IN THE SUPREME COURT STATE OF FLORIDA. CASE NO. SC L.T. Case No. 1D SHANDS TEACHING HOSPITAL AND CLINICS, INC.

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC L.T. Case No. 1D SHANDS TEACHING HOSPITAL AND CLINICS, INC., Petitioner, v. GARY JULIANA, II, a minor child, by and through his parents and natural guardians, GARY JULIANA and KIMBERLY JULIANA, and GARY JULIANA and KIMBERLY JULIANA, individually, Respondent. PETITIONER S BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM A DECISION OF THE FIRST DISTRICT COURT OF APPEAL Arthur J. England, Jr., Esq. Elliot B. Kula, Esq. Greenberg Traurig, P.A Brickell Avenue Miami, Florida Telephone: (305) Facsimile: (305) Counsel for Shands Teaching Hospital and Clinics, Inc.

2 TABLE OF CONTENTS Page TABLE OF CITATIONS ii INTRODUCTION 1 STATEMENT OF THE CASE AND FACTS 2 SUMMARY OF ARGUMENT 4 ARGUMENT 4 I. Non-liability of independent contractor....4 II. Misuse of agency facts for nondelegable duty in a summary judgment setting....6 III. Policy considerations militate for review by the Court....7 DECISIONAL CONFLICTS...8 CONCLUSION 10 CERTIFICATE OF SERVICE 11 CERTIFICATE OF COMPLIANCE 12 i

3 TABLE OF CITATIONS Cases Page Arango v. Reyka 507 So. 2d 1211 (Fla. 4th DCA 1987)... 7 Atchley v. First Union Bank of Fla. 576 So. 2d 340 (Fla. 5th DCA 1991)... 5, 8, 9 Cecile Resort, Ltd. v. Hokanson 729 So. 2d 446 (Fla. 5th DCA 1999)... 4 City of Coral Gables v. Prats 502 So. 2d 969 (Fla. 3d DCA), review denied, 511 So. 2d 297 (Fla. 1987)... 5, 8, 9 Cuker v. Hillsborough County Hosp. Auth. 605 So. 2d 998 (Fla. 2d DCA 1992)... 7 Gordon v. Sanders 692 So. 2d 939 (Fla. 3d DCA 1997)... 5, 8, 9 Holiday Carpet Serv., Inc. v. Butler 669 So. 2d 302 (Fla. 3d DCA 1996)... 4 Hubbard Constr. Co. v. Orlando/Orange County Expressway Auth. 633 So. 2d 1154 (Fla. 5th DCA 1994)... 5, 8, 9 Insinga v. Labella 543 So 2d 209 (Fla. 1989)... 6 Irving v. Doctors Hosp. of Lake Worth, Inc. 415 So. 2d 55 (Fla. 4th DCA), review denied, 422 So. 2d 842 (Fla. 1982)... 6, 7, 10 Keith v. News & Sun Sentinel Co. 667 So. 2d 167 (Fla. 1995)... 9 ii

4 TABLE OF CITATIONS (Continued) Page Mills v. Krauss 114 So. 2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So. 2d 293 (Fla. 1960)... 5, 8, 9 Orlando Reg l Med. Ctr. v. Chmielewski 573 So. 2d 876 (Fla. 5th DCA 1990), review denied, 583 So. 2d 1036 (Fla. 1991)... 7, 10 Public Health Trust of Dade County v. Valcin 507 So. 2d 596 (Fla. 1987)... 6 Shands Teaching Hosp. & Clinic, Inc. v. Juliana 28 Fla. L. Weekly D2027 (Fla. 1st DCA Aug. 29, 2003)... passim Vargas v. Dulzaides 520 So. 2d 306 (Fla. 3d DCA), review dismissed, 528 So. 2d 1184 (Fla. 1988)... 7, 10 Villazon v. Prudential Health Care Plan, Inc. 843 So. 2d 842 (Fla. 2003)... 6, 10 Florida Statutes (5), Fla. Stat. (2002)... 4 iii

