ER Docs Are Independent Contractors, But Hospital Still Controls, Florida Court Finds

As in many business and commercial liability disputes, it’s all about the wording of the contract, a Florida appeals court decided in a medical malpractice case that could affect hospitals’ relationships with their doctors.

The Latisha Gradia vs. Baptist Hospital decision by Florida’s 1^st District Court of Appeal does not address insurance coverage for the Pensacola hospital. But it does potentially leave the medical center on the hook for damages after a woman suffered cardiac arrest, then brain damage, in 2021.

The appeals court overturned part of a lower court’s decision that had cleared the 492-bed hospital of vicarious liability because a physicians’ group operated the emergency department.

“We conclude that a genuine dispute remains about the hospital’s supervision and right of control over the emergency treating physician, which entitles appellants to a trial,” reads the 1^st DCA ‘s Aug. 10 opinion, written by Judge Timothy Osterhaus. The DCA remanded the case for further proceedings.

Baptist Hospital, now in the midst of building a new hospital in Pensacola, had argued that its agreement with Pensacola Emergency Physicians, or PEP, makes it clear that PEP operated the emergency room as an independent contractor, with no employer/employee relationship. Only the physicians group should be held responsible, the hospital said.

The trial judge, Darlene Dickey, agreed and granted summary judgment for Baptist, one of the area’s largest employers. But on appeal, the higher court noted that the agreement with PEP also gives the hospital ultimate control over ER personnel and methods employed.

“In this case, Baptist Hospital’s emergency services agreement with PEP to operate the emergency department cuts both ways in the parties’ agency dispute over the hospital’s right of control,” the appeals court opinion reads.

The court also cited its 2003 decision in Shands Teaching Hospital vs. Julianna, noting that, in general, a hospital “will not be liable for the negligence of physician who works in the hospital as an independent contractor.”

But it said that liability can nonetheless attach if a physician is an actual or apparent agent of the hospital. The DCA judges said that genuine issues of fact persist on that question. Baptist Hospital is recognized as a Level II trauma center and Gradia, the patient, was transferred there by a smaller hospital for a higher level of care. The ER physician signed a form confirming Baptist had the capability to treat the comatose woman.

Another form, informing patients that the emergency physicians were independent contractors, however, was not provided to or signed by Gradia or her family members, the court explained.

The case began when Gradia suffered cardiac arrest in Santa Rosa County, about 20 miles from Baptist Hospital. She was taken to the smaller facility in that county. After several hours, a Santa Rosa Medical Center doctor had Gradia transferred to Baptist. At Baptist, though, the ER physician declined to induce therapeutic hypothermia, a treatment that chills the body to help prevent brain damage.

It’s not clear from the court opinion why the procedure wasn’t done, but the woman’s family argued that the omission was a breach of the prevailing standard of care. She was left with permanent brain damage and is completely disabled.

An attorney for Baptist Hospital declined to comment, and the lawyer for the plaintiffs could not be reached Monday.

Topics Florida Contractors