OPINION
In this dental malpractice action, plaintiff Stephanie George (Ms. George) seeks to hold defendant, Oaklawn Family Dental* Inc. (Oaklawn), vicariously hable for the aheged torts of orthodontist and co-defendant, Dr. Faeze Fadiani (Dr. Fadiani). 1 Following a hearing in the Superior Court, a hearing justice granted summary judgment in favor of Oaklawn and entered judgment pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. Ms. George appeals from that judgment.
After a conference before a single justice of this Court, the parties were directed to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda submitted, we are of the opinion that cause has not been shown and that the issues raised in this appeal should be decided at this time.
Facts/Procedural History
In 1992, Ms. George made an appointment for orthodontic treatment with Dr. *1067 Fadiani at Oaklawn. Doctor Fadiani, an orthodontics specialist, informed Ms. George that treatment would take approximately eighteen months. Four years later, treatment still was not complete and the problem had not been corrected. In her complaint, Ms. George alleged that Oaklawn Dental was negligent both in hiring Dr. Fadiani and in failing to warn her of Dr. Fadiani’s incompetency.
Oaklawn filed a motion for summary judgment, asserting that it could not be held vicariously liable for Dr. Fadiani’s actions because Dr. Fadiani was an independent contractor over whom Oaklawn never had exercised any control. In addition, Oaklawn contended that Ms. George was collaterally estopped from litigating any employer/employee relationship because that issue already had been determined by a court of competent jurisdiction within the State of Rhode Island.
At the hearing on Oaklawn’s motion for summary judgment, Ms. George, in open court, filed for the first time her objection to the summary judgment motion. An accompanying affidavit also was filed. A copy of these papers was faxed to defense counsel’s office on the night before the hearing, specifically, on Sunday, December 12, 1999, at 10:22 p.m. After hearing the arguments of counsel, the trial justice entered summary judgment in favor of Oak-lawn. He found that Ms. George was collaterally estopped from asserting that Dr. Fadiani was employed by Oaklawn. In addition, he found that Dr. Fadiani was an independent contractor over whom Oak-lawn exercised little, if any, direction or control.
Standard of Review
“When reviewing a summary judgment, we do so on a de novo basis, applying the same legal criteria as the trial court.”
Kiley v. Patterson,
Collateral Estoppel
In his decision, the hearing justice relied upon a previous District Court decision to determine that Ms. George was collaterally estopped from asserting that Dr. Fadiani was employed by Oaklawn. In that case, a District Court judge had rejected the Rhode Island Department of Employment Security’s contention that Oaklawn was an employer for purposes of employment tax liability. However, we believe that the trial justice’s reliance on the District Court decision was misplaced.
“Under the doctrine of collateral estoppel, ‘an issue of ultimate fact that has been actually litigated and determined cannot be re-litigated between the same parties or their privies in future proceedings.’”
Casco,
From the facts before us, it is clear that Ms. George never was a party to the District Court case. Equally clear is that she never was in privity with the parties involved in that prior proceeding. Consequently, the trial justice erred in collaterally estopping her from asserting that Dr. Fadiani was employed by Oaklawn.
Apparent Authority
In her objection to Oaklawn’s motion for summary judgment, Ms. George asserted that Oaklawn held itself out to her and to the public-at-large as a provider of dental services. She averred that there was an ongoing relationship between her and Oaklawn, and that she reasonably believed that Oaklawn was providing her dental services. As previously noted, Ms. George’s objection to the motion for summary judgment was filed in open court.
In her accompanying affidavit, Ms. George asserted that she had been receiving dental treatment at Oaklawn for many years and that her regular dentist at Oak-lawn recommended to her that she seek orthodontic treatment. Subsequently, the receptionist at Oaklawn set up the appointment between Ms. George and Dr. Fadia-ni. All billing notices for the orthodontic treatment were written on Oaklawn stationary and all payments were made to Oaklawn at Oaklawn’s front desk.
At the hearing, counsel for Oaklawn pointed out that he did not receive Ms. George’s memorandum and affidavit until the previous night and that “he scrambled to take a look at it.” Defense counsel then proceeded to argue the merits of the case.
“Rule 56(c) provides that on a motion for summary judgment ‘[t]he adverse party prior to the day of hearing may serve opposing affidavits.’”
Nichola v. John Hancock Mutual Life Insurance Co.,
In the present case, Oaklawn filed its motion for summary judgment on January 29, 1999. Approximately ten and one-half months later, on December 13, 1999, Ms. George filed her objection and affidavit in open court. The trial justice certainly would not have abused his discretion had he refused to consider her affidavit. However, it is not clear from the record whether the trial justice refused to consider the affidavit or merely considered and then rejected it. Regardless, the record reveals that Oaklawn may have “waived any objection [it] may have had to being unfairly surprised by [Ms. George’s] affidavit and to its arguments regarding its alleged lack of notice” when it argued the merits of the motion instead of either specifically objecting to the untimely filed affidavit or moving for a continuance, pursuant to Rule 56(f) of the Superior Court Rules of Civil Procedure.
Sullivan v. Town of Coventry,
Ultimately, however, it is not determinative in this case whether the trial
*1069
justice considered the affidavit, or whether Oaklawn waived its objection and failed to move for a continuance because, “[i]f the affidavit of the moving party does not establish the absence of a material factual issue, the trial justice should deny the motion for a summary judgment despite the failure of the nonmoving party to file a counteraffidavit.”
Sullivan,
To sustain an action for medical-malpractice against a professional medical corporation based on the theory of apparent authority, the plaintiff must satisfy the following three criteria:
“The patient must establish (1) that the [professional medical corporation], or its agents, acted in a manner that would lead a reasonable person to conclude that the physician was an employee or agent of the hospital, (2) that the patient actually believed the physician was an agent or a servant of the [professional medical corporation], and (3) that the patient thereby relied to his detriment upon the care and skill of the allegedly negligent physician.” Rodrigues v. Miriam Hospital,623 A.2d 456 , 462 (R.I.1993).
Such a determination necessarily involves a fact-intensive inquiry. Crucial to any such determination is the manner in which the medical professionals conduct themselves or hold themselves out. 2
In the present case, the trial justice granted Oaklawn’s motion for summary judgment on the basis that Dr. Fadiani was an independent contractor. However, in her affidavit, Oaklawn’s office manager, Kathleen Taft, stated that Oaklawn has no obligation to compensate its medical professionals except for “an agreed share of the commission obtained by Oaklawn from the patient [, and that ijf Oaklawn is unable to collect payment for services rendered to a patient, the [medical professional] who provided treatment to that patient would not be compensated * * *.” Thus, by its own admissions, it is Oaklawn, and not the treating medical professional, that bills and collects payments from the patients for services rendered. Such evidence could lead a reasonable person to conclude that the medical professionals were employees or agents of Oaklawn. Consequently, Oaklawn’s own affidavit does not establish the absence of a material factual issue, namely, its apparent authority over Dr. Fadiani. Considering that this issue was not addressed below, we conclude that the grant of summary judgment was premature.
Consequently, for the foregoing reasons, we sustain Ms. George’s appeal and vacate the summary judgment entered in favor of Oaklawn. The papers in this case are remanded to the Superior Court for further proceedings consistent with this opinion.