ARTHUR LEE GODWIN, as Personal Representative of the Estate of Annie Godwin, Appellant, v. UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES; DAVID SHAPIRO, M.D.; JAIME SANCHEZ, M.D.; FLORIDA HEALTH SCIENCE CENTER, INC. d/b/a TAMPA GENERAL HOSPITAL, Appellees.
Case No. 2D14-2588 2D14-2962 CONSOLIDATED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
Opinion filed August 24, 2016.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens; and Maria P. Sperando of the Law Office of Maria P. Sperando, P.A., Stuart, for Appellant.
David C. Borucke, Paula J. Lozano, and Robert J. Murphy of Cole Scott & Kissane, P.A., Tampa, for Appellee Tampa General Hospital.
No appearance for remaining Appellees.
Arthur Lee Godwin, the personal representative of the Estate of Annie Godwin, filed this consolidated appeal of a final summary judgment entered in favor of Tampa General Hospital (“TGH“), in case 2D14-2588, and a nonfinal order entered after final judgment denying Mr. Godwin‘s motion for partial summary judgment as to his breаch of a nondelegable duty cause of action, in case 2D14-2962. We have jurisdiction in case 2D14-2588, see
Background
At the end of September 2009, Mrs. Godwin suffered from a severe stomach ache, nausea, and decreased appetite. She went to the TGH emergency room on October 12, 2009. She was later admitted as a patient. Mrs. Godwin signed a Certification and Authorization form, as well as a Special Notice form.
She was diagnosed with colon cancer. On October 21, 2009, Dr. Jaime Sanchez and Dr. David Shapiro operated to remove the tumor. The day before surgery, Dr. Sanchez met with Mrs. Godwin to discuss the procedure. At that time, Mrs. Godwin signed another form, the Consent & Disclosure for Medical and/or Surgical Procedures. Unfortunately, the surgery did not go well. Mrs. Godwin sustained a tear to the wаll of
Mr. Godwin sued the University of South Florida Board of Trustees (“USF“), Dr. Shapiro, Dr. Sanchez, and TGH for medical malpractice.3 Mr. Godwin argues to us that the physicians responsible for Mrs. Godwin‘s care were agents of TGH. He also asserts that TGH had a nondelegable duty to provide Mrs. Godwin with nonnegligent surgical procedures and that TGH failеd to satisfy the requirements of
Signed Documents
When she went to the TGH emergency room, Mrs. Godwin signed the Special Notice form and the Certification and Authorization form. About one week later, on the eve of her surgery, she met with Dr. Sanchez and signed the Consent and Disclosure form.
The Special Notice states as follows:
I acknowledge that I have been given this separate written conspicuous notice by the University of South
Florida/University of South Florida Board of Trustees, a body corporate of the State of Florida (“USF“) and Tampа General Hospital (“TGH“) that some or all of the care and treatment I receive will or may be provided by physicians who are employees and agents of the USF, and liability, if any, that may arise from that care is limited as provided by law. I acknowledge that such physicians who are employees and agents of USF are under control of USF, not TGH, when they render care and treatmеnt at TGH pursuant to the affiliation agreement between USF and TGH, and such USF physicians are not the employees or agents of TGH. I hereby certify that I am the patient or a person who is authorized to give consent for the patient.
(Emphasis added.)
The Certification and Authorization form explicitly states that
Medical Staff Physicians including, but not limited to, the Emergency Physicians, Physicians Assistants and Advanced Registered Nurse Practitioners, practicing in the Emergency and Trauma centers, Anesthesiologists, Nurse Anesthetists, Radiologists and Pathologist ARE NOT AGENTS OR EMPLOYEES OF TAMPA GENERAL HOSPITAL. They are independent medical practitioners exercising independent medical judgements [sic] at facilities provided by the hospital.
Finally, the Consent and Disclosure form repeated that the “physician, surgeon and his or her associates, physicians-in-trаining and their technical assistants are not hospital employees.”
