The Fourth District Court of Appeal Offers Pleading advice to Practitioners.
When Patients enter a hospital, their care is entrusted to any number of medical providers. When the care is provided by emergency room physicians, pathologists, hospitalists, anesthesiologists, and many other specialties, the patient typically has no prior relationship and often no direct contact with the physician. The selection of who is to see patients at a hospital is made by the hospital. But what happens if the doctor chosen by the hospital to treat its patients makes a medical mistake? Often, hospitals attempt to avoid liability by claiming that the physician is not technically an employee, but rather an independent contractor.
The Fourth District Court of Appeal recently considered such a situation in Staria T. Newbold-Ferguson v. Amusub (North Ridge Hosptial) Inc., No. 4D09-3610 (Fla. 4th DCA 2012). The patient in that case died the day following a surgery at North Ridge Hospital. The lawsuit maintained that the Emergency Room physician who treated the patient was negligent in causing the patient’s death. The Hospital moved for Summary Judgment claiming it had no liability for its emergency room physician because he was not an employee, but rather was an independent contractor.
The Fourth District Court of Appeal disagreed by finding that while a hospital is not always liable for the actions of a physician they claim to be an independent contractor, there are three main exceptions to that rule. First, a hospital is responsible for the negligence of a non-employee physician if that physician is acting as an actual or apparent agent of the hospital. Second, a hospital cannot escape liability for an independent contractor if it fails to use due care in the selection and retention of an independent contractor. Third, the rule of a hospital’s non-liability for the acts of an independent contractor fails when the independent contractor physician is performing medical care for which the Hospital has a “non-delegable” duty to provide. While the Staria Court offered no precise definition for all situations which rise to the level of non-delegable duty, it indicated that the duty may arise out of a statute, regulation or a contract. The Court referenced prior cases finding that a hospital has a non-delegable duty to provide competent emergency treatment, as an example. The Court also offered guidance for future cases by instructing Plaintiff’s claiming hospital liability for non-employee physicians to clearly allege that the hospital had a non-delegable duty, and to plead the specific source of the non-delegable duty the plaintiff seeks to rely upon, i.e., an implied contract, an express contract, a statute, an administrative regulation, or some combination thereof.