DAYTONA BEACH, Fla. (Legal Newsline) – A man who seemingly predicted complications from his surgery can sue Florida Hospital, as a state appeals court has found there may be a relationship between it and the surgeon it claims was an independent contractor.
The Fifth District Court of Appeal on Feb. 5 overturned an Orange County Circuit Court decision dismissing the claims brought by Ricky Luebbert against Florida Hospital. He is alleging the hospital is vicariously liable for the actions of Dr. Syed Malik, who has already settled.
“Although Luebbert had the option to accept treatment from another on-call physician, he was selecting between physicians that the hospital provided to him, rather than selecting a doctor of his choosing,” Judge John Harris wrote.
“This lack of choice on part of Luebbert, coupled with the other factors previously discussed, is sufficient to create a jury question regarding apparent agency. Because Luebbert’s testimony established he wanted to get the surgery as quickly as possible, he likely would not have changed his position even if he knew Dr. Malik was independent from the hospital. However, this remains a question for the fact finder.”
Luebbert was suffering from appendicitis in November 2011. It was 4 a.m. when he met Malik, the on-call surgeon, who wore a white coat with his name, Florida Hospital badge and the words “general surgeon” on it.
Luebbert was uneasy about Malik and asked about another surgeon. He was told there would be no one else for another five hours, so he decided to “take his chances,” the opinion says.
After the surgery, Luebbert asked to be given antibiotics but Malik said they were not necessary. Turns out, they were, as Luebbert developed a significant abdominal infection.
Florida Hospital said Malik was neither its employee nor its agent, claiming instead he was an independent contractor. The trial court agreed.
But the Fifth District said that might not be the case and ordered the trial court to determine if all three elements of an agency exist. They are:
-A representation by the purported principal;
-Reliance on that representation by a third party; and
-A change in position by the third party in reliance on the representation.
“Thus, where a hospital held out a particular physician as its agent or employee, and a patient has accepted treatment from that physician and reasonably believed that treatment was rendered on behalf of the hospital, the hospital will be liable for the physician’s negligence,” Harris wrote.