June 2020 Bulletin: Please note the language and formatting of the Personal Injury Corner article on page 13 was not properly edited before printing at no fault of the author.
Please see the corrected article included below:
Page: Personal Injury Corner (Page 13)
Article Title: Hospital’s Non-Delegable Duty
Author: Ted Babbitt
Originally Printed: 6/1/2020 | Edited: 6/10/2020
HOSPITAL’S NON-DELEGABLE DUTY
Andre v. Abreu, 272 So.3d 467, (Fla. 3d DCA 2019) raised the question of whether a hospital owes a non-delegable duty to a patient as a result of actions of the independent contractor physicians working in the hospital’s emergency department. Ordinarily, independent contractors working in a hospital do not subject a hospital to liability for their actions. Pub. Health Tr. of Dade County v. Valcin, 507 So.2d 596,601 (Fla. 1987). However, in Wax v. Tenet Health System Hospitals, Inc., 955 So.2d 1, 9 (Fla. 4th DCA 2007), on the basis of the statutory responsibility set forth in Florida Statute §395.1055(1)(a) and (d), which requires Florida’s Agency for Healthcare Administration to establish rules for safe patient care imposed a duty on a hospital to provide safe anesthesia services consistent with those standards. The Fourth District concluded that there was a non-delegable duty to provide safe anesthesia services.
The Third District, in Tabraue, III v. Doctors Hospital, 272 So.3d 468 (Fla. 3d DCA 2019), concluded that a hospital did not owe a non-delegable duty for actions of emergency room physicians under the same theory espoused in Wax v. Tenet, supra. The Third District refused to follow the Fourth District’s holding in Irving v. Doctors Hospital of Lake Worth, 415 So.2d 55 (Fla. 4th DCA 1982), which overturned a verdict in favor of a hospital because of the failure of the lower court to give a ju1y instruction “that one may not escape his contractual liability by delegating performance under contract to an independent contractor”. In Newbold-Ferguson v. Amisub, 85 So.3d 502 (Fla. 4th DCA 2012), the Fourth District, at 504, held:
“Irving establishes that a hospital which provides emergency room services has a non-delegable duty to provide competent emergency treatment based upon an implied contract. It is therefore clear that the plaintiff could have pleaded a claim against the hospital for the emergency room doctor’s negligence on a non-delegable duty theory. The imposition of a non-delegable duty to provide competent emergency room services makes sense, because a patient in an emergency room generally has little, if any, control over who will be the treating physician.”
The Tabraue Court refused to follow Irving even though it recognized that Irving and the cases following Irving created a judicially imposed implied contract requiring hospitals to provide emergency physicians who gave non-negligent emergency room care subjecting the hospital to responsibility for the negligence of its emergency room physicians.
The Third District stated, at 812:
“While we recognize that Chapter 395 of the Florida Statutes obligates Florida hospitals to provide emergency room services to the public, we note that the statutory scheme is silent on the matter of non-delegable duty. We believe that expanding Florida hospital liability to include liability for those emergency room medical providers who are hired by hospitals as independent contractors is a public policy decision that is within the purview of Florida’s legislative branch. Or, to the extent the issue is one of common law, it calls for a Florida Supreme Court decision. We simply are averse to expanding, by judicial dictate, the liability of Florida hospitals, as the Estate urges.
Accordingly, we affirm the Trial Court’s dismissal of Count V of the Estate’s second Amended complaint and we certify conflict with Irving v. Doctors Hospital of Lake Worth, Inc. and Newbold Ferguson v. Amisub.”
Thus, the Supreme Court will have the final word as to the liability of hospitals for physicians, both in the anesthesia and emergency departments, as a result of the certification of that issue in the Tabraue case.
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500.