This case involves claims against a self-described “personalized healthcare program” for both fraud and negligence related to alleged medical malpractice attributable to one of the program’s affiliated physicians. This purported medical malpractice resulted in serious permanent injury to one of the original plaintiffs. We hold that the trial court made several errors in its consideration of motions for directed verdict made by both parties, and we therefore reverse for a new trial on limited grounds, as set forth below.
MDVIP is in the “concierge medicine market” and provides members with certain medical-care benefits in exchange for an annual fee. In its initial brief, MDVIP explains that a concierge practice gives physicians more time to provide personalized service to patients through greater accessibility and availability and, in exchange for a $1,500 annual membership fee, patients were provided with “a comprehensive annual wellness exam as well as certain convenience factors, including same or next-day appointments, 24/7 access to physicians, smaller physician practices and a personalized wellness plan.” MDVIP does not engage in any actual practice of medicine and does not tell its affiliated physicians how to practice medicine, how to diagnose and treat a patient, what medication to prescribe, or whether to refer a patient to a specialist. At all times relevant to this appeal, a physician named Dr. Metzger was ■ affiliated with MDVIP. Neither Dr. Metzger nor any other physician is a party to the lawsuit at issue here, though he and several other health care providers had been original defendants and were voluntarily dismissed from the suit as a result of pre-trial settlements, leaving MDVIP as the sole defendant at trial.
Original plaintiff Joan Beber (“Plaintiff’)
In a deposition, Plaintiff described three reasons why she chose to join MDVIP: “I think the major reason [for joining MDVIP] was the accessibility of other doctors and other hospitals. That would be number one. [Maintaining a relationship with] Dr. Metzger would be number two, and quick services would be number three, if you want that rated.” Plaintiffs husband also testified that the reason the two joined was because of the offer of “the finest doctors, exceptional doctors.”
The events leading to Plaintiffs injury need not be described at length. To summarize,. she began to experience pain in her leg which, through what the jury determined was Dr. Metzger’s negligence, went undiagnosed and misdiagnosed, until Plaintiff was forced to undergo an above-the-knee amputation. Of particular note, however, are the fact that the main contact Plaintiff had at Dr. Metzger’s office was a nurse, not Dr. Metzger, and the fact that Plaintiff was told that Dr. Metzger did not have admitting privileges at any nearby hospital other than at the then-named Boca Raton Community Hospital.
During trial, MDVIP moved for a directed verdict on the fraud claims, which the trial court denied. On the other hand, the trial court granted Plaintiffs motions for directed verdicts on apparent agency and joint venture. In closing, Plaintiff told the jury that the issues of apparent agency and joint venture “[were] not [] issue[s] for you to determine, it’s already been determined by the Court.” The trial court’s instructions to the jury included telling it that’it was obligated to decide each claim it was considering separate from the others.
•The jury -found in favor of Plaintiff on all claims. It awarded a total of $8,539,289 for mostly non-economic damages: $1,036,288 attributable to the negligence claims and $7,503,001 on the fraud claims. On MDVIP’s motion, the trial court reduced the amount of the-final award based on the non-economic damages caps created by section 766.118, Florida Statutes, which this Court has since determined' are unconstitutional. N. Broward Hosp. Dist. v. Kalitan,
Both parties appealed, with Plaintiffs cross-appeal limited to the Kalitan unconstitutional caps issue.
Analysis
A, MDVIP’s motions for directed verdict on the,fraud claims. ■
This Court reviews motions for directed verdict de novo. Henry v. Hoelke,
MDVIP moved for directed verdicts on Plaintiffs fraud claims, and the trial court denied those motions. As set forth below, we hold that there is no view of the evidence sufficient to sustain a verdict on the fraud claims and thus reverse the trial court’s denial of MDVIP’s motions for directed verdict.
The phrase “misleading advertising” includes any statements made, or disseminated, in oral, written, or printed form .or otherwise, to or before the, public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such- property or services,
Plaintiffs fraud claims were non-actionable to the extent that they depended on MDVIP’s pledge to provide “exceptional doctors, exceptional care, and exceptional results.” However, neither of the fraud claims depended exclusively on this puffery. We therefore must examine the other, fact-based statements made by MDVIP to determine whether any of those were supported by the evidence.
