PERSONAL INJURY CORNER
Apparent Agency
TED BABBITT
In Luebbert v . Adventist Health System , 46 FLWD 305 ( 5th DCA 2 / 5 / 2021 ) Plaintiff appealed the granting of a summary judgment on the issue of the vicarious liability of a hospital for a general surgeon . In that case the Plaintiff suffered from appendicitis and met a general surgeon in the pre-operative holding area . The doctor wore a white coat with the term “ general surgeon ” along with a Florida Hospital badge . The doctor was the on call general surgeon but the Plaintiff was uneasy about him and asked about the availability of another surgeon . Plaintiff was advised the next available surgeon would not be in until 9:00 a . m . and it was only 4:00 a . m . and the Plaintiff was not willing to wait 5 hours . After the surgery the Plaintiff specifically requested that he be given antibiotics , but the doctor assured him that antibiotics were not necessary . Unfortunately the Plaintiff then suffered a significant postoperative abdominal infection . In the resultant medical malpractice suit the hospital moved for summary judgment arguing that the doctor was neither an employee nor an agent but rather an independent contractor , evidencing a written agreement between the hospital and the doctor and relying on the doctor ’ s testimony that he was not paid by the Defendant , that he billed the insurance company directly , that the hospital in no way influenced his medical decisions and that he considered himself an independent contractor . The doctor also acknowledged in his deposition that he maintained staff privileges at the hospital and that virtually all his medical care was provided at that hospital .
The record was devoid of any evidence that the doctor was an actual employee or agent of the hospital . Nevertheless the Appellate Court determined that there was a jury issue as to whether the doctor was an apparent agent of the hospital . The Fifth District in so holding reviewed the following law on the issue of apparent agency by a hospital of a physician with staff privileges . At 306 the Fifth District held .
“ If a hospital retains an independent contractor to provide medical services , it may still be liable for the negligence of that independent contractor if the hospital “ cloaked her with apparent authority to act on it ’ s behalf .” Godwin v . University of South Florida Board of Trustees , 203 So . 3d 924 , 929 ( Fla . 2d DCA 2016 ).
An Apparent Agency exists if all three of the following elements are present . 1 . A representation by the purported principle ; 2 . Reliance on that representation by a third party ; and 3 . A change in position by the third party in reliance on the representation . Reoessler v . Novak , 858 So . 2d 1158 , 1161 ( Fla . 2d DCA 2003 ). Thus , where a hospital held out a particular physician as its agent or employee , and the patient has accepted treatment from that physician and reasonably believed that the physician was rendered on behalf of the hospital , the hospital will be liable for the physician ’ s negligence . Kristensen-Kepler v . Cooney , 39 So . 3d 518 , 510 ( Florida 4th DCA 2010 ); Irving vs . Doctor ’ s Hospital of Lake Worth , Inc ., 415 So . 2d 55 , 59 ( Fla . 4th DCA 1982 ).
Apparent Agency does not arise from the subject of understanding of the patient or from appearances created by the purported agent himself Guadagno v . LifeMark Hospitals of Florida , Inc ., 972 Southern 2nd 214 , 218 ( Fla . 3d DCA 2007 ). Apparent Agency only exists when the principle creates the appearance of an agency relationship .”
While the hospital required the Plaintiff to sign a consent agreement the court found that the consent agreement was not clear in disavowing an agency relationship with the doctor . In addition the court specifically found that even if a hospital does not make representations to a patient concerning a physician ’ s employment it may still be liable on a theory of apparent agency where there is a lack of choice on the part
of the patient . Here the Plaintiff had the option of accepting treatment from another on call physician 5 hours later , but he was selecting between two on call physicians that the hospital provided him rather than a doctor of his own choosing . It was this lack of choice on the part of the Plaintiff , together with the other factors cited above that made this case one for a jury to decide on the issue of apparent agency .
Theodore Babbitt , Attorney-Shareholder , Florida Bar Board Certified Trial Lawyer at Searcy Denney Scarola Barnhart & Shipley , P . A . He can be reached at Tbabbitt @ searcylaw . com .
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