Godwin v. University of South Florida Board of Trustees

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

ARTHUR LEE GODWIN, as Personal )

Representative of the Estate of Annie

)

Godwin, )

)

Appellant, )

)

v. ) Case No. 2D14-2588

) 2D14-2962

UNIVERSITY OF SOUTH FLORIDA )

BOARD OF TRUSTEES; DAVID ) CONSOLIDATED

SHAPIRO, M.D.; JAIME SANCHEZ, M.D.; )

FLORIDA HEALTH SCIENCE CENTER, )

INC. d/b/a TAMPA GENERAL HOSPITAL, )

)

Appellees. )

)

Opinion filed August 24, 2016.

Appeal from a final order pursuant to Fla. R.

App. P. 9.030 from the Circuit Court for

Hillsborough County, and appeal of a

nonfinal order pursuant to Fla. R. App. P.

9.130 from the Circuit Court for Hillsborough

County; Martha J. Cook, Judge.

Marjorie Gadarian Graham of Marjorie

Gadarian Graham, P.A., Palm Beach

Gardens; and Maria P. Sperando of the

Law Office of Maria P. Sperando, P.A.,

Stuart, for Appellant.

David C. Borucke, Paula J. Lozano, and

Robert J. Murphy of Cole Scott & Kissane,

P.A., Tampa, for Appellee Tampa General

Hospital.

No appearance for remaining Appellees.

LaROSE, Judge.

Arthur Lee Godwin, the personal representative of the Estate of Annie

Godwin, filed this consolidated appeal of a final summary judgment entered in favor of

Tampa General Hospital ("TGH"), in case 2D14-2588, and a nonfinal order entered after

final judgment denying Mr. Godwin's motion for partial summary judgment as to his

breach of a nondelegable duty cause of action, in case 2D14-2962. We have

jurisdiction in case 2D14-2588, see Fla. R. App. P. 9.030(b)(1)(A), and in case 2D14-

2962, see Fla. R. App. P. 9.130(a)(4),1 and affirm.

Background

At the end of September 2009, Mrs. Godwin suffered from a severe

stomach ache, nausea, and decreased appetite. She went to the TGH emergency

room on October 12, 2009. She was later admitted as a patient. Mrs. Godwin signed a

Certification and Authorization form, as well as a Special Notice form.

She was diagnosed with colon cancer. On October 21, 2009, Dr. Jaime

Sanchez and Dr. David Shapiro operated to remove the tumor. The day before surgery,

Dr. Sanchez met with Mrs. Godwin to discuss the procedure. At that time, Mrs. Godwin

signed another form, the Consent & Disclosure for Medical and/or Surgical Procedures.

Unfortunately, the surgery did not go well. Mrs. Godwin sustained a tear to the wall of

1After the filing of the notice of appeal in this case, the supreme court

approved amendments to Florida Rule of Appellate Procedure 9.130. See In re Amend.

to Fla. R. of App. P., 183 So. 3d 245, 252 (Fla. 2014). The amendments became

effective on January 1, 2015.

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her inferior vena cava.2 Excessive bleeding caused Mrs. Godwin to die on the

operating table.

Mr. Godwin sued the University of South Florida Board of Trustees

("USF"), Dr. Shapiro, Dr. Sanchez, and TGH for medical malpractice.3 Mr. Godwin

argues to us that the physicians responsible for Mrs. Godwin's care were agents of

TGH. He also asserts that TGH had a nondelegable duty to provide Mrs. Godwin with

nonnegligent surgical procedures and that TGH failed to satisfy the requirements of

section 1012.965, Florida Statutes (2009). TGH responds that the physicians who

cared for Mrs. Godwin were independent contractors employed by USF and that TGH

properly delegated any duty of care and related potential for liability to USF. Central to

the issues before us are the documents that Mrs. Godwin signed at TGH related to her

care.

Signed Documents

When she went to the TGH emergency room, Mrs. Godwin signed the

Special Notice form and the Certification and Authorization form. About one week later,

on the eve of her surgery, she met with Dr. Sanchez and signed the Consent and

Disclosure form.

The Special Notice states as follows:

I acknowledge that I have been given this separate

written conspicuous notice by the University of South

2The inferior vena cava is the largest vein in the human body, "formed by

the union of the two common iliac veins at the level of the fifth lumbar vertebra, and

returns blood to the right atrium of the heart from bodily parts below the diaphragm."