In the complaint, Plaintiff alleged that MDVIP:
• promised Plaintiff “that she would be seen by the finest national specialists with advanced treatment”;
• “held itself out as being associated with the best hospitals and doctors nationwide”;
• claimed to be “a network fraternity of some of the nation’s finest physicians”;
• stated that Plaintiff’s- specialty care would be “actively coordinate[d]” by Dr. Metzger, including through “personal calls to specialists”;
• defined an “exceptional doctor” as one with “excellent credentials[,] bedside manner, reputation[, and] diagnostic skills”;
• represented that it selected, doctors “based upon [the doctors’] medical expertise and their relationships with patients”;
.• stated that it had a relationship with the Cleveland Clinic and the Miller School of Medicine, and;
• cited statistical data showing that MDVIP patients had sixty-five percent fewer hospitalizations than patients in traditional practices.3
Some of these allegations are easily disposed of as puffery alongside the “exceptional doctors, exceptional care, and exceptional results” statement. Those would be the “finest national specialists,” the “best hospitals and doctors,” and the “fraternity of some of the nation’s finest physicians” statements. The status of being the “finest” or the “best” is a matter of opinion, and the allegations of fraud from the use of these terms cannot stand. Similarly, the referenced statements describing what makes ah' “exceptional doctor” are statements of opinion concerning the quality of a doctor’s credentials, bedside manner, reputation, and diagnostic skills.
Once these puffing statements are removed from the analysis, there remain but four allegations of fact that could serve as grounds for the fraud claims: (1) Dr. Metzger would “actively coordinate” Plaintiffs care; .(2) MDVIP’s selection criteria for doctors was based on expertise and patient relationships; (3) MDVIP participated with the Cleveland Clinic and Miller School of Medicine; and (4) data showed a sixty-five percent lower hospitalization
In a fraud claim, there must be evidence of “the [speaker’s] knowledge that the representation is false.” Wadlington v. Cont'l Med. Servs., Inc.,
Although Plaintiff did present evidence that Dr. Metzger did not personally actively coordinate Plaintiffs care during portions of the pertinent timeframe, Plaintiff failed to present evidence that MDVIP knew that Dr. Metzger would not do so. Similarly, Plaintiff failed to present evidence that MDVIP knew that Dr. Metzger did not have a relationship with the Cleveland Clinic and Miller School of Medicine. In fact, MDVIP’s participation agreement with Dr. Metzger stated, in relevant part, that “Physician shall promptly coordinate necessary referrals with specialty physician practices,” and required Dr. Metzger to “be accessible to Members by cellular phone or personal pager 24 hours per day, 7 days per week.” These provisions indicate a desire on MDVIP’s part both for Dr. Metzger himself to do the coordination and for coordination to be available with specialty practices such as those available at the Cleveland Clinic and Miller School of Medicine.
Even assuming that MDVIP did know of Dr. Metzger’s lack of admitting privileges at those hospitals—an assumption for which no supporting evidence was admitted—that would not necessarily show that MDVIP knew its more general statement of its partnerships—perhaps through doctors other than Dr. Metzger—was false. Accordingly, Plaintiff failed to introduce any evidence supporting the conclusion that MDVIP knew the above-noted statements (1) and (3) were false at the time it made the representations.
Next, Plaintiff did not introduce evidence showing that MDVIP knew its statements regarding its physician-selection criteria were false or that Plaintiff relied on these representations. See Wad-lington,
Finally, Plaintiff did not introduce any evidence that showed that MDVIP knew its sixty-five percent statistic was false. There was evidence introduced that called the statistic’s validity into question, but the issue of the statistic being misleading based on methodology is different from the issue of MDVIP’s knowledge of its falsehood. No evidence was introduced that MDVIP believed or should have known that its statistic was a mischarac-terization of the truth.
