PBCBA BAR BULLETINS JUNE 2020 BULLETIN - Page 24

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