IN THE SUPREME COURT STATE OF FLORIDA. v. Case No. SC Lower Court Case No. 1D

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1 IN THE SUPREME COURT STATE OF FLORIDA SHANDS TEACHING HOSPITAL AND CLINICS, INC., Petitioner, v. Case No. SC Lower Court Case No. 1D 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, Respondents. RESPONDENTS BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM A DECISION OF THE FIRST DISTRICT COURT OF APPEAL Christopher P. Jayson, Esq. Barry A. Cohen, Esq. Arthur B. Skafidas, Esq. Cohen, Jayson & Foster, P.A. 201 East Kennedy Boulevard, Suite 1000 Tampa, FL (813) (813) telecopier Counsel for Respondents

2 TABLE OF CONTENTS Page Table of Authorities... ii Statement of the Case and Facts... 1 Summary of the Argument... 3 Argument The First District s decision is factually specific and does not expressly and directly conflict with any decisions of other district courts of appeal or the supreme court on the same question of law... 4 Conclusion Certificate of Service Certificate of Compliance i

3 TABLE OF AUTHORITIES Cases Page(s) Atchley v. First Union Bank of Florida, 576 So. 2d 340 (Fla. 5 th DCA 1991)... 7 Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4 th DCA 1982), review denied, 422 So. 2d 842 (Fla. 1982)... 8 Jaar v. University of Miami, 474 So.2d 239 (Fla. 3 rd DCA 1985), review denied, 484 So.2d 10 (Fla. 1986)... 9 Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987)... 6 St. Vincent s Hospital, Inc. v. Crouch, 292 So. 2d 405 (Fla. 1 st DCA 1974)... 9 Shands Teaching Hospital and Clinic, Inc. v. Juliana, 28 Fla. L. Weekly D (Fla. 1 st DCA August 29, 2003)... passim Rules Rule 9.030(a)(2)(A)(iv), Florida Rules of Appellate Procedure... 4 Miscellaneous Article V, Section 3(b)(3), Florida Constitution... 4 ii

4 Statement of the Case and Facts When Gary Juliana, II was two months old he was admitted to Shands Hospital for open heart surgery. Upon admission, his parents signed a Shands Hospital Certification and Authorization 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. In this Shands' form, they agreed to pay for such hospital services at rates listed in the current Billing Charge Manuals which are available for inspection upon request and incorporated herein by reference. Shands Teaching Hospital and Clinic, Inc. v. Juliana, 28 Fla. L. Weekly D (Fla. 1 st DCA August 29, 2003)(Appendix "A"). Unbeknownst to the Julianas, one of the personnel in the operating room during the open heart surgery was a perfusionist. Id. at D2028. Shands ultimately stipulated that the perfusionist was negligent and that this negligence caused the severe brain damage sustained by Gary Juliana. Id. The issue below was whether or not Shands was liable for the acts of the negligent perfusionist. The pertinent facts in this case were not in dispute: 1. Shands contracted to provide hospital care and medical treatment to Gary Juliana, II; in exchange, the Julianas agreed to pay Shands for all services provided. Id. at D

5 2. Perfusion services plainly fall within the definition of hospital care [and] medical treatment. Id. at D Perfusion was negligently provided at Shands during Gary Juliana s open heart surgery causing severe brain damage. Id. at D Shands selected, scheduled, and retained the perfusionist 1. In addition, Shands owned and maintained the equipment used by the perfusionist in the performance of his work. Id. at D The perfusionist was not selected or retained by the patient, his family, the surgeons, the anesthesiologists, or any other person or entity that played a part in Gary s open heart surgery. Only Shands had any type of contractual relationship with the perfusionist. Id. at D2029, note Shands billed the Julianas $2, for the perfusionist s services and $ for a cell saver as part of the hospital services provided on its bill. Id. at D2028. Shands then paid the perfusionist $ for his services and $ for the cell saver, resulting in a significant profit for Shands. Id. In essence, Shands contracted to provide necessary hospital services, including perfusion service, to Gary Juliana, II. Shands contracted separately with the perfusionist to provide perfusion services using Shands equipment. Shands billed the Julianas, paid the perfusionist, and profited from the transaction. Based on these undisputed facts, the trial court determined that Shands provided perfusion as part of its hospital services, much like nursing care. Id. at D2028. As a result, Shands could not escape liability for the perfusionist s negligent 1 Shands had an exclusive contract with Cardiovascular Perfusionists, Inc., who employed the individual perfusionist. Id. at D

