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Florida Third DCA rules that hospital does not have non-delegable duty to provide non-negligent ER services, certifies conflict with Fourth DCA

On March 27, 2019, in Tabraue v. Doctors Hospital, No. 3D16-1661, the Florida Third DCA affirmed a trial court’s dismissal of a medical negligence complaint against the defendant hospital, rejecting the plaintiff’s theory that the hospital had a non-delegable duty to provide non-negligent ER services.  The allegedly negligent care had been provided by health care providers working as independent contractors at the hospital.   Generally, a hospital is not liable for the negligence of a medical provider who works in the hospital as an independent contractor. See Pub. Health Tr. Of Dade Cty. v. Valcin, 507 So. 2d 596, 601 (Fla. 1987).  However, courts do recognize exceptions to this rule: “Liability may attach . . . if: (1) the physician is an actual or apparent agent of the hospital; (2) a statute, regulation, or contract creates a nondelegable duty; or (3) the hospital failed to exercise due care in selecting the physician.” Godwin v. Univ. of S. Fla. Bd. Of Trs., 203 So. 3d 924, 929 (Fla. 2d DCA 2016) (emphasis added).  The plaintiff in the case, the personal representative of the patient’s estate, alleged a variety of theories for the hospital’s liability, including a non-delegable duty based on applicable statutes, the common law and implied contract.  The common law theory was abandoned during the appellate process, and in any event the Third DCA noted that Florida law confers no common law non-delegable duty on hospitals to provide non-negligent care. The plaintiff alleged that the statutory non-delegable duty was based on Section 395,1041, Florida Statutes, which provides general guidelines for hospital emergency treatment.  The plaintiff pointed out that in Wax v. Tenet Health System Hospitals, Inc., 955 So. 2d 1, 9 (Fla. 4th DCA 2007), the Florida Fourth DCA had found an analogous non-delegable duty for a hospital to provide non-negligent anesthesia services. The Third DCA instead adopted the reasoning of the Florida Second DCA in  Tarpon Springs Hosp. Found., Inc. v. Reth, 40 So. 3d 823, 828 (Fla. 2d DCA 2010), another case involving anesthesia services in which the Second DCA found no statutory duty on the hospital’s part to provide non-negligent anesthesia services. The Third DCA certified the DCA conflict on this issue. As for the theory of non-delegable duty based on implied contract, the Third DCA acknowledged that the Fourth DCA has found such a duty in the ER context but declined to follow the precedent.  See Newbold-Ferguson v. Amisub (N. Ridge Hospital), Inc., 85 So. 3d 502 (Fla 4th DCA 2012).  The Third DCA certified conflict with the Fourth DCA on this issue as well.

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