Stone v. Palms West Hosp., 4D05-4042.

• Decision Date: 08 November 2006
• Docket Number: No. 4D05-4042.,4D05-4042.
• Citation: 941 So.2d 514
• Parties: James D. STONE, Appellant, v. PALMS WEST HOSPITAL, Gerald T. Turgeon, D.O., Gerald T. Turgeon, D.O., P.A., Shakhar Sharma, M.D., Rahul A. Patel, M.D., and Palm Beach Primary Care Associates, Inc., Appellees.
• Court: Florida District Court of Appeals

941 So.2d 514

James D. STONE, Appellant, v. PALMS WEST HOSPITAL, Gerald T. Turgeon, D.O., Gerald T. Turgeon, D.O., P.A., Shakhar Sharma, M.D., Rahul A. Patel, M.D., and Palm Beach Primary Care Associates, Inc., Appellees.

No. 4D05-4042.

District Court of Appeal of Florida, Fourth District.

November 8, 2006.

Rebecca Mercier-Vargas and Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Joseph Johnson of Babbitt, Johnson, Osborne & LeClainche, P.A., West Palm Beach, for appellant.

Arthur J. England, Jr. and Edward G. Guedes of Greenberg Traurig, P.A., Miami, and Bruce M. Ramsey and Kera E. Hagan of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for appellee Palms West Hospital.

Gail Leverett Parenti of Parenti & Parenti, P.A., Miami, and William A. Bell, General Counsel, Florida Hospital Association, Tallahassee, for Amicus Curiae Florida Hospital Association.

PER CURIAM.

James Stone sued Gerald T. Turgeon, D.O., Gerald T. Turgeon, D.O., P.A., Shakhar Sharma, M.D., Rahul A. Patel, M.D., Palm Beach Primary Care Associates, Inc., and Palms West Hospital (among others not relevant to this appeal) for medical malpractice. The trial court entered final summary judgment in favor of Palms West, concluding that there was no jury question regarding the apparent agency of the physicians who treated Stone at the hospital. We reverse.

Stone sued Palms West based on, inter alia, a theory of apparent agency based on the negligence of on-call physicians Turgeon, Sharma, and Patel.

Palms West filed a motion for partial summary judgment asserting that it was not liable for the acts of its on-call physicians, because a hospital is not liable for the acts of physicians merely because they have staff privileges. Palms West additionally asserted that there was no evidence, whether statements or conduct, demonstrating that it represented to Stone that Turgeon, Sharma, and Patel were its agents.

Palms West attached several documents in support of its partial summary judgment motion. Among them was an affidavit from Palms West's Director of Physician Relations, Glennda Williams, setting forth the relationship between the hospital and the physicians from Palms West's point of view:

3. The above-referenced physicians were not agents or employees of Palms West Hospital. These physicians were engaged in the private practice of their medical specialties, and were based in their private offices, but they did have medical staff privileges at Palms West Hospital. Also, from time to time, they would have an obligation to respond to emergency department call on a rotational basis.

4. None of the above-referenced physicians had offices at the Hospital and they were not Hospital-based physicians. None of these physicians, nor anyone associated with Palms West Hospital, have the authority to represent to patients that these physicians were agents or employees of the Hospital.

5. Palms West Hospital did not compensate these physicians for professional services, and did not bill patients for these physicians' services.

6. Patients, including those admitted through the emergency department, were provided with, and were required to sign, a document entitled "Conditions of Admission and Authorization for Medical Treatment," which advised patients that the physicians providing services to them were independent contractors and not employees or agents of the Hospital. The medical chart relating to James D. Stone's admission of May 17, 2000 indicates that he signed such a document, a copy of which is attached hereto as Exhibit "A."

7. Palms West Hospital had no contractual relationship with these above-referenced physicians or their professional associations.

Also filed with the trial court were the depositions of many of the individuals involved in Stone's care and treatment at Palms West. In his deposition, Stone, who is legally blind, testified that after being seen by his doctor for numbness in his extremities, he became incontinent and his doctor instructed him to go to the nearest hospital, which happened to be Palms West.

In his deposition, Stone indicated the following regarding his interaction with Palms West:

PLAINTIFF: When you advised the hospital personnel that your doctors were Dr. Phillips and Dr. Stone, were you informed that those doctors in essence did not belong to this hospital, Palms West Hospital?

. . . .

STONE: Yeah.

PLAINTIFF: Did the personnel at Palms West Hospital tell you that they had their own doctors who could come in and treat you?

. . . .

STONE: Yes, I did.

