Sean Reth underwent surgery at Ellis Memorial hospital in Tarpon Springs, FL. In March of 2006 and died on the third postoperative day allegedly from global cerebral ischemia and intraoperative cardiac arrest. Shirley Reth brought two medical negligence lawsuits on behalf of the estate of Reth which were consolidated. Defendants were the hospital, North Pinellas Anesthesia Associates, PA, Hugh Siegel, CRNA; Teresa Catsos CRNA; and anesthesiologist Glenn Syperda, D.O. The hospital contracted with North Pinellas Anesthesia Associates to provide anesthesia services within their OR. The above mentioned anesthesia providers were employed by NPAA, not the hospital.

Reth alleged that negligent anesthesia care was the cause of the death of Mr. Reth. Reth further alleged that the hospital has a non-delegable duty to provided non-negligent anesthesia care to its patients. In other words, Reth claimed that the hospital has the duty to provide non-negligent anesthesia care, regardless of who actually provides that care in their operating room and that the hospital is then vicariously liable for the anesthesia services performed. Reth admitted that Anesthesia Associates employed physicians and nurse anesthetists to provide anesthesia services pursuant to a contract with the Hospital. Reth contended that Dr. Syperda, an anesthesiologist, and certified registered nurse anesthetists Catsos and Siegel were negligent in providing anesthesia services to Mr. Reth during the surgery, resulting in his death. Reth asserted that sections 395.002(13)(b), 395.1055(1)(a), (d), Florida Statutes (2005), and Florida Administrative Code Rule 59A-3.2085(4) created an express legal duty for the Hospital to furnish non-negligent anesthesia services to its surgical patients. Reth made the following specific claims against each defendant:

1) Reth alleged that the hospital was vicariously liable for the nurse anesthetists care, which was allegedly was negligent care. Reth did not name Spydera as an individual the hospital was liable for.

2) Reth alleged that Dr Spydera was vicariously liable for the alleged negligent care of the CRNAs because he was their supervisor.

3) Reth alleged that Anesthesia Associates was vicariously liable for the alleged negligent care of its employees Spydera, Catsos and Siegle.

Vicarious liability exists where an employer is legally responsible for the negligent acts of employees while the employees are acting within the course of their employment. For an act to be considered within the course of employment it must either be authorized or be so connected with an authorized act that it can be considered a mode, though an improper mode, of performing it. So while negligent anesthesia care is not expressly an authorized act by any sane employer, anesthesia care itself IS an authorized act by an employer in the business of providing surgical care generally. Vicarious liability is based on the common law doctrine of agency-respondent superior where there exists responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control” the activities of a violator.

In the court below at the end of testimony the Hospital made a motion for a directed verdict claiming that Reth had failed to prove the hospital was responsible for negligent care, if it existed, delivered by NPAA and its employees, and did not have an non-delegable duty for the anesthesia care.In other words, they were not vicariously liable for the care provided by Anesthesia Associates and its employees. The trial court denied the Hospital’s motion for directed verdict. The jury subsequently returned a defense verdict finding all of the defendants not responsible for the death of Reth.

That would have been the end of it but it was then discovered that juror Gullick failed to disclose material litigation history during voir dire. Reth made a motion for a new trial based on this jury misconduct which was granted. An appeal was filed by all defendants challenging the order for a new trial and by the hospital challenging the denial of a directed verdict finding them without liability no matter the verdict.

The court of appeals granted the hospitals appeal and ordered a directed verdict be entered and they be removed as defendants from a new trial should it be granted. The court then granted the motion for a new trial based on the misconduct of the juror. It is a bit mystifying explaining the wisdom of an attorney wanting to retry a medical malpractice case which was lost by the plaintiff based on the failure of one juror to disclose a history of, presumably, participation in a previous malpractice litigation. I do not know what that history is precisely, but it would have to be something extraordinary to think this one juror’s undisclosed history caused the verdict for the defendants. Of course we will have to see if the plaintiff proceeds with the new trial.

The important findings here are regarding hospital liability for anesthesia providers. According to the court: “The statutory duty of hospitals is to have available and to competently and adequately staff their anesthesia departments. If a hospital fails to have an anesthesia service directed by a physician member of its medical staff, or to provide for adequate numbers of anesthesia providers, or if it allowed an incompetent anesthesia provider to be granted privileges, it could be held liable if this proximately caused injury to one of its patients.”

Even if the hospital had a statutory duty to not delegate anesthesia services, Reth consented to such a delegation by signing a consent form.

“Here, the evidence showed that Mr. Reth had expressly consented to the delegation of both the performance and the responsibility for performing anesthesia services to the anesthesiologist. Reth argues that because the consent form only refers to physician services it does not apply to the nurse anesthetists. However, the evidence established that the anesthesia services provided by the patient’s nurse anesthetists were provided under the direction, supervision, and control of the anesthesiologist, not the Hospital. The fact that the anesthesiologist used nurse anesthetists employed by his anesthesia practice to assist in providing anesthesia did not operate to “re-delegate” any duty back to the Hospital.

There is a volume of Florida case law and state law on the vicarious liability and delegation issues which the court reviews. Read the case HERE.