SHANDS TEACHING HOSPITAL and CLINIC, INC. v. GARY JULIANA, II, a minor child, by and through his parents and natural guardians, GARY JULIANA and KIMBERLY JULIANA, and, GARY JULIANA and KIMBERLY JULIANA, individually
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
SHANDS TEACHING HOSPITAL
and CLINIC, INC.,
Appellant/Cross-Appellee,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
v.
CASE NO. 1D02-1530
GARY JULIANA, II, a minor child,
by and through his parents and
natural guardians, GARY JULIANA
and KIMBERLY JULIANA, and
GARY JULIANA and KIMBERLY
JULIANA, individually,
Appellees/Cross-Appellants.
___________________________/
Opinion filed July 8, 2003.
An appeal from the Circuit Court for Alachua County.
C. Vernon Mize, Jr., Senior Judge.
Arthur J. England, Jr., Esquire and Elliot B. Kula, Esquire of Greenberg Traurig, P.A.,
Miami and John D. Jopling, Esquire and David M. Delaney, Esquire of Dell Graham,
P.A., Gainesville, for Appellant/Cross-Appellee.
Christopher Jayson, Esquire, Arthur B. Skafidas, Esquire and Barry Cohen, Esquire
of Cohen, Jayson & Foster, P.A., Tampa, for Appellees/Cross-Appellants.
BENTON, J.
Shands Teaching Hospital and Clinic, Inc. (Shands) asks us to reverse a final
judgment (and antecedent partial summary judgment) holding it responsible for injuries
that a heart-lung machine operator’s conceded negligence caused Gary Juliana, II,
(Gary) during open-heart surgery. On cross-appeal, Gary’s parents, individually and
on Gary’s behalf, argue that the trial court erred in denying their motion for leave to
amend their complaint to add a claim for punitive damages; in refusing to grant leave
to amend two counts without a showing of compliance with presuit requirements; and
in allowing certain testimony on future economic damages at the trial on damages. We
affirm in all respects. 1
When he was two months old, Gary was rushed to Shands on January 30, 1996.
A pediatrician in Ocala had detected both a heart murmur and respiratory distress. At
Shands, Gary’s parents signed a “Shands Hospital Certification and Authorization”
form (admission form) consenting to “such diagnostic procedures, hospital care, [and]
medical treatment . . . which in the judgment of my physician may be considered
necessary or advisable while a patient at Shands” and agreeing to pay for such services
at rates “listed in the current Billing Charge Manuals which are available for inspection
upon request and incorporated herein by reference.” The form excluded the services
of “all physicians, residents and students who provide services in Shands,” but not
any other services, from the definition of “hospital care, [and] medical treatment,” by
1
On the cross-appeal, our affirmance is without further discussion of the crossappellants’ contentions.
2
notifying the reader that “all physicians, residents and students who provide services
in Shands . . . are employees, agents or servants of the University of Florida, Board
of Regents, and are not employees, agents or students of Shands . . . .”2
After Gary’s physicians decided that he needed open-heart surgery and his
parents had given their consent by signing a form “Anesthesia and Operating Permit,”
he underwent surgery on February 2, 1996. Among the operating room personnel was
a perfusionist, 3 although Gary’s parents did not know it at the time. Perfusion entails
2
By signing the admission form, the Julianas acknowledged that they had been
advised that:
[A]ll physicians, residents and students who provide
services in Shands . . . are employees, agents or servants of
the University of Florida, Board of Regents, and are not
employees, agents or students of Shands . . . . [and] that
the law limits the liability for acts or omissions of
employees, agents or servants of the State of Florida,
including the Board of Regents, to $100,000 per claim and
$200,000 per incident.
The Billing Charge Manuals are not part of the record.
3
An essential member of an open-heart surgical team, the perfusionist is a
technician or technologist who works closely with surgeons and anesthesiologists. The
Attorneys Medical Deskbook 3D indicates no requirement for higher education
beyond training that “[v]aries from 12-24 months in a perfusionist program.” 1 Dan
J. Tennenhouse, Att’ys Med. Deskbook 3D § 6:13 (3d ed. 1993). At Shands, the
Chief Cardiovascular Perfusionist must now, according to Cardiovascular Perfusion:
Policy and Procedure Manual (1994) (attached as an exhibit to the deposition given by
Shands’s Chief of the Division of Thoracic and Cardiovascular Surgery), be a
“[g]raduate in cardiac perfusion from an accredited school,” including “[t]wo years
of sciences and two years of cardiovascular perfusion study,” and “[s]hall have filed
an application toward Board Certification by the American Board of Cardiovascular
3
“the artificial passage of fluid, usually blood, through blood vessels (as by a pump
during open-heart surgery).” J. E. Schmidt, M.D., 4 Att’ys Dictionary of Med.&
Word Finder P-8445 (MB 2002).
