       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 27, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1661
                          Lower Tribunal No. 14-2006
                             ________________

                    Guillermo Tabraue III, Esq., etc.,
                                    Appellant,

                                        vs.

                       Doctors Hospital, Inc., et al.,
                                    Appellees.

     An Appeal from the Circuit Court for Miami-Dade County, Eric William
Hendon, Judge.

    Silva & Silva, P.A., and Jorge E. Silva; Creed & Gowdy, P.A., and Bryan S.
Gowdy (Jacksonville), for appellant.

     Wicker Smith O’Hara McCoy & Ford, P.A., and Jackson F. McCoy,
Michael R. D’Lugo (Orlando) and Jessica L. Gross, for appellee Doctors Hospital,
Inc.

      Burlington & Rockenbach, P.A., and Philip M. Burlington and Adam J.
Richardson (West Palm Beach), for Florida Justice Association as amicus curiae.

     Beytin, McLaughlin, O’Hara, Bocchino & Bolin, and Andrew S. Bolin
(Tampa), for Florida Hospital Association as amicus curiae.
         Before SALTER,1 FERNANDEZ2 and SCALES, JJ.

         SCALES, J.

         Appellant Guillermo Tabraue III is the personal representative of the Estate

of Suyima Torres (the “Estate”). Ms. Torres died after being treated in both the

emergency room and the intensive care unit of appellee, defendant below, Doctors

Hospital (the “Hospital”). The Estate sued both the Hospital and the medical

providers who treated Ms. Torres in the emergency room and the intensive care

unit, the latter who were independent contractors of the Hospital. Concluding, as a

matter of law, that the Hospital owed no non-delegable duty to Ms. Torres, the trial

court dismissed with prejudice the Estate’s second amended complaint against the

Hospital. Because, under the facts and circumstances of this case, we agree that the

Hospital did not owe a non-delegable duty to Ms. Torres for the treatment provided

to Ms. Torres by the medical providers, we affirm.

         I. Factual and Procedural Background

         On April 11, 2013, Ms. Torres, a 28-year-old adult, underwent a cosmetic

procedure at a clinic. After exiting the clinic, Ms. Torres lost consciousness, and an

ambulance transported her to the Hospital’s emergency room. Presumably, because

Ms. Torres was incapacitated,3 Ms. Torres’s father signed a series of consent forms

1   Did not participate in oral argument.
2   Did not participate in oral argument.
3   See footnote 10, infra.

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that are usually signed by the patient.            One of those forms was an

acknowledgement that the physicians who would be treating Ms. Torres would be

independent contractors, and not employees, of the Hospital.4 Neither Ms. Torres

nor her father selected the medical providers who treated her at the Hospital.

      Regrettably, Ms. Torres’s condition declined during her treatment in the

emergency room and later that day in the intensive care unit.5 She died that same

night, about eight hours after her admission.

      On January 23, 2014, the Estate filed suit against the various medical

providers and the Hospital, and on February 12, 2014, filed an amended complaint.

In this amended complaint, the Estate alleged two counts against the Hospital:


4 The admission form contained, among other provisions, a “CONSENT TO
TREATMENT” paragraph and an “INDEPENDENT PRACTITIONERS”
paragraph. The latter provides:

      I recognize that physicians, surgeons and allied health professionals
      providing medical services to me or my child as a patient of this
      facility are private practicing physicians/professionals and not
      employees or agents of this facility. These private
      physicians/professionals include, without limitation, radiologists,
      anesthesiologists, pathologists, emergency room physicians, ICU
      physicians, neonatologists and all other physician/professionals called
      in consultation.
5 We note that the Estate, in its second amended complaint, identifies alleged
negligent care of Ms. Torres in both the Hospital’s emergency room and intensive
care unit. In its briefing to this Court, however, the Estate makes no distinct
argument related to the intensive care unit, and appears to merge the treatment that
Ms. Torres received in the intensive care unit into its legal analysis of emergency
room services.

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negligence and vicarious liability. On June 23, 2015, the Estate filed a motion for

summary judgment as to the Hospital, and on October 9, 2015, the Hospital filed

its cross-motion for summary judgment as to the two counts asserted against it. On

October 16, 2015, after a hearing on the motions, the trial court granted summary

judgment for the Hospital, denying the Estate’s antithetical motion.

      After its motion for rehearing was denied, the Estate then sought leave to

file a second amended complaint for the limited purposes of deleting the vicarious

liability count and clarifying the Estate’s non-delegable duty theories. At the

hearing on this motion, counsel for the Estate conceded that its goal was to obtain a

final, appealable order so that the Estate could bring before this Court the purely

legal issue of whether the Hospital owed a non-delegable duty to Ms. Torres, i.e.,

whether the Hospital could be held liable for the alleged negligence of its

independent contractors.

