Are you their agent?

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 6

CASES FROM THE WEEK FEBRUARY 12, 2021

ERROR TO GRANT FINAL SUMMARY JUDGMENT FOR HOSPITAL FINDING ALLEGEDLY NEGLIGENT PHYSICIAN NOT AN EMPLOYEE OR AGENT AS A MATTER OF LAW - - SUFFICIENT EVIDENCE IN RECORD TO ALLOW JURY TO CONCLUDE THAT AN APPARENT AGENCY RELATIONSHIP EXISTED

Luebbert v. Adventist Health Systems, 46 Fla. L. Weekly D305 (Fla. 5th DCA February 5, 2021):

The plaintiff visited the hospital after suffering severe abdominal pain and was diagnosed with appendicitis and an abscess. While waiting in the pre-op area at 4:00 am, plaintiff met the on-call surgeon, Dr. Malik, who wore a white coat with his name, the words “general surgeon”, and a badge of the defendant hospital. The plaintiff felt uneasy about the doctor, inquired about having another surgeon, and was advised that another one would not be in until 9:00 a.m., which was five hours later. Plaintiff decided to take his chances with the defendant doctor.

The defendant told the plaintiff no antibiotics were necessary (even though plaintiff requested them and had a terrible infection). He then suffered a post-operative abdominal infection.

Defendant moved for summary judgment arguing the surgeon was neither an employee nor agent of the hospital, but an independent contractor evidenced by a written agreement between them. Following the hearing on the motion for summary judgment, the court found there was uncontroverted record evidence to establish that the doctor was neither an employee, nor an actual or apparent agent.

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Apparent agency exists if all three of the following elements are present:

(1) A representation by the purported principal;

(2) Reliance on that representation by a third party; and

(3) A change in position by the third party in reliance on the representation.

Thus, where a hospital holds out a particular physician as its agent or employee, and a patient has accepted treatment from that physician, and reasonably believes that treatment was rendered on behalf of the hospital, the hospital will be liable for the physician’s negligence.

Apparent agency does not arise from the subjective understanding of the patient or from appearances created by the purported agent himself. Apparent authority only exists where the principal creates the appearance of an agency relationship.

In this case, the plaintiff acknowledged that he signed a consent recognizing that not all of the services at the hospital were rendered by employees. However, the agreement did not specifically state that the defendant doctor -- or even more generally an on-call surgeon -- was neither an employee nor agent of the hospital. The agreement also did not specify which particular services were independent of the hospital, so it was unclear whether there was an express disavowal of the agency relationship in the consent agreement.

Additionally, even if a hospital does not make representations to the public or patients concerning the physician’s employment status, it may still be liable on a theory of apparent agency where there is a lack of choice on the part of the patient. The element of reliance is met where a patient relies on the hospital to provide health care services, rather than relying on a specific physician or merely looking at the hospital as a conduit through which the patient receives medical care.

Although the plaintiff agreed to accept treatment after being given an option of another on-call physician, he was selecting between physicians that the hospital provided, rather than selecting a doctor of his choosing. The court found the record contained genuine issues of material fact as to the vicarious liability through apparent agency, and reversed the entry of summary judgment.

TRIAL COURT ERRED IN FINDING THERE WAS NO REASONABLE LIKELIHOOD OF PROSECUTION, AND OVERRULING DEFENDANT’S FIFTH AMENDMENT OBJECTION TO DISCOVERY IN A CIVIL TRIAL

Shimon v. R.B., 46 Fla. L. Weekly D284 (Fla. 3rd DCA February 3, 2021):

A man accused of sexual battery in a civil suit petitioned for writ of certiorari to quash part of an order requiring him to provide documents that he contended violated his Fifth Amendment right against self-incrimination. Because the State Attorney had declined to prosecute the case (due to time delay and the victim’s indecisiveness). Based on that, the trial court found there was no reasonable danger of prosecution, and entered a blanket order overruling the Fifth Amendment objection, without actually addressing each category of the requested documents individually.

Because future prosecution of the action was not barred by the statute of limitations, and there was no legal immunity from prosecution granted, the court agreed that the possibility of a criminal investigation being re-opened in the future was not so remote as to eliminate a reasonable fear of prosecution. Therefore, the defendant could not be compelled to give testimony over a claim of Fifth Amendment privilege.

NO ERROR IN DISMISSING ACTION BASED ON INTERNET CONTRACT FORUM SELECTION CLAUSE REQUIRING DISPUTES BE LITIGATED IN CALIFORNIA

Hendel v. Internet Escrow Servs., Inc., 46 Fla L. Weekly D293 (Fla. 3d DCA February 3, 2021):

Plaintiff owned an art gallery in Florida and entered into an online transaction to purchase a piece of art from a seller in Switzerland. The transaction took place via a website owned and operated by the defendant, which provided escrow services for the transaction.

