. Lee diagnosed a proximal tibia fracture of the right leg, “neurovascular compromise, ”possible compartment syndrome,  and “[p]opliteal artery insufficiency.” Deposition of John Min-Yi Lee (“Lee Dep.”) at 44, 57–61. Dr. Lee also noted “[p]oor sensation on the right lower extremity.” Id. at 60. Dr. Lee ordered x-rays, which revealed that the fracture “involve[d] [the] right proximal tibial growth plate with major fragment displaced . . . [and] angulated vertically.” Id. at 65–66. Because Dr. Lee surmised that “there could be some direct injury or compression to the popliteal artery, ” id. at 72, he contacted an “on call” orthopedic surgeon to evaluate the fracture and the possibility of a vascular issue. Id. at 72–74.
Dr. Lee used the call roster of orthopedic surgeons maintained by Meritus. These are doctors who are supposed to “take call” in the event an emergency room physician believes that an orthopedic consult is necessary. Deposition of Ralph T. Salvagno (“Salvagno Dep.”) at 22; Lee Dep. at 39–40. Dr. Salvagno was on that list when Dr. Lee sought an orthopedic consult. Salvagno Dep. at 73. At his deposition, Dr. Lee testified that he asked a clerk to page Dr. Salvagno using an intrahospital paging system that connected to a pager on Dr. Salvagno’s belt. Lee Dep. at 41. Dr. Salvagno received a call at about 3:09 p.m., requesting his evaluation of N.R.J-L. Salvagno Dep. at 80. At the time, Dr. Salvagno was at his office in Robinwood Medical Center, which is “[t]hree or four miles” away from the Hospital. Id. at 73–74. Before leaving his office, Dr. Salvagno looked at an electronic version of the x-ray of N.R.J-L’s leg. Id. at 75. Based on the x-ray, Dr. Salvagno thought that the injury “needed attention right away” because of a “potential compromise of the blood supply to that limb.” Id. at 80–81. Dr. Salvagno arrived at the hospital at or around 3:43 p.m., id. at 80, at which point Dr. Lee told him that N.R.J-L had a fracture and decreased circulation in his leg. Id. at 85–88.
Dr. Salvagno then met with N.R.J-L and Lopez-Krist. According to Lopez-Krist and N.R.J-L, Dr. Salvagno introduced himself as an orthopedic surgeon and said that “he was going to help treat [N.R.J-L].” N.R.J-L Aff. ¶ 4; see also Lopez-Krist Aff. ¶ 6. Dr. Salvagno did not advise either N.R.J-L or Lopez-Krist that he was not an employee of Meritus or the Hospital. Salvagno Dep. at 16–19; see Lopez-Krist Aff. ¶¶ 10–11; N.R.J-L Aff. ¶¶ 6–7.
After examining N.R.J-L, Dr. Salvagno recommended “that we proceed with a reduction of the fracture, ” in which N.R.J-L would be anesthetized and Dr. Salvagno would attempt manually to realign the fractured bone. Salvagno Dep. at 93–94. Prior to the procedure, Lopez-Krist signed a “Consent for Procedure” on a form that contained the heading “Washington County Hospital” and the Hospital Logo. Consent, ECF 68-5 at 2.
The form stated, id.: “I hereby authorize Dr._____ and ____as his/her assistants, to perform upon ____the following procedure(s): . . . .” The name “Salvagno” was handwritten into the first blank and “Lee” was handwritten into the second. Id. The third blank was left empty. Id. The handwriting in the fourth blank is only partially legible, but appears to refer to the reduction procedure. Id. The form goes on to state that the “physician” explained the nature of the procedure, its benefits and risks, and the reasonable alternatives to the procedure. Id. The form also contains a series of declaratory statements of consent and a statement certifying that the patient or his authorized representative has read and fully understood the consent form. Id. Lopez-Krist signed the form, as did a witness whose name is illegible. Id. Dr. Salvagno signed his name in the space labeled “Physician Signature.” Id. The form does not contain a statement explaining the nature of the contractual arrangement between Meritus and Dr. Salvagno. See id.
Dr. Salvagno performed the reduction and ordered another x-ray of N.R.J-L’s leg. Salvagno Dep. at 95. The second x-ray revealed that the displacement had improved but was still “not anatomically perfect.” Id. at 96. Dr. Salvagno documented that “there was an improvement in the pulses and return of sensation” to the right lower extremity, and he testified that “at this point, the reduction was satisfactory.” Id. at 98. However, he acknowledged that while the pulses in the minor’s leg had improved, they remained abnormal. Id. at 99–111. Dr. Salvagno planned to perform a further reduction once the swelling in the leg went down. Id. at 98–99.
