Agent or independent contractor – ask the jury

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 33

CASES FROM THE WEEK AUGUST 19, 2022

FACTUAL QUESTIONS OF AGENCY AND APPARENT AGENCY PRECLUDED SUMMARY JUDGMENT FOR THE ALLEGED NEGLIGENCE OF AN EMERGENCY ROOM PHYSICIAN – HOWEVER NO ERROR IN ENTERING SUMMARY JUDGMENT ON THE NON-DELEGABLE DUTY CLAIM, BECAUSE CHAPTER 395 DOES NOT IMPOSE A NON-DELEGABLE DUTY OF CARE UPON HOSPITALS TO PROVIDE NON-NEGLIGENCE SERVICES

Gradia v. Baptist Hospital, 47 Fla. Law Weekly D1698 (Fla. 1^st DCA Aug. 10, 2022):

This case involved medical negligence allegations made a hospital for emergency room care that allegedly caused a patient to experience permanent brain damage and disability.

The patient went into cardiac arrest, and was transported by ambulance, arriving comatose to the hospital. After several hours in the emergency department, the treating physician arranged to have her transferred to the defendant hospital, a Level II trauma center, because of its higher-level ability to give appropriate care.

Once the patient arrived at that hospital, still in a comatose state, the treating physician in the hospital’s emergency department decided not to induce therapeutic hypothermia. According to the complaint, that treatment omission breached the prevailing standard of care and left the patient with permanent brain damage and complete disability.

The hospital denied plaintiff’s allegations, and cited to its independent contractor agreement with the company that operated its emergency department. The trial court granted summary judgment for the hospital, finding that the emergency services agreement stated that the emergency physician group operated the emergency department as an independent contractor.

To win summary judgment, the court noted that the hospital had to show there was no genuine dispute as to any material fact, entitling it to judgment as a matter of law. Plaintiffs contended that the trial court erred by granting summary judgment on vicarious liability issues, because a substantial fact dispute remained as to who controlled the work of the plaintiff’s emergency room physician, the hospital or the physician himself. Under agency theory, the right of control, rather than the relationship between the parties, determines whether an agency relationship exists.

To resolve right of control issues, courts look first to the party’s written contract. Here, the agreement with the group cut both ways.

On the one hand, the agreement stated that the group was an independent contractor and that no relationship of employer and employee was created by the agreement. It provided that the group and not the hospital was responsible for the acts of the agents, employees, and subcontractors while engaged in the performance of services.

On the other hand, the agreement gave the hospital ultimate control over the emergency department personnel and the methods and practices employed by the emergency room physicians. Although the agreement stated that the physicians could provide emergency services according to their own means and methods of work, it also provided that the overall authority and responsibility for policy, administration and executive control matters relating to the operation of the emergency department, remain with the hospital.

The agreement set forth the hospital’s ultimate control over the emergency department to ensure emergency services were provided in strict accordance with approved methods and practices. The hospital required the group’s personnel to act in compliance with the hospital medical bylaws, as well as its policies and procedures. The agreement also placed final physician hiring authority in the hands of the hospital and described the hiring process in terms of the group “pre-identifying” candidates, by giving the hospital ultimate control over the selection of its emergency candidates.

The hospital also provided protocols and guidelines for the emergency department physicians regarding whether to induce hypothermia for neurologically compromised patients. Based on the terms of the hospital and provider agreement, and the hospital protocol evidence, the court concluded that a genuine dispute about the hospital’s supervision and right of control over the emergency treating physician entitled the plaintiff to a trial on that issue.

There were also genuine issues of fact regarding the apparent agency claim. The doctrine of apparent agency stems from the policy that a principal should be estopped to deny the authority of an agent when the principal permits an appearance of authority in the agent, justifying a third party’s reliance upon that appearance of authority.

To show apparent agency, a plaintiff must establish (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.

Apparent agency is not determined by the representations of the purported agent or the subjective belief of the person interacting with the agent, but rather solely on the actions of the principal. In addition to the evidence set forth above, the plaintiff introduced evidence of the original hospital seeking the defendant hospital for patient transfer expressly because of its capabilities as a facility to provide the high-level care that the plaintiff’s condition required.

The emergency department physician at the hospital executed a “receiving facility” form, confirming that the hospital had the capability for the treatment of the patient. Although the hospital adopted a consent form to inform patients that the emergency department physicians were independent contractors, the form was not provided or signed by the unconscious plaintiff or her family prior to treatment.

Finally, the court affirmed summary judgment on the non-delegable duty claim. It held that Chapter 395, Florida Statutes, and its regulations, do not impose a non-delegable duty of care upon hospitals to provide non-negligent services, making summary judgment on that claim, proper.

TRIAL COURT DID NOT CONSIDER MATTERS OUTSIDE THE FOUR CORNERS OF THE COMPLAINT BEFORE RULING THERE WAS NO DUTY

Lopez v. Miami-Dade County, 47 Fla. L. Weekly D1686 (Fla. 3^rd DCA Aug. 10, 2022):

The plaintiff lost control of his vehicle and struck a guardrail after driving over a pothole covered with water.

