Non-Delegable Duties of Hospital (December Litigation Quarterly 2008)

A new strategy that Plaintiffs are employing, in an attempt to hold hospital surgical centers actively liable, is to contend that pursuant to the applicable common, statutory, and licensing laws of the State of Florida, hospitals and surgical centers have a non-delegable duty to provide medical care and services.  Yet, the general rule is that hospitals do not owe a duty to their patients to provide physicians’ medical and surgical care. Under the common law, a hospital is not liable for the negligent acts of a physician who is not its employee, but instead an independent contractor.1 Plaintiffs who attempt to plead that a non-delegable duty is owed would not be successful under current Florida common law.

However, Plaintiffs are now asserting that hospitals should be held liable for their physicians under a broad interpretation of certain Florida statutes and regulations.  Florida Statute Section 395.002(13)(b) defines “Hospital” as “any establishment that regularly makes available at least clinical laboratory services, diagnostic X-ray services, and treatment facilities for surgery or obstetrical care or other definitive medical treatment…” Further, Chapter 395 authorizes the Agency for Health Care Administration (AHCA) to adopt rules and regulations to ensure that hospitals are operated consistent with established standards and rules.2 Rule 59 A-3.2085(4) of Florida’s Administrative Code requires each Class I, Class II, and Class III hospital providing surgical or obstetrical services to have “an anesthesia department, service, or similarly titled unit directed by a physician member of the organized professional staff.” Based on the statute and regulation, Plaintiffs have argued that a non-delegable duty of hospitals to provide non-negligent surgical treatment exists.

The Courts agreed with this rationale in Wax v. Tenet Health Systems Hospitals, Inc.,3 when it imposed a non-delegable duty on a hospital to provide anesthesia services to surgical patients consistent with the established standards.4 The case further holds that such a duty cannot be avoided by delegating these services to an independent contractor.5

42 C.F.R. § 482.1 is another source that Plaintiffs are utilizing to impose a non-delegable duty on hospitals based on the hospitals participation in the federal Medicare program. This regulation is designed to ensure that medical services are provided in a safe and effective manner (even if those services are provided by independent contractors). It was promulgated by the U.S. Department of Health & Human Services’ Centers for Medicare and Medicaid Services to govern a hospital’s eligibility to receive payments from the Medicare program. In an effort to combat plaintiffs’ attempts to derive a basis for liability against a hospital from this regulation, defendants point to the legislative intent of the regulation. Such an analysis reflects that the underlying intent of the regulation was to set forth requirements for hospitals to participate in the Medicare and Medicaid Programs, not to give rise to a private right of action by patients who allege injuries at the hands of the physicians that merely occur in a hospital setting.

While Florida appellate courts have been silent on the plaintiffs’ theory regarding 42 C.F.R. § 482.12, other courts have rejected the plaintiffs’ theory outright. In Acevado v. Lifemark Hospital of Florida,6 the court opined that the Medicare regulations do no more than require a hospital to staff its hospital competently. Any non-delegable duty of the hospital would be limited to providing competent physicians rather than ensuring non-negligent care.7 In Blackmon v. Tenet Healthsystems Spalding,8 the court held that the regulation does not purport to impose state tort liability on hospitals for the negligence of their independent contractors. Rather, it simply outlines the guidelines with which the hospitals must comply to receive Medicare.

Finally, plaintiffs have relied on a contractual argument to attempt to impose a non-delegable duty upon hospitals. Under Florida law, a hospital may undertake to contract to provide certain types of care to its patients. If it does so, the contractual duty to provide such care may not be delegated to independent contractors even though the actual performance may be delegated. In Irving v. Doctors Hosp. of Lake Worth, Inc.,9 the court recognized that a hospital that undertakes a contract obligation to do something is not allowed to escape contractual liability by delegating performance to an independent contractor.

In recent years, the First, Fourth, and Fifth District Courts of Appeal have analyzed the contractual language contained in the forms executed by patients and their hospital. These courts have issued three radically different views of a hospital’s contractual duty to its patients. In Shands Teaching Hosp. and Clinic, Inc. v. Juliana,10 the court upheld a summary judgment imposing liability on a hospital for the negligence of a perfusionist based on a theory of contractual non-delegable duty.  The court’s analysis of the non-delegable duty question drew a clear distinction between physicians’ services and care rendered by nurses or technologists, including perfusionists.11 In this case, the hospital clearly discharged liability for the negligence of the physicians, residents, and students in the employ of the University of Florida, but this was not the case with the perfusionsists.12 The court noted that patients normally contract separately for physicians’ services, but do not normally contract separately for the services of hospital-based nurses and technologists.13 In Pope v. Winter Park Healthcare Group, Ltd.,14 the court determined that Florida law does not currently recognize an implied non-delegable duty on the part of a hospital to provide competent medical care to its patients.15 A consent form that notified the patient that the physicians were independent contractors, and not agents or employees of the hospital, and also delegated the performances of services physicians normally provide, was not legally sufficient to discharge the duty to provide medical care.16 Specifically, the consent form was absent any language indicating that the patient was discharging the hospital from liability.17 Finally, in Wax v. Tenet Health Systems Hospitals, Inc., the court reasoned that the hospital’s duty to provide anesthesia care was pursuant to both contract and state statutes and regulations.18 In Wax, a surgical consent form authorized in part to the administration of anesthesia services by a professional association of anesthesiologists during surgery.19 The court distinguished this consent form from the one used in Pope.20

In conclusion, while there is little support for a common law cause of action against hospitals and surgical centers, Plaintiffs have successfully brought statutory and contractual actions.


1              Pub. Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987).

2              § 395.1055 (1)(d), Fla. Stat.

3              955 So. 2d 1 (Fla. 4th DCA 2007).

4              Id., at 9.

5              Id.

6              2005 WL 1125306 (Fla. 11th Cir. Ct. May 5, 2005).

7              Id.

8              653 S.E. 2d 333 (Ga. Ct. Appl. 2007).

9              415 So. 2d 55 (Fla. 4th DCA 1982).

10            863 So. 2d 343 (Fla. 1st DCA 2003).

11            Id.

12            Id.

13            Id.

14            939 So. 2d 185 (Fla. 5th DCA 2006).

15            Id., at 187.

16            Id.

17 Id.

18            955 So. 2d 1, 9 (Fla. 4th DCA 2007).

19            Id.; The surgical consent form was on the hospital’s letterhead.

20            Id.

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