Ivan Cabrera, with Liberman Cabrera Thompson & Reitman in Fort Lauderdale.

Generally one does not contemplate whether health care providers who treat them in a hospital setting are employees of the hospital or independent contractors. The thought of who would be liable should an unfortunate act of malpractice occur is not even a consideration given the circumstances that originally brought that person to the hospital to seek treatment. However, in the instance that an act of malpractice does occur, these issues become of paramount importance as it usually means the difference between whether or not compensation for injuries will be made.

To further complicate the issue, the legal theories under which a victim of malpractice may seek compensation against a hospital when an independent contractor commits malpractice are currently in a state of flux depending on what jurisdiction the case is filed. Given the disparate treatment throughout the state, the Florida Supreme Court needs to settle this issue and has the opportunity to do so in addressing the issue of nondelegable duty given the Third District Court of Appeal's recent decision in Tabraue v. Doctors' Hospital, (Fla. 3^rd DCA 2019).

In Tabraue, the Third District found that a facility did not owe a nondelegable duty to an emergency room patient whose admission forms were signed by the patient's father, finding that: no binding contract was created; that Florida does not recognize an implied contractual relationship that would trigger a nondelegable duty; and that Florida common law does not impose a nondelegable duty upon hospitals to provide non-negligent care.

In so holding, the Third District ignored its own precedent in finding that no contract existed between Suyima Torres and Doctors Hospital because her father executed the consent forms on her behalf. In Variety Children's Hospital v. Vigliotti, 385 So.2d 1052 (Fla. 3^rd DCA 1980), the Third District held that a mother, who had not executed any documentation associated with care rendered to her child, would nevertheless be liable for the costs associated therewith under an "implied contract" theory because these are "… obligations imposed by law on grounds of justice and equity." If a patient's parent can be required to pay for care which they neither authorized nor consented to under an "implied contract" theory, then that very same "implied contract" can and should provide a basis by which to impute a nondelegable duty upon the hospital.

Moreover, in claiming no common law duty existed on the part of the hospital, the Third District once again ignored its own precedent in failing to utilize the "undertaker's doctrine" as a basis by which to impute a nondelegable duty upon the hospital. For example, the court recognized the viability of this theory of liability in a health care setting in the case of Cedars Medical v. Ravelo, 738 So.2d 362 (Fla. 3^rd DCA 1999). In Ravelo, the Third District recognized the undertakers doctrine as a viable theory of liability in a case involving the alleged failure to provide informed consent, but refused to do so because it was an unpleaded theory.

The Restatement (Second) of Torts 323 (1965) codifies the undertaker's doctrine and establishes that "… one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if: (a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." See also Clay Electric, 873 So.2d at 1186.

The issue is simply "what duty is owed by a hospital to its patients?" Under Florida law, the existence of a "duty" is linked to the concept of foreseeability and arises from four sources: legislative enactments or administration regulations; judicial interpretations of such enactments or regulations; other judicial precedent; and (4) a duty arising from the general facts of the case. Clay Electric v. Johnson, 873 So. 2d 1182 (Fla. 2003). Generally, the existence of a duty focuses on "… whether the defendant's conduct foreseeably created a broader zone of risk …". Estate of Johnson v. Badger Acquisition of Tampa, 983 So. 2d 1175 (Fla. 2^nd DCA 2008).

Certainly, rendering medical treatment to a patient under any circumstances creates a foreseeable zone of risk which, under Florida law, would require any individual or entity undertaking any such obligation to do so in a non-negligent manner. The Third District's decision in Tabraue ignored this principal of law.

A patient arriving at a hospital has little (if any) choice on who will provide medical care and arrives at the facility as a result of that facilities' act of holding itself out as a place to go to for medical care. In accepting a patient into its facility for treatment, the facility literally "undertakes" the obligation to assure that care and treatment is provided and should be directly responsible for any errors which occur during said undertaking. The patient didn't go to an independent contractor's emergency department, he went to the nearest emergency room whose business it is to render care to people under those very circumstances.

In Roessler v. Novak, 858 So.2d 1158 (Fla. 2d DCA 2003), which was addressed a hospital's liability for its independent contractors under an apparent agency theory, Judge Chris Altenbernd's dissenting opinion addressed this issue squarely and reads as follows:

Given modern marketing approaches in which hospitals aggressively advertise … the services provided within their hospitals, it is quite arguable that hospitals should have a nondelegable duty to provide adequate radiology departments, pathology laboratories, emergency rooms, and other professional services necessary to the ordinary and usual functioning of the hospital. 

This well-reasoned opinion has been cited repeatedly throughout the state of Florida with approval.

The propensity of the judiciary to treat healthcare providers differently than any other citizen under similar circumstances is problematic in that it creates a lack of predictability and works to do nothing more than deprive malpractice victims of their constitutional right to recover their full measure of damages. Moreover, such divergent treatment of claims is not necessary given Florida law which allows for a waiver of a facility's nondelegable duty within the consent forms which are executed upon admission.

In the end, the law should be designed to protect those that are most vulnerable in hospital settings where patients are not only uninformed as to the contractual relationships which hospitals have created with their independent contractors, but are distracted by their current need for treatment. Having patients bear the risk and associated losses which occur as a result of malpractice does nothing but shift the burden associated therewith to the patient, and eventually society, who must absorb losses which were by definition, preventable.

Ivan F. Cabrera is a founding partner of Liberman Cabrera Thompson & Reitman. Throughout his career litigating medical malpractice issues he has frequently dealt with the issue of nondelegable duty in a health care setting. He may be reached at 954-761-2425 or [email protected].