In an increasing number of medical negligence lawsuits, plaintiffs are seeking to hold hospitals vicariously liable for the negligent actions of physicians and staffers. This is true in Florida also, despite the fact that Florida common law hasn’t formally recognized the broad duty on the part of modern hospitals to provide non-negligent medical care through physicians, nurses, staffers or contractors.
The concept is known as “non-delegable duty,” which is the principle that hospitals are responsible for the care given in its facilities, regardless of who actually delivers that care. Non-delegable duties usually arise out of an inherently dangerous activity or condition, but Florida has never defined medical or surgical care in this way. Therefore, unless the doctor or staffer is a direct employee of the hospital, the hospital generally isn’t liable for the care provided.
However, there are sometimes exceptions made under the theory of apparent agency. The theory of apparent agency is applicable when conduct by an agent causes another party to believe the agent is authorized to conduct business on behalf of the principle, regardless of whether that’s true. In the context of a hospital setting, it would mean that the conduct of a doctor or staffer caused the patient to believe he or she was authorized to conduct business on behalf of the hospital, even though he or she was in fact an independent contractor. Courts have allowed vicarious liability actions against hospitals on these grounds – most notably in the 2003 2nd DCA case of Roessler v. Novak.
Additionally, our Tampa medical malpractice attorneys know plaintiffs have used language in Chapter 395 of Florida Statutes to further their claim of vicarious liability of a hospital. The statute governs hospitals, and in part requires the Agency for Health Care Administration to adopt rules that make sure hospitals are operated according to consistent and acceptable standards. This was what plaintiffs in Wax v. Tenet Health System Hospitals relied upon their medical negligence claim, where the trial court ruled (and the 4th DCA affirmed) the duty of hospitals to ensure hospitals provide non-negligent anesthesia services to all patients undergoing surgery. The court in Wax agreed with plaintiff that because AHCA rules required hospitals to provide anesthesia services in compliance with AHCA rules to adhere to reasonable and fair minimum standards, the hospital was thus obligated to offer non-negligent services.
Plaintiffs have in several subsequent cases pushed to have the Wax ruling applied to other aspects of hospital operations, but there have yet been other Florida appellate opinions that have granted those requests.
Case law standards are continuing to develop on this front, and procedurally, claims of vicarious liability against hospitals are still more complex than those asserting simple negligence for a non-medical procedure.
Recently in New Mexico, the state supreme court reinstated a medical negligence lawsuit against a hospital for vicarious liability, after summary judgment was granted to defendant for alleged failure to adequately notify the defendant that one or more of its agents or employees was negligent. In Vaughan v. St. Vincent Hospital, a patient had come to the emergency room with abdominal pain. A test by a radiologist showed cancer, but that diagnosis was not properly communicated to the surgeon or the patient.
Patient’s cancer later progressed, and his prognosis is now poor. He filed a lawsuit against not just the radiologist, but the hospital for vicarious liability. The hospital argued the lawsuit should be dismissed because plaintiff hadn’t expressly pleaded “vicarious liability” with regard to its duty as the employer of the radiologist. The New Mexico Supreme Court found plaintiff’s pleading adequate, meaning the lawsuit will continue.
Because this area of law is continually evolving, both in Florida and across the country, it’s imperative for one filing a medical malpractice action to seek legal counsel from a firm with extensive experience and proven success.
To file a medical malpractice lawsuit in Tampa, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Vaughan v. St. Vincent Hospital, Sept. 18, 2014, New Mexico Supreme Court
More Blog Entries:
Hahn v. Walsh – Inmates Entitled to Adequate Medical Care, Sept. 2, 2014, Tampa Medical Malpractice Lawyer Blog