University of Miami d/b/a University of Miami School of Medicine, Petitioner, vs. Michael A. Ruiz, by and through his Parents and Legal Guardians, and Juanita Ruiz and Miguel Angel Ruiz, individually, Respondents.
No. 3D14-2122
Lower Tribunal No. 00-17596
Third District Court of Appeal State of Florida
Opinion filed May 27, 2015.
Before SUAREZ, ROTHENBERG, and LOGUE, J. ROTHENBERG, J.
On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade County, Jerald Bagley, Judge.
Lincoln J. Connolly, for respondents.
On Motion for Clarification and Certification to the Florida Supreme Court
We deny the University of Miami‘s motion for certification to the Florida Supreme Court, but we grant the University of Miami‘s motion for clarification, withdraw our opinion issued February 11, 2015, and substitutе the following in its stead.
The University of Miami, doing business as The University of Miami School of Medicine (“UM“), petitions this Court for certiorari relief from the trial court‘s order denying its motion for summary judgment on the plaintiffs’ claims for medical malpractice based on UM‘s contention that it is entitled to immunity from suit under Florida‘s Birth-Related Neurological Injury Act,
FACTUAL AND PROCEDURAL BACKGROUND
Michael A. Ruiz (“Michael“) was born on August 14, 1998, at Jackson North Maternity
Michael‘s parents, Miguel and Juanita Ruiz, filed a complaint on behalf of Michael and also on their own behalf (collectively, “the plaintiffs“) against UM and the PHT for medical malpractice, alleging that Michael‘s injuries are a result of negligent medical care provided during the labor and delivery. The plaintiffs asserted that UM and the PHT were directly negligent and also pleaded various theories of vicarious liability based on the actions of their employеes, Drs. Norris and Barker.1 The plaintiffs have not asserted any causes of action against the doctors themselves.
After the plaintiffs filed suit, the case was abated to allow an administrative law judge (“ALJ“) to determine whether the injury was compensable under NICA. The plaintiffs filed a claim with the Division of Administrative Hearings (“DOAH“) to receive compensation from the Florida Birth-Related Neurological Injury Association (“the Association“), which was established to provide no-fault compensation to claimants meeting the statutory requirements of NICA. Sеe
UM timely appealed the ALJ‘s finding thаt its doctors had not given the required notice of NICA participation. This Court, however, affirmed the ALJ‘s order. Univ. of Miami v. Ruiz, 916 So. 2d 865 (Fla. 3d DCA 2005). That appeal essentially ended the administrative portion of the proceedings and cemented the plaintiffs’ ability to receive NICA benefits from the Association. However, the plaintiffs have neither accepted nor declined the award to this date, opting instead to hold in abeyance their decision whether to accept NICA benefits as their exclusive remedy while pursuing their civil suit against UM.
In April 2011, UM filed a motion for summary final judgment claiming immunity from suit under
ANALYSIS
This certiorari petition presents a narrow legal issue. We must determine if and when an entity that is neither a hospital nor a physician participating in the NICA plan may invoke NICA‘s immunity from suit when its employees are participating doctors who have waived their personal NICA immunity by failing to comply with NICA‘s Notice Provision. We hold that NICA immunity applies to such entities when the allegations of the complaint indicate that they were “directly involved” in the medical care provided during or immediately after labor and delivery, but that NICA immunity does not apply when the allegations are based on such entities’ vicarious liability for the medical malpractice of their employees when those employees have failed to comply with NICA‘s Notice Provision. Because the plaintiffs have alleged both direct liability against UM and vicarious liability based on the actions of Drs. Norris and Barker, we grant UM‘s petition in part and deny UM‘s petition in part.3
I. Jurisdictional Standard for Certiorari Relief
Because this issue is before us on UM‘s petition for certiorari, UM must establish that the trial court‘s order denying summary judgment deрarted from the essential requirements of the law in a way that will cause irreparable harm in order to obtain relief. Citizens Prop. Ins. Corp. v. San Perdido Ass‘n, 104 So. 3d 344, 351 (Fla. 2012). As a jurisdictional threshold, we must first address whether the trial court‘s denial of UM‘s motion for summary judgment based on its asserted immunity under NICA‘s Immunity Provision, if error, is the type of error that would cause irreparable harm to UM not subject to redress on plenary appeal. Id.