Two years later, he sued Miami-Dade County and the Florida Department of Transportation for negligence, alleging that they failed to maintain the roadway in a reasonably safe condition. The plaintiff subsequently amended his complaint and added the two owners of the properties abutting the roadway where the accident occurred. He asserted that those property owners were negligent in failing to maintain the proper elevation in the swale area by the roadway pursuant to the Miami-Dade County Code.

The trial court granted the property owners’ motions to dismiss. The plaintiff asserted that the court erred because it allegedly considered matters outside the complaint, and made factual determinations before ruling the owners owed no duty. The Third District disagreed finding that duty exists as a matter of law, and it is not a factual question for the jury.

In so ruling, the court looked to the operative section of the Miami-Dade County Code that provides that a property owner is responsible for maintaining proper elevations within the swale. However, the Code does not impose liability on the property owner for injuries caused by a violation of this section. The section merely allows the County to pursue an action based on an alleged violation. The Code did not impose a non-delegable duty on the property owners to motorists driving on the roadway.

The plaintiff did not allege that the accumulated water caused the defect. Nor did he contend that the property owners had a duty to repair the defect to the roadway, that the accident occurred in the swale area, that the owners had a duty to maintain the swale, or that the owners had any prior warning or knowledge about the defect in the roadway or the accumulation of water that allegedly resulted.

Florida courts have declined to hold residential and commercial landowners accountable for injuries resulting from defects to areas or roadways owned by the city or county. Thus, the dismissal was proper.

ALLEGATIONS THAT OPPOSING COUNSEL’S LAW FIRM CO-HOSTED A JUDICIAL FUNDRAISER FOR THE JUDGE DURING A CONTESTED, ON-GOING RE-ELECTION CAMPAIGN, COUPLED WITH PROOF OF ADVERSE RULINGS, LEGALLY INSUFFICIENT TO WARRANT DISQUALIFICATION – PETITION FOR WRIT OF PROHIBITION DENIED

Cini v. Cabezas, 47 Fla. Law Weekly D1690 (Fla. 3^rd DCA Aug. 10, 2022):

As the court observed, in the election season, the courts are confronted with the recurring issue of whether involvement by an attorney in a judicial re-election or retention campaign creates a conflict of interest warranting judicial disqualification. As the court noted, as long as the State chooses to select its judges by popular election, it must condone to some extent the collection and expenditure of money for campaigns. Further, it is not uncommon for attorneys to contribute financially to these campaigns and such contributions do not create an appearance of impropriety or a disqualifying conflict.

The cases focus on the timing, nature and extent of participation in a judge’s campaign. Under this approach, courts have determined that ordinarily, limited involvement in a judicial re-election campaign does not constitute grounds for disqualification. Because leading members of the State Bar play important and active roles in guiding the public selection of qualified jurists, and because lawyers and litigants are the primary contributors to judicial elections, it would be highly anomalous to allow a lawyer’s nominal participation in a re-election effort to create a disqualifying interest, an appearance of impropriety or a violation of due process sufficient to require the recusal from all cases in which the attorney might be involved.

Here, in addition to the involvement in a campaign, the petitioner cited adverse rulings and scheduling difficulties, alleging that the opposing law firm was the first listed firm of sixteen that hosted the single re-election fundraising event for the judge. The event purportedly occurred several months before the adverse rulings were issued and the scheduling difficulties arose. There were no individualized allegations regarding the respondents’ attorney of record.

The allegations, without more, viewed against precedent, compelled the conclusion that the motion for disqualification was legally insufficient. Even assuming the facts alleged were true, none of the allegations would cause the movant to have a well-founded fear that he or she would not receive a fair trial at the hands of the judge.

A TRIAL COURT MUST ALLOW NOTICE AND A HEARING PRIOR TO ENTERING A SANCTION ORDER TO PREVENT A VIOLATION OF DUE PROCESS RIGHTS

The Shir Law Group v. Carnevale, 47 Fla. L. Weekly D1691 (Fla. 3^rd DCA Aug. 10, 2022):

The defendants sought an order to show cause why opposing counsel should not be held in indirect criminal contempt for acts and violations of a confidentiality order. The defendants alleged that the attorney disclosed the contents of confidential settlement agreements in violation of a court order.

Two years later, the opposing party filed a cross motion for sanctions for litigation misconduct.

Four days after that, the trial court conducted a hearing on the two motions. In denying both motions, the trial court still found a violation of confidentiality by the appellant, and ruled to grant attorney fees (finding a number of hours and the rate) without an evidentiary hearing.

While a trial court possesses the inherent authority to impose attorney’s fees against an attorney for bad faith conduct, the authority of the trial court, like the power of contempt, carries with it the obligation of restrained use and due process.

Accordingly, the trial court must make express findings of bad faith and provide the attorney notice and an opportunity to be heard before imposing attorney’s fees. The amount of the award of the attorney’s fees must also be directly related to the fees and costs that the opposing party incurred as a result of the specific bad faith conduct of the attorney. Finally, if a specific statue or rule applies, the court should rely on the applicable rule or statute rather than on inherent authority.

Here, because the trial court did not provide notice or an opportunity for an evidentiary hearing prior to entering the sanction order, the court reversed and remanded for further proceedings.