In Wax v. Tenet, 32 Fla. L. Weekly D641a (4th DCA March 7, 2002) a 37-year-old gentleman underwent an elective hernia repair at West Boca Medical Center. The surgical consent included a provision consenting to anesthesia administration by South Palm Beach Anesthesiologists, PA. Plaintiff moved for summary judgment on whether the hospital had a nondelegable duty to provide non-negligent anesthesia care; Defendant moved for summary judgment that it had no such duty. The Court denied Plaintiff’s motion and granted the defense motion.
The Fourth District quoted Pope v. Winter Park, 939 So. 2d 185 (Fla 5th DCA 2006) extensively, and ultimately found that Fla Stat Section 395.1055 and AHCA reg Fla. Admin. Code R. 59A-3.2085(4) impose a duty for non-negligent anesthesia services on all surgical hospital that is “important enough that as between the hospital and its patient it should be deemed non-delegable without the patient’s express consent.” The Court reversed the summary judgment in favor of the hospital, and found that “if there were negligence in the provision of anesthesia services, then the Hospital would be liable as a matter of law.”
The Court did analyze the language of the surgical consent at issue, and noted that it failed to “discharge the hospital from its primary statutory and contractual duty of providing non-negligent anesthesia services.” It should be noted that, even if such language were included (like in the consent in the Pope case which explicitly stated that the physicians were independent contractors and explicitly authorized the hospital to delegate services to the physicians) summary judgment or DV in favor of the hospital would still be error. Since the consent is drafted by the Hospital and contains issues of fact, there it would be a jury question.
Footnot 3 of the Fourth District’s opinion is very telling: “We share Judge Griffin’s view that Judge Altenbernd’s concurring opinion in Roessler v. Novak, 858 So.2d 1158, 1163 (Fla. 2d DCA 2003) (Altenbernd, J., concurring) (arguing that hospitals should be held to have a non-delegable duty to provide adequate radiology departments, pathology laboratories, emergency rooms, and other professional services necessary to the ordinary and usual functioning of the hospital), does indeed make sense as an aspiration for the evolution of Florida law.”
March 8th, 2007
In Lakeland Regional v. Allen, 32 Fla. L. Weekly D94b (2d DCA December 27, 2006) the Second DCA addressed a situation where a hospital was alleged to have served a patient a turkey sandwich that caused salmonella infection and the ultimate demise of the patient. The trial court denied a motion to dismiss for failure to comply with presuit, and certiorari review was granted.
The Second DCA recognized that Chapter 766 doesn’t apply where the cause of the injury is something other than improper medical care, and therefore presuit compliance isn’t required. The Court recognized that there was a case where the patient was on a prescribed diet and the prescription wasn’t followed that did require presuit notice. But, the Court found the instant matter to be analogous to the Quintanilla case which found that burn injuries caused by a nurse spilling scalding-hot tea onto a patient constituted simple negligence and not medical malpractice.
February 16th, 2007
In NICA v. DOA, 32 Fla. L. Weekly (Fla. Sct January 11, 2007), the Supreme Court addressed the issue of whether an Administrative Law Judge (ALJ) has jurisdiction to decide whether proper NICA notice was given. The case stems from situations where defendants in medical malpractice cases raised NICA as an affirmative defense. The Plaintiffs had to file for NICA, and claimed they did not receive proper notice under NICA. The defendant health care providers intervened. After administrative hearings the ALJ found that notice was not provided, and the health care providers appealed. The Second DCA ruled that the ALJ does not have jurisdiction to make findings regarding notice. On appeal the Florida Supreme Court quashed the Second DCA opinion and found that the ALJ has jurisdiction to make notice determinations.
It was previously settled that the ALJ could decide 3 issues: 1. Whether the injury claimed is a birth-related neurological injury; 2. Whether obstetrical services were delivered by a NICA participating physician; and 3. How much compensation should be awarded.
It should be noted that, as Justice Pariente points out in her dissent, this decision effects a very narrow number of cases because it addresses the 1998 version of the statute. The statute was amended in 2003, and now the ALJ explicitly has the jurisdiction to decide notice.
February 16th, 2007
In Michael v. MSN, 32 Fla. L Weekly D207b (3rd DCA January 10, 2007), a man went to a hospital following a head laceration. While there he experienced chest pain, and was given 5 doses of nitroglycerine by a nurse – without physician approval. The next morning the doctor came in and determined the gentleman had had a heart attack that, because it went untreated, soon resulted in the man’s death.
Before the expiration of the statute of limitations, presuit notice was served on the hospital and the doctors. The attached affidavit cited negligence on the part of the physicians “and medical providers.” The notice also requested the identity of anyone else involved. Almost a year later, the hospital informed Plaintiff’s counsel that the nurse was an agency nurse not employed by the hospital. Plaintiff’s counsel immediately sought leave to amend to add the nurse and the agency. The Court granted leave, but then granted summary judgment in favor of the nurse and the agency finding presuit notice defective – particularly the affidavit – for failing to list a name, job title, or job description for each prospective defendant.
On appeal the Third District found that the purpose of the affidavit requirement is to demonstrate that a reasonable investigation into the claim was done (to corroberate the claim – not each defendants’ involvement). The Court further recognized that Rule 1.650(b) provides that notice to any prospective defendant can be imputed to those persons or entities in a legal relationship with the noticed defendant. The Court reasoned that if the legislature has chosen to allow notice to be imputed to defendants who are not served then there is no reason to name each of those parties individually. The Court reversed the Summary Judgement.
February 15th, 2007
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