The case of Luebbert v. Adventist Health System (.pdf file can also be downloaded here) shows how the concept of apparent agency can create hospital liability for actions of independent contractors. Normally, employers are liable for actions of their employees, but are NOT liable for the actions of independent contractors over whom the employers have no “direction or control.” This is why the terms of many independent contractor agreements will specifically state that the contracting entity exercises no direction or control over the actions over the actions of the independent contractor. For more information on the concept of agency and apparent agency, see this summary from the Legal Information Institute.
Facts and History of Luebbert v. Adventist Health System
The allegations made by the plaintiff in the Luebbert case appear questionable. He went to the hospital for a complaint of abdominal pain and was diagnosed with a perforated appendicitis and periappendiceal abscess. When the surgeon came to evaluate him, he said that the surgeon made him feel “uneasy,” but decided to “take his chances” allowing the surgeon to operate since the next available surgeon would not be available for 5 hours. After surgery, the patient then allegedly requested antibiotics “out of an abundance of caution,” but stated that the surgeon refused to prescribe them. As a result, the patient to developed an intra-abdominal infection. The patient sued both the surgeon and the hospital for damages. The surgeon settled, leaving the hospital as the only defendant.
The hospital alleged that it was not liable for the surgeon’s actions because the surgeon was not a hospital employee, but was rather an independent contractor. The trial court ruled that there was no evidence in the record that the surgeon was an agent of the hospital and dismissed the case against the hospital.
The Appellate Court’s Decision in Luebbert v. Adventist Health System
The Florida Court of Appeals reversed, holding that there was a question of fact whether the surgeon was an “apparent agent” of the hospital. The court stated that apparent agency “only exists where the principal creates the appearance of an agency relationship.” It then cited a case from a separate appellate district (Guadagno v. Lifemark Hospitals of Florida, 972 So. 2d 214 (Fla. Dist. Ct. App. 2007)) holding that no apparent agency existed where the hospital “expressly disavowed an agency or employee relationship, conveyed that information to claimant, and claimant acknowledged this by signing the admission documents.” In this case, the hospital’s admission documents stated in pertinent part
Physicians and care providers who provide services at the hospital as independent contractors, are not employed by, nor are they agents of, the hospital. This may include, but is not limited to, emergency room physicians, radiologists, pathologists, anesthesiologists, surgeons, cardiologists, pulmonologists and neonatologists. This means that the hospital is not responsible for, and does not agree to accept the liability for, services provided to me by independent contractor physicians and/or care providers.
Despite the presence of this disclaimer, the appellate court ruled that the agreement “did not specifically state that … the on-call surgeon was neither an employee nor agent of Florida Hospital. The agreement did not specify which services in particular were in fact independent from the hospital” and therefore “the consent form is vague as to whether Florida Hospital expressly denied an agency relationship.”
The appellate court also held that hospitals can be liable for apparent agency when the patient has a “lack of choice.” The opinion cited cases in which summary judgment was reversed because a “physician was furnished to patients once they arrived in the emergency department” (Jones v. Tallahassee Mem’l Reg’l Healthcare, Inc., 923 So. 2d 1245, 1248 (Fla. 1st DCA 2006)) and because a patient “did not attempt to secure specialist on his own and instead accepted physician provided to him by hospital” (Roessler v. Novak, 858 So. 2d 1158, 1161 (Fla. 2d DCA 2003)).
Discussion of Apparent Agency Issues in Luebbert v. Adventist Health System
The plaintiff’s version of the events in this case are suspect for several reasons.
- If a patient is uncomfortable with one surgeon (or of the surgeon is uncomfortable with the patient) and no other surgeon is available in the hospital, the patient can be transferred. This is standard procedure in most hospital emergency departments. Assuming that the hospital in question is the current AdventHealth Orlando, there are 5 hospitals within a 30 minute ambulance ride from the facility.
- It is difficult to believe that a surgeon would not provide antibiotics for a ruptured appendix. Antibiotics are standard treatment for appendix rupture.
- It is also difficult to believe that a patient would request antibiotics out of an “abundance of caution” and those antibiotics would be refused by the physician.
- As a side note, the opinion states that the patient “developed an intra-abdominal infection” because of the failure to provide antibiotics. If the appendix was ruptured, the patient had an intra-abdominal infection before he entered the hospital.
The appellate court’s opinion confuses many issues more than it clarifies them.
- The appellate court cited a case stating that apparent agency “only exists where the principal creates the appearance of an agency relationship.” However, the trial court in the Luebbert case held that “uncontroverted record evidence established that [the physician] was not an employee or agent, actual or apparent, of [the hospital].” According to the facts of the case, there was no appearance of an agency relationship. Despite this, the appellate court contradicted itself and held that an agency relationship could exist.