A party typically cannot invoke an appellate court‘s certiorari jurisdiction based on the denial of a motion tо dismiss or a motion for summary judgment because such orders can generally be remedied by a final appeal. See San Perdido, 104 So. 3d at 351-52. However, when the motion for summary judgment hinges on the application of a complete statutory immunity from suit—in contrast to mere immunity from liability—requiring a party entitled to that immunity to continue litigating the suit constitutes irreparable harm in and of itself. See id. at 351-55 (explaining the distinctions between immunity from liability and immunity from suit).
Every court that has addressed this issue has construed NICA‘s Immunity Provision to grant immunity from suit, not immunity from liability. Pediatrix Med. Grp. of Fla., Inc. v. Falconer, 31 So. 3d 310, 311 (Fla. 4th DCA 2010); Orlando Reg‘l Healthcare Sys., Inc. v. Alexander, 932 So. 2d 598, 600 (Fla. 5th DCA 2006). We therefore have certiorari jurisdiction over this case. We also hold that the trial court departed from the essential requirements of the law by denying UM‘s claim of immunity from suit on the direct liability portion of the plaintiffs’ medical malpractice claim, but that it did not err in denying the same to the plaintiffs’ claims based on vicarious liability through respondeat superior.
II. An Overview of NICA and Controlling Law
In determining whether the trial court departed from the essential requirements of the law by denying UM‘s claim for NICA immunity, we have carefully examined NICA, the case law interpreting NICA‘s provisions, and the common law doctrines of vicarious liability and respondeat superior.
A. NICA‘s Immunity Provision
NICA was passed and the Association was created “to provide a no-fault alternative remedy for a ‘limited class of catastrophic [birth-related neurological] injuries that result in unusually high costs for custodial care and rehabilitation.‘” Ruiz, 916 So. 2d at 868 (alteration in original) (quoting
B. NICA‘s Notice Provision
NICA‘s Notice Provision requires participating physicians and hospitals with
766.316. Notice to obstetrical patients of participation in the plan
Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient‘s rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patiеnt has an emergency medical condition as defined in s. 395.002(8)(b) or when notice is not practicable.
Although NICA‘s Notice Provision makes no reference to NICA‘s Immunity Provision or discusses waiver of immunity in the statute itself, it is now well-established Florida law that a party who is required to give notice under NICA‘s Notice Provision and fails to do so waives its right to assert the exclusivity of remedies defense provided in NICA‘s Immunity Provision. Galen of Fla., Inc. v. Braniff, 696 So. 2d 308, 309-10 (Fla. 1997). Further, due to the inclusion of the conjunctive word “and” in
The Florida Supreme Court also held in NICA v. DOAH that the waiver of immunity for failure to comply with NICA‘s Notice Provision is severable as to each entity required to give notice:
[W]e hold that [NICA‘s] notice provision is severable with regard to defendant liability. Consequently, under our holding today, if either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimant can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA.
Id. at 999 (footnote omitted).
Thus, when there is compliance with NICA‘s Notice Provision by some but not all of the NICA participants, the claimant is faced with the choice of accepting the NICA benefits to the exclusion of any and all civil remedies he or she may have against any entities directly involved in the delivery, or the claimant can eschew the NICA benefits and take his or her chances in a civil suit against the party or parties who have waived NICA immunity by failing to comply with the NICA Notice Provision.
C. The Doctrines of Vicarious Liability and Respondeat Superior
The common law doctrine of respondeat superior provides that an employer may be held liable for the actions of its employee if the employee was acting within the scope of his employment when he committed the tortious act. Mercury Motors Exp., Inc. v. Smith, 393 So. 2d 545, 549 (Fla. 1981). The historical underpinnings of the doctrine of respondeat superior are to hold the master responsible for the acts of his servant because the master alone is able to direct the servant:
The basis for the common-law liability of the master or principal for the conduct of the servant or agent is stated in the Latin maxim, “qui facit per alium, facit per se“—“he who acts through another, acts through himself.” This liability of the master оr principal is sometimes referred to as transferred, vicarious, derivative or imputed liability. Where the relationship of master-servant or principal-agent exists, the doctrine is referred to as “respondeat superior.”
1 Modern Tort Law: Liability and Litigation § 7:2 (2d ed.) (footnotes omitted).
The doctrine of respondeat superior is well recognized in Florida law, and our Supreme Court has held:
An employer is vicariously liable for compensatory damages resulting from the negligent acts of employees committed within the scope of their employment even if the employer is without fault. This is based upon the long-recognized public policy that victims injured by the negligence of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer.
