Medical malpractice bill advances in Florida House (p. 2)

We’re continuing our discussion of proposed medical malpractice legislation currently making its way through the Florida House of Representatives. Our analysis is based on a report prepared by legislative staff. In our last post, we covered the proposed changes to the burden of proof. Here, we’ll cover the changes the authors of HB 479 would like to make to hospital liability.

Hospital liability. Generally, the law says that people are responsible for their own actions. The classic law school example is a car accident. Everyone agrees that the guy in the Malibu is at fault. The guy in the Matrix can sue him for damages. If the guy in the Malibu is a pizza delivery guy, though, and he hits the Matrix because he’s rushing to his next stop, the pizza place may be at fault. The delivery guy was acting at the direction of the pizza place. But for those instructions, he wouldn’t have been there.

The pizza place, then, is subject to vicarious liability. The business is liable for the actions of its employee. (There are exceptions to the rule, but they’re outside the scope of our discussion.)

In a medical malpractice case, the same rule holds. If you think about an operating room, you see more people there than just the surgeon. There are nurses and anesthetists, orderlies and all that equipment. The nurses follow the surgeon’s orders. And the surgeon follows … whose orders?

The answer is, “It depends.” If the surgeon is an employee of the hospital, the hospital may share the fault. Perhaps they didn’t look at the surgeon’s credentials closely enough or scheduled the surgeon for too many complicated procedures in one day.

Many times, though, a surgeon or physician will have privileges at the hospital — meaning, he or she can practice in that facility — but won’t be a direct employee. This doctor is considered a contract employee. And in these cases, the chain of command isn’t so clear.

What HB 479 proposes is to make it clear. The bill would remove all of a hospital’s liability for a contract physician’s negligence, unless the plaintiff can prove that the hospital expressly directed or exercised actual control over the negligent conduct.

That’s a fairly high hurdle. The effect is to shield hospitals from liability by law, instead of asking a judge or jury to decide based on the evidence.

Proponents say that hospitals are included in law suits because they have “deeper pockets,” not because they actually contributed to the harm. Opponents say that the law would encourage hospitals to convert all employees into contract employees just to avoid having to pay their share of damages.

Since we started this series, the bill made it through the Health Care Appropriations Subcommittee as well as the Judiciary Committee. Next up may well be the House floor for a full vote.

Source: Florida House of Representatives Bill 479, Staff Analysis, Health & Human Services Access Subcommittee, 04/06/11