Physician and Hospital Liability for Negligent Treatment

When a Hospital is Liable for the Negligent Acts of Independent Contractor Physicians

A hospital may be held vicariously liable for the negligent acts of independent contractor physicians acting with the “apparent authority” of the hospital. Guadagano v. Lifemark Hospitals of Florida, Inc., 972 So.2d 214, 218 (Fla. Dist. Ct. App. 3d Dist. 2007) citing Rossler v. Novak, 858 So.2d 1158, 1162 (Fla. Dist. Ct. App. 2d Dist. 2003). Apparent authority, for purposes of determining whether a principal is liable for the acts of an agent, (Hospital liable for the acts of the physician) is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing. Id. at 1161.  Under the apparent agency theory, an apparent agency exists where the following three elements are present:

1. A representation by the purported principal
2. A reliance on that representation by a third party
3. A change in position by the third party in reliance on the representation. Id.

Because apparent authority “does not arise from the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent himself,” See Id. at 1162 citing Izquierdo v. Hialeah Hosp., Inc., 709 So. 2d 187, 188 (Fla. Dist. Ct. App. 3d Dist. 1998).  The question of whether a physician had apparent authority to act for a hospital is often a question for the jury, not the court to decide, as it is a question of evidence and not a question of law. Id. citing Cuker v. Hillsborough County Hosp. Auth., 605 So.2d 998, 999 (Fla. Dist. Ct. App. 2d Dist. 1992). Therefore, a hospital’s liability for the negligent acts of a treating physician under the theory of vicarious liability is a question of apparent authority and not duty. See McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992).

The factors to prove apparent agency and thus liability of the hospital under a theory of vicarious liability, include:

1. The location of the physician’s offices
2. The hospital where the physician in question performed his services
3. The hospital where the patient sought the services performed, and

The extent to which that the patient did not attempt to secure a specialist on his own, but instead accepted the physician provided to him by the hospital. Id. (emphasis added).  In Roessler, the Second District Court of Appeal reversed and remanded the trial court’s holding that the hospital was not vicariously liable because all of the foregoing factors created an “apparent agency” question for the jury to decide. Id. at 1163.

Selection and Retention of Physicians

Additionally, a hospital is held liable for the negligence of independent contractor physicians under a corporate negligence theory when the hospital fails to exercise reasonable care in the selection and retention of the physicians on its staff.  See. Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989).   The hospital is liable because it is in a superior position to supervise and monitor the physician’s performance, and is the only entity that can realistically provide quality control.  The court’s hold that it has an independent duty to select and retain competent independent physicians (negligent hiring and maintenance).  In other cases, Florida courts have recognized that hospitals may be liable for the acts of non-employee physicians on the theories of joint venture (i.e., when there is a community of interest in a common purpose, joint control, sharing of profits, and a duty to share losses), Arango v. Reyka, 507 So. 2d 1211 (Fla. Dist. Ct. App. 1987), and apparent agency. Webb v. Priest, 413 So. 2d 43 (Fla. Dist. Ct. App. 1982).

Example:  Stone v. Palms West Hospital, No. 4DO5-402 (Fla. App. 11/08/2006) So.2d.  The Court held there was sufficient evidence to present a jury question as to whether there was an apparent agency between the hospital and the physicians who treated the patient.  The court explained that apparent agency does not arise from either the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent. Instead, apparent agency exists only where the principal creates the appearance of an agency relationship.

