Godwin v. University of South Florida Board of Trustees , 2016 Fla. App. LEXIS 12729 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ARTHUR LEE GODWIN, as Personal )
Representative of the Estate of Annie
)
Godwin, )
)
Appellant, )
)
v. ) Case No. 2D14-2588
) 2D14-2962
UNIVERSITY OF SOUTH FLORIDA )
BOARD OF TRUSTEES; DAVID ) CONSOLIDATED
SHAPIRO, M.D.; JAIME SANCHEZ, M.D.; )
FLORIDA HEALTH SCIENCE CENTER, )
INC. d/b/a TAMPA GENERAL HOSPITAL, )
)
Appellees. )
)
Opinion filed August 24, 2016.
Appeal from a final order pursuant to Fla. R.
App. P. 9.030 from the Circuit Court for
Hillsborough County, and appeal of a
nonfinal order pursuant to Fla. R. App. P.
9.130 from the Circuit Court for Hillsborough
County; Martha J. Cook, Judge.
Marjorie Gadarian Graham of Marjorie
Gadarian Graham, P.A., Palm Beach
Gardens; and Maria P. Sperando of the
Law Office of Maria P. Sperando, P.A.,
Stuart, for Appellant.
David C. Borucke, Paula J. Lozano, and
Robert J. Murphy of Cole Scott & Kissane,
P.A., Tampa, for Appellee Tampa General
Hospital.
No appearance for remaining Appellees.
LaROSE, Judge.
Arthur Lee Godwin, the personal representative of the Estate of Annie
Godwin, filed this consolidated appeal of a final summary judgment entered in favor of
Tampa General Hospital ("TGH"), in case 2D14-2588, and a nonfinal order entered after
final judgment denying Mr. Godwin's motion for partial summary judgment as to his
breach of a nondelegable duty cause of action, in case 2D14-2962. We have
jurisdiction in case 2D14-2588, see Fla. R. App. P. 9.030(b)(1)(A), and in case 2D14-
2962, see Fla. R. App. P. 9.130(a)(4),1 and affirm.
Background
At the end of September 2009, Mrs. Godwin suffered from a severe
stomach ache, nausea, and decreased appetite. She went to the TGH emergency
room on October 12, 2009. She was later admitted as a patient. Mrs. Godwin signed a
Certification and Authorization form, as well as a Special Notice form.
She was diagnosed with colon cancer. On October 21, 2009, Dr. Jaime
Sanchez and Dr. David Shapiro operated to remove the tumor. The day before surgery,
Dr. Sanchez met with Mrs. Godwin to discuss the procedure. At that time, Mrs. Godwin
signed another form, the Consent & Disclosure for Medical and/or Surgical Procedures.
Unfortunately, the surgery did not go well. Mrs. Godwin sustained a tear to the wall of
1After the filing of the notice of appeal in this case, the supreme court
approved amendments to Florida Rule of Appellate Procedure 9.130. See In re Amend.
to Fla. R. of App. P., 183 So. 3d 245, 252 (Fla. 2014). The amendments became
effective on January 1, 2015.
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her inferior vena cava.2 Excessive bleeding caused Mrs. Godwin to die on the
operating table.
Mr. Godwin sued the University of South Florida Board of Trustees
("USF"), Dr. Shapiro, Dr. Sanchez, and TGH for medical malpractice.3 Mr. Godwin
argues to us that the physicians responsible for Mrs. Godwin's care were agents of
TGH. He also asserts that TGH had a nondelegable duty to provide Mrs. Godwin with
nonnegligent surgical procedures and that TGH failed to satisfy the requirements of
section 1012.965, Florida Statutes (2009). TGH responds that the physicians who
cared for Mrs. Godwin were independent contractors employed by USF and that TGH
properly delegated any duty of care and related potential for liability to USF. Central to
the issues before us are the documents that Mrs. Godwin signed at TGH related to her
care.
Signed Documents
When she went to the TGH emergency room, Mrs. Godwin signed the
Special Notice form and the Certification and Authorization form. About one week later,
on the eve of her surgery, she met with Dr. Sanchez and signed the Consent and
Disclosure form.