The perfusionist operates a heart-lung or
cardiopulmonary bypass machine, which “consists of a pump with tubes which are
used to suction blood from the patient’s body and return it to his arteries after the
blood has been oxygenated.” Ardoin v. Hartford Acc. & Indem. Co., 360 So. 2d
1331, 1333 (La. 1978). Blood gas analyzers, one of which the perfusionist operates,
make it possible to monitor blood gas and pH levels. Part of the perfusionist’s job is
regulating the “proper oxygen and carbon dioxide content and the proper acid/base
ratio in the blood by adjusting blood flow and pressure and by adding drugs and
solutions to the circulation. Deviations from acceptable levels endanger the patient.”
Robinson v. Magovern, 521 F. Supp. 842, 856 (D.C. Pa. 1981).
Before and during surgery, the perfusionist evaluates intermittent blood samples
using a blood gas analyzer in the operating room. Occasionally, in order to verify the
calibration of the operating room’s blood gas analyzer, the perfusionist requests the
“stat lab,” which at Shands is located approximately 150 feet from the operating room,
to run a blood sample on the stat lab’s blood gas analyzer. Both the perfusionist and
Perfusion.”
4
the “stat lab” receive data from the operating room’s blood gas analyzer. A stat lab
technician is charged with the responsibility of advising the perfusionist of any
abnormalities in blood gas levels by calling him at a telephone in the operating room.
If the perfusionist detects blood gas levels in an abnormal range or if the stat lab
reports abnormal ranges to the perfusionist, the perfusionist is supposed to
communicate the situation to the surgeon and to the anesthesiologist, to re-check the
blood gas levels in the operating room, and to make necessary adjustments to bring
the blood gas levels within normal ranges.
In Gary’s case, blood gas levels at 10:15 on the morning of his surgery, as
recorded in the stat lab’s report, were abnormal, dangerous, and different from the
(normal) blood gas levels the perfusionist recorded in the operating room’s report for
the same time. The perfusionist neither notified the surgical team of problematic blood
gas levels nor attempted to make any adjustments. 4 Shands stipulated that Gary’s
injuries resulted from the perfusionist’s negligence, stating: “Defendant Shands
concedes, for purposes of trial and any future appellate review, both the negligence of
4
After a period of working under a colleague’s supervision following being out
of work altogether for more than a year, the perfusionist had recently resumed working
without the supervision of another perfusionist. His time off work began when an
aneurysm in one of his vertebral arteries burst, resulting in neurologic injury “as if he
had had a stroke.”
5
[the] perfusionist . . . and the causal relationship of that negligence to the injury
complained of by the Plaintiffs.” The surgery successfully corrected Gary’s heart
malformation, but, as a result of the perfusionist’s negligence, Gary suffered severe
brain damage and now has cerebral palsy, among other things.
In the trial court, the Julianas moved for partial summary judgment, arguing that
Shands was vicariously liable as a matter of law for the perfusionist’s negligence. The
Julianas maintained that Shands had undertaken to provide perfusion services when it
agreed to provide “hospital care, [and] medical treatment,” and that Shands had
breached a nondelegable duty both because it had a contractual obligation it could not
extinguish by subcontracting with Cardiovascular Perfusionists, Inc.
because providing perfusion services are inherently dangerous.
(CVP), and
See generally
Restatement (Second) of Torts § 416 (1965) (“One who employs an independent
contractor to do work which the employer should recognize as likely to create during
its progress a peculiar risk of physical harm to others unless special precautions are
taken, is subject to liability for physical harm caused to them by the failure of the
contractor to exercise reasonable care to take such precautions, even though the
employer has provided for such precautions in the contract or otherwise.”).
Shands filed a cross-motion for summary judgment arguing that it was not
responsible for the perfusionist’s negligence because neither the perfusionist nor his
6
employer, CVP, was Shands’s agent in fact or reasonably appeared to have been, and
contending no dispute of material fact existed on either question.