      The trial court granted the motion, allowing the Estate to file a second

amended complaint that, as to the Hospital, alleged only the four, alternate bases of

liability described infra. The Hospital then moved to dismiss this second amended

complaint with prejudice, which the trial court did on July 5, 2016. The Estate

timely appealed.

      II. Analysis6

6 Our standard of review of a ruling on a motion to dismiss for failure to state a
cause of action is de novo. Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842

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      The Estate’s Four Theories of Hospital Liability

      Generally, a hospital is not liable for the negligence of a medical provider

who works in the hospital as an independent contractor. See Pub. Health Tr. of

Dade Cty. v. Valcin, 507 So. 2d 596, 601 (Fla. 1987). As the Fifth District has

stated:

      When an independent contractor physician is hired . . . liability to
      third parties usually does not arise. This is because the law recognizes
      that a person ought to be able to hire someone to perform a specific
      task without exposure to liability to third parties for negligent
      performance of the work as long as the person doing the hiring does
      not retain control or direction over how the work is to be done.


Pope v. Winter Park Healthcare Grp., Ltd., 939 So. 2d 185, 187 (Fla. 5th DCA

2006). Courts do recognize exceptions to this rule: “Liability may attach . . . 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.” Godwin v. Univ. of S. Fla. Bd. of

Trs., 203 So. 3d 924, 929 (Fla. 2d DCA 2016) (emphasis added).

      In its second amended complaint, the Estate alleged four, alternate theories

of Hospital liability based on the premise that the Hospital’s duty – “to provide all


So. 2d 204, 206 (Fla. 3d DCA 2003). When reviewing a final order dismissing a
complaint, we, like the lower court, are required to accept as true all well pled
factual allegations contained in the complaint; and thus, our determination of
whether the complaint states a cause of action is based on a pure question of law.
Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 734-35 (Fla. 2002),

                                          5
emergency room, medical and surgical procedures and treatment” – to Ms. Torres

could not be delegated to the Hospital’s independent contractors and thereby

relieve the Hospital of liability for any tortious conduct of the medical providers

who treated Ms. Torres. Those theories, each expressed in a separate count of the

second amended complaint, were: (1) statutory non-delegable duty, pursuant to

chapter 395 of the Florida Statutes; (2) common law non-delegable duty; (3)

express contractual non-delegable duty; and (4) implied contractual non-delegable

duty.

        Non-Delegable Duty Based on Express Contract and Common Law

        We readily dispose of the assertions that the Hospital owed a non-delegable

duty to Ms. Torres by virtue of an express contract (Count VII of plaintiff’s second

amended complaint), or that such a duty arose by virtue of common law (Count

VIII of the second amended complaint). The Estate essentially concedes, and this

Court does not quarrel with the conclusion, that no express contract was created

between the Hospital and Ms. Torres. There is no allegation that Ms. Torres’s

father was authorized to execute the admission forms so as to bind Ms. Torres to

any express contract that those forms might create.7 Indeed, the Estate alleged this

count “solely in the alternative in the event that the court concludes that the


7See Mendez v. Hampton Court Nursing Ctr., LLC, 203 So. 3d 146, 148-51 (Fla.
2016) (holding that a nursing home resident was not bound by a contract signed by
his son on either a third-party beneficiary or agency theory).

                                         6
Emergency Forms are binding” on Ms. Torres. Because the record is devoid of any

such conclusion, we need not further address this basis for imposing liability on the

Hospital for its independent contractors.

      We also dispose of the allegation that Florida common law imposes a non-

delegable duty on the Hospital. The Estate does not appear to have carried this

argument forward on appeal. See Starkey v. Chew, 241 So. 2d 870, 871 (Fla. 3d

DCA 1970 (“The brief does not argue this assignment of error; it is therefore

abandoned.”). In any event, we reiterate without further elaboration that, contrary

to the allegation in the second amended complaint, Florida common law does not

impose a non-delegable duty upon hospitals to provide non-negligent care for its

patients. See Pope, 939 So. 2d at 188. We affirm the trial court’s dismissal of

Counts VII and VIII of the Estate’s second amended complaint.

      The remaining counts asserting the basis for imposing a non-delegable duty

on the Hospital are not so readily dispatched.

      Non-Delegable Duty Based on Statute

      In Count V of the second amended complaint, the Estate alleges that the

Hospital had a non-delegable duty to provide non-negligent emergency room care

to Ms. Torres based on sections 395.001 and 395.1041 of the Florida Statutes, and

on several administrative rules promulgated pursuant to section 395.1055(1)(a).

