MEDICAL MALPRACTICE: PHYSICIAN AND HOSPITAL LIABILITY
QUESTION: CAN A HOSPITAL BE HELD LIABLE FOR THE NEGLIGENT ACTS OF INDEPENDENT CONTRACTOR PHYSICIANS:
ANSWER: YES, UND THE THEORIES OF VICARIOUS LIABILITY THROUGH APPARENT AGENCY, AND THE THEORY OF CORPORATE NEGLIGENCE
A hospital may be held vicariously liable for the negligent acts of independent contractor physicians acting with the "apparent authority" of the hospital. Guadagano v. Lifemark Hospitals of Florida, Inc., 972 So.2d 214, 218 (Fla. Dist. Ct. App. 3d Dist. 2007) citing Rossler v. Novak, 858 So.2d 1158, 1162 (Fla. Dist. Ct. App. 2d Dist. 2003). When the hospital tells a patient or a patient's family that the doctor treating the injured or deceased patient is not their responsibility as a result of the physician's negligence or surgical errors, the hospital is asserting a an often stated defense to medical malpractice claims. However, in many situations, the facts will support liability of the hospital for the negligent acts of the treating physicians regardless of whether the physician was an employee of the hospital or not.
The question of whether a physician had apparent authority to act for a hospital is often a question for the jury, not the court to decide, as it is a question of evidence and not a question of law.
The medical malpractice attorneys at Feldman Morgado, lead by managing shareholder Mitchell L. Feldman, know the how to develop a case against a hospital through investigation and discovery so that a hospital can be held liable for the damages and injuries caused by surgical errors. Experienced medical malpractice attorneys who handle cases throughout Tampa, St. Petersburg, Ocala, Palm Harbor, Clearwater, Safety Harbor, Gainesville, Bradenton and Sarasota, like Mitchell L. Feldman , know how to prepare our client's case against a hospital for surgical errors and medical malpractice so that the case will proceed to a jury to decide whether the hospital is liable for the negligence of the treating physicians or from the negligence of the hospital staff as well. Do not just accept what you are told until you have explored your legal rights with an experienced, aggressive medical malpractice attorney such as Mitchell L. Feldman, and the law firm of Feldman Morgado .
"Apparent agency" does not arise from either the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent. Instead, apparent agency exists only where the principal creates the appearance of an agency relationship. Stone v. Palms West Hospital, No. 4DO5-402 (Fla. App. 11/08/2006) So.2d.
Obtaining a judgment or recovering damages against the hospital is most cases rests upon the legal arguments by the attorneys up through and including at trial as well as the manner in which the plaintiff's attorneys present the evidence to a jury to determine. Mitchell L. Feldman , esq. and Feldman Morgado , our law firm, will not back down from the arguments and tactics of the hospital's defense attorneys as we understand that most hospitals will deny liability in malpractice cases as a matter of practice. We understand that knowing the law and presenting well-plead claims and arguments to the court can make the difference as to whether the Court dismisses the hospital from the case.
We have successfully litigated settlements with many hospitals in malpractice claims when the initial positions of the hospital were denials of liability and responsibility for the negligent acts of the physicians. We handle medical malpractice and hospital negligence cases throughout the counties of Hillsborough, Pinellas, Marion, Alachua, Manatee, Sarasota, Levy, Polk, Pasco, Dade, Broward, Collier and Monroe counties. Our attorneys litigate medical malpractice cases in both State and Federal Court.
An example of Florida Courts holding a hospital liable for the negligence of non-employee physicians occurred in Roessle v. Novak, 858 So.2d 1158, 1162 (Fla. Dist. Ct. App. 2d Dist. 2003). The Second District Court of Appeal reversed and remanded the trial court's holding that the hospital was not vicariously liable because all of the foregoing factors created an "apparent agency" question for the jury to decide. Id. at 1163.
Additionally, a hospital is held liable for the negligence of independent contractor physicians under a corporate negligence theory when the hospital fails to exercise reasonable care in the selection and retention of the physicians on its staff. See. Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989). The hospital is liable because it is in a superior position to supervise and monitor the physician's performance, and is the only entity that can realistically provide quality control.
Even further beyond apparent agency and corporate negligence, in other cases, Florida courts have recognized that hospitals may be liable for the acts of non-employee physicians on the theories of joint venture ( i.e., when there is a community of interest in a common purpose, joint control, sharing of profits, and a duty to share losses), Arango v. Reyka, 507 So. 2d 1211 (Fla. Dist. Ct. App. 1987), and apparent agency. Webb v. Priest, 413 So. 2d 43 (Fla. Dist. Ct. App. 1982).
Medical malpractice is a highly specialized area of law that most billboard type personal injury attorneys in Tampa Bay and in Florida do not handle because it is complex, time consuming and requires precise handling, well presented pleadings and a significant amount of lawyering and legal writing to defeat the legal defenses asserted by the physicians and hospitals involved. Most physicians and hospitals deny responsibility outright whether the case involves death, surgical error, misdiagnosis, or negligent treatment. The attorneys at Feldman Morgado and Mitchell L. Feldman, Esq. have the requisite skill, experience and legal knowledge to take on the most serious and complex of all medical malpractice cases, including cases throughout Tampa , St. Petersburg, Ocala, Gainesville, Naples, Sarasota, Bradenton, Clearwater, Safety Harbor, Palm Harbor, New Port Richey, Naples, Miami, Ft. Lauderdale and Lakeland. We also have a team of physicians we utilize to review our cases before we incur the costs of an expert.
Call Attorney Mitchell L. Feldman , or email us now for a free initial consultation at your home, hospital or one of our offices in TAMPA , OCALA, NAPLES, JACKSONVILLE, FORT LAUDERDALE, WEST PALM BEACH OR MIAMI to discuss the medical malpractice case.