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Florida Fourth DCA reverses trial court's directed verdict and remands for new trial in case involving alleged vicarious medical negligence liability of healthcare program marketer

On May 31, 2017, in MDVIP, Inc. v. Beber, No. 4D15-1648, the Florida Fourth DCA reversed for a new trial on limited grounds in a medical negligence/fraud case in which the Fourth DCA determined that the trial court had made several errors in considering motions for directed verdict. The defendant, MDVIP, a company which provided “personalized healthcare programs” in exchange for an annual fee from its members, contracted with physicians to provide the actual medical services and allegedly provided no supervision over their independent contractor physicians regarding actual patient care. The plaintiff in the case had to undergo an above-the-knee amputation of one of her legs, allegedly because of the negligence of one of the defendant’s contracting physicians. Plaintiff sued a variety of parties, including both MDVIP and the treating physician, but ultimately proceeded to trial against only MDVIP, alleging that MDVIP was vicariously liable for the physician’s negligence on agency and joint venture theories as well as misleading advertising and fraudulent misrepresentation. At trial, the court granted a directed verdict to the plaintiff on the apparent agency and joint venture theories, instructing the jury that these issuers had already been decided. The trial court also denied the defendant’s motion for directed verdict on the fraud claims. The jury found in favor of the plaintiff on both the negligence and fraud claims.

On appeal, the Fourth DCA reversed the trial court’s denial of a directed verdict for the defendant regarding the fraudulent advertising claims, finding that some of the allegedly fraudulent statements or promises constituted non-actionable “puffing” statements, e,g, promises to deliver an “exceptional” product, and that with respect to other disputed factual statements, typically involving actions to be taken by the physician, there was an absence of evidence showing that MDVIP would have known that the statements were untrue or would not be fulfilled, or that the plaintiff relied on the statements. The Fourth DCA also reversed the trial court’s directed verdict for the plaintiff on the apparent agency and joint venture grounds, finding that that there was sufficient evidence that should have allowed those issues to be presented to the jury along with the underlying issue of medical negligence. The Court concluded that there was evidence that contradicted one of the elements of apparent agency, a representation of the agency relationship by the purported principal, because one of MDVIP’s mailings to the plaintiff expressly disclaimed any agency relationship. The Court concluded that there also was evidence that contradicted one of the elements of joint venture, joint control or a right of control, because there was evidence that the physician retained exclusive control over medical decisions and the daily operations of his practice.

Finally, the Court concluded that although the jury had additionally found MDVIP liable under an actual agency theory, this did not render the other errors harmless because the jury was unaware that it should not have allowed the directed verdicts to play a role in their consideration of the issues left before them. The Court cited Special v. West Boca Medical Center, 160 So. 3d 1251 (Fla. 2014) for the proposition that “[t]o test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” Id. at 1256.