Inferior Vena Cava, Merriam-Webster, http://www.merriam-

webster.com/medical/inferior%20vena%20cava (last visited June 10, 2016).

3The final summary judgment disposed of all claims asserted against

TGH.

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Florida/University of South Florida Board of Trustees, a body

corporate of the State of Florida ("USF") and Tampa General

Hospital ("TGH") that some or all of the care and treatment I

receive will or may be provided by physicians who are

employees and agents of the USF, and liability, if any, that

may arise from that care is limited as provided by law. I

acknowledge that such physicians who are employees and

agents of USF are under control of USF, not TGH, when

they render care and treatment at TGH pursuant to the

affiliation agreement between USF and TGH, and such USF

physicians are not the employees or agents of TGH. I

hereby certify that I am the patient or a person who is

authorized to give consent for the patient.

(Emphasis added.)

The Certification and Authorization form explicitly states that

Medical Staff Physicians including, but not limited to, the

Emergency Physicians, Physicians Assistants and Advanced

Registered Nurse Practitioners, practicing in the Emergency

and Trauma centers, Anesthesiologists, Nurse Anesthetists,

Radiologists and Pathologist ARE NOT AGENTS OR

EMPLOYEES OF TAMPA GENERAL HOSPITAL. They are

independent medical practitioners exercising independent

medical judgements [sic] at facilities provided by the

hospital.

Finally, the Consent and Disclosure form repeated that the "physician,

surgeon and his or her associates, physicians-in-training and their technical assistants

are not hospital employees."

Relationship between USF and TGH

An affiliation agreement governs the relationship between TGH and USF.

The agreement makes TGH the primary teaching hospital for USF's College of

Medicine. Pursuant to the agreement, "employees or agents of [USF] assigned by

[USF] to perform duties at [TGH] . . . shall not be deemed an employee or agent of

[TGH] for any reason." USF selects and hires its own employees for assignment to

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TGH and has sole control over them. USF compensates and supervises these

employees.

The USF Physicians

Dr. Shapiro was a clinical professor of surgery at USF with surgical

privileges at TGH. Dr. Shapiro was on call at TGH's trauma division when Mrs. Godwin

was admitted to the hospital. He testified that he usually wore a USF lab coat with a

USF emblem. He also wore a name tag issued by TGH that identified him as a member

of the division of surgery. Our record does not indicate that Dr. Shapiro made any

representations to Mrs. Godwin concerning his status with either USF or TGH. Dr.

Shapiro performed surgery in other hospitals. He retired in late 2010.

An employee of USF, Dr. Sanchez was a senior resident at TGH but

rotated among several hospitals. Dr. Sanchez wore a USF lab coat, a USF badge, and

a TGH security badge. When he met Mrs. Godwin, Dr. Sanchez advised her that he

was a USF surgical resident.

Neither Dr. Shapiro nor Dr. Sanchez maintained an office at TGH. USF

paid their salaries and benefits. The only employment contract these physicians had

was with USF. Our record contains no evidence suggesting that either physician told

Mrs. Godwin that TGH employed them.

Analysis

Mr. Godwin argues that the trial court erred in granting summary judgment

to TGH on his theory that Dr. Shapiro and Dr. Sanchez were apparent agents of TGH.

He asserts further that the Special Notice Mrs. Godwin signed did not comply with

section 1012.965, and that as a result, TGH had a nondelegable duty to provide Mrs.

Godwin with nonnegligent surgical services. Mr. Godwin also claims that because TGH

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is a Medicare provider, the regulations promulgated under the Medicare Act imposed an

independent nondelegable duty on TGH. Each argument fails.

A. Standard of Review

We review a summary judgment de novo. Volusia County. v. Aberdeen at

Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

B. Compliance with section 1012.965

Section 1012.965(1) limits TGH's exposure to liability for the allegedly

negligent conduct of Dr. Shapiro and Dr. Sanchez:

[A]n employee or agent under the right of control of a

university board of trustees who, pursuant to the university

board's policies or rules, renders medical care or treatment

at any hospital . . . with which the university board maintains

an affiliation agreement whereby the hospital . . . provides to

the university board a clinical setting for health care

education, research, and services, shall not be deemed to

be an agent of any person other than the university board in

any civil action resulting from any act or omission of the

employee or agent while rendering said medical care or

treatment.

