Chief Justice Charles Canady issued new guidelines for state courts June 8. The first amended order extends the current suspension of the statewide grand jury investigating school violence through July 26 and other jury proceedings including other grand juries, jury selection, and criminal and civil jury trials through July 17. The second amended order requires trial-court circuits participating in the remote civil jury pilot program to report findings and recommendations by Oct. 2.

For more information, please click the following link: CHIEF JUSTICE CANADY EXTENDS SUSPENSION OF JURY TRIALS TO JULY 17

The Florida Bar | Article | June 09, 2020

June 2020 Bulletin: Please note the language and formatting of the Personal Injury Corner article on page 13 was not properly edited before printing at no fault of the author.

Please see the corrected article included below:

Page: Personal Injury Corner (Page 13)
Article Title:  Hospital’s Non-Delegable Duty 
Author: Ted Babbitt
Originally Printed: 6/1/2020 | Edited: 6/10/2020 

HOSPITAL’S NON-DELEGABLE DUTY

Andre v. Abreu, 272 So.3d 467, (Fla. 3d DCA 2019) raised the question of whether a hospital owes a non-delegable duty to a patient as a result of actions of the independent contractor physicians working in the hospital’s emergency department. Ordinarily, independent contractors working in a hospital do not subject a hospital to liability for their actions. Pub. Health Tr. of Dade County v. Valcin, 507 So.2d 596,601 (Fla. 1987). However, in Wax v. Tenet Health System Hospitals, Inc., 955 So.2d 1, 9 (Fla. 4th DCA 2007), on the basis of the statutory responsibility set forth in Florida Statute §395.1055(1)(a) and (d), which requires Florida’s Agency for Healthcare Administration to establish rules for safe patient care imposed a duty on a hospital to provide safe anesthesia services consistent with those standards. The Fourth District concluded that there was a non-delegable duty to provide safe anesthesia services.

The Third District, in Tabraue, III v. Doctors Hospital, 272 So.3d 468 (Fla. 3d DCA 2019), concluded that a hospital did not owe a non-delegable duty for actions of emergency room physicians under the same theory espoused in Wax v. Tenet, supra. The Third District refused to follow the Fourth District’s holding in Irving v. Doctors Hospital of Lake Worth, 415 So.2d 55 (Fla. 4th DCA 1982), which overturned a verdict in favor of a hospital because of the failure of the lower court to give a ju1y instruction “that one may not escape his contractual liability by delegating performance under contract to an independent contractor”. In Newbold-Ferguson v. Amisub, 85 So.3d 502 (Fla. 4th DCA 2012), the Fourth District, at 504, held:

“Irving establishes that a hospital which provides emergency room services has a non-delegable duty to provide competent emergency treatment based upon an implied contract. It is therefore clear that the plaintiff could have pleaded a claim against the hospital for the emergency room doctor’s negligence on a non-delegable duty theory. 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.”

The Tabraue Court refused to follow Irving even though it recognized that Irving and the cases following Irving created a judicially imposed implied contract requiring hospitals to provide emergency physicians who gave non-negligent emergency room care subjecting the hospital to responsibility for the negligence of its emergency room physicians.

The Third District stated, at 812:

“While we recognize that Chapter 395 of the Florida Statutes obligates Florida hospitals to provide emergency room services to the public, we note that the statutory scheme is silent on the matter of non-delegable duty. We believe that expanding Florida hospital liability to include liability for those emergency room medical providers who are hired by hospitals as independent contractors is a public policy decision that is within the purview of Florida’s legislative branch. Or, to the extent the issue is one of common law, it calls for a Florida Supreme Court decision. We simply are averse to expanding, by judicial dictate, the liability of Florida hospitals, as the Estate urges.

Accordingly, we affirm the Trial Court’s dismissal of Count V of the Estate’s second Amended complaint and we certify conflict with Irving v. Doctors Hospital of Lake Worth, Inc. and Newbold­ Ferguson v. Amisub.”

Thus, the Supreme Court will have the final word as to the liability of hospitals for physicians, both in the anesthesia and emergency departments, as a result of the certification of that issue in the Tabraue case.

NOTE:  BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500.

Please click here to view the AO.

Please click here to view the AO.

