PERSONAL INJURY CORNER
APPARENT AGENCY OF A HOSPITAL FOR
A NON-EMPLOYED DOCTOR
TED BABBITT
Those of you who read my article in
the last Bulletin may have wondered if
quarantine because of COVID had made
me snap. The article was full of typos
and seeming nonsense. It was submitted
to the Bar in correct form but when the
printer converted the type of file, it came
out as nonsense. The correct version is
on the Bar’s website.
King v. Baptist Hosp. of Miami, Inc., 87 So. 3d
39 (2012), was an appeal of a Final Summary
Judgment in favor of Baptist Hospital,
finding that there was no evidence from
which a jury could conclude that a doctor
was an apparent agent of the hospital. The
facts of the case are not stated, but the
Court reviews the law of apparent agency
before reversing summary judgment.
The Court relies on Guadagno v. Lifemark
Hospitals of Florida, 972 So. 2d 214 (2007),
which holds:
“Under certain circumstances…a hospital
may be held vicariously liable for the acts
of physicians, even if they are independent
contractors, if these physicians act with
the apparent authority of the hospital.”
Quoting Roessler v. Novak, 858 So. 2d 1158,
1162 (Fla. 2d DCA 2003).
The hospital had expressly disavowed an
agency or an employee relationship and
conveyed that information to the Plaintiff,
and the Plaintiff acknowledged receiving
that information by signing the admission
documents.
Reversing the summary judgment, the
King Court held:
“An apparent agency exists only if all three
of the following elements are present: (a) a
representation by the proposed principal;
(b) a reliance on that representation
by a third party; and (c) a change in
position by the third party in reliance
on the representation. Id. ‘Apparent
authority’ does not arise from subjective
understanding of the person dealing with
the proposed agent, nor from appearances
created by the proposed agent himself;
instead, ‘apparent authority’ exists only
where the principal creates the appearance
of an agency relationship.”
The Court quotes, Villazon v. Prudential
Health Care Plan, Inc., 843 So. 2d 842, 853
(Fla. 2003), that:
“The existence of an agency relationship is
normally one for the trier of fact to decide.”
The Court determines that Baptist Hospital
engaged in activities which created the
appearance of an agency relationship and
cites Cuker v. Hillsborough County Hospital
Authority, 605 So. 2d 998, 999 (Fla. 2d DCA
1992):
In the instant case, the hospital contracted
with a group of physicians to staff one of
its departments full time. When Mrs. Cuker
was admitted for her Level III hospital needs,
a staff physician was provided to her upon
her arrival at the hospital. Tampa General
certainly held itself out as being equipped
with a labor and delivery department
which could handle the emergency needs
of her infant. All appearances suggested
that the labor and delivery department
was an integral part of the institution,
and there was nothing which put Mrs.
Cuker on notice that various departments
of the hospital had been franchised out to
independent contractors. See Irving, at 58
(citing Mehlman v. Powell, 281 Md. 269, 378
A.2d 1121 (1977)). Furthermore, Mrs. Cuker
came to Tampa General on the advice of
her personal physician because it was a
Level III hospital, capable of treating her
baby should it be born prematurely. She
did not attempt to secure physicians on
her own, but accepted the physicians
that were provided to her by the hospital.
There were no representations made to
Mrs. Cuker concerning the physicians'
employment status. These facts create a
jury question as to whether the hospital
held the doctors out as its employees and
whether Mrs. Cuker relied upon the same in
accepting treatment from the physicians.1
Accordingly, we find that the trial court
erred in refusing to let the issue of apparent
agency go to the jury in this case.
This is a 2012 case, but it has not been
overruled or negatively treated on appeal.
It clarifies the burden of the plaintiff to
establish a doctor’s apparent agency to hold
a hospital liable for a doctor’s negligent
acts.
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PBCBA BAR BULLETIN
13