MEDICALMALPRACTICE HOLDING THE HOSPITAL RESPONSIBLE by Marcus Michles When are hospitals responsible for the misconduct of medical professionals practicing within the hospital? Often the answer will depend on the nature of the relationship between the prac-titioner and the facility — and sometimes it will depend on ob-scure and seemingly meaningless distinctions. It is widely under-stood that when a hospital employee such as a nurse or hospitalist is the professional in question, the doctrine of vicarious liability holds the principal responsible for negligent acts committed by the employee within the scope of his or her employment. But what if the physician is designated as an independent contrac-tor in the hospital’s contract with the physician group? Does it matter if the hospital requires the physician to comply with its policies and procedures and rules and regulations and retains the right to discipline the physician? Should it matter if the patient selected the physician or if the hospital did? Should it matter what the hospital consent form says or what the hospital adver-tisements or what the physician’s name badge says? Should the patient’s subjective understanding of the hospital or physician’s relationship or billing practices matter? Should it matter if the patient would have refused care if he or she had been provided more information about the relationship? A good argument could be made that none of those distinc-tions should matter in answering the larger question. Hospitals 44 | November/December 2021 | www.MyFJA.org largely hold themselves out as providers of comprehensive care, and patients largely rely on hospital systems to provide an ap-propriate level of care up and down the chain of medical pro-fessionals. To insist that the practice of medicine itself comes down to the exercise of independent physician judgment and is merely a fungible and contracted service misses the reality of modern hospital medicine. Otherwise, after all, what would be the purpose of the credentialing process, quality control re-views, hospital rankings, and the implementation of policies and procedures? Unfortunately, and especially in catastroph-ic loss cases where the first level of liability coverage is often insufficient, the development of record evidence around these peripheral distinctions can matter a great deal. The application of Florida’s actual agency, apparent agency, and nondelegable duty doctrines rests on the shifting sands of somewhat conflicting appellate case law. Understanding the nuances contained in those opinions, as well as the ba-sic elemental requirements under each cause of action, how-ever, arms a savvy advocate. This understanding will allow a diligent plaintiff’s attorney to utilize targeted discovery to survive motions for summary judgment and ultimately cre-ate questions of fact for the jury to determine when liability should attach.
Journal FJA Issue 623: Page 44