Wrongful Death Act and Medical Malpractice

Only when a patient who is negligently killed by a physician or hospitals survived by a spouse or dependent child does Florida’s Wrongful Death Act permit recovery the damages for pain and suffering, loss of companionship and support.  Adult children of deceased parents are not allowed to bring a claim for the wrongful death of their parents.  In all other situations, the right of action dies with the patient.   In summary, here is what the Wrongful Death Act provides:

1. A living spouse may recover for his or her own mental pain and suffering and loss of companionship, and the value of lost services including lost economic support if the decedent was employed.   If the decedent spouse was NOT working, the surviving spouse cannot recover economic damages.
2. Any other blood relative wholly or partly dependant on the deceased person for support or services may recover for the value of those lost services or support.
3. Living children of the deceased person, if under the age of 25, may also recover damages for mental pain and suffering and loss of parental guidance and companionship.
4. If the deceased person was employed and he would have accumulated more assets over his remaining work-life expectancy, the estate of the deceased person may also recover for those lost assets.  These damages are called "lost net accumulations of the estate".
5. The estate can also usually recover for any medical bills actually caused by the negligence and funeral expenses.
6. A medical malpractice action must be brought within two years from the date

The Florida Birth Related Neurological Injury Compensation Act

The Florida Birth-Related Neurological Injury Compensation Plan is the exclusive means for recovery of damages for severe, birth-related injuries. The Florida Patient Compensation Fund is a State of Florida sponsored excess insurance for medical malpractice liability.  The Florida Birth-Related Neurological Injury Compensation Act ("NICA") provides compensation for birth-related neurological injuries without regard to the negligence of any health care provider.  Fla. Stat. Ann. § 766.303  “Birth-related neurological injury" means:

“ injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.”  Fla. Stat. § 766.302(2). Since recovery under NICA precludes recovery by means of a medical malpractice jury trial, whether an injury meets this definition is often litigated. The definition excludes premature babies and those whose injury results from care prior to labor and delivery. A child must be both mentally and physically impaired to qualify. Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Div. of Admin. Hearings, 686 So. 2d 1349 (1997).  Important fact is that the physician at issue will not be afforded coverage if he or she was not a participant.  Fla. Stat.  § 766.309.

Florida Patient Compensation Fund

Hospitals are required to participate in the fund by paying a yearly fee and obtaining primary insurance (or otherwise demonstrating financial responsibility) of $250,000 per claim or $500,000 per occurrence (which is indexed for inflation after January 1, 1990). Fla. Stat. § 766.105.  Hospitals operated by units of government or meeting certain financial responsibility requirements ($2,500,000 of insurance coverage) are exempt. Id. The fund provides insurance coverage for claims against its participants of either $1,000,000 per claim with a $3,000,000 annual aggregate, or $2,000,000 per claim with a $4,000,000 aggregate.   A hospital's limits under the fund are $2,500,000 per claim with no annual aggregate.  A participating health care provider still remains liable for damages in excess of the fund's coverage and for punitive damages. Id. The entry level insurer is responsible for providing a defense. Id.

Immunity of Physicians Employed by the State and it's Municipalities (University Hospitals)

The damages for the acts of Physicians employed with the State of Florida and its counties, municipalities, and other political subdivisions are limited to $100,000 per claimant and $200,000 per occurrence. Further, neither the state nor any of its political subdivisions is liable for punitive damages.

The option then is for the litigant pursuing a medical malpractice action to seek  a petition to the state legislature for a "claim bill," under which the party petitions the  government for a bill granting compensation in excess of the this statutory damage cap.

Arbitration

Some physicians and hospitals provide patients with a form requiring Arbitration for any medical malpractice claims, although the State of Florida does not mandate this alternative dispute forum.  If a party refuses to accept a defendant's offer to arbitrate, the recovery allowable by law will be limited to economic damages (but only 80 percent of lost wages) plus no more than $350,000 in non-economic damages.

Expert Testimony

Every person seeking to file a lawsuit for medical negligence against a physician or hospital must include a verified written medical expert opinion corroborating that there are reasonable grounds to believe that each named defendant was negligent. Fla. Stat. § 766.203.  A defendant who denies the existence of reasonable grounds for the claim must also provide a corroborating verified written medical expert opinion.  As a potential party or plaintiff, you cannot proceed with you claim to the Courts without an expert opinion of the same or similar specialty.