For TGH to enjoy this protection, the statute requires that

the patient shall be provided separate written conspicuous

notice by the university board of trustees or by the hospital

or health care facility, and shall acknowledge receipt of this

notice, in writing, unless impractical by reason of an

emergency, either personally or through another person

authorized to give consent for him or her, that he or she will

receive care provided by university board's employees and

liability, if any, that may arise from that care is limited as

provided by law.

§ 1012.965(1).

Mr. Godwin relies on Rayburn v. Orange Park Medical Center, Inc., 842

So. 2d 985, 988 (Fla. 1st DCA 2003), to argue that the Special Notice did not comply

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with the statute. The case is inapposite. Rayburn held that the hospital failed to comply

with section 240.215, Florida Statutes (2003), the predecessor to section 1012.965,

because the form given to the patient was neither separate nor conspicuous. See id. at

989. Mr. Godwin also argues that the Special Notice is noncompliant because it states

that the patient will or may be treated by USF physicians. Seemingly, he argues that

the Special Notice must have stated affirmatively that only USF physicians will provide

care and treatment.

We must conclude that the Special Notice complied with section

1012.965. There can be no dispute that TGH and USF were parties to an affiliation

agreement. Further, we can glean no material issue of fact indicating anything but that

the Special Notice was a separate written and conspicuous notice contemplated by the

statute. And, by signing the Special Notice, Mrs. Godwin acknowledged its receipt.

That is all the statute requires. The language of the Special Notice adequately informed

Mrs. Godwin that USF physicians could be responsible for her care; these physicians

were not TGH employees or agents. The Certificate and Authorization form and the

Consent and Disclosure form, both received and signed by Mrs. Godwin, reinforced that

fact.

C. Apparent Agency

Mr. Godwin asserts that TGH held Dr. Shapiro and Dr. Sanchez out as

hospital employees or agents. Accordingly, he claims, TGH is liable under an apparent

agency theory.

Generally "a hospital is not liable for the negligent acts of a physician who

is not its employee, but an independent contractor." Newbold-Ferguson v. AMISUB

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(North Ridge Hosp.), Inc., 85 So. 3d 502, 504 (Fla. 2012); see also Emelwon, Inc. v.

United States, 391 F.2d 9, 11 (5th Cir. 1968) (holding that one who employs an

independent contractor is not vicariously liable for her negligence). However, Florida

has long recognized that a hospital that retains an independent contractor to provide

medical services may still be liable for the negligence of the independent contractor if

the hospital cloaked her with apparent authority to act on its behalf. Webb v. Priest, 413

So. 2d 43, 47 n.2 (Fla. 3d DCA 1982) (citing Stuyvesant Corp. v. Stahl, 62 So.2d 18

(Fla. 1952); Thomkin Corp. v. Miller, 24 So. 2d 48 (1945)). Liability may attach,

however, if: (1) the physician is an actual or apparent agent of the hospital; (2) a statute,

regulation, or contract creates a nondelegable duty; or (3) the hospital failed to exercise

due care in selecting the physician. Newbold-Ferguson, 85 So. 3d at 504-05.

Obviously, "an employer who holds one out as his employee is estopped to deny the

employee's authority." Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So. 2d 55, 57

(Fla. 4th DCA 1982).

In Irving, the jury had to decide whether an emergency room physician

was an employee or an independent contractor of the hospital. Id. at 56. The trial court

refused to instruct the jury on estoppel. Id. at 57. The Fourth District held that

"reversible error was committed when the trial court instructed the jury regarding the

nonliability of an independent contractor without including the inculpatory exceptions to

that rule that had been requested by Irving." Id. at 56. Unlike our case, the patient in

Irving had no notice of the relationship between the hospital and the physician. Id. And,

the evidence at trial raised significant issues about the extent of control the hospital

exercised over the emergency room physician. Id. Here, Mrs. Godwin received three

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separate notices informing her of the relationship between TGH and USF physicians.

TGH did not hold Dr. Shapiro or Dr. Sanchez out as its employees or agents. Nor can

we say that, based on our record, Dr. Shapiro and Dr. Sanchez conducted themselves

in any manner to mislead Mrs. Godwin into thinking that they worked for TGH. Thus, on

its facts, Irving is distinguishable from our case.

