In the case of Godwin v. University of South Florida Board of Trustees, et. al., 2016 Fla. App. LEXIS 12729; 41 Fla. L. Weekly D 1949 (Fla. 2d DCA 2016), the plaintiff alleged the wrongful death of his wife was due to medical malpractice at Tampa General Hospital following a severe stomach ache that was diagnosed as colon cancer. The day after admission, a surgeon performed an operation to remove a tumor, however, the procedure did not go well and resulted in a tear to the wall of Mrs. Godwin’s inferior vena cava. Mrs. Godwin died of excessive bleeding while on the operating table. (The inferior vena cava is the largest vein in the human body and returns blood to the right atrium of the heart for body parts below the diaphragm).
Hospitals Consider Almost All of Their Physicians as Independent Contractors for Liability Reasons
Mrs. Godwin’s surviving husband sued Tampa General and USF alleging that the physicians were negligent and the hospital had a nondelegable duty to provide non-negligent surgical procedures at the hospital. It is important to know that Tampa General is a “teaching hospital” under Florida law and the physicians who work there are almost always on staff at USF, thereby entitling them to limited legal liability limits of sovereign immunity. Consequently, Mrs. Godwin went to TGH through the emergency room and was required to sign a number of consents and admission forms. One of those admission forms was a notice that the physicians employed by the hospital were actually employed by USF rather than TGH. This acknowledgement is pivotal under Florida law because a hospital is generally not liable for the acts of a physician who is an independent contractor and not an employee. When a patient signs such an acknowledgment, it destroys any argument that the patient may have under the law that the hospital is providing an employed physician or that it would appear to be such in order to create the basis of legal liability.
Defining Nondelegable Duty Under Florida Law
The issue of nondelegable duty was directly addressed in the appeal as the court discussed what is required for it to exist. Beyond agency, liability may attached if a statute, regulation, or contract creates a nondelegable duty or if the hospital allowed unqualified physicians to have staff privileges. In particular, the plaintiff argued that TGH had a statutory duty under Medicare and medicaid statutes to provide medical care and that such duties cannot be delegated to an independent contractor. This argument was specifically rejected by the court because those guidelines are meant provide guidance on what hospitals must do to receive payments from Medicare.
Nondelegable Duty Needs to be in the Complaint
To sum up the court’s opinion, nondelegable duty can exist when principles of agency exist, by contract, or by statute. In addition, the theory of nondelegable duty claimed by the plaintiff should be pleaded in the lawsuit itself.
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