The Estate’s specific reliance is upon section 395.1041, which provides, among



                                            7
other things, certain guidelines for hospital emergency treatment. See §

395.1041(3), Fla. Stat. (2013).

      The Estate argues that these statutory provisions (related to hospital

emergency treatment) are analogous to those provisions in chapter 395 related to

hospital anesthesia care. Consequently, the Estate suggests, this Court should

conclude that chapter 395 imposes the same non-delegable duties that the Fourth

District concluded apply to hospital anesthesia care in Wax v. Tenet Health System

Hospitals, Inc., 955 So. 2d 1, 9 (Fla. 4th DCA 2007).

       In Wax, a patient’s surviving spouse brought a wrongful death medical

malpractice action against a hospital for, among other things, the alleged

negligence of an anesthesiologist who was an independent contractor of the

hospital. Id. at 3. Wax argued that section 395.002(13)(b) (subsequently re-

numbered) defines a hospital as an establishment that makes available surgical

treatment facilities; and further, that sections 395.1055(1)(a) and (d) require

Florida’s Agency for Health Care Administration (AHCA) to establish rules8 for

safe patient care at State-licensed facilities. Id. at 8. Wax argued that this statutory

scheme imposed on the hospital a legal duty to provide safe anesthesia services

consistent with AHCA standards. The Fourth District agreed and concluded that,

8The Court cited Florida Administrative Code Rule 59A-3.2085(4) – now repealed
and replaced by rule 59A-3.245(2) – that provided, in pertinent part, that a hospital
“shall have an anesthesia department . . . directed by a physician member of the
organized professional staff.”

                                           8
based on statute and regulation, the hospital had “a clearly established legal duty to

furnish non-negligent anesthesia services.” Id. at 9.9

      While the statutes relied upon by the Estate in this case indeed are similar to

those forming the basis of the non-delegable created by the Wax court, we find

ourselves more aligned with the Second District in concluding that “Chapter 395

regulates hospitals and addresses standards governing hospitals, not standards

applicable to the practice of medicine . . . .” Tarpon Springs Hosp. Found., Inc. v.

Reth, 40 So. 3d 823, 828 (Fla. 2d DCA 2010). In certifying conflict with Wax,

Tarpon Springs – another non-delegable duty case involving negligent anesthesia

services – determined that the relevant statutes impose a duty on hospitals “to

ensure that [anesthesia] services are available and provided by competent

personnel,” but do not impose upon hospitals “the duty to provide anesthesia

services nonnegligently to a patient in a given instance.” Id.

      We agree with the Tarpon Springs court.            Chapter 395 of the Florida

Statutes is a public health and safety law designed to establish criteria for hospital

licensure and operations. See § 395.001, Fla. Stat. (2013). We do not view the


9 In Kristensen-Kepler v. Cooney, 39 So. 3d 518 (Fla. 4th DCA 2010), the Fourth
District determined that a surgical center did not owe a duty to a patient to provide
non-negligent anesthesia services. The Fourth District distinguished Wax by noting
that the patient in Kristensen-Kepler (unlike the patient in Wax) selected the
anesthesiologist. Id. at 520. Whether a patient has the ability to select his or her
physician is a factor in the Fourth District’s view of non-delegable duty with
respect to a hospital’s emergency room, discussed infra.

                                          9
relied-upon statutes as imposing on hospitals a non-delegable duty to provide non-

negligent emergency room care, and we are not inclined to infer one. See Murthy

v. N. Sinha Corp., 644 So. 2d 983, 986 (Fla. 1994).

      We affirm the trial court’s dismissal of Count V of the Estate’s second

amended complaint and align ourselves with the Second District in Tarpon

Springs. Accordingly, recognizing the split in the District Courts, we certify

conflict with Wax v. Tenet Health System Hospitals, Inc.

      Non-Delegable Duty Based on Implied Contract

      Finally, we address the Estate’s claim in Count VI that Ms. Torres’s

admission to the Hospital’s emergency room established an implied contractual

relationship between the Hospital and her; and the resulting implied contract

imposed upon the Hospital a contractually created non-delegable duty such that the

Hospital became responsible for the alleged negligence of Ms. Torres’s medical

providers.

      Under certain circumstances, parties’ conduct can create an implied-in-fact

contract, in which their assent to a contractual relationship is inferred. See

Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So. 2d 383, 385

(Fla. 4th DCA 1997).10 Florida, however, generally does not recognize an implied


10 Because the trial court dismissed the second amended complaint, the factual
issue of whether Ms. Torres was incapacitated upon her admission to the Hospital
was never determined. Given our holding that, as a matter of law, an implied

                                        10
contractual relationship between patient and hospital that would trigger a non-

delegable duty and impose liability on the hospital for the negligence of its

independent contractors. See e.g., Godwin, 203 So. 3d at 931; Tarpon Springs 40

So. 3d at 827; Pope, 939 So. 2d at 187.

