41
Fla. L. Weekly D1949aTop of Form

Wrongful
death — Medical malpractice — Surgery — Hospital’s liability for negligence
of independent contractors — Teaching hospital complied with requirements of
statute by providing separate and conspicuous special notice to patient
informing patient that physicians employed by university could be responsible
for her care and that these physicians were not employees or agents of hospital
— Further, Certificate and Authorization form and Consent and Disclosure form,
both received and signed by patient, reinforced fact that patient received
notice that surgeons providing care were university employees — Apparent
agency — Trial court properly granted summary judgment in favor of hospital on
apparent agency theory of liability, as record contained no factual dispute
that physicians were employees of university, paid by university, and assigned
by university, and that hospital did not control physicians’ activities —
Contractual nondelegable duty — No merit to plaintiff’s contention that
hospital had contractual nondelegable duty to provide nonnegligent surgical
care to patient — As matter of statute, hospital properly delegated its duty
of performance, as well as any related liability, to university pursuant to
special notice, and record does not indicate that hospital undertook any
contractual obligations concerning patient’s surgical procedure — Medicare quality
control regulation does not purport to diminish or preempt state laws dealing
with traditional common law theories of principal/agent and independent
contractor

ARTHUR
LEE GODWIN, as Personal Representative of the Estate of Annie Godwin,
Appellant, v. UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES; DAVID SHAPIRO,
M.D.; JAIME SANCHEZ, M.D.; FLORIDA HEALTH SCIENCE CENTER, INC. d/b/a TAMPA
GENERAL HOSPITAL, Appellees. 2nd District. Case Nos. 2D14-2588, 2D14-2962,
Consolidated. 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. Counsel: 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 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
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 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 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
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 (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 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 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.

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.

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 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-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.)

__________________

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.

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.

4The
record indicates that Mrs. Godwin was a Medicare beneficiary.

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