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Florida Fifth DCA reverses summary judgment for defendant hospital in medical negligence case, finding jury issue regarding whether an independent contractor on-call surgeon was an apparent agent of the hospital

On February 5, 2021, in Luebbert v. Adventist Health System/Sunbelt, Inc., et al, No. 5D19-2824, the Florida Fifth DCA reversed a trial court’s summary judgment in favor of the defendant hospital in a medical negligence case. The plaintiff had visited the ER of the defendant hospital suffering from severe abdominal pain and was diagnosed with appendicitis requiring an appendectomy. The on-call surgeon wore a white coat that included his name and the words “general surgeon,” along with a Florida Hospital badge. The plaintiff allegedly asked whether another surgeon was available and was told that no other surgeon would be available for five hours. The plaintiff subsequently suffered a post-operative infection after allegedly having been denied post-operative antibiotics by the surgeon. The plaintiff alleged in his complaint that the defendant hospital was vicariously liable for the actions of the on-call general surgeon under a theory of apparent agency. The Fifth DCA agreed with the trial court that the surgeon was an independent contractor who had no actual agency relationship with the hospital but found sufficient evidence in the records record from which a jury could conclude that the hospital had created the creates the appearance of an agency relationship. The Fifth DCA noted that while the consent agreement signed by the patient referred generally to the fact that many of the health care providers are independent contractors, the agreement did not specifically state that the on-call surgeon was neither an employee nor agent of Florida Hospital. The Fifth DCA additionally noted that even if a hospital does not make representations to the public or to patients concerning the physician’s employment status, it may still be liable on a theory of apparent agency where there is lack of choice on part of the patient, citing Orlando Reg’l Med. Ctr., Inc. v. Chmielewski, 573 So. 2d 876, 879 (Fla. 5th DCA 1990); Jones v. Tallahassee Mem’l Reg’l Healthcare, Inc., 923 So. 2d 1245, 1248 (Fla. 1st DCA 2006); and Cuker v. Hillsborough Cty. Hosp. Auth., 605 So. 2d 998, 1000 (Fla. 2d DCA 1992). The Fifth DCA concluded that the plaintiff’s lack of choice regarding the surgeon, along with the other factors, was sufficient to create a jury question regarding apparent agency.