PERSONAL INJURY CORNER
Hospital's
TED BABBITT
Andre v. Abreu, 272 So.3d 467, (Fla.
3d DCA 2019) raised the question
of whether a hospital owes a nondelegable
duty to a patient as a result of
actions of the independent contractor
physicians working in the hospital’s
emergency department. Ordinarily,
independent contractors working in
a hospital do not subject a hospital to
liability for their actions. Pub. Health
Tr. of Dade County v. Valcin, 507 So.2d
596,601 (Fla. 1987). However, in Wax v.
Tenet Health System Hospitals, Inc.,
955 So.2d 1, 9 (Fla. 4th DCA 2007), on
the basis of the statutory responsibility
set forth in Florida Statute §395.1055(1)
(a) and (d), which requires Florida’s
Agency for Healthcare Administration
to establish rules for safe patient care
imposed a duty on a hospital to provide
safe anesthesia services consistent
with those standards. The Fourth
District concluded that there was a
non-delegable duty to provide safe
anesthesia services.
The Third District, in Tabraue, III v.
Doctors Hospital, 272 So.3d 468 (Fla.
3d DCA 2019), concluded that a hospital
did not owe a non-delegable duty for
actions of emergency room physicians
under the same theory espoused in
Wax v. Tenet, supra. The Third District
refused to follow the Fourth District’s
holding in Irving v. Doctors Hospital
of Lake Worth, 415 So.2d 55 (Fla. 4th
DCA 1982), which overturned a verdict
in favor of a hospital because of the
failure of the lower court to give a ju1y
instruction “that one may not escape
his contractual liability by delegating
performance under contract to an
independent contractor”. In Newbold-
Ferguson v. Amisub, 85 So.3d 502 (Fla.
4th DCA 2012), the Fourth District, at
504, held:
“Irving establishes that a hospital
which provides emergency room
services has a non-delegable duty
to provide comp
treatment based u
contract. It is there
plaintiff could have
against the hospital
room doctor’s negl
delegable duty theo
of a non-delegable
competent emergen
makes sense, becau
emergency room ge
if any, control over
treating physician.”
The Tabraue Court
Irving even thoug
that Irving and th
Irving created a j
implied contract re
to provide emerg
who gave non-neg
room care subjectin
responsibility for th
emergency room ph
The Third District st
“While we recogniz
of the Florida Statute
hospitals to provide
services to the publ
statutory scheme is s
of non-delegable du
expanding Florida h
include liability for
room medical pr
hired by hospitals
contractors is a pub
that is within the p
legislative branch. O
issue is one of comm
a Florida Supreme C
simply are averse
judicial dictate, the
hospitals, as the Est
Accordingly, we
Court’s dismissal o
Estate’s second Am
and we certify con
PBCBA BAR BULL