Although Plaintiff did allege some non-puffery statements which could have grounded the fraud claims, Plaintiff failed to introduce any evidence which would support the necessary conclusion that MDVIP knew its statements were untrue at the time they were made.
B. Plaintiff’s motions for directed verdict on apparent agency and joint venture grounds.
This Court reviews motions for directed verdict de novo. Henry,
Plaintiff moved for, and was granted, directed verdicts on claims of apparent agency and joint venture establishing MDVIP’s vicarious liability for damages directly attributable to Dr. Metzger’s negligence. Under the standard just described, the granting of those motions was only proper if there was no evidence that could have allowed a reasonable jury to conclude that any element of those claims was not met. We hold that, for both issues, such evidence was admitted and therefore that the directed verdicts were improper.
First, we consider the issue of apparent agency. Apparent agency has three elements: “(a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.” Stone v. Palms W. Hosp.,
Here, evidence was introduced that MDVIP mailed a Frequently Asked Questions document to Plaintiff which expressly disclaimed Dr, Metzger being MDVIP’s agent. The document stated, in part, “Your doctor owns the practice, and MDVIP has absolutely no involvement whatsoever in any medical decisions. Our job is simply to remove all obstacles that exist to the delivery of the highest level of care,” On its face, this evidence appears to both invalidate any representation by MDVIP under the first element of apparent agency, and call into question the reasonableness of any reliance on any other representation made.
Plaintiffs attempts to brush aside this disclaimer are unpersuasive. First, although there was no direct evidence that Plaintiff read the document, there was evidence that it was mailed to Plaintiff. Viewing the evidence in the light most favorable to MDVIP, as we must, we hold that the evidence of mailing , was sufficient to create ah inference that the document was read. Second, Plaintiff relies on the “remove all obstacles” sentence from the document, arguing that this case is about the obstacles that’ arose which prevented Plaintiff from receiving adequate care. But MDVIP’s statement in that sentence has nothing to do with its relationship with Dr. Metzger; instead, it is a statement about MDVIP’s responsibilities to Plaintiff; Whether MDVIP lived up to this statement or not is irrelevant to the question of whether MDVIP held out Dr. Metzger as its agent.
We therefore hold that a reasonable jury could have found that at least the first two elements of apparent agency were not met. The document quoted above delineates two separate but related endeavors: Dr. Metz-ger would provide medical care, and MDVIP would .provide support services. The document may have been evidence of a collaboration between Dr. Metzger and MDVIP, but it also disclaims any hierarchical relationship between the two. Because a jury could have found that MDVIP did' not represent itself as Dr. Metzger’s principal or that Plaintiffs reliance on MDVIP’s representations was unreasonable based on this document, we hold that the trial court’s grant of Plaintiffs motion for directed verdict on the issue of apparent agency was error.
The next issue’presented is whether the trial court erred in directing a verdict on the issue of joint venture. Joint venture has five elements, each of which must be established: “1) a community of interest in performance of a common purpose; 2) joint control or right of control; 3) a joint proprietary interest; 4) a right to share in profits; 5) a duty to share in losses.” Arango v. Reyka,
The “joint control” contemplated by the second element exists when a contract specifically allows both parties to control the operations of the venture. For example, in Chase Manhattan Mortgage Corp. v. Scott, Royce, Harris, Bryan, Barra & Jorgensen, P.A.,
Because a reasonable jury viewing the evidence in the light most favorable to MDVIP could have concluded that MDVIP did not have joint control or right of control over Dr. Metzger’s practice, we hold that the trial court erred in granting a directed verdict in favor of Plaintiff on the issue of joint venture.
The final question we are faced with is whether these errors require reversal under the specific facts of this case; Although the jury never considered apparent agency or joint venture (due to the directed verdict on these issues), its verdict did find that Dr. Metzger was MDVIP’s actual agent. Plaintiff urges us to hold that this finding by the jury renders any error in the directed verdicts harmless because MDVIP would be vicariously liable for Dr. Metzger’s malpractice under any of the three theories. Although we find Plaintiffs argument persuasive, it is not compelling enough to meet the heightened standard of Special v. West Boca Medical Center,
“To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” Id. at 1256. Plaintiff attempts to meet this burden primarily by relying on the trial court’s instruction to the jury that it “should consider the evidence as it relates to each claim separately.” However, we find this instruction to be insufficient in this case for two reasons.
