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Hospital law decisions of note.

FL: Non-Delegable Duty Issue in Patient's Death: Court Upheld Hospital's Non-Delegable Duty to Pt.

CASE FACTS: Ivan Ferguson underwent back surgery in December of 2000 at AMISUB d/b/a North Ridge Medical Center (the hospital). He died the following day from cardiac arrythmia. Subsequently, the decedent's wife, Staria, as Personal Representative of her husband's estate, as well as representative of herself and the couple's children, brought suit against the hospital for its direct negligence and negligence of the hospital's employees and agents, alleging that they failed to meet the applicable standard of care. The trial court granted the hospital's motion for summary judgment and denied the plaintiff's motion for leave to file an amended complaint. The plaintiff appealed. The Florida Court of Appeals reversed the final summary judgment, holding that genuine issues of material fact remained as to the plaintiff's claim of nursing negligence. The court remanded the case with directions to the trial court to allow the plaintiff to file a third amended complaint specifically identifying the physicians and other employees or agents of the hospital for whose negligence the hospital was responsible. After remand, the plaintiff filed a third amended complaint specifically naming emergency room physician, Dr. Friedman, as one of the negligent agents for whom the hospital was vicariously liable. The plaintiff alleged that the hospital was vicariously liable as the respond eat superior of its nurses, agents, servants and employees, including Dr. Friedman. The plaintiff emphasized that the hospital was responsible for Dr. Friedman's allegedly negligent acts and omissions as a result of a "non-delegable duty to supervise ... so that competent and careful medical personnel are provided ... " The plaintiff's expert witness opined during a deposition that Dr. Friedman deviated from the standard of care by his delayed response after the emergency code was called. The hospital filed a motion for partial summary judgment, challenging the hospital's liability for Dr. Friedman, an independent contractor with the hospital. Following a hearing, the trial court granted the motion for partial summary judgment. The case proceeded to trial. The jury returned a verdict for the hospital. The plaintiff appealed.

COURT'S OPINION: The Florida Court of Appeals reversed the judgment entered by the trial court and remanded the case back to it with directions. For guidance in future cases, the court instructed that the plaintiff should amend the complaint to clearly allege that the hospital had a non-delegable duty to provide competent emergency care to the plaintiff's husband, and must plead the specific source of the hospital's non-delegable duty the plaintiff relied on: an implied contract, an express contract, a statue, an administrative regulation, or some combination thereof. New bold-Ferguson v. Amisub (North Ridge Hospital), Inc., 4D09-3610, FLCA4 (2/22/2012)-FL

OR: Hospital's Disks, Tapes & Records Stolen: Court Held Complaining Patients Had No Claims

CASE FACTS: The facts in the case were taken from the plaintiffs' third amended complaint. The plaintiffs were all members of a group, including themselves and other individuals. All of the plaintiffs were members of a non profit corporation that provided health care. An employee of the corporation left computer disks, tapes and records of 365,000 patients in a car. The disks, tapes and were stolen from the car on or about December 30-31, 2005. The records included the names, addresses, phone numbers, Social Security numbers, and patient care information. The defendant notified all individuals whose information was contained on the disks, tapes and records and advised them to take precautions to protect themselves against identity theft. The plaintiffs alleged that the corporation was guilty of common law negligence and negligence per se . They alleged that the defendant's conduct caused them financial injury in the form of past and future costs of credit monitoring, maintaining fraud alerts, and notifying various government agencies regarding the theft, as well as possible future costs related to identity theft. The plaintiffs also alleged that they suffered noneconomic damages for emotional distress caused by the theft of the records and attendant worry over possible identity theft. The plaintiffs further alleged that they were entitled to damages under the Unlawful Trade Practices Act (UTPA). The defendant filed a motion to dismiss the plaintiff's complaint for failure to state ultimate facts sufficient to constitute a claim for relief. The trial court granted the defendant's motion. The plaintiffs appealed. The Court of Appeals of Oregon affirmed the decision of the trial court. The plaintiffs appealed.

COURT'S OPINION: The Supreme Court of Oregon affirmed the judgment entered by the Oregon Court of Appeals. However, the court noted that its rationale differed somewhat from that of the lower court. The court held, inter alia, that in the absence of any allegation that the stolen information was used in any way or was even viewed by a third party, the plaintiffs had not suffered an injury that would provide any basis for a negligence claim or an action under the UTPA. The court observed that the plaintiffs sought money damages against the defendant. However, the court concluded that monetary damages are not the type of loss that was intended when the UTPA was passed. The court found that not only had the plaintiffs failed to show any loss as a result of the theft of the disks, tapes and records to date, but they had also failed to show any reasonable expectation that they would sustain any loss in the future. Accordingly. the court affirmed the judgment of the lower court. Paul v. Providence Health System-Oregon, SC SO59131ORSC P 3.d (2/24/2012)-OR


Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Report., his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Ilubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Publication:Hospital Law's Regan Report
Article Type:Case overview
Date:Apr 1, 2012
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