The Special Notice states as follows:
I acknowledge that I have been given this separate
written conspicuous notice by the University of South
2The inferior vena cava is the largest vein in the human body, "formed by
the union of the two common iliac veins at the level of the fifth lumbar vertebra, and
returns blood to the right atrium of the heart from bodily parts below the diaphragm."
Inferior Vena Cava, Merriam-Webster, http://www.merriam-
webster.com/medical/inferior%20vena%20cava (last visited June 10, 2016).
3The final summary judgment disposed of all claims asserted against
TGH.
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Florida/University of South Florida Board of Trustees, a body
corporate of the State of Florida ("USF") and Tampa General
Hospital ("TGH") that some or all of the care and treatment I
receive will or may be provided by physicians who are
employees and agents of the USF, and liability, if any, that
may arise from that care is limited as provided by law. I
acknowledge that such physicians who are employees and
agents of USF are under control of USF, not TGH, when
they render care and treatment at TGH pursuant to the
affiliation agreement between USF and TGH, and such USF
physicians are not the employees or agents of TGH. I
hereby certify that I am the patient or a person who is
authorized to give consent for the patient.
(Emphasis added.)
The Certification and Authorization form explicitly states that
Medical Staff Physicians including, but not limited to, the
Emergency Physicians, Physicians Assistants and Advanced
Registered Nurse Practitioners, practicing in the Emergency
and Trauma centers, Anesthesiologists, Nurse Anesthetists,
Radiologists and Pathologist ARE NOT AGENTS OR
EMPLOYEES OF TAMPA GENERAL HOSPITAL. They are
independent medical practitioners exercising independent
medical judgements [sic] at facilities provided by the
hospital.
Finally, the Consent and Disclosure form repeated that the "physician,
surgeon and his or her associates, physicians-in-training and their technical assistants
are not hospital employees."
Relationship between USF and TGH
An affiliation agreement governs the relationship between TGH and USF.
The agreement makes TGH the primary teaching hospital for USF's College of
Medicine. Pursuant to the agreement, "employees or agents of [USF] assigned by
[USF] to perform duties at [TGH] . . . shall not be deemed an employee or agent of
[TGH] for any reason." USF selects and hires its own employees for assignment to
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TGH and has sole control over them. USF compensates and supervises these
employees.
The USF Physicians
Dr. Shapiro was a clinical professor of surgery at USF with surgical
privileges at TGH. Dr. Shapiro was on call at TGH's trauma division when Mrs. Godwin
was admitted to the hospital. He testified that he usually wore a USF lab coat with a
USF emblem. He also wore a name tag issued by TGH that identified him as a member
of the division of surgery. Our record does not indicate that Dr. Shapiro made any
representations to Mrs. Godwin concerning his status with either USF or TGH. Dr.
Shapiro performed surgery in other hospitals. He retired in late 2010.
An employee of USF, Dr. Sanchez was a senior resident at TGH but
rotated among several hospitals. Dr. Sanchez wore a USF lab coat, a USF badge, and
a TGH security badge. When he met Mrs. Godwin, Dr. Sanchez advised her that he
was a USF surgical resident.
Neither Dr. Shapiro nor Dr. Sanchez maintained an office at TGH. USF
paid their salaries and benefits. The only employment contract these physicians had
was with USF. Our record contains no evidence suggesting that either physician told
Mrs. Godwin that TGH employed them.
Analysis
Mr. Godwin argues that the trial court erred in granting summary judgment
to TGH on his theory that Dr. Shapiro and Dr. Sanchez were apparent agents of TGH.
He asserts further that the Special Notice Mrs. Godwin signed did not comply with
section 1012.965, and that as a result, TGH had a nondelegable duty to provide Mrs.
Godwin with nonnegligent surgical services. Mr. Godwin also claims that because TGH
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is a Medicare provider, the regulations promulgated under the Medicare Act imposed an
independent nondelegable duty on TGH. Each argument fails.
A. Standard of Review
We review a summary judgment de novo. Volusia County. v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
B. Compliance with section 1012.965
Section 1012.965(1) limits TGH's exposure to liability for the allegedly
negligent conduct of Dr. Shapiro and Dr. Sanchez:
[A]n employee or agent under the right of control of a
university board of trustees who, pursuant to the university
board's policies or rules, renders medical care or treatment
at any hospital . . . with which the university board maintains
an affiliation agreement whereby the hospital . . . provides to
the university board a clinical setting for health care
education, research, and services, shall not be deemed to
be an agent of any person other than the university board in
any civil action resulting from any act or omission of the
employee or agent while rendering said medical care or
treatment.