Relationship between USF and TGH
An affiliation agreement governs the relationship between TGH and USF. The agreement makes TGH the primary teaching hospital for USF‘s College of Medicine. Pursuant to the agreement, “employees or agents of [USF] assigned by [USF] to perform duties at [TGH] . . . shall not be deemed an employee or agent of [TGH] for any reаson.” USF selects and hires its own employees for assignment to
The USF Physicians
Dr. Shapiro was a clinical professor of surgery at USF with surgical privileges at TGH. Dr. Shapiro was on call at TGH‘s trauma division when Mrs. Godwin was admitted to the hospital. He testified that he usually wore a USF lab coat with a USF emblem. He also wоre a name tag issued by TGH that identified him as a member of the division of surgery. Our record does not indicate that Dr. Shapiro made any representations to Mrs. Godwin concerning his status with either USF or TGH. Dr. Shapiro performed surgery in other hospitals. He retired in late 2010.
An employee of USF, Dr. Sanchez was a senior resident at TGH but rotated among several hospitals. Dr. Sanchez wore a USF lab coаt, a USF badge, and a TGH security badge. When he met Mrs. Godwin, Dr. Sanchez advised her that he was a USF surgical resident.
Neither Dr. Shapiro nor Dr. Sanchez maintained an office at TGH. USF paid their salaries and benefits. The only employment contract these physicians had was with USF. Our record contains no evidence suggesting that either physician told Mrs. Godwin that TGH employed them.
Analysis
Mr. Godwin argues that the trial court еrred in granting summary judgment to TGH on his theory that Dr. Shapiro and Dr. Sanchez were apparent agents of TGH. He asserts further that the Special Notice Mrs. Godwin signed did not comply with
A. Standard of Review
We review a summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
B. Compliance with section 1012.965
[A]n employee or agent under the right of control of a university board of trustees who, pursuant to the university board‘s policies or rules, renders medical care or treatment at any hospital . . . with which the university board maintains an affiliation agreement whereby the hospital . . . provides to the university board a clinical setting for health care education, research, and services, shall not be deemed to be an agent of any person other than the university board in any civil action resulting from any act or omission of the employee or agent while rendering said medical care or treatment.
For TGH to enjoy this protection, the statute requires that
the patient shall be provided separate written conspicuous notice by the university board of trustees or by the hospital or health care facility, and shall acknowledge receipt of this notice, in writing, unless impractical by reason of an emergency, either personally or through another person authorized to give consent for him or her, that he or she will receive care provided by university board‘s employees and liability, if any, that may arise from that care is limited as provided by law.
Mr. Godwin relies on Rayburn v. Orange Park Medical Center, Inc., 842 So. 2d 985, 988 (Fla. 1st DCA 2003), to argue that the Special Notice did not comply
We must conclude that the Special Notice complied with
C. Apparent Agency
Mr. Godwin asserts that TGH held Dr. Shapiro and Dr. Sаnchez out as hospital employees or agents. Accordingly, he claims, TGH is liable under an apparent agency theory.
Generally “a hospital is not liable for the negligent acts of a physician who is not its employee, but an independent contractor.” Newbold-Ferguson v. AMISUB (North Ridge Hosp.), Inc., 85 So. 3d 502, 504 (Fla. 4th DCA 2012); see also Emelwon, Inc. v. United States, 391 F.2d 9, 11 (5th Cir. 1968) (holding that one who employs an
In Irving, the jury had to decide whether an emergency room physician was an employee or an independent contractor of the hospital. Id. at 56. The trial court refused to instruct the jury on estoppel. Id. at 57. The Fourth District held that “reversible error was committed when the trial court instructed the jury regarding the nonliability of an independent contractor without including the inculpatory exceptions to that rule that had been requested by Irving.” Id. at 56. Unlike our case, the patient in Irving had no notice of the relationship between the hospital and the physician. Id. And, the evidence at trial raised significant issues about the extent of control the hospital exercised over the emergency room physician. Id. Here, Mrs. Godwin received three
It is helpful to recall that Mrs. Godwin presented initially to the emergency room on October 12, 2009. Her surgery was about a week later. Up to her surgery, she was alert. Indeed, the day before her surgery, Mrs. Godwin signed the Consent and Disclosure form reflecting that the upcoming surgery would not be performed by TGH personnel. See Newbold-Ferguson, 85 So. 3d at 505 (“[T]he imposition of a nondelegable duty to provide competent emergency room services makes sense, because a patient in an emergency room generally has little, if any, control over who will be the treating physician.“). Thus, for a third time since coming to TGH, Mrs. Godwin received notice that those providing her care, specifically, the surgeons, were USF employees.
