R.H., a minor, by her Mother and Next Friend, Michelle Hugar et al v. Prasad, M.D. et al
Filing
46
MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 7/28/2014. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
R.H., a minor, by her Mother and Next
Friend, MICHELLE HUGAR, et al
*
*
Plaintiffs
*
v.
Civil Action No. CBD-13-1049
*
SANJAY PRASAD, M.D., et al.
*
Defendants
******
Before this Court is Defendant Tower Oaks Surgery Center, LLC’s Motion for Summary
Judgment (“Defendant’s Motion”) (Docket Item No. 36). The Court has reviewed Defendant’s
Motion, and the opposition thereto. No hearing is deemed necessary. Local Rule 105.6 (D. Md.).
For the following reasons, the Court hereby GRANTS Defendant’s Motion.
I.
Background
Plaintiffs, a minor and her mother as next friend, bring the present action asserting claims
for medical negligence and the absence of informed consent. See generally, Am. Comp.
Plaintiffs allege that Defendant Prasad performed a series of surgical procedures on the minor
plaintiff in an effort to improve her hearing. The surgeries were performed at the facilities of
Defendant Tower Oaks Surgery Center LLC (“Defendant Tower Oaks”). Plaintiffs contend that
Defendants’ conduct violated the requisite standard of care and caused further injury. For
purposes of the pending motion, the salient issue is whether Defendant Tower Oaks can be held
vicariously liable for the alleged acts and omissions of Defendant Prasad. Defendant’s Motion
contends that there is no basis to impose vicarious liability.
1
II.
A.
Discussion
Standard of Review
Summary judgment is proper if there are no issues of material fact and the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is
one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond
Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A dispute of material fact is only “genuine” if sufficient evidence
favoring the non-moving party exists for the trier of fact to return a verdict for that party.
Anderson, 477 U.S. at 248-49. However, the nonmoving party “cannot create a genuine issue of
material fact through mere speculation or the building of one inference upon another.” Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir. 1986). The Court may only rely on facts supported in the
record, not simply assertions in the pleadings, in order to fulfill its “affirmative obligation . . . to
prevent ‘factually unsupported claims or defenses’ from proceeding to trial.” Felty v. GraveHumphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24).
When ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
B. Defendant Tower Oaks Has Demonstrated That Dr. Prasad Is Not Its Employee
The classic method by which vicarious liability is established, is by the presentation of
proof of the existence of a master-servant relationship. Maryland follows the Restatement of
Agency 2d, which looks to the issue of the ability of the master (employer) to control to conduct
of the servant (employee).
2
Generally, a principal is vicariously liable for the negligence of its
agent when the two share a master-servant relationship but not
when the agent is merely an independent contractor of the principal.
Sanders v. Rowan, 61 Md. App. 40, 51, 484 A.2d 1023 (1984). The
ultimate test for whether an agent is also a servant is control, for a
master ‘controls or has the right to control the physical conduct of
the [servant] in the performance of the service.’ Id. (quoting
Restatement of Agency 2d, §2(1)).
Hunt v. Mercy Med. Cntr., 121 Md. App. 516, 545, 710 A.2d 362, 376 (1998). Here, Defendant
Tower Oaks contends there is no record evidence of a master-servant relationship. It contends
that Plaintiffs have set forth no basis to suggest that Tower Oaks exercised control over
Defendant Prasad. Strangely though, Defendant Tower Oaks has presented questionable
evidence as to whether Defendant Prasad was an employee at the time of the surgeries.
According to Plaintiffs’ Amended Complaint, the surgeries occurred on August 9, 2009,
February 26, 2010, and November 18, 2010. Defendant’s Motion suggests that “Dr. Prasad is
not, and never has been, employed by Tower Oaks.” Defendant Tower Oaks directs the Court to
its “Statement of Material Facts Not in Dispute,” ¶¶ 13-14. While the declaration of Marshall
Besch supports Defendant’s Motion, the reference to Dr. Prasad’s deposition is much less clear.
When asked if he holds any position with Defendant Tower Oaks, Dr. Prasad states under oath
that he is the Medical Director, and that he began serving in the position the same year that the
facility opened in 2007. Prasad Depo., p. 20, lines 13-21.
While troubling, there is no record evidence to suggest Defendant Prasad performed any
services for Plaintiffs while serving in the role of Defendant Tower Oaks’ Medical Director.
There is nothing to suggest that the alleged malpractice is related in any way to the functions
and/or duties required of a medical director. This leads to the conclusion that while it is an
3
interesting aside, Defendant Prasad’s potential role as the Medical Director is nothing more than
the proverbial red herring.
Plaintiffs have offered no evidence on the question of whether Defendants shared an
employer-employee relationship. On this record, it appears that Defendant Prasad was granted
the use of Defendant Tower Oaks’ facilities as an independent contractor. The bulk of contact
between Plaintiffs and Defendant Prasad occurred in Defendant Prasad’s office. Based upon the
unrebutted Besch Declaration, there is no joint billing practice or other indicia of control at the
hand of Defendant Tower Oaks. See Decl. of Marshall Besch, ¶¶ 4, 5, 9 and 10. Under the
Restatement, such a relationship does not equate to vicarious liability as to Defendant Tower
Oaks. As Defendant’s Motion goes unchallenged on this point, it prevails.
C.
There Is No Record Evidence that Defendant Tower Oaks Held Out
Defendant Prasad As Its Agent
Vicarious liability can also be created whenever a principal cloaks another with apparent
agency. When another person reasonably relies upon the words or conduct of the principal that
suggests the existence of an agency relationship, then the principal will be bound as if an actual
agency relationship existed. Once again, Maryland looks to the Restatement of Agency on this
issue.