5 INTRODUCTION Shands Teaching Hospital and Clinic ( Shands ) brings to the Court for review the decision of the First District Court of Appeal in Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 28 Fla. L. Weekly D2027 (Fla. 1st DCA Aug. 29, 2003), a copy of which is attached. In that decision, the district court has declared as a matter of law that Florida hospitals are insurers of every patient admitted to their facilities for any act of negligence committed by non-physician personnel during a hospital stay, based on an admission form contract which says only that the hospital will provide hospital care and medical treatment. Specifically, the court has held that, under a nondelegable contractual duty exception to the doctrine that employers are not liable for the negligence of independent contractors, Shands is liable by summary judgment for the negligence of an equipment technician in the hospital s operating suite who was stipulated to be an independent contractor and not an employee. Liability was imposed by the trial court without any consideration or determination as to whether the technician was an agent or apparent agent of the hospital, or acted under the direction or control of the operating surgeons. The district court s decision effectively eliminates the doctrine of non-liability for independent contractors as to hospitals, by holding that the mere admission of a patient creates a nondelegable duty on the part of the hospital to deliver negligentfree services by all of its non-physician personnel. The decision presents decisional conflict on issues of statewide concern. 1

6 STATEMENT OF THE CASE AND FACTS Two-month-old Gary Juliana was rushed to Shands for an evaluation when his pediatrician detected a heart murmur and respiratory distress. 28 Fla. L. Weekly at D2027. Gary s parents signed an admission form in which they consented to such diagnostic procedures, hospital care, [and] medical treatment... which in the judgment of my physician may be considered necessary or advisable while a patient at Shands, and agreed to pay for the services. Id. When Gary was diagnosed with a condition for which the physicians recommended open heart surgery, his parents consented. 28 Fla. L. Weekly at D2028. Open heart surgery requires the technical services of a perfusionist to operate and monitor a machine which oxygenates blood during the surgery. Id. The surgery successfully corrected Gary s heart condition, but he sustained severe brain damage due to the perfusionist s admitted negligence in monitoring his blood flow gases. Id. For the purpose of seeking a summary judgment on Shands liability, the Julianas stipulated (consistent with contract documents of record) that the perfusionist used in Gary s operation was an independent contractor and not an employee of Shands, and that all issues arising from agency principles presented factual issues requiring jury determination and unavailable for resolution on summary judgment. 28 Fla. L. Weekly at D & n.5. Based on these premises, the trial court entered a summary judgment against Shands, holding it liable to the Julianas on the basis of a nondelegable contractual duty for the 2

7 negligent acts of the independent contractor technician, arising from the hospital admission form. 28 Fla. L. Weekly at D Following a trial on damages, the court entered judgment against Shands in the amount of $9,138, Fla. L. Weekly at D2029. The trial court acknowledged that the admission form signed by the Julianas called for unspecified services, but nonetheless held that Shands had a nondelegable duty in contract to provide negligent-free hospital care and medical treatment. 28 Fla. L. Weekly at D In turn, the district court approve[d] the trial court s analysis regarding nondelegable duty to hold that a hospital which admits a patient for unspecified hospital care and medical treatment, and agrees to accept payment for those services, is liable as a matter of law for any act of negligence committed by non-physician independent contractors. 28 Fla. L. Weekly at D The district court held that [p]erfusion services plainly fall within the definition of hospital care, [and] medical treatment. Id. It reached that decision by drawing extensively on record facts applicable only to principles of agency and apparent agency, in order to demonstrate that the trial court did not grant summary judgment on an undeveloped record. Id. The court also drew a negative inference 1 The district court declined to hold Shands liable on the theories that hospital services are inherently dangerous, or that Shands had a nondelegable legal duty by reason of hospital regulatory statutes or administrative rules. 28 Fla. L. Weekly at D

8 of liability from the admission form s disclaimer of Shands responsibility for the negligence of physicians, residents and students who were state employees, as required by law when sovereign immunity is implicated (see (5), Fla. Stat. (2002)), in light of the absence of any such disclaimer for the negligence of a perfusionist. 28 Fla. L. Weekly at D2028 & n.2. SUMMARY OF ARGUMENT The district court has declared that the independent contractor doctrine is no longer applicable to Florida hospitals, by holding that the mere admission into a hospital for unspecified services creates a contract for negligent-free services on the premises by all personnel. Florida appellate courts have applied the nondelegable contract duty exception to the independent contractor shield only when a specific undertaking has been contracted for, however. By holding that the mere admission into a hospital for unspecified services is sufficient to overcome the independent contractor shield against vicarious liability, the district court has effectively made Florida hospitals into insurers for all on-site services. The district court reached its decision, moreover, by infusing into its analysis facts relevant only to the principles of agency and apparent agency, which were admittedly in dispute and inappropriate for use in upholding a summary judgment. ARGUMENT I. Non-liability of independent contractor. Under Florida law, employers are generally not liable for the negligence of independent contractors. Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446, 447 4