6 actions based on their unilateral decision to retain him as an independent contractor. As noted by the trial court, The fact that the hospital chose to retain the services of the perfusionist as an independent contractor rather than as an employee is immaterial in the relationship between the hospital and the patient. Id. In affirming the trial court, the First District agreed that, Shands agreed to and did furnish Gary hospital services, including the services the perfusionist negligently provided to Gary, and found that, [N]o dispute of material fact exists under the theory of nondelegable duty relied on by the trial court. Id. at D2029. Limiting its decision to the unique facts of this particular case, the First District held, On this record, Shand s vicarious liability for the perfusionist s negligence is clear. Id. (emphasis supplied) Summary of the Argument Shands failure to cite to a single conflicting decision in its Summary of the Argument clearly demonstrates the absence of jurisdiction based on express and direct conflict with any existing Florida case law. (SB 2 4) The First District s decision correctly applies well-established, long-standing legal principles to the unique facts of this case in affirming Shands liability. jurisdiction. 2 Throughout this brief, the abbreviation SB shall be used to refer to Shands brief on 3

7 There is no express and direct conflict of law creating a basis for invoking this Court s discretionary jurisdiction. In the absence of a legitimate basis for invoking this Court s jurisdiction, Shands resorts to aggrandizement of the decision s impact in an attempt to invoke jurisdiction on policy considerations relating to the claimed effects of the decision on hospitals throughout the state. Given the specific and narrow facts giving rise to liability in this case, Shands fears are unfounded. Argument The First District s decision is factually specific and does not expressly and directly conflict with any decisions of other district courts of appeal or the supreme court on the same question of law. The sole basis Shands alleges for invoking this Court s jurisdiction is decisional conflict under Article V, Section 3(b)(3), Florida Constitution, and Rule 9.030(a)(2)(A)(iv), Florida Rules of Appellate Procedure. The First District s decision is clearly factually specific and does not expressly and directly conflict with a decision of another district court or of the supreme court on the same question of law. Shands brief grossly misrepresents the lower court s decision in an attempt to create conflict jurisdiction. The decision of the First District does not, as alleged by Shands: 4

8 1. Declare as a matter of law that Florida hospitals are insurers of every patient admitted to their facilities (SB 1); 2. Effectively eliminate the doctrine of non-liability for independent contractors (SB 1); 3. Declare that the independent contractor doctrine is no longer applicable to Florida hospitals (SB 4); 4. Effectively make Florida hospitals insurers for all on-site services (SB 4); 5. Open the door for economic devastation to be visited upon Florida hospitals (SB 8); 6. Effect a far reaching change in the law (SB 8-9); 7. Erode established law, destabilize precedent, and create inappropriate financial liability for Florida s hospitals. (SB 10). Directly and expressly contrary to Shands argument that the decision is far reaching, the lower court s decision makes it clear that it is factually specific when it closes with the statement, On this record, Shand s vicarious liability for the perfusionist s negligence is clear. Shands Teaching Hospital and Clinic, Inc., v. Juliana, 28 Fla. L. Weekly D2027, D2029 (Fla. 1 st DCA August 29, 2003) (emphasis supplied). The decision does not express, espouse, or embrace any of the sweeping modifications to Florida law alleged by Shands in its brief. The lower court s opinion clearly recognizes and respects the general rule of non-liability for independent contractors by citing Public Health Trust of Dade 5

9 County v. Valcin, 507 So. 2d 596 (Fla. 1987). However, the lower court appropriately distinguishes Valcin factually by noting that patients normally contract separately for physician services, but do not normally contract separately for the services of hospitalbased nurses and technologists. Shands Teaching Hospital and Clinic, Inc., v. Juliana, 28 Fla. L. Weekly at D2029. In this case, both the trial court and the appellate court held that, Shands agreed to and did furnish Gary hospital services, including the services the perfusionist negligently provided to Gary. Id. In this case, the admission document expressly excluded physicians, residents, and medical students as agents or employees of the hospital. Id. at D2028, note 2. Consistent with the facts in Valcin, physicians services were expressly not a service provided by the hospital. To the contrary, perfusionists were not specifically excluded and were in fact provided by the hospital. Factually, Valcin and its progeny are easily distinguishable from this case. Shands attempts to create conflict by alleging the nondelegable duty exception to the independent contractor rule is limited to those situations where the employer has contracted for a specific act. (SB 5) Shands alleges that since the contract in this case did not specifically identify perfusion as a hospital service, it cannot be held responsible for that specific act based on the nondelegable duty doctrine. 6

