Plaintiff Staria Newbold-Ferguson appeals a final judgment entered upon a defense verdict for the North Ridge Medical Center in her suit against the hospital for the wrongful death of her husband. Because the plaintiff had the ability to state a legally viable non-delegable duty claim against the hospital, based on the emergency room doctor’s alleged negligence, we reverse.
By way of background, in December 2000 Ivan Ferguson underwent back surgery at AMISUB d/b/a North Ridge Medical Center (“the hospital”) and died the following day from a cardiac arrhythmia. Subsequently, plaintiff brought a wrongful death suit against the hospital for its direct negligence and negligence of the hospital’s employees and agents, alleging that they failed to meet the prevailing standard of care.
The trial court granted summary judgment for the hospital and denied the plaintiff’s motion for leave to file a Third Amended Complaint. On appeal, we reversed the final summary judgment, holding that genuine issues of material fact remained as to the plaintiffs claim of nursing negligence. See Newbold-Ferguson v. Amisub,
After remand, the plaintiff filed a Third Amended Complaint specifically naming emergency room physician, Dr. Friedman, as one of the negligent agents for whom the hospital was vicariously liable. In Count I, the plaintiff alleged that the hospital was vicariously liable as the respondeat superior of its nurses, agents, servants and employees, including Dr. Friedman, an emergency room physician.
The hospital filed a motion for partial summary judgment, challenging the hospital’s liability for Dr. Friedman, an independent contractor with the hospital. Following a hearing, the trial court granted the defense motion for partial summary judgment on the ground that Dr. Friedman was not an actual or apparent agent of the hospital.
The plaintiff filed a Fourth Amended Complaint, but the hospital again moved to dismiss, as the complaint still contained allegations that Dr. Friedman was the hospital’s agent and did not contain any new non-delegable duty theories. The trial court granted the motion, dismissing all allegations regarding the negligence of Dr. Friedman as attributable to the hospital. The trial court ultimately ruled that the plaintiff could travel on the Third Amended Complaint and that the Third Amended Complaint would be redacted of any reference to Dr. Friedman.
The case proceeded to trial, where the plaintiff was precluded from introducing evidence that Dr. Friedman’s response to the code deviated from the standard of care. At the conclusion of the trial, the jury returned a verdict in favor of the hospital. The plaintiff filed a motion for new trial, in which the plaintiff challenged the propriety of certain comments made by defense counsel during closing argument. There was no contemporaneous objection, however, to defense counsel’s comments.
On appeal, the plaintiff argues that the trial court erred in denying her efforts to amend the complaint in order to assert a non-delegable duty claim against the hospital based on Dr. Friedman’s alleged negligence. The hospital responds that the trial court did allow the plaintiff to file a Third Amended Complaint identifying Dr. Friedman as one of the allegedly negligent doctors, but the agency theory was disposed of on summary judgment and the non-delegable duty claim was properly dismissed for failure to state a cause of action.
The issue presented in this case boils down to whether the plaintiffs proposed amendments to her complaint regarding the non-delegable duty stated a cause of action against the hospital. The issue of whether a complaint states a cause of action is an issue of law, reviewed de novo. See Ball v. D’Lites Enters., Inc.,
The general rule is that a hospital is not liable for the negligent acts of a physician who is not its employee, but an independent contractor. See Shands Teaching Hosp. & Clinic, Inc. v. Juliana,
First, a hospital may be liable for the actions of a physician where the physician is either an actual or apparent agent of the hospital. See Roessler v. Novak,
Third, the rule of a hospital’s non-liability for acts of an independent contractor fails where the duty is non-delegable. See Pope v. Winter Park Healthcare Group, Ltd.,
In Irving v. Doctors Hospital of Lake Worth, Inc.,
Irving establishes that a hospital which provides emergency room services has a non-delegable duty to provide competent emergency treatment based upon an implied contract. It is therefore clear that the plaintiff could have pleaded a claim against the hospital for the emergency room doctor’s negligence on a non-dele-gable duty theory. The imposition of a non-delegable 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. Cf. Kristensen-Kepler v. Cooney,
In this case, however, the question becomes whether the plaintiffs proposed amendments to the complaint should have been permitted. Contrary to the trial court’s ruling, the plaintiff was not limited to pleading a “duty to diligently determine that competent physicians are afforded house privileges or staff privileges.” We think the plaintiffs allegation that the hospital had a non-delegable “duty to supervise” Dr. Friedman can be fairly interpreted as falling under the category of a non-delegable duty to provide competent emergency services, at least under a theory of implied contract, see Irving,
Therefore, on remand, and for guidance in future cases, we instruct that the plaintiff should amend the complaint to clearly
Reversed and Remanded for further proceedings.
Notes
. The plaintiff also alleged that the hospital was responsible for the negligence of several other physicians, but those allegations are not relevant to this appeal.
. The plaintiff has not challenged this ruling on appeal.
. Because we are reversing on the first point on appeal, we need not reach the issue of whether defense counsel's closing argument amounted to fundamental error under Murphy v. International Robotic Systems, Inc.,
. In fact, in Kristensen-Kepler, we referred to the non-delegable duty to provide competent care as a "non-delegable duty to supervise the physician-”