Third DCA issues blow to the non-delegable duty hospitals owe ER patients for independent contractor negligence
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 14
CASES FROM THE WEEK OF APRIL 5, 2019
THIRD DCA ISSUES BLOW TO THE NON-DELEGABLE DUTY HOSPITALS OWE ER PATIENTS FOR INDEPENDENT CONTRACTOR NEGLIGENCE.
Tabraue v. Doctors Hospital, Inc., 44 Fla. L. Weekly D810 (Fla. 3rd DCA March 27, 2019):
After having had a cosmetic procedure elsewhere that went awry, a 28-year-old woman died after being treated in the ER and the ICU at defendant’s hospital. She arrived at the ER by ambulance. The estate sued the hospital, and the medical providers who treated the decedent. The ICU doctors were independent contractors of the hospital.
After a summary judgment hearing, the trial court ultimately concluded that the hospital owed no non-delegable duty to the decedent. After some procedural wranglings, the trial court dismissed the estate’s second amended complaint against the hospital with prejudice, to render the case ripe for appeal.
Due to her incapacitation, the decedent’s father signed a series of consent forms which acknowledged that the physicians who would be treating her were independent contractors and not employees of the hospital. There was no dispute that neither the decedent nor her father had selected the medical providers who treated her at the hospital.
The estate alleged four theories of liability against the hospital: (1) statutory non-delegable duty pursuant to chapter 395; (2) common law non-delegable duty; (3) express contractual non-delegable duty; (4) implied contractual non-delegable duty.
The court disposed of the contractual non-delegable duty because the estate conceded that there was no express contract. The court also disposed of the allegations that there is a non-delegable duty under common law.
However, the plaintiff asserted that based on section 395.001 and 395.1041 and several administrative rules promulgated pursuant to section 395.1055(1)(a) that the hospital had a non-delegable duty to provide non-negligent emergency room care. Plaintiff relied on the Wax v. Tenet Health case, where the Fourth District concluded that chapter 395 imposes non-delegable duties as applied to hospital anesthesia care.
In Wax, based on the statute stating that hospitals make surgical treatment facilities available and require AHCA to establish rules for safe patient care, the plaintiff argued that the statutory scheme imposed a legal duty to provide safe anesthesia services. The Fourth District agreed, and concluded that based on the statute and regulation, the hospital had a clearly established legal duty to furnish non-negligent anesthesia services.
The Third District explained that it found itself more aligned with the Second District in the Tarpon Springs case, which concluded that “chapter 395 regulates hospitals and addresses standards governing hospitals, not standards applicable to the practice of medicine.” The court found that chapter 395 is a public health and safety law, designed to establish criteria for hospital licensure, but does not impose a non-delegable duty to provide non-negligent emergency room care.
Finally, the court rejected the non-delegable duty based on implied contract. Florida generally does not recognize an implied contractual relationship between patient and hospital that would trigger a non-delegable duty. The Fourth District, however, in Irving v. Doctors’ Hospital, imposed an implied contract on Florida hospitals and emergency room patients, appearing to have carved out an emergency room exception for the general rule that hospitals are not liable for the negligent acts performed by independent contractors.
The court then observed that Irving laid the path to Newbold-Ferguson v. Amisub, where the Fourth District explained that Irving had established that a hospital providing ER services has a non-delegable duty to provide competent emergency treatment based upon an implied contract.
Accordingly, under Irving and its progeny, there is a judicially imposed “implied contract” theory requiring hospitals to provide emergency room patients with non-negligent emergency room care, so that contrary to the general rule of non-liability, the hospital would be responsible for the negligence of independent contractors hired by the hospital to provide ER services.
The Third District rejected plaintiff’s invitation to adopt that theory. It found that the statutory scheme of chapter 395 is silent on the matter of non-delegable duty, and that expanding hospital liability to include liability for ER 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 only. To the extent the issue is one of common law, the court wrote it calls for a supreme court decision.
The court did certify conflict with Irving and Newbold-Ferguson.
TRIAL COURT PROPERLY AWARDED 2.0 CONTINGENCY FEE RISK MULTIPLIER IN CASE INVOLVING CRIMINAL USURY, FRAUD AND CONSPIRACY.
Pazmino v. Gonzalez, 44 Fla. L. Weekly D809 (Fla. 3rd DCA March 27, 2019):
The underlying case arose out of a real estate and lending transaction where the plaintiff was deceived into borrowing and paying $230,000 for a residence that the sellers understood that they were selling for only $150,000, in order to mitigate losses in a foreclosure.
In the final judgment, the trial court found that the loan sought to be enforced by the defendants’, violated Florida criminal usury statute, and that $83,000 of the $230,000 that the plaintiff was supposedly paying for the property, was diverted to defendants and their relatives.
The trial court also found that the defendants--neither of whom were licensed real estate brokers or realtors--had engaged in prohibited practices, including the receipt of finder’s fees. As to the claims of criminal usury, common law fraud, and conspiracy to defraud, the plaintiff had a right to a multiplier, and the trial court awarded trial counsel $106,774 as a lodestar with a 2.0 multiplier (counsel was employed on a contingency fee).
