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2021 Risk Net Article: Luebbert v. Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital and Syed Abdul Malik, M.D.

 

Andrew S. Bolin 

[email protected]

On February 5, 2021 the Fifth District Court of Appeal issued an opinion in Luebbert v. Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital and Syed Abdul Malik, M.D. reversing a summary judgment obtained by Advent Health on the issue of whether the hospital could be held responsible for the alleged negligence of a physician who was an independent contractor providing general surgery services at the time of the incident. This opinion is one of a number of troubling decisions throughout the State that continues to curtail a hospital’s ability to avoid being held responsible for the alleged negligence of non-employed physicians as a matter of law.

FACTS: The factual scenario presented in Luebbert is familiar in that it appears to mirror the practice is commonly employed by hospitals throughout the State when utilizing non employed physicians. The Plaintiff presented to Florida Hospital complaining of severe abdominal pain. He was diagnosed with appendicitis and periappendiceal abscess which required an appendectomy. Dr. Syed Malik, a non-employed physician, was the on-call general surgeon that treated the patient. Dr. Malik wore a white coat that included his name and the words “general surgeon,” and a “Florida Hospital badge.” The patient apparently asked Dr. Malik about the availability of another surgeon and was told that there would not be another surgeon available for approximately five hours.

The patient signed a consent that stated in short, “not all of the services rendered at the hospital or services are offered directly by the hospital or an employee of the hospital. Many physicians and care providers utilizing the facilities and equipment of the hospital are independent contractors...”

There was no dispute that Dr. Malik was an independent contractor in the case. His testimony confirmed that he billed insurance companies directly and that Florida Hospital did not influence his treatment decisions in any manner. Dr. Malik maintains staff privileges at Florida Hospital and testified that although he had privileges at other facilities almost all of the care he rendered was at Florida Hospital. Dr. Malik also maintained a private office at the hospital where he met on at least one occasion with the Plaintiff. Based on the evidence presented, the trial court determined that Dr. Malik was not shown to be an agent or employee of Advent Health and dismissed the case against the hospital.

THE DECISION: The Fifth District Court of Appeal reversed a decision stating that there were factual scenarios that needed to be resolved by a jury. Specifically, the court stated the consent was “vague” in that the consent notified the Plaintiff that not all physicians were employees but it did not reference Dr. Malik specifically nor did it have a reference to general surgery specifically. Perhaps more troubling, however, is that the Court suggests that even when a hospital does not make representations to the public concerning the physicians’ employment status it may still be liable on the theory of apparent agency when there is a “lack of choice” on the part of the patient. The Court even went so far as to state that even when a patient would still have gone forward with the treatment by the care provider even if they were specifically told that he or she was an independent contractor, the patient’s inability to select a preferred healthcare provider may be enough to create an agency relationship.

IMPLICATIONS: This case further exhibits the Appellate Court’s extreme reluctance to enter decisions in favor of hospitals on the issue of apparent agency. Based on the factual scenario set forth above, there are few remedies and the Court expressed concerns that would allow for hospitals to continue to operate efficiently using independent contractors and not be subject to claims for the nonemployed physicians alleged negligence. Although the Court did not determine as a matter of law that Dr. Malik was in fact an apparent agent, the Court suggests that only a jury is able to make the ultimate determination. While the evidence presented to the jury could result in a verdict in favor of the hospital, it is generally believed that jurors struggle with the rather complex application of agency law in the context of a medical malpractice cases. With the focus of the case relying so heavily on whether the standard of care was met, it is difficult for juries to find in favor of the Plaintiff as to liability and yet release one of the Defendants on purely legal grounds. As a result, it appears that the trend in Florida is to allow a claim for apparent agency in almost every medical malpractice case that is alleged to have taken place in a hospital to be submitted to a jury.

PRACTICE TIPS AND SUGGESTIONS: As noted above, there is little in the way of practical and reasonable changes that can be made in the hospital to address the concerns expressed by the Court. The sheer number and diversity of specialties that may engage with a patient in the hospital would seem to make it nearly impossible to identify and articulate the names of physicians, providers or even specialties within the consent form. Doing so would lead to an unreasonably voluminous consent form that would require almost weekly editing and reproduction. Specifying that a patient should look to the color of the badge of the provider (discussed in greater detail below) to identify those providers that are not employed by the hospital may be an option that provides greater support to the defense.