Following the surgery, the minor was admitted to the Hospital. Id. at 101. Dr. Salvagno instructed the nurses to perform neurological checks on N.R.J-L and to monitor him for symptoms of circulatory compromise and compartment syndrome. Id. at 101–103. However, Dr. Salvagno did not order any tests, such as a CT scan or an angiogram,  to evaluate the lower leg circulatory impairment, nor did he contact a vascular surgeon. Id. at 109, 113–116.
That night, Dr. Salvagno received a call from a nurse informing him that the nurses “were having difficulty obtaining the pulses and that [N.R.J-L] was having more pain.” Id. at 121. The nurse also told him that N.R.J-L was unable to wiggle his toes and could only feel pressure when his toes were squeezed. Id. at 130. Dr. Salvagno testified that these symptoms suggested that N.R.J-L was experiencing swelling in his leg that put pressure on his nerves. Id. at 131–32. Later that night, Dr. Salvagno was informed that the nurses were unable to detect N.R.J-L’s dorsalis pedis pulse with a Doppler device, that N.R.J-L no longer could identify pressure when his toes were squeezed, and that N.R.J-L was complaining of severe pain, even with pain medication. Id. at 132–33. Dr. Salvagno decided to return to the Hospital and ordered the nurses to administer more pain medication. Id. at 133–34.
When Dr. Salvagno arrived at the Hospital that night, he examined N.R.J-L. Id. at 135. Dr. Salvagno was only able to obtain a posterior tibial pulse,  using a Doppler. Id. He “felt that [N.R.J-L] needed to be taken urgently to the operating room for a fasciotomy because [Dr. Salvagno] felt that [N.R.J-L] had compartment syndrome.” Id. at 135–36. After Lopez-Krist and Dr. Salvagno executed another consent form, see Consent at 1,  Dr. Salvagno performed the fasciotomy, which was intended to decrease the pressure in the muscle compartments. Salvagno Dep. at 139–40. During the procedure, Dr. Salvagno was unable to ascertain the popliteal blood supply. Id. at 142. Following the fasciotomy, Dr. Salvagno was still unable to detect a dorsalis pedis pulse on the top of the minor’s foot. Id. at 141.
The next day, September 15, 2010, Dr. Salvagno again examined N.R.J-L at the Hospital. Id. at 172. He described N.R.J-L as “much more comfortable” and indicated that his capillary refill had improved. Id. N.R.J-L’s posterior tibial pulse was positive by Doppler, although Dr. Salvagno still could not detect a dorsalis pedis pulse. Id. Nevertheless, Dr. Salvagno concluded that N.R.J-L’s condition was stable and that the fasciotomy had successfully relieved the pressure on the leg muscles. Id. at 174.
N.R.J-L’s condition worsened over the next two days and, according to the nurses’ notes, his right foot became “cool, pale and mottled.” See Id . at 178. Dr. Salvagno claimed that he was not made aware of these developments until September 17, 2010. Id. at 180. On that date, Dr. Salvagno examined N.R.J-L and found that the swelling in his leg had increased, that his foot was “cool” and “mottled, ” and that the minor did not have either a posterior tibial pulse or a dorsalis pedis pulse. Id. at 191–92, 202. Based upon these developments, Dr. Salvagno concluded that there was either an injury to the popliteal artery or that the compartment syndrome had recurred. Id. at 194. Dr. Salvagno then requested consultation from two vascular surgeons, Dr. William Su and Dr. Karl Riggle. Id. at 196–97.
With Dr. Riggle in attendance, Dr. Salvagno conducted a wound exploration procedure, i.e., a repeat fasciotomy, to determine whether there was a recurrence of compartment syndrome or injury to a blood vessel. Id. at 203. Because there was “no evidence” of “recurrent compartment syndrome, ” id. at 204, Dr. Salvagno determined that N.R.J-L had suffered a vascular injury. Id. at 205–7. Dr. Riggle then conducted an angiogram and determined that there was a laceration in N.R.J-L’s popliteal artery. Id. at 208. At some point during or after the angiogram, Dr. Su arrived and “assumed the care for the vascular portion” of the treatment. Id. at 211–12. Dr. Su conducted a vein graft bypass on N.R.J-L. Id. at 213. Although this procedure was successful in restoring blood flow, N.R.J-L’s right foot “continued to be discolored with blisters and absent sensation.” Complaint ¶ 14. N.R.J-L also continued to complain of pain in his leg over the next week, despite Dr. Salvagno’s prescription of pain medication. Salvagno Dep. at 223–24. On September 23, 2010, Dr. Riggle “made a determination that the leg was nonviable” and he “proceeded with an above-knee amputation” on September 24, 2010. Id. at 222.
