PBCBA BAR BULLETINS JULY | AUGUST 2020 - Page 13

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. NOTE: BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500. LEADING PRACTICE MANAGEMENT SOFTWARE 10% Discount for Bar Members You can access your firm from anywhere—at any time—with Clio’s mobile app. Bring your matters, documents, notes, and calendar with you wherever you go, all on your mobile device. And, take 10% off all Clio products with your exclusive Palm Beach County Bar Association member discount. Visit www.clio.com/pbcbar to learn more and use promo code PBCBAR to claim your discount. PBCBA BAR BULLETIN 13