FOR IMMEDIATE RELEASE
May 22, 2020
CONTACT:  Robert J. Harvey, Esq.
Fifteenth Circuit Judicial Nominating Commission
TELEPHONE:  (561) 303-2918

15^TH CIRCUIT JUDICIAL NOMINATING COMMISSION

CERTIFICATION OF NOMINEES

The Fifteenth Circuit Judicial Nominating Commission (“JNC”) takes pleasure in certifying the following nominees to fill the vacancy for a Circuit Court Judge position created by the resignation of Judge Jessica Ticktin, pursuant to the Governor’s Letter to Convene dated April 10, 2020:

1. Judge Paige Gillman
2. Judge Bradley Harper
3. Laura Laurie
4. Judith Levine
5. John Parnofiello
6. Schnelle Tonge

A list of members of the Fifteenth Circuit JNC is available at https://www.flgov.com/judicial-and-judicial-nominating-commission-information/.

If you have any questions, please call Mr. Harvey at (561) 303-2918, or email at [email protected]

Please click here to view the AO.

TALLAHASSEE – Florida’s Chief Justice Charles Canady issued an order late on May 21, 2020, creating a new pilot program for civil jury trials to be held using remote technology. It will explore ways to let one of the most central parts of the state justice system – jury trials – begin again using health-related distancing during the coronavirus pandemic.

All jury trials in Florida have been halted, and a backlog has developed, since March 13, 2020. This occurred because of the danger of spreading coronavirus in the close quarters used in standard jury procedures. Florida has relied on an in-person jury system for 175 years since it achieved statehood in 1845. Jury trials are required by both the federal and state constitutions in certain instances.

Under the pilot program, the statewide COVID-19 Workgroup will develop requirements and will select up to five Florida trial circuits to participate in the pilot. At this point, trials will only be civil, non-criminal cases and all parties must consent to participate in the pilot.

In other actions last night, Canady also took the following measures:

• Issued a separate new order establishing health & safety precautions to be used in Phase 2 of the expansion of court operations. These precautions are based on a report issued by a statewide advisory COVID-19 Workgroup.
• Amended an earlier order called SCAO20-23 that provides comprehensive emergency procedures for use in courts in the pandemic. The amendments incorporate the new Phase 2 safety procedures contained in the COVID-19 Workgroup report.

Phase 2 is the time when limited in-person contact will be authorized in courts and court proceedings, but protective measures still will be required. It will be followed by Phase 3, when in-person contact is more broadly authorized, and Phase 4, when coronavirus no longer presents a significant risk.

Transition to Phase 2 in the Florida state courts will occur when each trial and appeals court has:

• Met five benchmark criteria: (a) no COVID-19 cases in the courthouse within 14 days or the use of deep cleaning if such cases have occurred; (b) local and state restrictive orders permit the activity; (c) the community shows at least 14 days of improvements in case reporting; (d) adequate testing programs are in place; and (e) other building occupants and justice system partners have been consulted.
• Developed an operational plan addressing implementation of the COVID-19 Workgroup’s report. The plan must be updated regularly to reflect advancements in best practices.

Florida’s State Courts currently are in Phase 1, the time when the most restrictive limits are placed on in-person contact to avoid possible coronavirus infections.

The Chief Justice will review these and other COVID-19 orders as the pandemic emergency develops and will modify or extend them if needed.

Statewide and local court emergency orders and advisories are available on the Florida Supreme Court’s website: https://www.floridasupremecourt.org/Emergency

FOR IMMEDIATE RELEASE
May 1, 2020
CONTACT: Kristen Wilson, [email protected]
The Florida Bar
TELEPHONE: (850) 561-5757

The Board of Directors of Florida Legal Services, Inc., is seeking one lawyer to serve a three-year term beginning July 1. The 15-member board provides judicial advocacy through co-counseling with local program attorneys and volunteer pro bono attorneys and provides legislative and administrative advocacy on policies affecting the legal rights of the poor, as well as providing civil legal assistance to people who are indigent and who would not otherwise have the means to obtain a lawyer.

Attorneys interested in applying for this vacancy may download the Application for Special Appointment or call Florida Bar headquarters (850) 561-5757 to obtain the application form.  Completed applications must be received by the Executive Director, The Florida Bar, 651 East Jefferson St., Tallahassee, FL 32399-2300 no later than the close of business on Friday, June 12. Resumes will not be accepted in lieu of the required application. The Board of Governors will review all applications and may request interviews.

Please click here to view the memo.

For more information, please click here to view the AO.