South Florida Injury Lawyer Blog
The Florida Supreme Court has agreed to decide whether a hospital can be held accountable for the negligent treatment by independent-contractor emergency room doctors. Our West Palm Beach medical malpractice lawyers will be closely following the developments of this case, and a decision is likely to be handed down sometime next year. 
The case stems from a botched plastic surgery provided at an unlicensed clinic by a man posing as a Venezuelan doctor. The clinic was licensed to give massages, but advertised the services of certified plastic surgeons (which it did not have) to perform buttocks-enhancement injections. A 28-year-old woman was rushed to a local emergency room after suffering complications from the procedure in 2013. She was treated at the hospital’s emergency room and in the intensive care unit, but died within hours. The “doctor” was later arrested and the clinic shuttered, but her estate filed a lawsuit against both the hospital and emergency room doctors for negligence.
The hospital insists it cannot be held liable for treatment provided by the emergency room doctors, as they were independent contractors. Florida’s Third District Court of Appeal agreed in a ruling earlier this year. However, this ruling conflicts with one by Florida’s Fourth District Court of Appeals in a similar case.
The Florida Supreme Court has agreed to review the conflict, but has yet to set a date for oral arguments.
Ostensible Agency of Independent Contractor Health Care Workers
In general, hospitals can be held liable for the actions of their employees under the vicarious liability doctrine known as respondeat superior, Latin for “let the master answer.” However, legal liability for the actions of independent contractors is a bit muddier.
The legal doctrine of ostensible agency (also known as “apparent agency”) alters the general rule that hospitals aren’t liable for the negligence of independent contractors. Ostensible agency comes into play when the hospital leads a patient to believe that it employs the doctor and the patient relies on that belief.
Several factors may be at play in asserting ostensible agency liability. Some examples include:
- Consent forms with hospital logos;
- Hospital advertising;
- Ownership of clinic space/physician offices;
- Billing systems (joint or separate?);
- Referral systems.
In the 2009 case of Ginsberg v. Northwest Medical Center, the Fla. 4th DCA embraced the theory of ostensible agency in imposing liability on a hospital for the negligence of independent contractor doctors. In that case, an emergency room patient underwent surgery for a kidney stone. The independent contractor urologist ultimately removed his entire kidney. He filed a complaint alleging medical negligence against the physician and vicarious liability against the hospital for the physician’s actions.
The trial court granted summary judgment to the defense, but the appellate court reversed because the signed hospital consent form indicating the surgeons were independent contractors didn’t on its own conclusively refute an apparent agency relationship.
The existence of an apparent agency relationship, as noted by the Fla. 3rd DCA in the 2007 case of Guadagno v. Lifemark Hosps. of Fla. Inc., exists when:
- There is a representation by the purported principal (aka, the hospital or healthcare facility);
- There was a reliance on that representation by a third party (aka, the patient);
- There was a change in position by the third party in reliance on that representation.
Some states have enacted statutes designed to describe and/or limit hospitals’ ostensible agency liability, but Florida isn’t one of them. The defense in the pending case before the state supreme court orders that this should be a legislative matter, as the decision to expand Florida hospital liability for emergency medical providers is one of public policy.
Plaintiffs say the main question is whether a hospital emergency department can delegate its duties for emergency services to independent contractors and thus simply absolve themselves of any liability for negligent care that occurs.
Contact the South Florida medical malpractice attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Additional Resources:
Florida Supreme Court to Weigh Hospital ER Liability, July 25, 2019, By Jim Saunders, Law.com