For TGH to enjoy this protection, the statute requires that
the patient shall be provided separate written conspicuous
notice by the university board of trustees or by the hospital
or health care facility, and shall acknowledge receipt of this
notice, in writing, unless impractical by reason of an
emergency, either personally or through another person
authorized to give consent for him or her, that he or she will
receive care provided by university board's employees and
liability, if any, that may arise from that care is limited as
provided by law.
§ 1012.965(1).
Mr. Godwin relies on Rayburn v. Orange Park Medical Center, Inc., 842
So. 2d 985, 988 (Fla. 1st DCA 2003), to argue that the Special Notice did not comply
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with the statute. The case is inapposite. Rayburn held that the hospital failed to comply
with section 240.215, Florida Statutes (2003), the predecessor to section 1012.965,
because the form given to the patient was neither separate nor conspicuous. See id. at
989. Mr. Godwin also argues that the Special Notice is noncompliant because it states
that the patient will or may be treated by USF physicians. Seemingly, he argues that
the Special Notice must have stated affirmatively that only USF physicians will provide
care and treatment.
We must conclude that the Special Notice complied with section
1012.965. There can be no dispute that TGH and USF were parties to an affiliation
agreement. Further, we can glean no material issue of fact indicating anything but that
the Special Notice was a separate written and conspicuous notice contemplated by the
statute. And, by signing the Special Notice, Mrs. Godwin acknowledged its receipt.
That is all the statute requires. The language of the Special Notice adequately informed
Mrs. Godwin that USF physicians could be responsible for her care; these physicians
were not TGH employees or agents. The Certificate and Authorization form and the
Consent and Disclosure form, both received and signed by Mrs. Godwin, reinforced that
fact.
C. Apparent Agency
Mr. Godwin asserts that TGH held Dr. Shapiro and Dr. Sanchez out as
hospital employees or agents. Accordingly, he claims, TGH is liable under an apparent
agency theory.
Generally "a hospital is not liable for the negligent acts of a physician who
is not its employee, but an independent contractor." Newbold-Ferguson v. AMISUB
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(North Ridge Hosp.), Inc., 85 So. 3d 502, 504 (Fla. 2012); see also Emelwon, Inc. v.
United States, 391 F.2d 9, 11 (5th Cir. 1968) (holding that one who employs an
independent contractor is not vicariously liable for her negligence). However, Florida
has long recognized that a hospital that retains an independent contractor to provide
medical services may still be liable for the negligence of the independent contractor if
the hospital cloaked her with apparent authority to act on its behalf. Webb v. Priest, 413
So. 2d 43, 47 n.2 (Fla. 3d DCA 1982) (citing Stuyvesant Corp. v. Stahl, 62 So. 2d 18
(Fla. 1952); Thomkin Corp. v. Miller, 24 So. 2d 48 (1945)). Liability may attach,
however, if: (1) the physician is an actual or apparent agent of the hospital; (2) a statute,
regulation, or contract creates a nondelegable duty; or (3) the hospital failed to exercise
due care in selecting the physician. Newbold-Ferguson, 85 So. 3d at 504-05.
Obviously, "an employer who holds one out as his employee is estopped to deny the
employee's authority." Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So. 2d 55, 57
(Fla. 4th DCA 1982).
In Irving, the jury had to decide whether an emergency room physician
was an employee or an independent contractor of the hospital. Id. at 56. The trial court
refused to instruct the jury on estoppel. Id. at 57. The Fourth District held that
"reversible error was committed when the trial court instructed the jury regarding the
nonliability of an independent contractor without including the inculpatory exceptions to
that rule that had been requested by Irving." Id. at 56. Unlike our case, the patient in
Irving had no notice of the relationship between the hospital and the physician. Id. And,
the evidence at trial raised significant issues about the extent of control the hospital
exercised over the emergency room physician. Id. Here, Mrs. Godwin received three
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separate notices informing her of the relationship between TGH and USF physicians.
TGH did not hold Dr. Shapiro or Dr. Sanchez out as its employees or agents. Nor can
we say that, based on our record, Dr. Shapiro and Dr. Sanchez conducted themselves
in any manner to mislead Mrs. Godwin into thinking that they worked for TGH. Thus, on
its facts, Irving is distinguishable from our case.
