When can a hospital be held liable for the torts of an independent contractor physician? That is the question that was posed to the Fourth District Court of Appeal in the recent case of Newbold Ferguson v. Amisub North Ridge Hospital, Inc., 37 Fla. L. Weekly D473b (Fla. 4th DCA Feb. 22, 2012). This was a wrongful death action alleging negligence on the part of an emergency room physician and an attempt to hold a hospital liable for that physician’s negligence even though he was clearly an independent contractor. The trial court granted a motion to dismiss the third amended complaint which attempted to allege a non- delegable duty and instructed the plaintiff to refile a complaint alleging that the hospital was negligent in credentialing the physician. Plaintiff elected to replead non-delegable duty and dismissal with prejudice was granted.
The Fourth District Court of Appeals reversed relying on a litany of cases holding a hospital liable for its independent contractor physicians under certain circumstances. The Court recognized the general rule that a hospital is not liable for the negligence of a non-employed physician but pointed out that there are numerous exceptions to this rule.
First, a hospital may be liable for the actions of a physician where the physician is either an actual or apparent agent of the hospital. See Roessler v. Novak, 858 So. 2d 1158, 1161-62 (Fla. 2d DCA 2003).
Second, a hospital can be liable in tort for failing to exercise due care in the selection and retention of an independent contractor physician on the hospital staff. See Insinga v. LaBella, 543 So. 2d 209, 214 (Fla. 1989).
Third, the rule of a hospital’s non-liability for acts of an independent contractor fails where the duty is non-delegable. See Pope v. Winter Park Healthcare Group, Ltd., 939 So. 2d 185, 187 (Fla. 5th DCA 2006). A non-delegable duty may arise out of a statute, a regulation, or a contract. Id. at 187-88.
The seminal case on non-delegable duty is Irving v. Doctor’s Hospital of Lake Worth, Inc., 415 So. 2d 55 (Fla. 4th DCA 1982). In that case the Fourth District reversed a trial judge for failing to instruct a jury on the issue of non- delegable duty explaining that a non-delegable duty can be based upon a statute, an implied or express contract, or a regulation.
The public policy surrounding the issue of non-delegable duty in a hospital revolves, at least in part, upon the helplessness of the plaintiff in an emergency or unconscious condition. At D474 the Court states:
The imposition of a non-delegable duty to provide competent emergency room services makes sense, because a patient in an emergency
room generally has little, if any, control over
who will be the treating physician. Cf. Kristensen-Kepler v. Cooney, 39 So. 3d 518, 520 (Fla. 4th DCA 2010) (explaining that the imposition of a non-delegable duty to provide competent anesthesia services makes sense where the patient “has little, if any, control over who administers the anesthesia,” but rejecting the proposition “that a hospital likewise has a non-delegable duty to supervise the physician a patient has chosen to perform an elective procedure”).
The Court held that the trial court erred in instructing the plaintiff that his claim of non-delegable duty had to be based upon failure to properly credential the emergency room physician. To the contrary, so long as the plaintiff can adequately plead the basis of a non-delegable duty, whether by statute, regulation, or implied or express contract, such a cause of action indeed exists. The Court cautioned that in this case as well as future cases, plaintiffs must accurately plead the basis of the non-delegable duty including the specific source of the hospital’s duty that the plaintiff relies upon.
This case is instructive on the issue of a principle’s responsibility for a nonemployee in a number of circumstances including the theory of non- delegable duty.
Originally published May 2012