Florida’s Second District Court of Appeal (DCA) has been an unfriendly jurisdiction for the pursuit of non-delegable duty claims against hospitals for several years. The Second DCA all but eliminated the potential for such claims premised on Florida Statutes and Florida Administrative Code in Tarpon Springs Hosp. Found., Inc. v. Reth, 40 So. 3d 823 (Fla. 2d DCA 2010). Subsequently, the Second DCA squashed any hopes of a non-delegable duty premised on the Medicare Conditions of Participation in Godwin v. Univ. of S. Fla. Bd. of Trustees, 203 So. 3d 924 (Fla. 2d DCA 2016). Although contractual, non-delegable duty claims are still possible, they are becoming increasingly less likely to succeed as hospital risk management and legal departments have responded to developments in case law by carefully crafting admission agreements to avoid them.
Against this harsh backdrop, medical malpractice victims and their advocates received a bit of positive news when the Second DCA announced its decision in Payas v. Adventist Health System/ Sunbelt Inc., 2018 WL 911824 (Fla. 2d DCA 2018). In Payas, the decedent Bernardo Galarza was injured when part of the surgical robot being used to operate on him became detached and embedded in his esophagus. He eventually died from complications associated with the injury and the additional surgeries necessitated by it. Personal Representative to the Estate of Bernardo Galarza, Armando Payas brought several claims against the hospital, including one alleging a non-delegable duty to properly maintain the robot and to ensure that it was used with reasonable care. The Second DCA denied the hospital’s motion to dismiss, finding Payas’ plea for an action for non-delegable duty sufficient. The court noted that Payas had alleged that the hospital owned, maintained and operated the robot, marketed itself by promoting the advantages of its use, and allowed the surgeon to perform the surgery with it.
Unfortunately, the somewhat unique circumstances of the Payas case will likely limit its application. The court’s opinion makes clear it was the hospital’s undertaking and marketing of a novel and potentially dangerous program (robotic surgery) that led to the potential imposition of a non-delegable duty. Capable defense counsel will certainly be prepared to distinguish Payas from more traditional medical negligence fact patterns. However, beyond the obvious implications for cases in the emerging field of robotic surgery, Payas also has strong potential to be used to establish non-delegable duty claims pertaining to other programs with substantial hospital involvement and marketing, such as bariatric surgery and neuroscience.
In sum, while Payas does not appear to be a clear gamechanger in existing non-delegable duty jurisprudence in the Second DCA, it is definitely an important addition to the arsenal of any medical negligence plaintiff’s advocate if deployed under the appropriate circumstances.