It is helpful to recall that Mrs. Godwin presented initially to the emergency

room on October 12, 2009. Her surgery was about a week later. Up to her surgery, she

was alert. Indeed, the day before her surgery, Mrs. Godwin signed the Consent and

Disclosure form reflecting that the upcoming surgery would not be performed by TGH

personnel. See Newbold-Ferguson, 85 So. 3d at 505 ("[T]he imposition of a

nondelegable duty to provide competent emergency room services makes sense,

because a patient in an emergency room generally has little, if any, control over who will

be the treating physician."). Thus, for a third time since coming to TGH, Mrs. Godwin

received notice that those providing her care, specifically, the surgeons, were USF

employees.

The trial court properly granted summary judgment for TGH on Mr.

Godwin's apparent agency cause of action. No disputed material facts undermine the

trial court's conclusion that the physicians were not TGH employees or agents. In

addition to the affiliation agreement and the three forms signed by Mrs. Godwin, we are

mindful that USF controlled its physicians. As the First District observed in DeRosa v.

Shands Teaching Hospital & Clinics, Inc., 504 So. 2d 1313, 1315 (Fla. 1st DCA 1987),

"[f]actors considered to determine the existence of an employer and employee

relationship included the selection and engagement of the employee, the payment of

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wages, the power of dismissal, and the right of control over conduct." Our record

contains no factual disputes as to the nature of the relationship; the physicians were

employees of USF, paid by USF, and assigned by USF. USF, not TGH, controlled their

activities.

D. Nondelegable Duty Pursuant to Contract

Mr. Godwin stresses that TGH had a contractual nondelegable duty to

provide nonnegligent surgical care to Mrs. Godwin. He relies on Irving, 415 So. 2d at

60-61, for the proposition that a hospital who hires an independent contractor to perform

services that it has undertaken to perform is liable for the independent contractor's

negligence. However, as noted earlier, Irving involved an emergency room setting. Id.

at 56. Moreover, there was no indication to the patient that the emergency room

physician, and not the hospital, bore the duty of care. Id. at 61.

Nevertheless, Mr. Godwin asserts that although a party can delegate

performance of the nondelegable duty to an independent contractor, liability remains

with the party who bore the duty, that is, TGH. See U.S. Sec. Servs. Corp. v. Ramada

Inn, Inc., 665 So. 2d 268, 270 (Fla. 3d DCA 1995) ("[A] landowner may contract out the

performance of his nondelegable duty to an independent contractor, but he cannot

contract out of his ultimate legal responsibility for the proper performance of his duty by

the independent contractor . . . ."). As we have already seen, as a matter of statute,

section 1012.965, TGH properly delegated its duty of performance, as well as any

related liability, to USF pursuant to the Special Notice. Moreover, the record does not

indicate that TGH undertook any contractual obligations concerning Mrs. Godwin's

surgical procedures.

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Pope v. Winter Park Healthcare Group, Ltd., 939 So. 2d 185, 186 (Fla. 5th

DCA 2006), aids our analysis. The Popes sued Winter Park and Dr. McMahan for the

negligent care of their newborn son. As here, "[t]he Popes alleged that Winter Park . . .

was liable for Dr. McMahan's negligent acts because Winter Park has a 'nondelegable'

duty to treat [their son] with due care." Id. at 186. "Florida law does not currently

recognize an implied nondelegable duty on the part of a hospital to provide competent

medical care to its patients. Florida law does recognize, however, that such a duty can

be undertaken pursuant to an express contract." Id. at 187 (citing Roessler v. Novak,

858 So. 2d 1158, 1164 (Fla. 2d DCA 2003) (Altenbernd, J., concurring)). Winter Park

undertook such a contractual duty:

I authorize Winter Park Memorial Hospital (WPMH) to furnish

the necessary medical or surgical treatments, or procedures,

including diagnostic, x-ray, and laboratory procedures,

anesthesia, hospital services, drugs and supplies as may be

ordered by the attending physician(s), his assistants or his

designees . . . . This consent form plainly puts the reader on

notice that physicians practicing at Winter Park Hospital are

independent contractors, not agents or employees. The

form also authorizes Winter Park Hospital to delegate to

such physicians the services physicians normally provide.

