Can a Florida Hospital Be Liable for Negligent Acts by Its Employees?

hospital-lobby-1101832-m.jpg“Respondeat superior” is a theory that may be asserted in personal injury cases in many jurisdictions, including Florida. It makes employers liable when their employees commit wrongful acts within the course and scope of their employment. A recent case illustrates how this type of theory can be pursued in a medical malpractice context. Respondeat superior cases differ from direct liability cases that are brought against employees of hospitals like doctors, nursing staff, or administrative staff.

In the case, parents took their young daughter to an ER twice in one day when she had an acute asthma attack. On both visits, the staff wouldn’t treat her. They would only treat her when the ambulance brought her a third time. The parents filed a lawsuit against the hospital, claiming it was liable for its staff’s failure to treat their daughter.

The hospital asserted that the claim was a medical malpractice claim. In Florida, medical malpractice claims are subject to a presuit requirement, which was not met in this case. The hospital’s argument was rejected.


Although it challenged the plaintiff’s suit for failing to meet the presuit requirements, the hospital didn’t move to dismiss the complaint for failure to state a cause of action. Instead, it answered the complaint; one of its answers was a generic defense that the complaint should be dismissed for failure to state a cause of action. The parents proceeded on a theory of respondeat superior.

Over three years passed before the hospital filed a motion for summary judgment on the grounds that the complaint failed to state a cause of action. The hospital noted that a person who suffers personal harm under section 395.1041, Florida Statutes (2004) is entitled to recover against administrative or medical staff. It also claimed that the code section imposed an administrative sanction against the hospital for no more than $10,000 and that under the code, the hospital could be responsible for no more.

The hospital also argued that the parents should be able to sue the employees of the hospital, not the hospital itself. It did not make any motion on the theory of vicarious liability. The trial judge granted the hospital’s summary judgment motion. This meant that the parents could not bring their case before a jury because the judge determined there were no triable issues of fact or the parents could not establish at least one of the elements of their case.

The parents appealed. The appellate court reversed, explaining that the hospital did not move for summary judgment on the respondeat superior theory presented by the plaintiffs. It reasoned that the complaint did not name the specific staff members who denied their child treatment. Instead, the complaint asserted that the hospital was responsible for its employees in the course and scope of their employment.

The cause of action in this case was similar to that of negligence. Since the statute did not expressly prohibit liability under respondeat superior, the appellate court ruled that the plaintiffs were permitted to pursue that theory. It reversed the decision of the trial court, but left room for the hospital to file a motion for summary judgment that did address whether respondeat superior was appropriate.

If you are hurt as a result of hospital or doctor negligence, you want attorneys that are familiar with both medical malpractice and general negligence claims. Contact the experienced South Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

More Blogs

Florida School Sued After Student’s Sports Injury, South Florida Personal Injury Lawyers Blog, June 13, 2013
Florida Appellate Court Applies Slip and Fall Law Retroactively, South Florida Personal Injury Lawyers Blog, May 31, 2013

Contact Information