Liability of Florida Hospitals for Emergency Room Malpractice

To the surprise of many, most of the doctors who work in Florida’s hospital emergency rooms are not hospital employees. Instead, they are independent contractors. (It is quite rare for Florida hospitals to employ their ER physicians.) Equally surprising is that Florida law does not hold a hospital liable for a doctor’s negligence simply because the hospital grants privileges or credentials to the doctor, unless there was negligence in the credentialing. These matters become important when emergency room malpractice causes serious personal injuries and death.

With the reality of arbitrary statutory damage caps limiting the monetary exposure of medical negligence defendants, it is often necessary [for the victim or the victim’s family] to recover from multiple parties to be justly compensated for serious injuries or death. For such damages resulting from negligent emergency room services, the hospital would seem to be a natural target. Not so.

Today’s hospitals typically take the position that the doctors working in their emergency rooms are independent contractors, individuals for whom they have no legal liability when things go wrong. Strictly speaking, they may be right. Independent contracts are not employees, whose negligence subjects the employer to liability under the principle of respondeat superior (the Latin meaning is ‘let the master answer’).

Thankfully, Florida law does not accept the strict view of this consequential subject.

The main legal principles being used to hold hospitals accountable are:

  • Non-delegable duty
  • Actual agency
  • Apparent agency
  • Negligent credentialing

Non-delegable duty. This theory, which is not limited in its application to medical negligence cases, is most often utilized for activities involving the risk of serious injury or loss. In the context of emergency rooms, the risk is addressed by statutes and rules which set forth strict guidelines for modes of operation. Recent court decisions have relied on these rules and regulations to find that hospitals have a non-delegable duty to provide various non-negligent services in its emergency rooms.

Actual agency. The elements necessary to establish an actual agency relationship are: acknowledgment by the principal that the agent will act for him, the agent’s acceptance of the undertaking, and control by the principal over the actions of the agent.

Apparent agency.The main element of this principle is the impression through words and actions a hospital conveys to the public about its ER. Through advertising and appearance (e.g., uniforms; logos; paperwork; etc.), the general public can reasonably believe that an ER’s physicians are hospital employees. This is usually a fact question requiring a decision by the trier of fact, typically a jury.

Negligent credentialing. Involves granting privileges to an unqualified physician to practice medicine in the hospital. The mechanism for allowing a doctor to ply his trade in a hospital setting is supposed to be more than a rubber-stamp process. Thoughtful consideration based on rigorous standards should be followed.

These are difficult and complicated issues which have resulted in significant litigation throughout the state. This blog cannot begin to explain the many grounds over which the battle is being fought on a daily bases. For a greater understanding of the issues, read the following cases and statutes:

Goldschmidt v. Holman, 571 So.2d 422, n. 5 (Fla. 1990) (actual agency.)
Roessler v. Novak, M.D., 858 So.2d 1158 (Fla. 2d. DCA 2003) (apparent agency)
Wax v. Tenet Health System Hospitals, Inc., 955 So.2d 1 (Fla. 4th DCA 2006) (non-delegable duty)
Florida Statutes 395.002(13)(b), 395.1055(1)(d)
Fla. Admin. Code R. 59A-3.2085(4)
Pope v. Winter Park Healthcare Group, Ltd., 939 So.2d 185 (Fla. 5th DCA 2006)
Jaar v. University of Miami, 474 So.2d 239 (Fla. 3d DCA 1985)

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.