In a supplemental motion for summary judgment, the Julianas argued that
Shands was under a nondelegable duty, not only for the reasons stated in its initial
motion, but also because it was acting pursuant to a state license under regulations that
required it to furnish perfusionists’ services as part of offering open-heart surgery.
See generally NME Props., Inc. v. Rudich, 840 So. 2d 309, 313 (Fla. 4th DCA 2003)
(holding nursing home owner liable for independent contractor’s negligence);
Restatement (Second) of Torts § 424 (1965) (“One who by statute or by
administrative regulation is under a duty to provide specified safeguards or precautions
for the safety of others is subject to liability to the others for whose protection the duty
is imposed for harm caused by the failure of a contractor employed by him to provide
such safeguards or precautions.”).
At the hearing on these motions, the Julianas argued that Shands’s cross-motion
should be denied because material factual questions pertinent to the agency issues
remained in dispute.5 At the same time, the Julianas repeatedly contended below, as
5
Whether this argument was fully consonant with the Julianas’ position on their
own motions for summary judgment may be questioned, as Shands has done. In
context, the Julianas’ concession went to the question of independent contractor
status. Their position boiled down to the contention that Shands had a nondelegable
7
they contend here, that Shands is liable for the perfusionist’s negligence on all three
of the theories of nondelegable duty that they have advanced. We find it necessary to
discuss only the first of these theories.
The trial court (the Hon. Nath C. Doughtie) granted partial summary judgment
in favor of the Julianas, and denied Shands’s cross-motion for summary judgment,
holding:
It might be said that the perfusionist has been hired by the
hospital to provide services in the same way that an
operating room nurse provides services.
When a patient enters a hospital, the patient agrees to
pay the hospital for certain unspecified services. Although
the contract between the patient and the hospital may not
completely spell out the services, it is generally understood
that nursing services will be provided. If the hospital opts
to sub-contract out nursing services to a private nursing
firm, that does not relieve the hospital of its obligations
under its contract with the patient to provide nursing
services. If a nurse commits negligence, the hospital will be
liable since in effect it agreed to provide competent nursing
services to the patient. . . . The patient did not employ
Cardiovascular Perfusionists, Inc. It was Shands that did.
Shands was billed by its sub-contractor at the rate of
$550.00 for the perfusionist and $250.00 for a “cell saver”.
Shands then billed the patient $2,500.00 for the open heart
pump equipment and operator, plus $953.00 for the “cell
saver”.
Shands is clearly liable as a matter of law for the
negligence of its sub-contractor.
duty, even if CVP was an independent contractor, and the perfusionist was not
deemed a hospital employee.
8
In the order denying motion for rehearing, the trial court (the Hon. Chester B. Chance)
ruled:
In the case before the Court the duty of the hospital arose
from contract. The duty could not be delegated since the
service was contracted for. The hospital provided the
services of the perfusionist. If the hospital had wished for
the patient to obtain his own perfusionist it might have been
possible to advise the patient that this was his responsibility.
This certainly was not done. The fact that the hospital
chose to retain the services of the perfusionist as an
independent contractor rather than an employee is
immaterial in the relationship between the hospital and the
patient.
. . . Certainly a hospital should have the ability to
refer a patient to an independent contractor for services.
That was not done in this case. The perfusionist was legally
a subcontractor to the hospital and was not retained in any
way by the Plaintiff. The duty [to] the Plaintiff could not be
unilaterally delegated by the hospital without some very
specific notice to the Plaintiff.
. . . Perfusionists are not physicians, and the apparent
agency law need not be considered any more than [in] the
case of nurses. It would be contrary to public policy for a
hospital to try to avoid liability for nurse negligence by
retaining them as “independent contractors” without clearly
advising patients of this upon admission.
Liability thus established, only the amount of damages was tried to the jury. After
various offsets, judgment was entered against Shands on the basis of the verdict in the
amount of $9,138,848.03.
