EMAIL TO A FRIEND COMMENT

 

Vicarious Liability for OBs Under Birth–Related Neurological Injury Act


A boy suffered a serious brain injury caused by oxygen deprivation during the course of labor and delivery. Two of the doctors who provided obstetrical services to the boy’s mother during the birth were employees of a medical school.

 

The boy’s parents sued the hospital and the medical school for medical malpractice. The complaint alleged that the boy's injuries were a result of negligent medical care provided during the labor and delivery. The complaint asserted that the medical school and the hospital were directly negligent and also pleaded various theories of vicarious liability based on the actions of their employees, the two doctors. The complaint did not assert any causes of action against the doctors themselves.

 

After the complaint was filed, the case was abated to allow an administrative law judge (ALJ) to determine whether the injury was compensable under Florida's Birth–Related Neurological Injury Act, § 766.301, Fla. Stat., et seq. (1998) (NICA). The parents filed a claim with the Division of Administrative Hearings (DOAH) to receive compensation from the Florida Birth–Related Neurological Injury Association (“the Association”), which was established to provide no-fault compensation to claimants meeting the statutory requirements of NICA. The ALJ determined that the boy's injury was compensable under NICA and approved the statute's maximum award of $100,000 in addition to attorney's fees and future medical care costs. The ALJ also specifically found that the hospital had provided the parents with notice that it participated in the NICA plan, as required by Florida’s statutory NICA Notice Provision, but that the two doctors had not complied with the notice requirements. NICA’s Notice Provision required participating physicians and hospitals with participating physicians to give patients notice that the doctors and/or hospitals participate in the NICA plan so the patients are aware they may be waiving their right to civil suit in the event of a birth-related neurological injury. A party who was required to give notice under NICA's Notice Provision and failed to do so waived its right to assert the exclusivity of remedies in NICA's Immunity Provision. The ALJ made no finding whether the medical school had given or was required to give notice of NICA participation under the statute.

 

The medical school timely appealed the ALJ's finding that its doctors had not given the required notice of NICA participation. The Third District Court of Appeal of Florida affirmed the ALJ's order ending the administrative portion of the proceedings and cementing the parents' ability to receive NICA benefits from the Association. However, the parents neither accepted nor declined the award, opting instead to hold in abeyance their decision whether to accept NICA benefits as their exclusive remedy while pursuing their civil suit against the medical school.

 

The medical school filed a motion for summary judgment arguing that it was entitled to immunity from suit under NICA, which mandated compensation from the Association as the exclusive remedy for injuries found to be compensable under NICA. The statute granted immunity to anyone directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs. The medical school also argued that because it was not a participating hospital or doctor, it was not required to give notice under NICA and should therefore be immune from suit. The Circuit Court for Miami–Dade County denied the medical school’s motion.

 

In a case of first impression, the Third District Court of Appeal of Florida reversed the trial court’s denial of summary judgment as to the portion of the claims alleging direct liability for medical malpractice and affirmed the trial court’s denial of summary judgment as to the portion of the malpractice claim based on the medical school's vicarious liability for its employees. The court held that an entity that is neither a hospital nor a physician participating in the NICA plan may invoke NICA's immunity from suit when its employees were participating doctors who have waived their personal NICA immunity by failing to comply with NICA's Notice Provision when the allegations of the complaint indicated that the entity was directly involved in the medical care provided during or immediately after labor and delivery, but NICA immunity did not apply to allegations based on such entities' vicarious liability for the medical malpractice of their employees.

 

An entity that is neither a hospital nor a physician participating in the NICA plan may invoke NICA's immunity from suit when its employees were participating doctors who have waived their personal NICA immunity by failing to comply with NICA's Notice Provision when the allegations of the complaint indicated that the entity was directly involved in the medical care provided during or immediately after labor and delivery. The court explained that giving a patient notice of NICA participation did not entitle a party to immunity; only a party's direct involvement in the labor and delivery of a child who suffered a NICA-compensable injury entitles that party to invoke NICA's Immunity Provision. However, a party's failure to give notice when it was required to do so under NICA's Notice Provision constituted a waiver of the NICA immunity to which it would otherwise be entitled by virtue of the party's direct involvement in the labor and delivery. The court also explained that when there was compliance with NICA's Notice Provision by some but not all of the NICA participants, the claimant may choose to accept the NICA benefits to the exclusion of any and all civil remedies he or she may have against any entities directly involved in the delivery, or the claimant can eschew the NICA benefits and take his or her chances in a civil suit against the party or parties who have waived NICA immunity by failing to comply with the NICA Notice Provision. The court reasoned that NICA's Immunity Provision applied to any person or entity directly involved in the labor and delivery. The complaint alleged that the medical school was directly involved in the labor and delivery. Therefore, the medical school was immune under NICA’s Immunity Provision for any claims related to its direct involvement in the labor and delivery. The only way a party who was otherwise entitled to NICA Immunity can waive its immunity was by failing to comply with NICA's Notice Provision when it was required to do so. The court reasoned that the medical school was neither a hospital with a participating physician on its staff nor a participating physician, and it was therefore not required to give notice of NICA participation under the terms of NICA's Notice Provision. Because there was no NICA notice requirement for the medical school, it cannot have waived any immunity to which it would otherwise be entitled by failing to give notice. Thus, the court concluded, the parents could not proceed on their theory of direct liability against the medical school.

 

NICA immunity did not apply to allegations based on the vicarious liability of an entity that is neither a hospital nor a physician participating in the NICA plan for the medical malpractice of its employees. Under the parents’ theory of vicarious liability, the medical school was not being sued for its own negligence, but rather, for the negligence of its employees, the two doctors who provided obstetrical care during the boy’s birth. The court reasoned that because such a claim was not based on the medical school's direct involvement in the labor and delivery giving rise to the injury, the medical school was unable to invoke NICA's Immunity Provision on its own behalf. Because the medical school's liability was directly linked to the liability of its employees under a theory of vicarious liability, the medical school could invoke NICA's Immunity Provision only to the extent that it could assert NICA immunity on behalf of its employees. If the two doctors had provided the required statutory notice, they would not have waived their entitlement to immunity, and they, along with the medical school, would be fully immune from suit. However, the two doctors waived the right to invoke NICA's Immunity Provision by failing to comply with NICA's Notice Provision. The court concluded that the medical school could not claim immunity from vicarious liability based on the alleged negligence of its doctors, who waived immunity by failing to provide the required notice.

 

The Third District Court of Appeal of Florida reversed the trial court’s denial of summary judgment as to the portion of the claims alleging direct liability for medical malpractice and affirmed the trial court’s denial of summary judgment as to the portion of the malpractice claim based on the medical school's vicarious liability for its employees.

 

See: University of Miami v. Ruiz ex rel. Ruiz, 2015 WL 543399 (Fla.App. 3 Dist., 2015) (not designated for publication).

 

See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability.

 

 

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