Most people are surprised to learn that most hospital emergency room physicians are not hospital employees. Instead, they are independent contractors.
“An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time he or she may be subject to law of agency. Independent contractors are usually paid on a freelance basis. Contractors often work through a limited company or franchise, which they themselves own, or may work through an umbrella company.”
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 Newbold-Ferguson v. Amisub (North Ridge Hosp., Inc.), 85 So.3d 502 (Fla. 4th DCA 2012), Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 863 So.2d 343, 349 (Fla. 1st DCA 2003); see also Pub. Health Trust of Dade Cty. v. Valcin, 507 So.2d 596, 601 (Fla.1987).
As a matter of Florida tort law, however, several exceptions exist to this rule of non-liability. This is important because many of these physicians do not maintain malpractice insurance or the coverage limits they do maintain are not sufficient to compensate for catastrophic injuries caused by their medical negligence. In these instances, the person harmed and their loved ones must look to other sources of compensation. The hospitals are the most natural other sources.
- The physician is either an actual or apparent agent of the hospital. See Roessler v. Novak, 858 So.2d 1158, 1161-62 (Fla. 2d DCA 2003).
- The hospital has failed to exercise due care in the selection and retention of an independent contractor physician on the hospital staff. See Insinga v. LaBella, 543 So.2d 209, 214 (Fla.1989).
- The acts of an independent contractor fails where the duty is non-delegable. See Pope v. Winter Park Healthcare Group, Ltd., 939 So.2d 185, 187 (Fla. 5th DCA 2006). A non-delegable duty in the hospital ER setting may arise out of a statute, a regulation, or a contract. Id. at 187-88. (In the context of premises liability, the duty may also arise out of common law: See this blog, Florida Personal Injury Law: Non-Delegable Duty Creates Joint & Several Liability.
There are many valid reasons for hospitals to use independent contractors to provide medical services. Avoiding medical negligence is not one of them.
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