The Week in Torts – Cases from the Week of September 2, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 35

CASES FROM THE WEEK OF SEPTEMBER 2, 2016

COURT UPHOLDS SUMMARY JUDGMENT IN WRONGFUL DEATH MEDICAL MALPRACTICE CASE FINDING NO GENUINE ISSUES OF MATERIAL FACT ON APPARENT AGENCY, AND NO NONDELEGABLE DUTY OWED.

Godwin v. University of South Florida, 41 Fla. L. Weekly D1949 (Fla. 2^nd DCA August 24, 2016):

The decedent presented to Tampa General Hospital’s (“TGH”) emergency room with severe abdominal pain, nausea and decreased appetite. She signed a Certification and Authorization form, as well as a Special Notice form, as required by section 1012.965. Nine days later she had surgery to remove a tumor in her colon (she was diagnosed with colon cancer). Sadly, she died on the operating table.

The decedent’s husband sued TGH for medical malpractice. He argued that the doctors who were responsible for his wife’s care were agents of TGH, and that TGH had a nondelegable duty to provide her with nonnegligent surgical procedures. He further alleged that TGH failed to satisfy the requirements of section 1012.965.

The hospital responded that the doctors who cared for the decedent were independent contractors employed by the university, and that the hospital properly delegated any duty of care and potential for liability to USF.

The decedent did sign the Consent and Disclosure form pursuant to the statute, which explicitly acknowledged that its physicians were employed and under the control of USF and not TGH. Section 1012.965 limits a hospital’s exposure to liability for the allegedly negligent conduct of physicians in a university setting. Because the hospital did provide the decedent with separate written conspicuous notice advising her that the physicians work for the university, the court found defendant complied with the statute and that summary judgment was proper on that issue.

The evidence also demonstrated that the decedent had received three separate notices informing her of the relationship between the hospital and the USF physicians, and that the hospital did not hold the doctors out as its employees or agents. The court found no factual disputes as to the nature of the relationship, and said there were no issues of fact about whether the physicians were employed by USF, paid by USF and assigned by USF, and that it was all clear to the plaintiff without creating a genuine issue of fact. Thus, there was no question of fact on apparent agency.

As to the nondelegable duty argument, this was not an emergency room setting, because the decedent had gone back nine days later for surgery. Also, section 1012.965 allows hospitals to delegate the duty of performance to the university of physicians pursuant to special notice. The special notice under section 1012.965 allows a hospital that partners with a university to be exempt from liability if the university can be held liable for the actions of its employees or agents and the notice requirements are met. Thus, there was no issue of fact of a nondelegable duty there either.

Finally, the plaintiff argued that the regulations promulgated under the Medicare Act, C.F.R. § 482.12 imposed a nondelegable duty to provide nonnegligent care. The court observed that no other court has ever read the regulation so broadly or reached that conclusion. It declined the invitation to be the first.

While section 482 identifies the conditions of participation for hospitals in the Medicare program, the section was intended to specify the standards that the government will assess when determining whether or not a hospital will continue to be eligible to treat Medicare patients.

The rule does not create liability for the hospital due to the negligence of an independent contractor. Instead, the rule, as well as the discussion in response to public comments, explains that the services that a contractor furnishes to a hospital will be part of the quality assurance evaluation for the hospital’s continued participation in Medicare. 

The Second District upheld summary judgment in favor of the hospital.

ERROR TO DENY MOTION TO QUASH SUBSTITUTE SERVICE WHERE PLAINTIFF DID NOT AMEND COMPLAINT TO ALLEGE SUBSTITUTE SERVICE, FAILING TO COMMUNICATE SUBSTITUTED SERVICE BEYOND FILING THE RETURN.

Jupiter House, LLC v. Deutsche Bank National Trust, 41 Fla. L. Weekly D1979 (Fla. 4^th DCA August 24, 2016):

Section 48.062(1) provides that process against an LLC may be obtained by serving its registered agent. However, after reasonable diligence, if service of process cannot be completed, it may be effected by serving the Secretary of State of the limited liability company.

However, pursuant to section 48.161, the general substitute service statute applicable to non-residents or those concealing their whereabouts, a plaintiff must send notice of service by registered or certified mail to the defendant, file the defendant’s return of service receipt, and file an affidavit of compliance. Here, the plaintiff failed to file the affidavit.

Strict adherence to substituted service statutes is required under the law. In this case, the plaintiff also failed to amend its complaint to allege the requisite allegations to support the substituted service. Its failure to comply resulted in a finding of insufficient service.