When the plaintiff received the piece of art, he discovered it was a forgery. He engaged in multiple efforts to return the piece and recover his deposit, which included going to arbitration and participating in an interpleader action in California. When his efforts proved unsuccessful, he filed the case in Miami-Dade County.

The defendant moved to dismiss the complaint based on the forum selection clause. Because the clause was readily available for the plaintiff’s review, and because he agreed to it when he engaged defendant’s services, it was valid and enforceable, and the court affirmed the dismissal.

PETITION FOR WRIT OF CERTIORARI DISMISSED FOR LACK OF JURISDICTION WHERE DEFENDANT FAILED TO MAKE THRESHOLD SHOWING OF IRREPARABLE HARM

American Prime Title Servs. v. Wang, 46 Fla. L. Weekly D294 (Fla. 3d DCA February 3, 2021):

The defendant petitioned for writ of certiorari after the trial judge denied its motion to compel the disclosure of any settlement agreements executed between the plaintiff and others in the proceedings. The defendant asserted that the trial court effectively eviscerated its affirmative defense of setoff by denying it access to the settlement amounts prior to a finding of liability.

The case arose when plaintiff contracted to sell his condominium to two buyers and an electronic attack on the title company and the lawyers intercepted the monies. The plaintiff settled his claims against his attorney, his law firm, and the title company and then amended the complaint to add a claim for fees, leaving only the buyers and the defendant as active defendants. The defendant then sought production of the settlement amounts to which plaintiff successfully objected.

Generally, any abuse of discretion or refusal to compel discovery is ordinarily rectifiable on final appeal. There is an “exceedingly narrow” exception when the requested discovery is relevant or reasonably calculated to lead to the discovery of admissible evidence, and the order denying the discovery effectively eviscerates a party’s claim, defense, or counterclaim. Because under such circumstances the harm is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome, certiorari is proper.

In this case, however, the court cited Section 768.041(2) and Section 46.015(2), and noted that both statutes prohibit the admission at trial of any evidence of settlement or dismissal of a defendant. Trial courts have looked at some of the seemingly conflicting language, and have deferred claims of setoff predicated upon settlements as unripe, until liability has been found and a judgment is rendered. Trial courts are charged with carefully weighing the public interest in protecting the confidentiality of the settlement process against the countervailing need for disclosure, given the procedural posture of the dispute.

Under these circumstances, where the case was in its infancy and liability had not been established, the court concluded that the defendant failed to make a threshold showing of irreparable harm necessitating denial of the petition.

TRIAL COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY COMPELLING THE NON-PARTY MEDICAL PROVIDER TO DISCLOSE UNDISPUTED TRADE SECRETS WITHOUT CONDUCTING A BALANCING TEST, MAKING FINDINGS OR IMPLEMENTING PROTECTIVE MEASURES, AS REQUIRED BY THE LAW - - DEFENDANT FAILED TO ESTABLISH A REASONABLE NECESSITY FOR THE REQUESTED INFORMATION

Gulf Coast Spine Institute v. Walker, 46 Fla. L. Weekly D308 (Fla. 2nd DCA February 5, 2021):

In this personal injury suit, the plaintiff received medical treatment from the non-party and signed an agreement to be responsible for charges her insurer would not pay. The defendant driver actually sought the production of documents from the provider regarding billing and financial information, also seeking documents reflecting methodology for determining pricing, for using CPT codes, etc. The provider moved for a protective order, specifically objecting to the request for its contracts with health insurers, its development of the charging schedule, and its financial billing and other confidential and proprietary information.

Upon the trial court compelling the production of trade secret information, the court reminded us of a three-step analysis that applies to claims that a discovery request seeks production of protected trade secrets. First, the court has to determine whether the requested information does include trade secrets, and while sometimes that requires an in-camera review, other times it is not disputable that the information is protected trade secrets.

If the request seeks trade secrets, then the court must next determine whether the party seeking production can show reasonable necessity for the requested information. Such fact specific analysis generally requires a trial court to decide whether the need for producing the documents outweighs the interest in maintaining their confidentiality. The final part of the test asks if the need for the production outweighs the interest and confidentiality under the balancing test, to determine what safeguard should be put in place to protect the information.

The test sets a high burden for requesting an objecting party to disclose trade secrets, but Florida law recognizes that the burden is even higher where the protective information is sought from a non-party.

The defendant fundamentally failed to establish the second prong according to the court (the information was indisputably “trade secret”) to show reasonable necessity for the information. The defendant also asserted that the provider treated the plaintiff under a letter of protection and may never require payment for treatment, and that the mere fact that the defendant challenges the reasonableness of the cost warrants the discovery.

The trial court departed from the essential requirements of law by ordering production of the trade secrets without conducting a balancing test, making findings or implementing protective measures as Florida law requires.