B. The Relationship of Meritus, Salvagno, and JSSM
At the relevant time, the relationship between Meritus, Dr. Salvagno, and JSSM was governed by three separate documents. The first was an Administrative and Clinical Services Contract (“ACS Contract” or “Contract”), executed by Meritus, Salvagno, and JSSM on July 11, 2007, relating to the Hospital’s Center for Joint Replacement (“Center”). See ECF 79-2 at 1. Pursuant to the ACS Contract, JSSM and Salvagno were to manage the administrative and medical services provided at the Center. For example, the Contract provided that “Salvagno shall serve as Director of the Center, perform all duties and carry out all responsibilities of the Director as set forth in this Contract.” Id. at 4. The Contract sets out a lengthy list of Salvagno’s responsibilities related to the Center, including that he would “at all times provide on a non-exclusive basis Total Joint Services to the reasonable satisfaction of the Hospital and the Medical Staff, ” and would “perform daily rounds, execute Discharge Orders and Summaries, and interface with primary care physicians and referring specialists.” Id. at 4. Additionally, JSSM agreed to “provide full-time Total Joint Services to Hospital Patients requiring such services [and] . . . arrange for on-call coverage to cover twenty-four (24) hours per day seven (7) days per week.” Id.
Under the ACS Contract, Meritus retained some control over the operation of the Center. For example, Salvagno’s selection of doctors to work at the Center was “subject to approval by the [Meritus] Board of Directors, ” and Meritus “reserve[d] the right to be consulted and involved in recruitment.” Id. Meritus also retained “control over the non-medical aspects of the management and operations of the Center.” Id. at 12. However, the Contract provided that Meritus “shall neither have nor exercise any control or direction over the methods by which [JSSM] or Physician Employees perform Total Joint Services, ” and expressly provided that Dr. Salvagno and the other Center employees “shall act as Independent Contracts [sic] of Meritus.” Id. at 11–12.
Meritus and JSSM are parties to an Agreement for Trauma Coverage (“Trauma Agreement” or “Agreement”), dated July 3, 2007. ECF 79-3. It sets out the obligations of both parties in relation to JSSM’s provision of services to the Hospital’s trauma program. Under the Agreement, JSSM agreed “to serve as able, in conjunction with other Participants to assure the continuous operation of the Trauma Program” and to “participate in an on-call roster calendar as required to maintain the Trauma Program in a mutually agreeable fashion.” Id. at 4. Among other things, the Agreement required JSSM to assist the Hospital in developing new programs, to participate in quality review activities, to perform its obligations “in a manner reasonably acceptable to the Hospital, ” and to act in accordance with various professional standards. Id. at 5. JSSM also agreed that its employees would “respond to the Trauma Surgeon on-call within thirty (30) minutes and evaluate and treat the patient as the specialist in combination with the Trauma Surgeon as they deem appropriate.” Id. at 4.
Notably, the Trauma Agreement also provided that Meritus “shall neither have nor exercise any control or direction over the methods by which the Physician Employees performs his [sic] Trauma Medicine Services, ” and that Meritus shall not “become liable for any of the existing or future obligations, liabilities or debts of [JSSM].” Id. at 7. Meritus was permitted to terminate the Agreement upon the occurrence of any of several events, including the “failure of Physician Employees or Participants to provide the on-call coverage requirements set forth in this Agreement.” Id. at 9.
Meritus and Dr. Salvagno also executed a Memorandum of Understanding (“MOU”), dated June 30, 2010. ECF 79-6. The MOU was the result of several meetings between “physicians, members of the Board of Directors and members of Hospital Management, ” in which the parties discussed “on-call coverage by members of the Medical Staff.” Id. at 1. The MOU required Dr. Salvagno, as well as other physicians who signed similar memoranda, to provide medical services “in a timely fashion, typically within fifteen (15) minutes of receiving the request and by personal presence in the Emergency Department.” Id. at 2. Moreover, the determination of whether Dr. Salvagno’s personal presence was required “shall be made by the Emergency Department physician, ” and any disagreements between the Emergency Department physician and Dr. Salvagno regarding the type of medical specialty required for a ...