EMAIL TO A FRIEND COMMENT

 

Woman Dies on Operating Table; Hospital Gets Summary Judgment


A woman presented to the emergency room (ER) with a severe stomachache, nausea, and decreased appetite. Upon entry to the ER, she signed a Special Notice form and a Certification and Authorization form.

 

The Special Notice form stated:

 

I acknowledge that I have been given this separate written conspicuous notice by the [the surgeons’ employer] and [the hospital] that some or all of the care and treatment I receive will or may be provided by physicians who are employees and agents of [the surgeons’ employer], and liability, if any, that may arise from that care is limited as provided by law. I acknowledge that such physicians who are employees and agents of [the surgeons’ employer] are under control of [the surgeons’ employer], not [the hospital], when they render care and treatment at [the hospital] pursuant to the affiliation agreement between [the surgeons’ employer] and [the hospital], and such [the surgeons’ employer’s] physicians are not the employees or agents of [the hospital]. I hereby certify that I am the patient or a person who is authorized to give consent for the patient.

 

The Certification and Authorization form explicitly stated:

 

Medical Staff Physicians including, but not limited to, the Emergency Physicians, Physicians Assistants and Advanced Registered Nurse Practitioners, practicing in the Emergency and Trauma centers, Anesthesiologists, Nurse Anesthetists, Radiologists and Pathologist ARE NOT AGENTS OR EMPLOYEES OF [THE HOSPITAL]. They are independent medical practitioners exercising independent medical judgements [sic] at facilities provided by the hospital.

 

An affiliation agreement governed the relationship between the hospital and the surgeons’ employer. The agreement made the hospital the primary teaching hospital for the surgeons’ employer’s College of Medicine. Pursuant to the agreement, “employees or agents of [the surgeons’ employer] assigned by [the surgeons’ employer] to perform duties at [the hospital] ... shall not be deemed an employee or agent of [the hospital] for any reason.” The surgeons’ employer selected and hired its own employees for assignment to the hospital and had sole control over them. The surgeons’ employer compensated and supervised these employees.

 

The patient was admitted to the hospital. She was diagnosed with colon cancer. About a week after she was admitted to the hospital, a surgeon met with her to discuss the surgical removal of the tumor. At that time she signed a Consent and Disclosure form. The Consent and Disclosure form repeated that the “physician, surgeon and his or her associates, physicians-in-training and their technical assistants are not hospital employees.”

 

The woman underwent surgery to remove the cancer in her colon. During the procedure, the woman sustained a tear to the wall of her interior vena cava. Excessive bleeding caused the woman to die on the operating table.

 

The woman’s estate sued the surgeons, their employer, and the hospital. The complaint argued that the surgeons were agents of the hospital and the hospital had a nondelegable duty to provide the woman with nonnegligent surgical procedures.

 

The hospital responded that the surgeons were independent contractors. The hospital also contended that it had properly delegated any duty of care and related potential liability to the surgeons’ employer.

 

The Circuit Court for Hillsborough County granted summary judgment to the hospital with regard to the plaintiff’s theory that the surgeons were apparent agents of the hospital.

 

The District Court of Appeal of Florida, Second District, affirmed. The court held that the trial court did not err in granting summary judgment to the hospital with regard to the plaintiff’s theory that the surgeons were apparent agents of the hospital and the hospital did not have a nondelegable duty to provide the woman with nonnegligent surgical services.

 

The trial court properly granted summary judgment to the hospital with regard to the plaintiff’s theory that the surgeons were apparent agents of the hospital. The court found no disputed material facts undermined the trial court’s conclusion that the physicians were not the hospital’s employees or agents. In addition to the affiliation agreement and the three forms signed by the patient, the physicians were employees of the surgeons’ employer, paid by the surgeons’ employer, and assigned by the surgeons’ employer. The surgeons’ employer, not the hospital, controlled their activities.

 

The hospital did not have a nondelegable duty to provide the patient with nonnegligent surgical services. Section 1012.965, Florida Statutes (2009), limited the hospital’s exposure to liability for the allegedly negligent conduct of the surgeons. The Special Notice complied with section 1012.965. The court found no dispute that the hospital and the surgeons’ employer were parties to an affiliation agreement. The court found no material issue of fact indicating anything but that the Special Notice was a separate written and conspicuous notice contemplated by the statute. By signing the Special Notice, the patient acknowledged its receipt. The language of the Special Notice adequately informed the woman that physicians employed by the surgeons’ employer could be responsible for her care; these physicians were not the hospital employees or agents. The Certificate and Authorization form and the Consent and Disclosure form, both received and signed by the patient, reinforced that fact. The hospital properly delegated its duty of performance, as well as any related liability, to the surgeons’ employer pursuant to the Special Notice. The court found the record did not indicate that the hospital undertook any contractual obligations concerning the patient’s surgical procedures. Regulations promulgated under the Medicare Act did not require hospitals that participate in the Medicare program to maintain a nondelegable duty to provide nonnegligent care.

 

The District Court of Appeal of Florida, Second District, affirmed the trial court’s grant of summary judgment to the hospital with regard to the plaintiff’s theory that the surgeons were apparent agents of the hospital.

 

See: Godwin v. University of South Florida Bd. of Trustees, 2016 WL 4446483 (Fla.App. 2 Dist., August 24, 2016) (not designated for publication). 

 

 

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