One who represents that another is his servant or other agent and
thereby causes a third person justifiably to rely upon the care of
skill of such apparent agent is subject to liability to the third person
for harm caused by the lack of care of skill of the one appearing to
be a servant or other agent as if he were such.
JAI Med. Sys. Managed Care Org., Inc. v. Bradford, 209 Md. App. 68, 76, 57 A.3d 1068 (2012),
aff’d, 2014 WL 2766672 (Md. Jun 19, 2014).
4
On the present record, there is again nothing to suggest that Plaintiffs’ selection of
Defendant Prasad had anything to do with Defendant Tower Oaks. It is Plaintiffs’ burden to
show the existence of probative facts on this issue, and Plaintiffs have failed to do so.
Plaintiffs’ reliance on Faya v Almarez, 329 Md. 435, 620 A.2d 327 (1993) is misplaced.
It is the defense that presents the procedural posture of the case correctly, and it is the procedure
here which is dispositive. The appellate court determined that the plaintiff in Faya should have
successfully survived a motion to dismiss on the question of apparent agency since she alleged
that the defendant doctor had privileges to conduct operations at the defendant hospital. Given
that the court was required to accept all well-pleaded facts as true, the trial court’s decision to
dismiss the action at that stage was improper. Here, the procedural issue is a motion for
summary judgment.
Generally, the question of agency is a question of fact and therefore not the subject of a
motion for summary judgment. Therefore, the real question is whether Plaintiffs have presented
“any legally sufficient evidence tending to prove the agency.” Faya, at 460. Here, there is no
evidence that Defendant Tower Oaks did anything suggestive of agency. There is no evidence
that Plaintiffs relied upon Defendant Tower Oaks’ reputation, signage, recommendations or the
like before selecting Defendant Prasad to perform the surgery or before the performance of the
procedure itself. While it is not disputed that Defendant Prasad had operating privileges with
Defendant Tower Oaks, there is no indication that Plaintiffs were aware of such or relied upon
such. The mere fact that Defendant Prasad could perform surgeries at the facility does not
equate to a question of fact on the issue of agency. Cases relied upon by Plaintiffs, namely Hunt
and Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977) are inapposite. In fact, Defendant
5
Tower Oaks’ reply briefing makes an even stronger point. There Defendant notes that Plaintiff
Michelle Hugar stated under oath that no one ever represented to her that Defendant Prasad was
employed by Defendant Tower Oaks, that he had any type of ownership or other interest in
Defendant Tower Oaks, or that any personnel at Tower Oaks ever discussed anything with
respect to Defendant Prasad. Hugar Depo. at 97-98. Here, there is no legally sufficient evidence
of apparent agency.
Even assuming, arguendo, that Defendant Tower Oaks misled Plaintiffs into believing
that Defendant Prasad was its agent, it is equally unreasonable to allow the creation of a jury
question regarding apparent agency on the bald assertion by Plaintiff Michelle Hugar that she
believed Defendant Tower Oaks “must have been part of his practice because it was so small.”
Pl.’s Opp. 6; Decl. of Michelle Hugar, ¶5. As the Maryland Courts have stated, Plaintiffs must
show:
1)
they were misled by the appearance [of another] into
believing that [the tortfeasor] was an employee;
2)
this belief was objectively reasonable under all the
circumstances; and
3)
they relied on the existence of that relationship in making
their decision to entrust [the tortfeasor].
Chevron, U.S.A., Inc. v. Lesch, 319 Md. 25, 34-35, 570 A.2d 845 (1990). See also, MercedesBenz of N. Am., Inc., v. Garten, 94 Md. App. 547, 618 A.2d 233 (1993). Even if Plaintiffs were
allowed to make such arguments to the trier of fact, there is no evidence under the first and third
factors to survive Defendant’s Motion. Plaintiff Michelle Hugar stated that no discussions
occurred about where the surgery would occur “until [Dr. Prasad] set the appointment. I didn’t
6
know it was at a separate facility until, in his office when they schedule these surgical
appointments. He didn’t really describe where to go.” Hugar Depo., p. 94, line 20 to p. 95, line
3. Plaintiff’s statement that she would not have consented to having surgery at an unsanitary
facility is not the testimonial equivalent to claiming that she relied upon an agency relationship
in making her decision. The sanitary condition of Defendant Tower Oaks’ facility is not a
representation of agency. Simply put, Plaintiffs did not rely upon the existence of a relationship
between Defendants Prasad and Tower Oaks in making the decision to have the surgery.
D.
Defendant Prasad’s Financial Interest in Defendant Tower Oaks is of No
Import
Plaintiffs finally note that Defendant Prasad is the sole owner and Medical Director of
Defendant Tower Oaks. Accepting these facts as true, they do not equate to agency. There is no
suggestion that Defendant Tower Oaks is operated as Defendant Prasad’s alter ego. The record
is clear that it is a distinct legal entity, which is operated separately from Defendant Prasad’s
other medical practices. While Plaintiffs correctly state that vicarious liability can be established
by way of a partnership or joint venture, see Baltimore Police Dept. v Cherkes, 140 Md. App.
282, 780 A.2d 410 (2001), this record supports neither. The record evidence is that Defendant
Tower Oaks treated Defendant Prasad as an independent contractor for purposes of the minor
Plaintiff’s surgery. The fact that Defendant Prasad stands to profit by way of his ownership in
whole or in part does not equate to agency. No malpractice is alleged against Defendant Tower
Oaks directly. On this record, the alleged “sins of the father,” (i.e. Defendant Prasad), are not
passed on to the son, (i.e. Defendant Tower Oaks).
7
III.
Conclusion
For the above-cited reasons, the Court GRANTS Defendants’ Motion for Summary
Judgment. The Court will enter a separate Order consistent with this opinion.
Date: July 28, 2014
/s/
_
Charles B. Day
United States Magistrate Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?