First, 4he trial court’s instruction only told the jury that it was to consider the evidence for each claim it was considering separately. The issues of apparent agency and joint venture, however, were not being considered by the jury. It is possible that, even presuming the jury followed the court’s instruction, see Carter v. Brown & Williamson Tobacco Corp.,
Okay. So the defense has alleged that Dr. Lowen—well, actually, before I get there, believe it or not, the agency question is.just one question. It’s already been determined as a matter of lawthat—by the Court that Dr. Metzger was an apparent agent and was engaged in a joint venture business enterprise; MDVIP and Dr. Metzger together. So that’s not an issue for you to determine, it’s already been determined by the Court.
It is possible that a lay jury, having been told that the judge has determined that Dr. Metzger was apparently MDVIP’s agent and that the two were engaged in a joint venture, would have believed that the only rational conclusion to reach on the issue of actual agency was in Plaintiffs favor. When this suggestion is combined with the possible interpretation of the court’s instructions that would allow the jury to consider these directed verdicts, we cannot say that there was no reasonable possibility the erroneously granted directed verdicts affected the outcome of this case.
We also find the case law cited by Plaintiff to be distinguishable on this issue. To start, both cases—Conklin Shows, Inc. v. Clementi,
Because there is a reasonable possibility that the directed verdicts had a spillover effect on the verdict reached by the jury, we cannot say that the error in granting the directed verdicts was harmless. We therefore reverse the final judgment on the issue of MDVIP’s vicarious liability.
Conclusion
Plaintiff entered into a “Membership Agreement” with MDVIP primarily based on this being her only opportunity to continue having Dr. Metzger as her primary care physician. Dr. Metzger had been Plaintiffs primary care physician for five years before affiliating with MDVIP. It was Plaintiffs experience with Dr, Metz-ger, consistent with MDVIP’s motto of “exceptional doctors, exceptional care, and exceptional results,” that led Plaintiff to join MDVIP, and there is no evidence of MDVIP overlooking any “red flags” with respect to Dr. Metzger. As discussed above, the trial court erred in denying MDVIP’s motions for directed verdict on the two counts of fraud. We reverse this denial and remand for entry of directed verdicts in MDVIP’s favor on those counts.
To the extent that MDVIP has challenged the size of the negligence damages award or the jury’s verdict finding that Dr. Metzger himself was negligent, we affirm. We hold that these issues were sufficiently separated from the erroneous holdings described herein and that the trial was not “contaminated” by the joint consideration of the fraud and negligence claims.
On the other hand, the trial court erred in granting Plaintiffs motions for directed verdict on the issues of apparent agency and joint venture. These errors were not harmless. We thus reverse the grants of these motions and remand for a new trial on all three claims of vicarious liability.
Notes
. We affirm, without discussion, the trial court’s denial of Appellant MDVIP’s motion
. Throughout this opinion, "Plaintiff” may refer both to Joan Beber, the patient, and to Robert Beber, her husband and the personal representative of her estate.
. Because we find each of these statements present in the complaint, we need not address the parties’ arguments related to whether these issues were tried by consent.
. We have considered Plaintiff’s argument that some of the statements of opinion were actually statements of fact based on MDVIP’s superior knowledge. See Thor Bear,
. Representing that a medical concierge program values physician competence/“excellence” is not necessarily a misrepresentation even though the principle criteria for the program’s physician selection is a "book” of patients and patient attachment to the physician. McDonald’s and Subway are among the U.S. restaurants with the most customers and sales, which indicates customer attachment and, at least arguably, that aspects of the dining experience are “excellent,” notwithstanding a dearth of Michelin stars.
. This holding negates any need for us to examine the effects of the integration clause in the agreement' between Plaintiff and MDVIP.