PLAINTIFF: And the doctors that they called in to see you that you were told were the hospital's own doctors, were they Dr. Sharma and Dr. Turgeon . . . .

STONE: Yes.

PLAINTIFF: Did you have any say-so as to the assignment by the hospital of Dr. Sharma and Dr. [Turgeon].

STONE: When I went in, that was the ones that I got.

PLAINTIFF: So what the hospital told you was that your doctors are not allowed to come in and see you at Palms West Hospital but instead they had their own doctors who they would call in to see you and treat you; is that correct?

. . . .

STONE: Yes.

Additionally, Stone's mother testified regarding her son's interaction with Palms West during her deposition:

DEFENDANT: Did you talk to the nursing staff there?

STONE: Yeah, when I first got in, I told them that Dr. Stone told me to bring him to the emergency room, and she said that Dr. Stone did not come to that hospital, and she said that she would have to give him their doctor, and then they took him in the back and I went in to triage, I think is what they call it when they take you to another room and they ask you questions, and I guess — I think that's the nurse that talks to you there.

Stone also filed a reply and memorandum of law in opposition to Palms West's motion for partial summary judgment. He asserted that summary judgment was inappropriate because there were genuine issues of material fact regarding whether Turgeon, Sharma, and Patel were apparent agents of Palms West. Stone also filed an affidavit in opposition to summary judgment. The affidavit¹ contained the following attestations:

4. Upon my arrival I informed the hospital personnel that my neurologist was Dr. Reed Stone. They informed that Dr. Stone did not belong to Palms West but that Palms West had their own doctors who would treat me. Palms West provided Drs. Turgeon, Patel and Sharma to treat me who I believed were employed by Palms West. Based upon these representations I relied upon Palms West to provide me with doctors who were competent and capable of treating me, including my neurological needs.

5. Upon being admitted to Palms West Hospital, someone in the hospital flipped the page over and placed the signature page of the Conditions of Admission and Authorization for Medical Treatment in front of me and instructed me to sign it. I was never given the opportunity to read the paper I was asked to sign nor was its content explained to me.

6. I believed that the doctors who provided care for me, including Dr. Turgeon, Dr. Sharma and Dr. Patel, were working for the hospital. I thought their offices were located in the hospital.

7. I did not have the opportunity to choose which doctor was assigned to treat me during my stay at Palms West Hospital. I relied on the hospital to not only provide me with medical care, but also to select appropriate physicians to provide me such care.

The trial court held a hearing on Palms West's motion for partial summary judgment, at which it considered the affidavits and depositions provided by the parties. Thereafter, the trial court entered an Order Granting Partial Summary Judgment in Favor of Defendant, Palms West Hospital. The trial court made the following findings and reached the following conclusions relevant to this appeal:

The facts presented to this Court were that these physicians have medical staff privileges at Palms West Hospital, subject to the medical staff by-laws, but they were engaged in private practice of their medical specialties based in their private offices and were not hospital-based physicians and did not have any contractual relationship with the hospital.

It is well-established that a hospital is not liable for the actions of non-employed physicians merely because they have staff privileges to treat the patient within the facility. Insinga v. LaBella, 543 So.2d 209 (Fla. 1989); Liberatore v. NME Hospitals, Inc., 711 So.2d 1364 (Fla. 4th DCA 1998); Cedars Medical Center, Inc. v. Ravelo, 738 So.2d 362 (Fla. 3d DCA 1999); Reed v. Good Samaritan Hospital Association, Inc., 453 So.2d 229 (Fla. 4th DCA 1984). An exception to this rule applies to hospital-based physicians, who are under contract with the hospital to provide professional services, i.e. emergency department, anesthesiology, radiology and pathology physicians, when the hospital, by words or conduct causes or allows a patient to believe that a physician is an agent of and had authority to act for the hospital and the patient justifiably relied upon that belief in accepting treatment from that physician and in such a case the hospital may be liable for the physician's negligence under the theory of apparent agency. See: Irving v. Doctors Hospital of Lake Worth, 415 So.2d 55, 55-59 (Fla. 4th DCA 1982), rev. denied, 422 So.2d 842 (Fla. 1982) and Cuker v. Hillsborough County Hospital Authority, 605 So.2d 998 (Fla. 2d DCA 1992).

In Irving, Cuker and other cases in which Florida appellate courts have held that there was an issue of fact on the agency vis-à-vis independent contractor issues the courts were dealing with hospital-based physicians who had a contract with the hospital to provide medical services to patients at the hospital. In distinguishing the law applicable to hospital-based/contract physicians and private physicians who have privileges at the hospital, the court in Reed stated as follows:

The Irving case, supr...