As part of the 2004 Tort Reform, the Florida Legislature passed Fla. Stat. 768.13(2)(c)(1) which states:
“Any health care practitioner as defined in s.
456.001(4) who is in a hospital attending to
a patient of his or her practice or for business
or personal reasons unrelated to direct
patient care, and who voluntarily responds
to provide care or treatment to a patient
with whom at that time the practitioner
does not have a then-existing health care
patient-practitioner relationship, and when
such care or treatment is necessitated by a
sudden or unexpected situation or by an
occurrence that demands immediate medical
attention, shall not be held liable for any
civil damages as a result of any act or
omission relative to that care or treatment,
unless that care or treatment is proven
to amount to conduct that is willful and
wanton and would likely result in injury
so as to affect the lift or health of another.”
In passing that statute, the Legislature stated as it’s intent to “encourage health care practitioners to provide necessary emergency care for all persons without fear of litigation.” In Harris v. Soha, 34 Fla. L. Weekly D1436 (1st DCA, July 16, 2009), the Court was faced with interpreting the meaning of that statute.
In that case, plaintiff’s decedent presented himself to the emergency room with a throat swollen because of reaction to medication to the point that it was interfering with his breathing. The doctor was at the hospital because he was the on call physician for obstetrical care and was attending a delivery when the emergency room requested his assistance. It was undisputed that the anesthesia department of the defendant hospital did not provide on call services to the emergency room but plaintiff contended that an informal agreement had been reached with the hospital’s anesthesiologist to provide such on call services to the emergency room because they had previously responded to emergency room requests if they were available.
The trial court entered a directed verdict based upon the applicability of the statute and the lack of evidence establishing willful and wanton misconduct and the plaintiff appealed. The First DCA affirmed the directed verdict, rejecting the plaintiff’s position that an anesthesiologist does not have patients of his own and, therefore, cannot fit within the statutory requirement of attending a patient of his or her practice. The Court reasoned
“… pursuant to the plain language of the statute,
the phrase ‘a patient of his or her practice”
operates simply to distinguish the next
requirement under this section, which is that the
doctor then provide assistance to a patient “with
whom at that time the practitioner does not have
then-existing health care patient-practitioner
The Court further concluded that the fact that other anesthesiologists had previously volunteered to respond to the emergency room failed to demonstrate that an anesthesiologist had any responsibility for patients in the emergency room and that the statute was, therefore, applicable.
This status is one of many “tort reform” statutes limiting the rights of injured plaintiffs. Until the Supreme Court of Florida is presented with the issue of the constitutionality of this string of legislation and unless there is a determination that that legislation is unconstitutional, courts are required to, and will, enforce them.
Originally published in November 2009