Staria T. NEWBOLD-FERGUSON, as Personal Representative of the Estate of Ivan Warmsley Ferguson, deceased, for and on behalf of lawful survivors/claimants, Staria T. Newbold-Ferguson, surviving spouse, Vanessa Ferguson, surviving minor child, and Ivina Florence Ferguson, surviving minor child, Appellants,
AMISUB (NORTH RIDGE HOSPITAL), INC. d/b/a North Ridge Medical Center, Appellee.
Rehearing Denied May 8, 2012.
Harvey J. Sepler, Hollywood, for appellants.
Donna M. Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, for appellee.
Plaintiff Staria Newbold-Ferguson appeals a final judgment entered upon a defense verdict for the North Ridge Medical Center in her suit against the hospital for the wrongful death of her husband. Because the plaintiff had the ability to state a legally viable non-delegable duty claim against the hospital, based on the emergency room doctor's alleged negligence, we reverse.
By way of background, in December 2000 Ivan Ferguson underwent back surgery at AMISUB d/b/a North Ridge Medical Center (" the hospital" ) and died the following day from a cardiac arrhythmia. Subsequently, plaintiff brought a wrongful death suit against the hospital for its direct negligence and negligence of the hospital's employees and agents, alleging that they failed to meet the prevailing standard of care.
The trial court granted summary judgment for the hospital and denied the plaintiff's motion for leave to file a Third Amended Complaint. On appeal, we reversed the final summary judgment, holding that genuine issues of material fact remained as to the plaintiff's claim of nursing negligence. See Newbold-Ferguson v. Amisub, 962 So.2d 418 (Fla. 4th DCA 2007). We 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. Id. at 419.
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. In Count I, the plaintiff alleged that the hospital was vicariously liable as the respondeat superior of its nurses, agents, servants and employees, including Dr. Friedman, an emergency room physician. In Count II, the plaintiff alleged that the hospital was responsible for Dr. Friedman's negligent acts and omissions as a result of a " nondelegable 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 on Mr. Ferguson.
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 defense motion for partial summary judgment on the ground that Dr. Friedman was not an actual or apparent agent of the hospital. With regard to the plaintiff's allegation of a non-delegable duty " to supervise"
Dr. Friedman, the trial court concluded that no such duty existed and struck all allegations regarding the negligence of Dr. Friedman as attributable to the hospital. However, the court allowed the plaintiff another opportunity to amend the complaint to try to assert a viable claim involving a non-delegable duty for Dr. Friedman. The trial court instructed the plaintiff's counsel that the issue was " the non-delegable duty to diligently determine that competent physicians are afforded house privileges or staff privileges."
The plaintiff filed a Fourth Amended Complaint, but the hospital again moved to dismiss, as the complaint still contained allegations that Dr. Friedman was the hospital's agent and did not contain any new non-delegable duty theories. The trial court granted the motion, dismissing all allegations regarding the negligence of Dr. Friedman as attributable to the hospital. The trial court ultimately ruled that the plaintiff could travel on the Third Amended Complaint and that the Third Amended Complaint would be redacted of any reference to Dr. Friedman.
The case proceeded to trial, where the plaintiff was precluded from introducing evidence that Dr. Friedman's response to the code deviated from the standard of care. At the conclusion of the trial, the jury returned a verdict in favor of the hospital. The plaintiff filed a motion for new trial, in which the plaintiff challenged the propriety of certain comments made by defense counsel during closing argument. There was no contemporaneous objection, however, to defense counsel's comments. The trial court denied the motion for new trial and entered final judgment in the hospital's favor. This appeal follows.
On appeal, the plaintiff argues that the trial court erred in denying her efforts to amend the complaint in order to assert a non-delegable duty claim against the hospital based on Dr. Friedman's alleged negligence. The hospital responds that the trial court did allow the plaintiff to file a Third Amended Complaint identifying Dr. Friedman as one of the allegedly negligent doctors, but the agency theory was disposed of on ...