Certified Conflict With Wax v. Tenet On Non-Delegable Duty For Emergency Rooms

Medical Malpractice

In the case of Guillermo Tabraue III, Esq. v. Doctors Hospital, Inc., Case Number 3D16-1661 (Fla. 3d DCA March 27, 2019), Florida’s Third DCA held that a hospital emergency room (staffed by independent contractors) does not have a non-delegable duty to provide non-negligent care under any statute or under a theory of implied contract.


The plaintiff in this case (Suyima Torres, deceased) sued both the hospital and the medical providers who treated her in the emergency room. As with the overwhelming majority of hospitals are set up, the physicians in the emergency room were “independent contractors” as opposed to “employees.”

As we all know, this “legal” distinction allows the hospital to escape liability for mistakes made by the ER doctors unless there is some duty that the hospital is not allowed to delegate to a third party (non-delegable duty).
There are four ways that a non-delegable duty may arise in Florida:

  1. Express contract
  2. Common law
  3. Statutory duty
  4. Implied contract

The plaintiff brought all four flavors of non-delegable duty. However, it appears that express contract and common law were conceded. While we are on this subject, it should be noted that no hospital is dumb enough to implicate themselves into legal liability by express contract because they wrote the contract.

Secondly, when it comes to common law, the judiciary in Florida has created very few pathways for non-delegable duty (think Payas v. Adventist Health where it was held that a hospital had a non-delegable duty to maintain surgical robot). Since none of those appear to exist in this case, the only viable theories were statutory and implied contract.

Florida’s Third DCA said no to both.

Reasoning Of The Court

The plaintiff argued that Chapter 395, Fla. Stat. creates licensing requirements for hospitals in Florida and requires hospitals with an emergency room to accept all patients who are in need of care (limited only by the patient-dumping statute). The argument (at how it went) was that hospitals with emergency rooms are required to provide emergency services to patients suffering from emergencies (and cannot be dumped onto the street), therefore, the hospital is responsible even if the patient was treated by an independent contractor.

Florida’s Third DCA shot this argument down by saying that Chapter 395 is “silent” on the matter of non-delegable duty and certified the conflict with Wax v. Tenet (which provided that Chapter 395, Fla. Stat. required that a hospital providing anesthesia services must do so non-negligently).

They also held that there was no duty created by an implied contract by admission to the emergency department.


This is where things get ridiculous. It is so obvious that the legislature is virtually never going to intend to create a cause of action for non-delegable duty (this is certainly not going to happen in a “tort reform” environment). Therefore, of course the statute is going to be “silent” with regard to non-delegable duty.

We really need to revisit what non-delegable duty was created by judges in the first place for. The doctrine was created by judges so that people who attempted to avoid legal liability simply by contracting out work to a third party could not avoid legal liability by the fact that they contracted the work out. Those judges believed that the situations where a non-delegable duty should apply were so important to society that allowing the true deep pocket to escape legal liability was unfair.

With that in mind, not just anyone can set up an emergency room. Further, emergency rooms were meant to treat conditions where life and death is on the line. So then we must ask ourselves, why isn’t an ER important enough to society to justify the use of a non-delegable duty? I know that many people do not like lawsuits, however, we all know that the prospect of legal liability is what keeps corporately run institutions accountable.

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April 01, 2019