It is helpful to recall that Mrs. Godwin presented initially to the emergency
room on October 12, 2009. Her surgery was about a week later. Up to her surgery, she
was alert. Indeed, the day before her surgery, Mrs. Godwin signed the Consent and
Disclosure form reflecting that the upcoming surgery would not be performed by TGH
personnel. See Newbold-Ferguson, 85 So. 3d at 505 ("[T]he imposition of a
nondelegable duty to provide competent emergency room services makes sense,
because a patient in an emergency room generally has little, if any, control over who will
be the treating physician."). Thus, for a third time since coming to TGH, Mrs. Godwin
received notice that those providing her care, specifically, the surgeons, were USF
employees.
The trial court properly granted summary judgment for TGH on Mr.
Godwin's apparent agency cause of action. No disputed material facts undermine the
trial court's conclusion that the physicians were not TGH employees or agents. In
addition to the affiliation agreement and the three forms signed by Mrs. Godwin, we are
mindful that USF controlled its physicians. As the First District observed in DeRosa v.
Shands Teaching Hospital & Clinics, Inc., 504 So. 2d 1313, 1315 (Fla. 1st DCA 1987),
"[f]actors considered to determine the existence of an employer and employee
relationship included the selection and engagement of the employee, the payment of
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wages, the power of dismissal, and the right of control over conduct." Our record
contains no factual disputes as to the nature of the relationship; the physicians were
employees of USF, paid by USF, and assigned by USF. USF, not TGH, controlled their
activities.
D. Nondelegable Duty Pursuant to Contract
Mr. Godwin stresses that TGH had a contractual nondelegable duty to
provide nonnegligent surgical care to Mrs. Godwin. He relies on Irving, 415 So. 2d at
60-61, for the proposition that a hospital who hires an independent contractor to perform
services that it has undertaken to perform is liable for the independent contractor's
negligence. However, as noted earlier, Irving involved an emergency room setting. Id.
at 56. Moreover, there was no indication to the patient that the emergency room
physician, and not the hospital, bore the duty of care. Id. at 61.
Nevertheless, Mr. Godwin asserts that although a party can delegate
performance of the nondelegable duty to an independent contractor, liability remains
with the party who bore the duty, that is, TGH. See U.S. Sec. Servs. Corp. v. Ramada
Inn, Inc., 665 So. 2d 268, 270 (Fla. 3d DCA 1995) ("[A] landowner may contract out the
performance of his nondelegable duty to an independent contractor, but he cannot
contract out of his ultimate legal responsibility for the proper performance of his duty by
the independent contractor . . . ."). As we have already seen, as a matter of statute,
section 1012.965, TGH properly delegated its duty of performance, as well as any
related liability, to USF pursuant to the Special Notice. Moreover, the record does not
indicate that TGH undertook any contractual obligations concerning Mrs. Godwin's
surgical procedures.
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Pope v. Winter Park Healthcare Group, Ltd., 939 So. 2d 185, 186 (Fla. 5th
DCA 2006), aids our analysis. The Popes sued Winter Park and Dr. McMahan for the
negligent care of their newborn son. As here, "[t]he Popes alleged that Winter Park . . .
was liable for Dr. McMahan's negligent acts because Winter Park has a 'nondelegable'
duty to treat [their son] with due care." Id. at 186. "Florida law does not currently
recognize an implied nondelegable duty on the part of a hospital to provide competent
medical care to its patients. Florida law does recognize, however, that such a duty can
be undertaken pursuant to an express contract." Id. at 187 (citing Roessler v. Novak,
858 So. 2d 1158, 1164 (Fla. 2d DCA 2003) (Altenbernd, J., concurring)). Winter Park
undertook such a contractual duty:
I authorize Winter Park Memorial Hospital (WPMH) to furnish
the necessary medical or surgical treatments, or procedures,
including diagnostic, x-ray, and laboratory procedures,
anesthesia, hospital services, drugs and supplies as may be
ordered by the attending physician(s), his assistants or his
designees . . . . This consent form plainly puts the reader on
notice that physicians practicing at Winter Park Hospital are
independent contractors, not agents or employees. The
form also authorizes Winter Park Hospital to delegate to
such physicians the services physicians normally provide.