The issue of the attire of physicians, including identification badges has been a long running theme for Plaintiffs who attempt to hold hospitals responsible for the acts of their independent contractors. To combat this strategy by Plaintiffs, hospitals may want to consider requiring non-employed physicians to wear clothing or a lab coat that clearly identifies their employer. Likewise, although identification badges are likely integral to ensuring privacy and safety, hospitals may want to consider changing the color or design of an identification badge for an independent contractor. Specifying a color for the independent contractor badge and posting signage at the hospital stating that a color badge indicates the provider is not employed by the hospital would provide evidence helpful to defending these claims.

However, even with these practices, it appears as though the Fifth District Court of Appeal moves us ever closer to the inability of hospitals to use independent contractors as a means to manage risk and exposure. A plain reading of the language used by the Court seems to suggest that even in instances where the Plaintiff is fully aware that the provider is not employed by the hospital, hospitals may never-the-less face exposure. If the Courts focus on the ability of a patient to choose a provider as a determinative factor in deciding apparent agency cases, it is difficult to envision a practice that would allow hospitals to escape this result. Allowing a patient to hand select a physician to provide care in the hospital would not only be extraordinarily disruptive to the efficiency of the hospital but would also likely create unreasonable delays in care that would no doubt harm patients. Further, pure patient choice would also be impracticable given that credentialing for staff privileges would be impossible to secure. In fact, such a practice would in all likelihood lead to the result of patients suing hospitals for allowing an unqualified provider to perform a service at their facility. The “patient choice” criteria relied upon by the Court in this case appears to suggest a non-delegable duty owed by hospitals that is simply “branded” as a claim for apparent absence. Non-delegable duties are of course specifically rejected in a number of Florida decisions.

There is no discussion over the appropriate jury instructions to be provided in a case like this one. The Florida standard approved jury instruction does not discuss “patient choice.” However, if this Court suggests that patient choice should be considered as a factor in determining whether a hospital can be liable for apparent agency, it is not hard to envision that instruction being specially requested by Plaintiff. If the instruction were given in that regard, then it would undoubtedly have the effect of creating a non-delegable duty standard in Florida.

The contents of this article are intended for general information and educational purposes, and should not be relied upon as advice about any particular fact situation. The distribution of this publication is not intended to create, nor does receipt of same constitute, an attorney-client relationship.

 

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2 Comments

  1. Earl E. Googe, Jr.

    Feb. 16, 2021

    Until the Legislature gives hospitals the relief it gave nursing homes against vicarious claims for physician conduct, hospitals will remain the excess insurers for their medical staff

