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.”