9 (Fla. 5th DCA 1999); Holiday Carpet Serv., Inc. v. Butler, 669 So. 2d 302, 303 (Fla. 3d DCA 1996). Florida law also recognizes an exception to that doctrine where an employer has contracted for specific acts which the courts consider to be nondelegable. The district court in this case cited as representative of this principle the decision in Atchley v. First Union Bank of Fla., 576 So. 2d 340, 344 (Fla. 5th DCA 1991), where the court held a bank liable for the negligence of an independent contractor roofing company with whom the bank had expressly and specifically contracted to repair or replace the roof on a house the bank sold to the plaintiff. The Second, Third and Fifth District Courts of Appeal have addressed the liability of employers for the negligence of independent contractors, as did the First District in this case. Each of those courts, however, has confined the nondelegable duty exception to non-liability to those situations in which the employer has identified and contracted to provide a specific task. E.g., Gordon v. Sanders, 692 So. 2d 939, 941 (Fla. 3d DCA 1997) (remove tree); Hubbard Constr. Co. v. Orlando/Orange County Expressway Auth., 633 So. 2d 1154, 1155 (Fla. 5th DCA 1994) (test density of embankment); Atchley, 576 So. 2d at 344 (repair or replace roof); City of Coral Gables v. Prats, 502 So. 2d 969, (Fla. 3d DCA), review denied, 511 So. 2d 297 (Fla. 1987) (maintain sidewalks); Mills v. Krauss, 114 So. 2d 817, 820 (Fla. 2d DCA 1959), cert. denied, 119 So. 2d 293 (Fla. 1960) (renovate and repair hotel). Here, the district court approved a summary judgment determination of hospital liability for an independent contractor s negligence based 5

10 on an admission form contract for unspecified services. II. Misuse of agency facts for nondelegable duty in a summary judgment setting. Under Florida law, agency and apparent agency principles which allow an employer to be held vicariously liable for the acts of a non-employee are factual determinations which can only be made in a jury trial. E.g., Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003) ( [W]hen there are multiple relationships along with multiple practices and procedures to be evaluated, and the totality of the evidence is susceptible to multiple inferences and interpretations, the existence and scope of an agency relationship are generally questions of fact. ). Agency principles were applied to hold a hospital liable for the negligence of an emergency room physician, but not by way of summary judgment, in Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So. 2d 55 (Fla. 4th DCA), review denied, 422 So. 2d 842 (Fla. 1982). 2 In Irving, the court also imposed liability on the theory of nondelegable duty. That was not done on the basis of a contract between the plaintiff and the hospital which was allegedly created by a hospital admission form, however, as the district court did in this case. Significantly, the Irving decision has only been followed by 2 The general rule in Florida, to which Irving created an exception, is that hospitals are not liable for the negligence of physicians who are independent contractors. Insinga v. Labella, 543 So 2d 209, (Fla. 1989); Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987). 6

11 other district courts on the basis of its application of agency and apparent agency principles, which had been resolved in that case by a jury. See Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987); Orlando Reg l Med. Ctr. v. Chmielewski, 573 So. 2d 876, 879 (Fla. 5th DCA 1990), review denied, 583 So. 2d 1036 (Fla. 1991); Cuker v. Hillsborough County Hosp. Auth., 605 So. 2d 998, 999 (Fla. 2d DCA 1992); Arango v. Reyka, 507 So. 2d 1211, 1213 (Fla. 4th DCA 1987). No Florida appellate court has applied Irving s nondelegable duty exception, either as a contract duty or otherwise. No Florida appellate court, moreover, has extended Irving like the district court did in this case beyond emergency room physicians, to hold a hospital vicariously liable for the negligence of non-physicians who independently contract to perform services for a hospital. Directly contrary to the district court s decision is Vargas v. Dulzaides, 520 So. 2d 306, 307 (Fla. 3d DCA), review dismissed, 528 So. 2d 1184 (Fla. 1988), where vicarious liability for the negligence of a perfusionist (like the one involved in this case) was specifically held to be a jury question. The district court s approval of a summary judgment determination of hospital liability for non-physician services on the basis of agency or apparent agency principles is an express and direct conflict with Vargas. III. Policy considerations militate for review by the Court. At a time when the cost and availability of medical services dominates the public debate in Florida, the district court s decision presents a propitious opportunity for the Court to evaluate and address the amalgam of diverse and 7