In affirming the 2.0 multiplier, the court acknowledged the disagreement in recent case law regarding whether there is a “rare and exceptional” circumstances requirement in Florida for a multiplier.
The court then wrote that under existing precedent, this particular case was a textbook example of one in which a multiplier was warranted, even if the “rare and exceptional” standard applied.
On the record, plaintiff introduced evidence that she could not obtain legal assistance because of her income, that the foreclosure commenced after she was defrauded, that the case took a while to resolve, that there was an appeal before the plaintiff prevailed, and that there was a complete elimination of the fraudulently obtained mortgage. Also, the court entered judgment for money damages (the principle and interest was paid by the plaintiff), and the trial court exactingly applied the Quanstrom and Rowe factors. All of this, the court said, overwhelmingly supported the award as well as its affirmance.
TRIAL COURT ERRED IN RULING THAT PRESUIT NOTICE REQUIREMENTS DID NOT APPLY TO PLAINTIFF’S CLAIMS.
Seider v. Leivner, 44 Fla. L. Weekly D807 (Fla. 4th DCA March 27, 2019):
Two dentists sought review of a trial court’s order denying their motion to dismiss. They argued that the trial court erred in failing to dismiss the complaint, because the plaintiff failed to comply with the presuit requirements needed for bringing a medical malpractice claim under section 766.106.
The plaintiff’s complaint alleged that the dentists had performed unnecessary procedures, and misrepresented the status of the plaintiff’s failing dental implant. Each count adopted a group of paragraphs which contained medical malpractice allegations. As correctly argued by the dentists, several counts sought damages arising from medical treatment that implicated the professional standard of care.
Thus, it was error for the trial court to rule that the plaintiff’s claims concerned only billing and collection practices, such that the presuit requirements of chapter 766 did not apply, because the complaint did sound in medical malpractice.
The court then quashed the order denying the motion to dismiss, and remanded to the trial court to dismiss the complaint without prejudice (though I imagine the SOL had already run which would make the dismissal with prejudice if that were the case).
TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES AS A SANCTION FOR PLAINTIFF’S FAILURE TO ADMIT TRUTH OF REQUEST FOR ADMISSIONS MADE PURSUANT TO RULE 1.370, WHERE THE REQUEST WENT TO THE ULTIMATE ISSUE OF PLAINTIFF’S NEGLIGENCE CLAIMS RATHER THAN THE RELEVANT FACTS.
Williams v. Tracy, 44 Fla. L. Weekly D829 (Fla. 5th DCA March 29, 2019):
Plaintiff sent defendant several requests for admissions, which asked her to broadly concede negligence, causation and damages. The plaintiff asked the defendant to admit that she “negligently and carelessly maintained, operated and controlled” her motor vehicle which caused it to collide with the plaintiff’s vehicle. The defendant denied the request.
Rule 1.380(c) does authorize the trial court to award expenses, including attorney’s fees, against a party that fails to admit the truth of a request for admission made pursuant to Rule 1.370. However, the purpose of requests for admissions is to define and limit the issues in controversy between the parties, thus reducing the expense and delay that might otherwise be unnecessarily involved in the trial and facilitate proof at trial. That is accomplished by compiling admissions to those matters over which there is no good faith controversy.
Notably, there is an important distinction between requests for admissions that would resolve the ultimate issues in the case if admitted, and requests that simply go to establish relevant facts.
Because these requests for admissions went to the ultimate issues rather than relevant facts, the court found that awarding attorney’s fees would render 1.380(c) a prevailing party fee provision, rather than an exception to the rule that individual parties bear their own fees. It declined the invitations to make such a ruling.
TRIAL COURT ERRED IN DENYING MOTION TO DISMISS MEDICAL MALPRACTICE SUIT BASED ON NONCOMPLIANCE WITH PRESUIT, WHERE PLAINTIFF’S PRESUIT EXPERT REPORT WAS FROM A PHYSICIAN SPECIALIZING IN PLASTIC SURGERY, AND SECTION 766.102(5)(a) PROVIDES THAT ONLY A PRACTICING SPECIALIST IN THE SAME SPECIALTY AS DEFENDANT CAN OFFER EXPERT OPINION--COURT REMANDED FOR FURTHER PROCEEDINGS TO CONSIDER THE CONSTITUTIONALITY OF THE STATUTES.
Riggenbach v. Rhodes, 44 Fla. L. Weekly D832 (Fla. 5th DCA March 29, 2019):
Plaintiff submitted the affidavit of a plastic surgeon in this case against an orthopedic surgeon. Because plaintiff failed to comply with the requirements of section 766.203, 776.202(6) and 766.102(5)(a) regarding a written opinion from a specialist in the same specialty as the defendant, the complaint should have been dismissed unless those statutory provisions were found to be unconstitutional.
Because the court found the applicable statutory language clear, and the case law well-reasoned, it found the trial court erred in finding that a plastic surgeon, and an orthopedic surgeon, practiced the same specialty, therefore, making the affidavit statutorily insufficient. However, the court did remand for consideration of the constitutional issue that the plaintiff had raised in the trial court.