March 6, 2021

The District Court of Appeal of the State of Florida Fifth District (“Florida Appellate Court”) held in its opinion filed on February 5, 2021 that the medical malpractice defendant hospital (“Florida Hospital”) was not entitled to summary judgment for a surgeon’s alleged negligence because of the hospital’s potential vicarious liability for the surgeon’s negligence.

The Underlying Facts

The plaintiff, Ricky M. Luebbert (“Luebbert”), first visited Florida Hospital in November 2011 after suffering severe abdominal pain. He was diagnosed with appendicitis and a periappendiceal abscess, which required an appendectomy. At approximately 4:00 a.m., while waiting in the preoperative holding area, Luebbert met Dr. Syed Malik, the on-call general surgeon. Dr. Malik wore a white coat that included his name and the words “general surgeon,” along with a Florida Hospital badge. Something about Dr. Malik caused Luebbert to feel uneasy, and he inquired about the availability of another surgeon. Luebbert was advised that the next available surgeon would not be in until 9:00 a.m. Not willing to wait five hours, Luebbert opted to “take his chances” with Dr. Malik.

Following the surgery and out of an abundance of caution, Luebbert requested to be given antibiotics, but Dr. Malik assured Luebbert that antibiotics were not necessary. Unfortunately Luebbert then suffered a significant post-operative abdominal infection, as a result of which he filed a medical negligence suit against Florida Hospital and Dr. Malik. In count two of his lawsuit, Luebbert alleged that Florida Hospital was vicariously liable for Dr. Malik’s negligence, claiming that Dr. Malik was either an employee or an agent of Florida Hospital.

Florida Hospital eventually moved for summary judgment, arguing that Dr. Malik was neither an employee nor an agent of the hospital but rather an independent contractor, evidenced by a written agreement between Florida Hospital and Dr. Malik. Florida Hospital also relied on Dr. Malik’s deposition testimony, including his statements that he was not paid by Florida Hospital, that he billed insurance companies directly, that Florida Hospital did not influence his treatment decisions, and that he considered himself an independent contractor of the hospital.

In opposing summary judgment, Luebbert also relied on portions of Dr. Malik’s deposition testimony, specifically where he acknowledged that he maintained staff privileges at Florida Hospital, that virtually all of the medical care he provided was rendered at Florida Hospital, and that he maintained a private office at the hospital (where he in fact met with Luebbert following surgery).

Following the hearing on the motion for summary judgment, the court found that the uncontroverted record evidence established that Dr. Malik was not an employee or agent, actual or apparent, of Florida Hospital. The court then entered a judgment in favor of Florida Hospital on all of Luebbert’s claims, including his theory of vicarious negligence.

Florida Appellate Court Opinion

Apparent Agency

An apparent agency exists if all three of the following elements are present: (1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by the third party in reliance on the representation. Thus, where a hospital held out a particular physician as its agent or employee, and a patient has accepted treatment from that physician and reasonably believed that treatment was rendered on behalf of the hospital, the hospital will be liable for the physician’s negligence. Apparent agency does not arise from the subjective understanding of the patient or from appearances created by the purported agent himself. Apparent authority only exists where the principal creates the appearance of an agency relationship.

The Florida Appellate Court explained that although Luebbert had the option to accept treatment from another on-call physician, he was selecting between physicians that the hospital provided to him, rather than selecting a doctor of his choosing. Luebbert relied on Florida Hospital to provide him with a physician. This lack of choice on part of Luebbert, coupled with other factors, is sufficient to create a jury question regarding apparent agency.

The Florida Appellate Court held: “While we agree that there is nothing in the record to support the argument that Dr. Malik was an employee or actual agent of Florida Hospital, we find sufficient evidence in the record from which a jury could conclude that an apparent agency relationship existed. Therefore, it was error to enter judgment in favor of Florida Hospital on Luebbert’s theory of vicarious liability.”

Source Luebbert v. Advent Health System/Sunbelt, Inc., d/b/a Florida Hospital, Case No. 5D19-2824.

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