12 previously distinct legal principles which were mixed and matched in this case to create virtual insurer status for hospitals with respect to their patients. The district court created a nondelegable contract out of a generic admission form for unspecified hospital services, contrary to the law s requirement for contractual specificity in the use of that doctrine. The court used agency and apparent agency facts that are only appropriate for a jury s determination of vicarious liability. This case falls squarely within the Court s constitutional authorization to consider and resolve express and direct conflicts in Florida appellate court decisions on issues of statewide concern. The district court s decision opens the door for economic devastation to be visited upon Florida hospitals, which are now exposed to multi-million dollar judgments for the negligent acts committed by independent contractors. DECISIONAL CONFLICTS In holding that the nondelegable duty exception to the non-liability of independent contractors applies as a matter of law to hospital admissions, based upon an agreement at admission for unspecified services, (28 Fla. L. Weekly at D2028) (emphasis supplied), together with the negative inference drawn from the form s disclaimer of liability (pursuant to statute) for designated employees, the district court s decision conflicts with Gordon, supra; Hubbard Constr., supra; Atchley, supra; Prats, supra; and Mills, supra. Those decisions limit the nondelegable duty doctrine to contracts for specific tasks. The district court s decision that hospital care and medical treatment for 8

13 a patient entering a hospital for evaluation constitutes the assumption of a nondelegable contract duty to provide negligent-free services is a far-reaching change in the law, and one that conflicts with the narrow limits of that doctrine as it now exists in Florida. 28 Fla. L. Weekly at D2027, Florida law recognizes a clear line of demarcation between the imposition of vicarious liability on an employer for acts of employees, agents and apparent agents, and on the basis of negligent hiring and retention, on the one hand, and the non-liability of employers for acts of independent contractors unless the employer has undertaken a specific contractual responsibility on the other hand. E.g., Gordon, supra; Hubbard Constr., supra; Atchley, supra; Prats, supra; and Mills, supra. The district court s decision directly conflicts with the nondelegable contract doctrine expressed in Atchley. The district court was only able to expand the non-delegable contractual duty doctrine by bringing into its analysis the control factors which are applicable under an agency analysis, although the court acknowledged that the trial court had imposed liability on Shands as a matter of law by summary judgment. 28 Fla. L. Weekly at D2028. The court even did so selectively, choosing to disregard as not determinative the crucial fact that Shands had an express contract with the perfusionist which specified an independent contractor relationship. 28 Fla. L. Weekly at D2029. While admittedly not alone determinative, an express contractual agreement between the parties has always been considered to be the significant factor in 9

14 determining the legal status of an independent contractor. Keith v. News & Sun Sentinel Co., 667 So. 2d 167, (Fla. 1995). Thus, by utilizing selectivelychosen facts to hold a hospital liable on summary judgment, when none should have been used, or if any then all factors should have been used, the district court s decision departs from well-established Florida precedent and directly conflicts with Villazon, supra; and Chmielewski, supra. 3 For purposes of the Court s jurisdiction, that misapplication of summary judgment principles brings confusion and mischief into the realm of hospital liability, by creating an unheard-of factual overlay on the nondelegable contract duty exception to the non-liability for independent contractors. Florida law prior to the district court s decision in this case was well-established that agency-determinative facts are for juries, and inappropriate for a summary judgment imposing vicarious liability. Villazon, 843 So. 2d at 853; Chmielewski, 573 So. 2d at 879; Vargas, 520 So. 2d at 307; Irving, 415 So. 2d at 56. The First District s use of agency factors to approve a summary judgment against Shands erodes established law, destabilizes precedent, and creates inappropriate financial liability for Florida s hospitals. The district court s decision requires the Court s attention and immediate rectification. 3 The Julianas may suggest that the district court s extensive analysis of agency-related control factor is just dicta. It is not. The district court would not have included extensive factual recitations in its decision unless they were actually considered by the court in evaluating the trial court s ruling with the observation that the court did not grant summary judgment on an undeveloped record. 28 Fla. L. Weekly at D

15 for review. CONCLUSION For the reasons expressed, the district court s decision should be accepted Respectfully submitted, Arthur J. England, Jr., Esq. Florida Bar No Elliot B. Kula, Esq. Florida Bar No Greenberg Traurig, P.A Brickell Avenue Miami, Florida Telephone: (305) Facsimile: (305) Counsel for Shands Teaching Hospital and Clinics, Inc. CERTIFICATE OF SERVICE I certify that a copy of this petitioner s brief on jurisdiction was mailed on September 25, 2003 to: John D. Jopling, Esq. David M. Delaney, Esq. Dell Graham, P.A. 203 N.E. 1st Street Gainesville, Florida Christopher P. Jayson, Esq. Arthur B. Skafidas, Esq. Cohen, Jayson & Foster, P.A. 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida

16 CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared in Times New Roman, 14-point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. \\MIA-SRV01\ENGLANDA\ v12\1dr4x12_.DOC\9/23/03\