10 The cases cited by Shands as the alleged basis for conflict jurisdiction do not support their argument. For example, Shands alleges that Atchley v. First Union Bank of Florida, 576 So. 2d 340 (Fla. 5 th DCA 1991), requires a contract for a specific act in order for the doctrine of nondelegable duty to apply. (SB 5) Although Shands alleges in their brief that the bank had expressly and specifically contracted to repair or replace a roof on a house, (SB 5), the Fifth District specifically held that, We thus conclude that the contract language describing the bank s duties to repair and restore the roof and roof structure was unclear and ambiguous. The contract in Atchley did not mandate performance of a specific act as alleged by Shands. The appellate court held that a jury trial was necessary in Atchley to determine the nature and extent of the bank s duties and whether or not the underlying roof repairs were performed negligently. In this case, the fact that Shands provided and billed for perfusion service and the fact that the perfusion service was negligently performed were not in dispute. Shands Teaching Hospital & Clinic, Inc., v. Juliana, 28 Fla. L. Weekly at D2029. Shands brief alleges that since it did not contract specifically to provide perfusion services, it can t be held responsible for the perfusionist. (SB 5) Taken to its logical extreme, Shands would have the Court believe that it cannot be held 7

11 responsible for any acts performed in its hospital unless it unilaterally elects to include the provision of that specific service in its admission document. For example, the admission document prepared by Shands does not specifically require the provision of nursing services. Under Shands argument, Shands cannot be held responsible for the provision of nursing services in its hospital because it did not expressly contract to provide the specific act of nursing services. Since Shands contracts with the nurses to provide a service in its hospital, and since Shands pays the nurses and bills patients for their services, nursing services is clearly a hospital service pursuant to the admission form. Id. at D2028. The lower court s decision is entirely consistent with the cases that hold that when a hospital contracts, either in writing or impliedly, to provide services, it cannot escape liability by delegating performance under a contract to an independent contractor. Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55, 61 (Fla. 4 th DCA 1982), review denied, 422 So. 2d 842 (Fla. 1982). The contractual obligation to provide a service can be express or implied, however, in either scenario the party contracting to provide the service cannot escape responsibility for improper performance of the service by delegating it to an independent contractor. See, also, Jaar v. University of Miami, 474 So.2d 239, 243 (Fla. 3 rd DCA 1985), review denied, 484 So.2d 10 (Fla. 1986)(Employer cannot escape liability by delegating performance 8

12 of its contractual duties to its employees or to an independent contractor.) There is nothing special about hospitals or healthcare providers that renders them immune from the application of the doctrine of nondelegable duty. See, e.g., St. Vincent s Hospital, Inc. v. Crouch, 292 So. 2d 405 (Fla. 1 st DCA 1974) (hospital owes business invitees nondelegable duty to provide safe premises). Shands' brief also contends that the decision misuses agency facts in a summary judgment setting. (SB 6) To the contrary, the lower court s recitation of the facts specific to this case was necessary to explain how the doctrine of nondelegable duty applies under this unique factual scenario. An analysis of the contractual relationships between all of the parties was necessary to show that Shands, not the Julianas or the physicians, selected, retained, and contracted with the perfusionist. Had the Julianas or the physicians contracted directly with the perfusionist for his services, there may have been a different result. The undisputed evidence showed that the only contractual privity the perfusionist enjoyed was with Shands. Id. at D2029, note 7. That the facts of the case may be relevant to an agency determination as well as to a nondelegable duty determination is irrelevant. As noted by the lower court, factual disputes on any other theories such as actual or apparent agency are immaterial to a determination of nondelegable duty. Id. at D

13 In a desperate attempt to create a basis for further appeal, Shands aggrandizes the import and impact of the decision beyond it s express limitations. The lower court s last sentence belies any such notion. The decision is expressly based on this record. Id. at D2029 (emphasis supplied). From the clear and unequivocal language of the decision, the lower court neither attempted to nor succeeded in creating new law. In sum, Shands is crying wolf about opening Pandora s box with respect to this decision s impact on hospital liability in this state. Conclusion The lower court s decision does not expressly and directly conflict with any Florida decisions on the same question of law. There is no basis for this Court to invoke its discretionary jurisdiction to review this case. Respectfully Submitted, Christopher P. Jayson, Esq. Florida Bar No Barry A. Cohen, Esq. Florida Bar No Arthur B. Skafidas, Esq. Florida Bar No: Cohen, Jayson & Foster, P.A. 201 East Kennedy Blvd., Suite1000 Tampa, Florida Phone: (813) Facsimile: (813)

14 Attorneys for Respondents CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to John D. Jopling, and David M. Delaney, Dell Graham, P.A., P. O. Box 850, Gainesville, FL 32602, and Arthur J. England, Jr. & Elliott B. Kula, Greenburg Traurig, P.A., 1221 Brickell Ave., Miami, FL 33131, this day of October, Attorney CERTIFICATE OF COMPLIANCE I hereby certify that this response is prepared in New Times Roman 14 point font in compliance with Rule 9.100(l), Fla. R. Civ. P. Attorney 11

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