Id. at 190. Winter Park agreed to furnish "the necessary medical or surgical
treatments." Id. at 191. Because of an ambiguity in the admission contract, the
appellate court remanded the case to the trial court to decide "the scope of the express
contractual undertaking which may have given rise to a duty to provide nonnegligent
neonatal care to [the] baby." Id. at 187. Unlike the forms in Winter Park, the forms that
Mrs. Godwin received and signed contained no express undertaking by TGH to render
the medical care that the USF physicians ultimately provided.
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In large part, Mr. Godwin's argument rests on the supposition that TGH
could not delegate any potential liability without Mrs. Godwin's consent. During the
course of her hospitalization, however, she signed three separate notices disclosing that
USF employees or agents would provide her care. Particularly important is the Special
Notice, which, under section 1012.965, allows a hospital that partners with a university
to be exempt from liability if the university can be held liable for the actions of its
employees or agents and the notice requirements are met.
E. Nondelegable Statutory Duty Under the Medicare Act Regulations
Finally, Mr. Godwin argues that a statutory duty imposed by Medicare
cannot be delegated to an independent contractor. More specifically, Mr. Godwin
asserts that the regulations promulgated under the Medicare Act require hospitals that
participate in the Medicare program to maintain a nondelegable duty to provide
nonnegligent care. See 42 C.F.R. § 482.12.4 No Florida appellate court has reached
this conclusion. We decline the invitation to be the first.
Section 482 identifies the conditions of participation for hospitals in the
Medicare program. 42. C.F.R. § 482.1(b). This section was intended to specify the
standards that the federal government will assess when determining whether or not a
hospital will continue to be eligible to treat Medicare patients. Id. ("[T]he provisions of
this part serve as the basis of survey activities for the purpose of determining whether a
hospital qualifies for a provider agreement under Medicare and Medicaid."); see also
Sepulveda v. Stiff, No. 05cv167, 2006 WL 3314530, at *8 (E.D. Va. Nov. 14 2006)
(finding that section 482.1 et seq. are "intended to set out the guidelines for determining
4The record indicates that Mrs. Godwin was a Medicare beneficiary.
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whether a hospital may participate in Medicaid"); Blackmon v. Tenet Healthsystem
Spalding, Inc., 653 S.E.2d 333, 340 (Ga. Ct. App. 2007) ("[Section 482.12(e)] does not
purport to impose state tort liability on hospitals for the negligence of their independent
contractors; rather it simply outlines that with which the hospitals must comply to receive
Medicare."), rev'd in part on other grounds, 667 S.E.2d 348 (Ga. 2008), vacated in part
on other grounds, 699 S.E.2d 237 (Ga. Ct. App. 2008).
The Department of Health and Human Services clarified that section
482.12(e) "indicate[s] that the governing body is responsible for assuring that the
contractor furnishes services that permit the hospital to comply with all applicable
conditions of participation and standards for the contracted services." Medicare and
Medicaid Programs; Conditions of Participation for Hospitals, 51 Fed. Reg. 22,010-01,
22,015 (June 17, 1986) (to be codified at 42 C.F.R. p. 482). The quality assurance
condition, section 482.21, was revised "to assure that services provided under contract
that relate to patient health and safety are included for evaluation in the quality
assurance plan." Medicare and Medicaid Programs; Conditions of Participation for
Hospitals, 51 Fed. Reg. at 22,015.
The rule does not create liability for the hospital due to the negligence of
any independent contractor. Instead, the rule and the discussion and responses to
public comments explain that the services that a contractor furnishes to a hospital will
be part of the quality assurance evaluation for the hospital's continued participation in
the Medicare program. The rule does not purport to diminish or preempt state laws
dealing with the traditional common law theories of principal/agent and independent
contractors. See La. Pub. Serv. Comm'n v. F.C.C., 476 U.S. 355, 368 (1986) ("Pre-
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emption occurs when Congress, in enacting a federal statute, expresses a clear intent
to pre-empt state law . . . .").
Mr. Godwin's call for the imposition of strict liability on TGH for its hospital
employees, agents, or independent contractors finds no support in the language of the
Medicare statute or related regulations.
Conclusion
Affirmed.
BADALAMENTI, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.
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