Orlando Regional Medical Center, Inc. v. Chmielewski, s. 89-691

• Decision Date: 06 December 1990
• Docket Number: 89-797 and 89-885,Nos. 89-691,89-790,s. 89-691
• Citation: 573 So.2d 876
• Parties: 15 Fla. L. Weekly D2937 ORLANDO REGIONAL MEDICAL CENTER, INC., et al., Appellants/Cross-Appellees, v. Boleslaus J. CHMIELEWSKI, et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 876

573 So.2d 876

15 Fla. L. Weekly D2937

ORLANDO REGIONAL MEDICAL CENTER, INC., et al., Appellants/Cross-Appellees, v. Boleslaus J. CHMIELEWSKI, et al., Appellees/Cross-Appellants.

Nos. 89-691, 89-790, 89-797 and 89-885.

District Court of Appeal of Florida Fifth District.

Dec. 6, 1990.

Rehearings Denied Feb. 4, 1991.

H. Scott Bates of Mateer, Harbert & Bates, P.A., Orlando, for appellant/cross-appellee Orlando Regional Medical Center.

J. Charles Ingram of Hannah, Marsee, Beik & Voght, P.A., Orlando, for appellant/cross-appellee William K. Bott, M.D.

Geoffrey D. Ringer and Barbara A. Flanagan of Maguire, Voorhis & Wells, P.A., Orlando, for appellee/cross-appellant Hood.

Jack B. Nichols, Orlando, for appellees/cross-appellants Boleslaus and Carolyn Chmielewski.

W. SHARP, Judge.

The Orlando Regional Medical Center, Inc. (ORMC) appeals from a final judgment entered after a jury trial, which awarded $54,675 to Boleslaus Chmielewski in a medical malpractice claim and $23,687 to his wife, Carolyn, for her loss of consortium claim. This appeal was consolidated with appeals and cross appeals from a later judgment in the same cause which awarded the Chmielewskis costs and attorney's fees. We affirm the trial court in all regards, except its calculation of the attorney's fee award, which was limited by the terms of the contingency fee contract pursuant to Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985) and Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990).

The record establishes that in October of 1984, Boleslaus received a puncture wound to the bottom of his foot when he inadvertently stepped on an anchor bolt in his utility shed. The bolt pierced the rubber sole of his shoe and embedded a piece in the wound. Carolyn insisted that he obtain medical treatment for the injury. Boleslaus decided he wanted to go to the emergency room at ORMC because it was the closest hospital to their home.

The Chmielewskis waited for treatment in the ORMC emergency room a considerable time. Finally, Boleslaus was seen by an emergency room physician, Dr. Aparicio. The doctor looked at the wound, but failed to get a complete history and did not check inside Boleslaus' foot for any embedded foreign object. He referred Boleslaus to Dr. Hood and a nurse cleaned and bandaged the injury.

Unfortunately, Dr. Hood, as well as Dr. Brooks, another doctor who ex-rayed and treated Boleslaus, failed to discover the bit of foreign matter in Boleslaus' foot. It never healed, and remained inflamed and infected. In November, Dr. Bott removed the fourth metatarsal of the foot, which had deteriorated due to osteomyelitis. Not until the following February was the piece of rubber in the foot discovered and removed. Thereafter Boleslaus' foot healed and he was finally discharged from care some seven months after the initial puncture wound was received.

The Chmielewskis sued ORMC and the three doctors, Hood, Brooks, and Bott. The jury found ORMC was 77 percent liable, Hood was 18 percent liable, and Boleslaus was 5 percent liable for his injuries. It returned a not liable verdict for Dr. Bott. Damages in the amount of $54,675 were found for Boleslaus and $23,687 for Carolyn on her claim for loss of consortium. After the judgment was rendered, a settlement was reached with Dr. Hood and Dr. Brooks. The only defendant/appellant remaining in this proceeding is ORMC.

I. MAIN APPEAL BY ORMC

In its appeal from the judgment, ORMC argues it was entitled to a directed verdict on the issue of apparent agency. The hospital's liability was based solely on its vicarious liability for Dr. Aparicio's treatment of Boleslaus' wound in the emergency room. The hospital established that Dr. Aparicio was not its employee, nor did the Chmielewskis rely on any express representation by ORMC that Dr. Aparicio was the hospital's agent or employee.