Id. at 190. Winter Park agreed to furnish "the necessary medical or surgical

treatments." Id. at 191. Because of an ambiguity in the admission contract, the

appellate court remanded the case to the trial court to decide "the scope of the express

contractual undertaking which may have given rise to a duty to provide nonnegligent

neonatal care to [the] baby." Id. at 187. Unlike the forms in Winter Park, the forms that

Mrs. Godwin received and signed contained no express undertaking by TGH to render

the medical care that the USF physicians ultimately provided.

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In large part, Mr. Godwin's argument rests on the supposition that TGH

could not delegate any potential liability without Mrs. Godwin's consent. During the

course of her hospitalization, however, she signed three separate notices disclosing that

USF employees or agents would provide her care. Particularly important is the Special

Notice, which, under section 1012.965, allows a hospital that partners with a university

to be exempt from liability if the university can be held liable for the actions of its

employees or agents and the notice requirements are met.

E. Nondelegable Statutory Duty Under the Medicare Act Regulations

Finally, Mr. Godwin argues that a statutory duty imposed by Medicare

cannot be delegated to an independent contractor. More specifically, Mr. Godwin

asserts that the regulations promulgated under the Medicare Act require hospitals that

participate in the Medicare program to maintain a nondelegable duty to provide

nonnegligent care. See 42 C.F.R. § 482.12.4 No Florida appellate court has reached

this conclusion. We decline the invitation to be the first.

Section 482 identifies the conditions of participation for hospitals in the

Medicare program. 42. C.F.R. § 482.1(b). This section was intended to specify the

standards that the federal government will assess when determining whether or not a

hospital will continue to be eligible to treat Medicare patients. Id. ("[T]he provisions of

this part serve as the basis of survey activities for the purpose of determining whether a

hospital qualifies for a provider agreement under Medicare and Medicaid."); see also

Sepulveda v. Stiff, No. 05cv167, 2006 WL 3314530, at *8 (E.D. Va. Nov. 14 2006)

(finding that section 482.1 et seq. are "intended to set out the guidelines for determining

4The record indicates that Mrs. Godwin was a Medicare beneficiary.

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whether a hospital may participate in Medicaid"); Blackmon v. Tenet Healthsystem

Spalding, Inc., 653 S.E.2d 333, 340 (Ga. Ct. App. 2007) ("[Section 482.12(e)] does not

purport to impose state tort liability on hospitals for the negligence of their independent

contractors; rather it simply outlines that with which the hospitals must comply to receive

Medicare."), rev'd in part on other grounds, 667 S.E.2d 348 (Ga. 2008), vacated in part

on other grounds, 699 S.E.2d 237 (Ga. Ct. App. 2008).

The Department of Health and Human Services clarified that section

482.12(e) "indicate[s] that the governing body is responsible for assuring that the

contractor furnishes services that permit the hospital to comply with all applicable

conditions of participation and standards for the contracted services." Medicare and

Medicaid Programs; Conditions of Participation for Hospitals, 51 Fed. Reg. 22,010-01,

22,015 (June 17, 1986) (to be codified at 42 C.F.R. p. 482). The quality assurance

condition, section 482.21, was revised "to assure that services provided under contract

that relate to patient health and safety are included for evaluation in the quality

assurance plan." Medicare and Medicaid Programs; Conditions of Participation for

Hospitals, 51 Fed. Reg. at 22,015.

The rule does not create liability for the hospital due to the negligence of

any independent contractor. Instead, the rule and the discussion and responses to

public comments explain that the services that a contractor furnishes to a hospital will

be part of the quality assurance evaluation for the hospital's continued participation in

the Medicare program. The rule does not purport to diminish or preempt state laws

dealing with the traditional common law theories of principal/agent and independent

contractors. See La. Pub. Serv. Comm'n v. F.C.C., 476 U.S. 355, 368 (1986) ("Pre-

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emption occurs when Congress, in enacting a federal statute, expresses a clear intent

to pre-empt state law . . . .").

Mr. Godwin's call for the imposition of strict liability on TGH for its hospital

employees, agents, or independent contractors finds no support in the language of the

Medicare statute or related regulations.

Conclusion

Affirmed.

BADALAMENTI, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

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