    Reply
    1. Gregory Louis Hoover

      Feb. 21, 2021

      Attorney Bolin. My name is Gregory Hoover and I authored the appellate briefs filed by attorney Val in the Fifth DCA case of Luebbert v. Florida HospitaL, and my comments provided here are my own and not those of attorney Val or anyone other than myself. The"society" of which you are a member appear exclusively for attorneys who defend hospitals from lawsuits. Your mansions are built on the bones of the dead ex-patients of negligent contact-physicians and the money-grubbing hospitals with whom they share their horrific symbiotic relationship. This is why you have written your article bemoaning the court's decision, but I note, NOWHERE WITHIN THE ARTICLE DO YOU SUPPLY EVEN THE THINNEST OF ARGUMENTS AGAINST THIS CHANGE IN THE APPLICATION OF THE LAW PRODUCED BY THE ARGUMENTS I SUPPLIED THE COURT, WHICH PERSUADED ALL THREE DISTRICT JUDGES TO SIDE WITH ME. WHY? SIMPLE, BECAUSE YOU (as the author of the article), AND THE THE APPELLATE COURT AND EVERY MEDICAL DEFENSE LAWYER IN THE COUNTRY KNOW I'M RIGHT. Very telling how you end your article with a warning to your fellow "society" members: "There is no discussion over the appropriate jury instructions to be provided in a case like this one. The Florida standard approved jury instruction does not discuss “patient choice.” However, if this Court suggests that patient choice should be considered as a factor in determining whether a hospital can be liable for apparent agency, it is not hard to envision that instruction being specially requested by Plaintiff. If the instruction were given in that regard, then it would undoubtedly have the effect of creating a non-delegable duty standard in Florida." This is why I so carefully "fine-tune my briefs as I intended to create a decision would have a lasting beneficial effect" by erasing the the last 30 years of legal loopholes that medial defense attorneys have painstakingly constructed incrementally through all their appelate level cases. TI'm guessing by your article that you downloaded and read my briefs and KNOW that the man who authored the briefs and gained the precedent decision isn't stopping here, and is intended to destroy these prophylactic policies and re-open the doors of the court to the hundreds of thousands of patients who are harmed by negligent doctors and left without a legal remedy. I imagine Florida Hospital may buy some time by paying this ex-patient with a settlement in this case (which is contrary to my desire, but out of my control not sure the defense counsel in this case is as smart enough to realize that until we've crushed them in trial) (worth hundreds of millions in the short term (Florida hospital grossed $5.4 BILLION [See footnote]. Keeping this case out of a very public doomed (for Fla. Hosp) trial will help fostering a speedier uptake of it's use by plaintiff oriented med/mal attorneys. But eventually, the precedent will be applied in to the benifit of all similarly situated Plaintffs. But of course, G. L. Hoover ------------------------------------------------ 1. Top-Grossing Florida Hospitals Monday, December 8th, 2020 Here are the top 10 Florida hospitals by gross revenue (with figures rounded to the nearest hundred million), according to the American Hospital Directory. Florida Hospital Orlando (Orlando) — $5.4 billion Orlando Regional Medical Center (Orlando) — $4.2 billion Jackson Memorial Hospital (Miami) — $3.7 billion Tampa General Hospital (Tampa) — $2.8 billion Baptist Hospital of Miami (Miami) — $2.3 billion Memorial Regional Hospital (Hollywood) — $2.1 billion Shands at the University of Florida (Gainesville) — $2.0 billion Saint Joseph's Hospital (Tampa) — $2.0 billion Baptist Medical Center Downtown (Jacksonville) — $1.7 billion Lakeland Regional Medical Center (Lakeland) — $1.6 billion Source: American Hospital Directory , Dec. 2020 ------------------------------ Physicians who reported being employed by a hospital were asked if they were employed directly by the hospital or if the practice was owned by a hospital. Of the 6,869 physicians who responded, over half (57.0%) of them reported they were employed directly by a hospital, 21.8% responded their practice is owned by a hospital, and 21.2% did not know. Of the 1,600 physicians who reported they were independent contractors who worked in a hospital, 41.5% contract directly with the hospital, 16.3% contract with a practice owned by the hospital, and the remaining 42.3% did not know. Over 80% of the physicians whose practice is owned by a hospital reported they work in a group plan?50.5% in a multi-specialty group practice, and 37.9% in a single specialty group practice. (See pg. 17 of attachment). [GLH Note:] THUS ,SLIGHT LESS THAT HALF OF ALL PHYSICIANS IN THE STATE ARE CONTRACT PHYSICIANS WITH A $100,000 LIABILITY CAP AND PATIENTS HAVE (UNTIL THE Lu..ebbert v. Florida Hospital DECISION) HAD NO ASSURED WAY OF RECOVERING ANYTHING WHEN SUING THE HOSPITAL FOR THEIR NEGLIGENCE. THAT'S HOW THEY MAKE $5.4 BILLION A YEAR! I'M FINE WITH THEM, MAKING $4.4 BILLION AND YEAR, AND PAYING OUT A BILLION YEARLY WHEN THEIR DOCTORS CUT OFF THE WRONG FOOT, ETC. - IN THE END, OVERALL, THAT'S WHAT I'M AFTER OUT OF THIS.

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