9
On appeal, Shands argues that the Julianas were not entitled to recover on any
theory of nondelegable duty and that the case should be remanded for trial on the
agency theories that the Julianas conceded below depended on facts in dispute. The
rule of decision is:
Summary judgment should be granted only where it is clear
that no issues of material fact exist. Craig v. Gate Maritime
Properties, 631 So.2d 375, 377 (Fla. 1st DCA 1994);
Hancock v. Department of Corrections, 585 So.2d 1068
(Fla. 1st DCA 1991), review denied, 598 So.2d 75
(Fla.1992). The movant’s proof must be conclusive; all
reasonable inferences which may be drawn in favor of the
opposing party must be overcome. Landers v. Milton, 370
So.2d 368, 370 (Fla.1979); Holl v. Talcott, 191 So.2d 40,
43-44 (Fla.1966); Craig, 631 So.2d at 377. “[I]f the record
raises even the slightest doubt that an issue [of material fact]
might exist, summary judgment is improper.” Craig, 631
So.2d at 377, citing, Holland v. Verheul, 583 So.2d 788,
789 (Fla. 2d DCA 1991). Particular caution should be
employed when granting summary judgment in negligence
actions. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985);
Johnson v. Deep South Crane Rentals, Inc., 634 So.2d
1113, 1113-14 (Fla. 1st DCA 1994).
Lindsey v. Bill Arflin Bonding Agency Inc., 645 So. 2d 565, 566-67 (Fla. 1st DCA
1994). Accord Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). Applying these precepts, we approve the trial court’s analysis
regarding nondelegable duty and affirm, because any factual disputes on other theories
are immaterial.
10
Shands argues that it can have no vicarious liability for the perfusionist’s
negligence if CVP is an independent contractor, and that it is entitled to prove at trial
that CVP is an independent contractor. Although Shands’s arrangement with CVP is
apparently not the norm6, it is not clear what purpose a trial would serve. The parties
agreed in effect that the summary judgment motions should be decided on the
assumption that Shands obtains perfusionists’ services, not by employing
perfusionists directly, but by contracting with CVP, which was organized for that
purpose in 1991, and that CVP has agreed to and does supply perfusionists who
provide perfusion services exclusively at Shands. No dispute of material fact exists
under the theory of nondelegable duty relied on by the trial court.
When it rejected Shands’s contention that its arrangement with CVP insulated
CVP from liability for the perfusionist’s negligence, the trial court did not grant
summary judgment on an undeveloped record. Among other things, 7 it considered the
contract between Shands and CVP. Under this contract, Shands is responsible for
providing perfusion equipment, including cardiopulmonary bypass machines and
6
In its description of health professionals, the Attorneys Medical Deskbook 3D
includes the following in its discussion of perfusionists: “SALARIED: Usually by
acute care hospitals.” Tennenhouse, supra note 3, § 6:13.
7
Neither CVP nor the perfusionist was employed by or under contract to the
surgeon, the anesthesiologist or any other person or entity that played a part in Gary’s
open-heart surgery, other than Shands.
11
blood gas analyzers, for the perfusionists’ use in the operating room, 8 as well as office
space and supplies for the perfusionists’ administrative duties. The contract recites:
Both parties expressly intend that with regard to the
provisions of this Agreement, said parties shall be
independent contractors and no party hereto shall receive
any other benefits besides those expressly provided for
herein. Further, it is the express intent of the parties hereto
that no agent, servant, contractor or employee of one party
be deemed any agent, servant, contractor or employee of
the other party.
But this recital is not determinative (either on the question whether perfusionists should
be deemed Shands’s employees or) on the question of Shands’s liability to third
parties for breach of its agreements with them. See Mills v. Krauss, 114 So. 2d 817,
820 (Fla. 2d DCA 1959) (reversing summary judgment in favor of a general contractor
on grounds that a general contractor may be liable for the negligence of a
subcontractor in discharging contractual obligations to a third party, despite language
in the contract between the general and the sub declaring the subcontractor an
independent contractor).
T he present case differs importantly from cases in which physicians, as
opposed to nurses or technologists, have established independent contractor
relationships with hospitals. The general rule is that a hospital is not liable for the
8
Shands, rather than CVP, is solely responsible for quality control assessments
and maintenance of the cardiopulmonary bypass machines and blood gas analyzers.
12
negligent acts of a physician who is not its employee, but an independent contractor.
See Pub. Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987)
(“Generally, however, a hospital may not fairly be held liable for a plaintiff’s entire
damages solely based on the omissions of an independent contractor merely granted
practicing privileges in the hospital.”).9 This general rule mirrors longstanding custom
and usage: Patients normally contract separately for physicians’ services, but do not
normally contract separately for the services of hospital-based nurses and
technologists.