- The appellate court’s opinion acknowledges that a disclaimer which “expressly disavowed an agency or employee relationship” negates apparent agency. The opinion also acknowledges that the hospital had a disclaimer clearly stating that surgeons are independent contractors, are neither employees nor agents of the hospital and that the “hospital is not responsible for, and does not agree to accept the liability for, services provided to me by independent contractor physicians.” Despite this express statement disavowing agency, the appellate court again contradicted itself, stating that the disclaimer didn’t go far enough because it didn’t specifically name the surgeon and didn’t state what services were not provided by the hospital. Because of these alleged deficiencies, the disclaimer that “surgeons are independent contractors” was judged to be too “vague.” Rather than addressing this confusing language by providing provide model language that should have been used or providing examples of what surgeon services should have been enumerated in the disclaimer to avoid being “vague,” the ap
pellate court created confusing precedent alleging that “vague” language in the disclaimer allowed an agency relationship to potentially exist. - Finally, the appellate court’s opinion stated that an agency relationship could exist because the patient had no choice in surgeons. This is untrue. Patients have multiple opportunities to choose their medical providers. The patient could have chosen to be taken to another hospital. The patient could have requested transfer to one of the five other hospitals in the area. The patient could have asked that the medical staff call in a different surgeon. The patient could have waited for the next on-call surgeon to arrive. Despite the many opportunities for the patient to choose his surgeon, the appellate court held that an agency relationship could exist. In fact, according to the cases cited in the appellate court’s decision, it seems as if the court is holding that the only way a hospital can avoid apparent agency is to refuse to provide a physician to a patient when the patient arrives in the emergency department and to force a patient to get on his cell phone – while in the midst of a medical emergency – and call all the surgeons on staff in the hospital to “secure a specialist on his own.” While the court’s decision may appear reasonable on paper, from a practical standpoint, the court’s decision would make a shambles of medical ethics and would require that hospitals violate EMTALA laws.
The reasoning of Florida’s Fifth District Court of Appeals’ opinion in this case is sometimes unclear. The opinion contradicts the cases it cites, provides no practical guidance on how contracting entities can avoid apparent agency, and seems to encourage hospitals to violate medical ethics and federal law in the hopes that the contracts they enter into with independent contractors are enforced as agreed-upon.
Additional Commentary on the Luebbert v. Adventist Health System Decision
In a web search on this case, I found two articles that provided additional commentary.
In the first article from America’s News Hub, the author summarized the court’s holding and interviewed other attorneys for comment. One attorney noted that hospitals may consider adding indemnification agreements to their contracts with independent contractors to shift liability from the hospitals to the contractors. This would be a large disincentive to work as an independent contractor at a hospital. In this case, the independent contractor settled the case with the plaintiff. Had an indemnification agreement been in place, the independent contractor could have been liable for even more damages after settling the lawsuit. In addition, the damages from an indemnification agreement almost universally ARE NOT paid by malpractice insurance. See the articles at this link for more articles I have written on indemnification.
The second article contained commentary from the Florida Society for Healthcare Risk Management and Patient Safety. This article noted that Florida’s Fifth District seems to favor apparent agency against hospitals in most cases. The author noted that “Although the Court did not determine as a matter of law that Dr. Malik was in fact an apparent agent, the Court suggests that only a jury is able to make the ultimate determination” and also noted that juries tend to struggle with application of agency laws in medical malpractice cases. The author also raises the same issues I raised with “patient choice” and also notes that a requirement of patient choice may trigger other unintended consequences in future legal cases deciding an issue of apparent agency.
This second article prompted a comment from the author of the appellate briefs filed on behalf of the plaintiff in this case. Mr. Gregory Hoover accuses the author of building mansions “on the bones of the dead ex-patients of negligent contact-physicians and the money-grubbing hospitals” and emphatically states that all defense attorneys know his arguments are the correct ones. He predicts that his briefs will “crush” the Florida Hospital at trial and will “re-open the doors of the court to the hundreds of thousands of patients who are harmed by negligent doctors and left without a legal remedy.” Although Mr. Hoover’s commentary is amusing, his arguments don’t come across as cogent. The client for whom he authored a brief obtained a settlement from the treating surgeon – hardly “being left without a legal remedy.” He adds a diatribe about the top grossing hospitals in Florida and tries to allege that their gross income is related to lack of accountability for independent contractor physician negligence.
I wonder how well circuit courts would perform if they had to abide by the same rules of apparent agency for the negligent acts of attorneys that practice within the courts.