85 So. 3d 502
Fla. Dist. Ct. App.2012Background
- Ferguson died the day after back surgery at North Ridge Medical Center in December 2000 from a cardiac arrhythmia.
- Newbold-Ferguson filed a wrongful death suit against the hospital and its employees alleging negligence.
- The trial court granted summary judgment for the hospital and denied leave to file a third amended complaint; on appeal, this was reversed and remanded.
- The plaintiff filed a Third Amended Complaint naming emergency room Dr. Friedman as a negligent agent and asserted vicarious liability and a non-delegable duty to supervise.
- The trial court granted partial summary judgment that Friedman was not an agent, dismissed the non-delegable duty allegations, and ultimately allowed only a redacted Third Amended Complaint, leading to a trial where evidence of Dr. Friedman’s deviation was excluded and the hospital prevailed.
- On appeal, the court held the plaintiff could plead a non-delegable duty to provide competent emergency care under an implied contract theory and remanded for proper pleading of the duty source.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff may plead a non-delegable duty to provide competent emergency care against the hospital. | Newbold-Ferguson should be able to plead a non-delegable duty under implied contract. | The non-delegable duty theory was disposed of on summary judgment and Dr. Friedman was not an agent. | Yes, remanded to allow proper pleading of the non-delegable duty. |
| Whether the proposed amendments adequately state a non-delegable duty claim against the hospital. | Amendments toll the implied contract theory for competent emergency services. | No viable non-delegable duty theory remained after summary judgment. | Remand allowed for proper pleading of the non-delegable duty source. |
| What source of non-delegable duty may support liability for emergency care. | Non-delegable duty may arise from implied contract, express contract, statute, or regulation. | Such duty must be properly pleaded and supported by the sources cited. | The court permits pleading that the hospital had a non-delegable duty to provide competent emergency care, with identified source. |
Key Cases Cited
- Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 863 So.2d 343 (Fla. 1st DCA 2003) (hospital may be liable for physicians who are its actual or apparent agents)
- Insinga v. LaBella, 543 So.2d 209 (Fla. 1989) (duty to exercise due care in selecting/retaining independent contractors)
- Pope v. Winter Park Healthcare Group, Ltd., 939 So.2d 185 (Fla. 5th DCA 2006) (non-delegable duty may arise from statute, regulation, or contract)
- Wax v. Tenet Health Sys. Hosps., Inc., 955 So.2d 1 (Fla. 4th DCA 2006) (non-delegable duty to provide competent anesthesia services based on contract and statute)
- Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982) (non-delegable duty to provide competent emergency care)
- Tarpon Springs Hosp. Found., Inc. v. Reth, 40 So.3d 823 (Fla. 2d DCA 2010) (conflicting view on non-delegable anesthesia duty under statute)
- Kristensen-Kepler v. Cooney, 39 So.3d 518 (Fla. 4th DCA 2010) (rejects broad extension of non-delegable duty to elective procedures)
- Roessler v. Novak, 858 So.2d 1158 (Fla. 2d DCA 2003) (agency-related liability framework for physicians)
- Ball v. D’Lites Enters., Inc., 65 So.3d 637 (Fla. 4th DCA 2011) (general rule on pleading actionability; appellate standard)