Mercury Motors, 393 So. 2d at 549. In such cases, the employer essentially stands in the shoes of the negligent employee for whom it is responsible. See Am. Home Assurance Co. v. Nat‘l R.R. Passenger Corp., 908 So. 2d 459, 467-68 (Fla. 2005) (“The vicariously liable party is liable only for the amount of liability apportioned to the tortfeasor.“); Williams v. Hines, 86 So. 695, 697-98 (Fla. 1920) (“[T]he employer is liable [for the negligent acts of an employee], not as if the act was done by himself, but because of the doctrine of respondeat superior—the rule of law which holds the master responsible for the negligent act of his servant, committed
As well-established common law doctrines, vicarious liability and respondeat superior apply to negligence claims for medical malpractice, even those stemming from NICA-compensable injuries, unless NICA “unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist.” Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 918 (Fla. 1990). There is no such provision in NICA, nor has any case interpreting NICA determined that vicarious liability should not apply.
Thus, assuming that any negligent acts occurred within the scope of the employment, an employer will be held liable for the negligence of its employees to the extent those claims rely on vicarious liability through the doctrine of respondeat superior.
III. UM is immune for any direct involvement it had in the medical malpractice, but is subject to vicarious liability for its doctors
With these legal principles in mind, we turn now to the facts of the case befоre us. In the DOAH administrative proceedings, the ALJ found that the PHT had complied with NICA‘s Notice Provision but that the individual doctors, Drs. Norris and Barker, had not.7 This Court affirmed those findings. Ruiz, 916 So. 2d at 870. The doctors have thus indisputably waived their ability to claim NICA immunity by failing to comply with NICA‘s Notice Provision.
The plaintiffs have filed suit against the doctors’ employer, UM, for medical negligence. In their complaint, the plaintiffs allege medical negligence against UM in a single count, in which they plead both that UM has direct liability for its own seemingly direct acts or omissions giving rise to Michael‘s injuries and also that UM is vicariously liable for the acts or omissions of its agents or employees, Drs. Norris and Barker, who were allegedly acting within the scope of their duties as UM employees when the negligence occurred. Although these claims were unartfully pled and should have been separated into two causes of action,8 we address each claim separately because the analysis is distinct as to each theory of liability.
A. UM is immune for any direct acts of negligence
To the extent the plaintiffs have pled direct liability against UM for actions related to Michael‘s birth, UM is entitled to immunity. As explained above, NICA‘s Immunity Provision аpplies to any person or entity directly involved in the labor and delivery.
As previously stated, the only way a party who is otherwise entitled to NICA Immunity can waive its immunity is by failing to comply with NICA‘s Notice Provision when it is required to do so. Braniff, 696 So. 2d at 309-10. UM is neither a “hospital with a participating physician on its staff” nor a “participating physician,” and it is therefore not required to give notice of NICA participation under the terms of NICA‘s Notice Provision. See
B. UM is not immune for the vicarious liability of its doctors
The plaintiffs have also pled that UM is vicariously liable for the medical negligence of its employees, Drs. Norris and Barker, under the theory of respondeat superior. Under this theory of vicarious liability, UM is not being sued for its own dirеct negligence related to the labor and delivery, but rather by mere virtue of being the employer of the allegedly negligent Drs. Norris and Barker. These claims essentially state that Drs. Norris and Barker were negligent during their direct involvement in the labor and delivery and that UM, although it has no direct involvement in the labor and delivery, can be held responsible for its doctors’ actions due to its legal status as their employer. See Mercury Motors, 393 So. 2d at 549. Accordingly, this portion of the plaintiffs’ claim specifically relies on the notion that UM is not directly involved in the labor and delivery. As explained above, NICA‘s Immunity Provision applies only to those “person[s] or entit[ies] directly involved” with the labor and delivery of the child with a NICA-compensable injury. See
We therefore hold that UM cannot claim NICA immunity from vicarious liability based on the alleged negligence of its doctors who waived their right to invoke NICA‘s Immunity Provision by failing to provide the statutorily-required notice of NICA participation.9 Thus, the trial court did not depart from the essential requirements of the law by failing to grant UM‘s
Petition granted in part; denied in part.10