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Murphy v. Bayhealth2/4/2005
ty in charge of Kent General Hospital.
Therefore, given these facts and in the interest of resolving this case on its merits, I grant Plaintiffs' Motion to Amend Complaint to replace Bayhealth, Inc. with Bayhealth Medical Center, Inc. I must note, however, Plaintiffs' considerable delay in filing this Motion to Amend. It appears that Bayhealth, Inc.'s Answers to Plaintiffs' Interrogatories, dated October 21, 2003, made clear that "Bayhealth, Inc. does not do business as Kent General Hospital." Despite this fact, Plaintiffs did not file the Motion to Amend until November 12, 2004. Because of this considerable delay, I order that Plaintiffs pay to Defendant Bayhealth, Inc. the costs of the additional motions Defendant was forced to file. The Defendant will submit an affidavit outlining the expense incurred.
II. Defendants' Motion for Summary Judgment
Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment is appropriate if there are no genuine issues of material fact after viewing the record in a light favorable to the non-moving party. Summary judgment will not be granted if the record reasonably indicates a material fact in dispute or a need to inquire more thoroughly into the facts to clarify the application of law to the circumstances.
Direct Agency
Plaintiffs allege that Dr. Yanez and Dr. Caccese are the agents of Bayhealth Medical Center, Inc., d/b/a Kent General Hospital. In its Motion for Summary Judgment, Defendant asserts that any physicians who treated Plaintiff are independent contractors. The determination of whether an agency relationship exists depends on the particular facts of a case. The Delaware courts have "recognize that no single rule could be laid down to determine whether a given relationship is that of [a servant to a master] as distinguished from an independent contractor." Such determinations are consequently "ordinarily made by the factfinder."
According to Dr. Ruben's report, Plaintiff's symptoms between July 30 to August 4, 2001 suggested the presence of DVT and Dr. Ruben asserts that there was a breach of the standard of care in not evaluating Plaintiff for DVT at that time. Plaintiff was evaluated by a number of doctors and staff personnel associated with Kent General Hospital during this time, including Dr. Yanez, who was the sole neurosurgeon on call at Kent General Hospital and Dr. Caccese, Jr. who examined the radiograph of Plaintiff's leg on July 31, 2001.
Plaintiffs assert that the facts of the case suggest that Defendant Dr. Caccese, Jr. and Defendant Dr. Yanez were both acting as agents of Defendant Bayhealth Medical Center, Inc. to provide services for the sole benefit of Defendant Bayhealth Medical Center, Inc. In order to establish that an actual agency relationship exists between a physician and a hospital, "it must be shown that the employer/hospital controlled or had the right to control the physical conduct of the servant/physician in the performance of the servant/physician's work." If there is sufficient evidence to establish that the requisite right of control existed "the trier of fact may find that the physician is an agent of the hospital and thus impose vicarious liability on the hospital."
Defendant Dr. Caccese, Jr. was a partner in Kent Diagnostic Radiologic Associates ("KDRA") which has an ongoing relationship with Kent General Hospital. According to Defendant Dr. Caccese, Jr.'s deposition, the radiologists of KDRA only perform work for patients of Kent General Hospital and no other entity. In addition, the KDRA facilities
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