Unlike Shands’s disclaimer of liability for the negligence of the physicians,
residents, and students in the employ of the University of Florida, nothing in the
9
Even where a physician is an independent contractor, however, a hospital that
“undertakes by [express or implied] contract to do for another a given thing” is not
allowed to “escape [its] contractual liability [to the patient] by delegating performance
under a contract to an independent contractor.” Irving v. Doctors Hosp. of Lake
Worth, Inc., 415 So. 2d 55, 57 n.2, 59, 60 (Fla. 4th DCA 1982)(reversing summary
judgment in favor of hospital at plaintiff’s behest and remanding with directions that
the jury be instructed on nondelegable duty). See also Orlando Reg’l Med. Ctr. v.
Chmielewski, 573 So. 2d 876, 880 (Fla. 5th DCA 1990); Hippocrates Mertsaris v.
73rd Corp., 482 N.Y.S. 2d 792, 801 (N.Y. App. Div. 1984)(“The evidence at trial
established that . . . the anesthesiologist, had an office within the hospital, had a
‘practice’ exclusively limited to hospital patients, would have the hospital bill patients
for his services, . . . [and] would be summoned to patients by a nurse when needed
. . . . In circumstances like these, where the physician is not privately retained by the
patient and his activities are controlled by the hospital, courts have held hospitals
vicariously liable for the malpractice of the doctor notwithstanding any claim that he
was an independent contractor.”).
13
admission form or operating permit gave notice that the perfusionist was not
discharging Shands’s duties under its contract with the Julianas. Shands schedules the
perfusionists’ hours.
It provides them with a tentative schedule of the week’s
operations every Monday, and daily with a confirmed schedule of the following day’s
operations. 10 Perfusionists cannot work at Shands without the surgery department’s
prior approval. They must first be credentialed in accordance with standards set out
in Shands’s bylaws.
For its own account, Shands billed the Julianas for the
perfusionist’s services.
The possibility that CVP could be found to be an independent contractor (and
the perfusionist its employee, not Shands’s) does not alter the fact that Shands
breached the contractual undertaking it made to the Julianas. See Atchley v. First
Union Bank of Fla., 576 So. 2d 340, 344 (Fla. 5th DCA 1991) (reversing summary
judgment in bank’s favor on grounds that the bank could be liable for a roofer’s
negligence, despite the general rule that an employer is not liable for the negligence of
an independent contractor, where the bank specifically, contractually undertook to
repair the roof).
10
When surgeons schedule operations requiring a perfusionist’s services on
nights or weekends, a Shands operating room or intensive care employee summons
the perfusionist on call.
14
The pleadings, depositions, answers to interrogatories, admissions on file and
affidavits reveal no dispute about the fact that the admission form the Julianas signed
reflected a broad undertaking by Shands to provide “hospital care, [and] medical
treatment,” in exchange for the Julianas’ agreement to pay for those services.
Perfusion services plainly fall within the definition of “hospital care, [and] medical
treatment.” Shands’s counsel acknowledged that “the patients have a contract with
Shands.”
Shands agreed to and did furnish Gary hospital services, including the
services the perfusionist negligently provided to Gary.
Shands also argues that liability on the part of Gary’s surgeon cannot
categorically be ruled out, 11 and that entry of summary judgment holding Shands liable
was improper for that reason. This argument ignores the fact that more than one
person or entity may have to answer in damages for the same injury. A hospital and
a surgeon may both be liable for a perfusionist’s negligence in certain circumstances.
See Vargas v. Dulzaides, 520 So. 2d 306, 308 (Fla. 3d DCA 1988). (Here CVP’s
liability and that of the perfusionist has already been conceded.) At issue at this point
in the present case, however, is Shands’s liability, not that of any other person or
11
This contention rings exceedingly hollow inasmuch as neither the Julianas in
their complaint nor Shands in its pleadings has alleged the slightest fault on the part of
the surgeon, despite the requirements laid down by Fabre v. Marin, 623 So. 2d 1182
(Fla. 1993), and Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262, 1264 (Fla.
1996).
15
entity. On this record, Shands’s vicarious liability for the perfusionist’s negligence is
clear.
Affirmed.
POLSTON, J., CONCURS; WEBSTER, J., CONCURS IN RESULT ONLY.
16
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