      The Fourth District, though, has rejected – and the Estate now urges us to

reject – this prevailing view in the emergency room context. Our sister court views

the role of an emergency room as distinctive, imposing an implied contract on

Florida hospitals and their emergency room patients and effectively creating a rule

of hospital liability for independent contractor negligence that occurs in an

emergency room. The case of Irving v. Doctors Hospital of Lake Worth, Inc., 415

So. 2d 55 (Fla. 4th DCA 1982), involved potential hospital liability for the alleged

negligence of an emergency room physician. A jury found no liability on the part

of the hospital. On appeal, the Fourth District found error in the jury instructions,

specifically the failure of the trial court to instruct the jury “that one may not

escape his contractual liability by delegating performance under a contract to an

independent contractor.” Id. at 59. Perhaps diverted by the integral relationship of

the emergency room and its hospital, or by the view that patients generally have no

choice in selecting their emergency room doctors, the Fourth District in Irving

contract did not form between the Hospital and Ms. Torres, this factual issue is
irrelevant. We need not, and therefore do not, reach the issue of whether an
incapacitated person upon admission to an emergency room can assent to a
contractual relationship.

                                          11
appears to have carved an emergency room exception to the general rule that

hospitals are not liable for negligent acts performed by independent contractors.

Id. at 56.

       The Irving decision laid a path to Newbold-Ferguson v. Amisub (N. Ridge

Hospital), Inc., 85 So. 3d 502 (Fla 4th DCA 2012). In Newbold-Ferguson, the

plaintiff personal representative of an estate sought to amend her complaint to

allege the liability of the hospital for the negligent acts and omissions of an

emergency room physician. Id. at 503. The trial court refused to allow the

amendment, finding that no duty existed that was attributable to the hospital. Id. at

504. The case proceeded to trial and resulted in a jury verdict for the hospital. Id.

       In reversing the verdict in favor of the hospital, the Fourth District stated:

       Irving establishes that a hospital which provides emergency room
       services has a non-delegable duty to provide competent emergency
       treatment based upon an implied contract. It is therefore clear that the
       plaintiff could have pleaded a claim against the hospital for the
       emergency room doctor’s negligence on a non-delegable duty theory.
       The imposition of a non-delegable 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.

Id. at 505.

       We read our sister court’s precedent as creating, as a matter of law, an

implied contract between hospitals and their emergency room patients.

Accordingly, under Irving and its progeny, this judicially imposed implied contract



                                           12
requires a hospital to provide emergency room patients with non-negligent

emergency room care so that, contrary to the general rule of non-liability, the

hospital is responsible for the negligence of independent contractors hired by the

hospital to provide emergency room medical services.11 The Estate urges us to

take a similar approach.

       We decline the Estate’s invitation. While we recognize that chapter 395 of

the Florida Statutes obligates Florida hospitals to provide emergency room services

to the public, we note that the statutory scheme is silent on the matter of non-

delegable duty. We believe that expanding Florida hospital liability to include

liability for those emergency room medical providers who are hired by hospitals as

independent contractors is a public policy decision that is within the purview of

Florida’s legislative branch. Or, to the extent the issue is one of common law, it

calls for a Florida Supreme Court decision. We simply are averse to expanding, by

judicial dictate, the liability of Florida hospitals, as the Estate urges.

       Accordingly, we affirm the trial court’s dismissal of Count V of the Estate’s

second amended complaint and we certify conflict with Irving v. Doctors Hospital

of Lake Worth, Inc. and Newbold-Ferguson v. Amisub (North Ridge Hospital),

Inc.   III. Conclusion


11In dicta, two decisions of this Court have cited uncritically to Irving: Cedars
Medical Center, Inc. v. Ravelo, 738 So. 2d 362, 366 n.1 (Fla. 3d DCA 1999), and
Jaar v. University of Miami, 474 So. 2d 239, 243 (Fla. 3d DCA 1985).

                                            13
      We affirm the trial court’s dismissal of the counts against the Hospital

alleged in the Estate’s second amended complaint. The Hospital owed no non-

delegable duty to Ms. Torres such that the Hospital would have liability for the

alleged negligent acts of emergency room medical providers who were

independent contractors of the Hospital. Despite the urging of the Estate, we

decline to expand hospital liability by concluding that a non-delegable duty – to

provide non-negligent care to emergency room patients – arises either by virtue of

(i) chapter 395 of the Florida Statutes, or (ii) an implied contract between hospitals

and their emergency room patients.

      Affirmed; conflicts certified.




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