Recently, a medical malpractice plaintiff appealed a trial court’s order granting summary judgment in favor of a hospital system. The case arose when the plaintiff visited a Florida hospital for appendicitis and an abscess. An on-call surgeon met with the plaintiff; however, the plaintiff felt uneasy with the surgeon and requested another doctor. The next doctor was not available until the next morning, so the plaintiff proceeded with the surgeon. The plaintiff requested antibiotics after the surgery, but the surgeon explained that they were unnecessary. However, the plaintiff suffered a serious postoperative infection. He filed a lawsuit against the doctor and the hospital. The hospital argued that the doctor was an independent contractor, and not an employee or agent of the hospital.
Under Florida’s vicarious liability laws, an employer may be liable for the negligence of the employees committed within their employment scope. In cases involving hospitals and independent contractor physicians, a hospital may still be liable if the hospital “cloaked her with apparent authority to act on its behalf.” Apparent agency exists if the plaintiff can establish three elements.
The three elements of an apparent agency inquiry are:
- If the principal made a representation.
- A third party relied on the representation.
- The third party experienced a change in position because of their reliance.
The relationship and agency do not stem from a patient’s subjective understanding of the agent’s appearances. Instead, authority exists in cases where the principal creates the appearance of a relationship. Further, the reliance element is met when a patient relies on the hospital to provide health services, rather than reliance upon a specific doctor.
In this case, the plaintiff signed a consent agreement that explained that many health providers at the hospital were independent contractors. However, the agreement did not state that the particular surgeon was neither an employee nor an agent of the hospital. Further, the agreement did not state which services were independent of the health system. Although the plaintiff had the option to select a different on-call surgeon, his choice was between physicians the hospital presented. The appeals court reasoned that the plaintiff’s lack of choice, compounded with other factors, created a genuine issue of material fact regarding whether apparent agency existed. The plaintiff may not have changed his position even if he knew the surgeon was an independent contractor; however, it remains a jury question.
Have You Suffered Injuries Because of a Negligent Medical Provider?
If you or someone you love has suffered injuries or died because of a negligent medical provider, contact the attorneys at Friedman Rodman Frank & Estrada. Our attorneys understand the laws governing the duties medical personnel owe their patients, and seek to hold negligent providers responsible for their failure to meet their duties. Our attorneys handle medical malpractice cases stemming from Florida birth injuries, misdiagnosis, surgical errors, medication errors, emergency room errors, and pharmacy prescription errors. Additionally, we represent clients in motor vehicle accidents, premises liability, and product liability cases. Contact our office at 877-448-8585, to discuss your right to recovery.