The trial court properly granted summary judgment for TGH on Mr. Godwin‘s apparent agency cause of action. No disputed material facts undermine the trial court‘s conclusion that the physicians were not TGH employees or agents. In addition to the affiliation agreement and the three forms signed by Mrs. Godwin, we are mindful that USF controlled its physicians. As the First District observed in DeRosa v. Shands Teaching Hospital & Clinics, Inc., 504 So. 2d 1313, 1315 (Fla. 1st DCA 1987), “[f]actors considered to determine the existence of an emрloyer and employee relationship included the selection and engagement of the employee, the payment of
D. Nondelegable Duty Pursuant to Contract
Mr. Gоdwin stresses that TGH had a contractual nondelegable duty to provide nonnegligent surgical care to Mrs. Godwin. He relies on Irving, 415 So. 2d at 60-61, for the proposition that a hospital who hires an independent contractor to perform services that it has undertaken to perform is liable for the independent contractor‘s negligence. However, as noted earlier, Irving involved an emergency room setting. Id. at 56. Moreover, therе was no indication to the patient that the emergency room physician, and not the hospital, bore the duty of care. Id. at 61.
Nevertheless, Mr. Godwin asserts that although a party can delegate performance of the nondelegable duty to an independent contractor, liability remains with the party who bore the duty, that is, TGH. See U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 270 (Fla. 3d DCA 1995) (“[A] landowner may contract out the performanсe of his nondelegable duty to an independent contractor, but he cannot contract out of his ultimate legal responsibility for the proper performance of his duty by the independent contractor . . . .“). As we have already seen, as a matter of statute,
I authorize Winter Park Memorial Hospital (WPMH) to furnish the necessary medical or surgical treatments, or procedures, including diagnostic, x-ray, and laboratory procedures, anesthesia, hospital services, drugs and supplies as may be ordered by the attending physician(s), his assistants or his designees . . . . This consent form plainly puts the reader on notice that physicians practicing at Winter Park Hospital are independent contractors, not agents or employees. The form also authorizes Winter Park Hospital to delegate to such physicians the services physicians normally provide.
Id. at 190. Winter Park agreed to furnish “the necessary medical or surgical treatments.” Id. at 191. Because of an ambiguity in the admission contract, the appellate court remandеd the case to the trial court to decide “the scope of the express contractual undertaking which may have given rise to a duty to provide nonnegligent neonatal care to [the] baby.” Id. at 187. Unlike the forms in Winter Park, the forms that Mrs. Godwin received and signed contained no express undertaking by TGH to render the medical care that the USF physicians ultimately provided.
E. Nondelegable Statutory Duty Under the Medicare Act Regulations
Finally, Mr. Godwin argues that a statutory duty imposed by Medicare cannot be delegated to an independent contractor. More specifically, Mr. Godwin asserts that the regulations promulgated under the Medicare Act require hospitals that participate in the Medicare program to maintain a nondelegable duty to provide nonnegligent care. See
Section 482 identifies the conditions of participation for hospitals in the Medicare program.
The Department of Health and Human Services clarified that
The rule does not create liability for the hospital due to the negligence of any independent contractor. Instead, the rule and the discussion and responses to public comments explain 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 the Medicare program. The rule does not purport to diminish or preempt state laws dealing with the traditional common law theories of principal/agent and independent contractors. See La. Pub. Serv. Comm‘n v. F.C.C., 476 U.S. 355, 368 (1986) (“Pre-
Mr. Godwin‘s call for the imposition of strict liability on TGH for its hospital employees, agents, or independent contractors finds no support in the language of the Medicare statute or related regulations.
Conclusion
Affirmed.
BADALAMENTI, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.