The record established, without dispute, that ORMC made no express representations to the public or to the Chmielewskis, positive or negative, concerning Dr. Aparicio's employee status. The Chmielewskis assumed he worked for ORMC because he was furnished to them once they arrived in ORMC's emergency room. There were no signs or notices to inform them that Dr. Aparicio worked for Duplis & Associates, a professional association that contracted with ORMC to provide doctors in ORMC's emergency room. Boleslaus testified that even if he had known Aparicio was not employed by ORMC, he probably would have allowed Aparicio to treat him.

Pursuant to its license and various administrative directives, ORMC is required to have an emergency room staffed with doctors. It provides all of the forms, equipment and nurses for the emergency room, and it handles all of the billings and collections. It paid Duplis & Associates a percentage of the collections, and the association in turn paid Dr. Aparicio a salary.

Under similar circumstances, Florida courts have held cases should go to the jury for a determination of vicarious liability on the part of the hospital for the malpractice of emergency room physicians on the theory of apparent agency. See Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA), rev. denied, 422 So.2d 842 (Fla.1982); Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982). The Irving court relied upon Restatement (Second) of Agency, section 267 (1958), as well as Restatement (Second) of Torts, section 429 (1965).

These Restatements provide:

One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

Restatement (Second) of Agency § 267 (1958).

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for the physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Restatement (Second) of Torts § 429 (1965).

ORMC argues that even if the circumstances in this case ¹ were sufficient to establish an implied representation to Boleslaus that Dr. Aparicio was its employee or agent, the appellees failed to establish the two additional, required elements for liability: actual reliance on the representation; and detriment or injury received because of the reliance. See Hathaway v. Tindall, 497 So.2d 1272 (Fla. 3d DCA 1986), rev. denied, 506 So.2d 1041 (Fla.1987), Orlando Executive Park, Inc. v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981), affirmed, Orlando Executive Park v. Robbins, 433 So.2d 491 (Fla.1983). No facts are set out in Hathaway, so that case is of little value as precedent.

Orlando Executive involved the vicarious liability of a national franchisor (Howard Johnson's) for injuries suffered by a patron of a Howard Johnson's franchisee's facility, due to lack of security precautions on the premises. The elements of reliance and detriment were established in that case by merely showing the guest booked at that inn because of the national name and reputation, and entered the motel as a guest.

In this case, it was shown without dispute that the Chmielewskis came to the ORMC emergency room because of ORMC's name and reputation as a hospital and that Boleslaus allowed himself to be treated there. The injuries he suffered (if causally connected to the treatment he received) were clearly a "detriment." These additional elements of reliance and detriment appear to us to be subsumed in the scenario of proof in this cause, justifying the trial court's refusal to direct a verdict for ORMC. See Arango v. Reyka, 507 So.2d 1211 (Fla. 4th DCA 1987); Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (Md.1977).

However, we note that the Restatement (Second) of Torts quoted above requires no separate proof of "reliance" and "detriment," and further that illustration three of the comments to Restatement (Second) of Agency, section 267 (1958), also does not require these elements, in addition and apart from the initial representation:

Illustration 3: L, a department store, contracts with T, as an independent contractor to give medical attention to patrons of the store, T appearing as an employee of D. D is liable for negligent medical care rendered by T.

The fact of seeking medical treatment in a hospital emergency room and receiving treatment from a physician working there is sufficient. Arthur v. St. Peters Hospital, 169 N.J.Super. 575, 405 A.2d 443 (Law Div.1979); Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (N.Y.App.Div.1976).

ORMC also argues that the instruction given by the trial judge on apparent agency was contrary to Florida law in various particulars and amounted in this case to directing a verdict on the issue of vicarious liability. We are unable to fully address this point on appeal because a copy of the disputed instruction was not included in the record and the transcript does not contain the part of the proceeding in which the judge read the instruction to the jury. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

The jury was apparently instructed on nonliability for an independent contractor and on the apparent agency exception. The parties agreed to a jury instruction which began with Florida Standard Jury Instruction 3.3b(2) followed by the bracketed independent contractor instruction of 3.3b(1). In addition, the Chmielewskis requested and ORMC objected to an additional instruction taken almost verbatim from Irving.

In addition control and domination need not be actual but may be binding upon principal or employer if apparent. That is if the principal or employer has held the agent or...