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Villazon v. Prudential Health Care Plan3/27/2003
(4) A "Primary Care Physician" is defined as a "Physician who is a Participating Health Care Provider and who is chosen by a Covered Person to have the responsibility for" providing medical services and initiating referrals to other participating health care providers.
(5) "Specialty Care Physicians" are defined as participating health care providers who provide "certain specialty medical care to Covered Persons upon referral by a Primary Care Physician, as approved by the Medical Director."
Indeed, while on the one hand, the Certificate of Coverage contains a disclaimer which states that participating hospitals and physicians have an independent contractor relationship with PruCare, on the other hand, it reflects PruCare's recognition of potential liability for its part in "mak arrangements for furnishing supplies and services to Covered Persons." This is evidenced by inclusion of a provision that " either the Contract Holder nor any Covered Person under the Group Contract will be liable for any acts or omissions of PruCare, its agents or employees, or any Hospital, Physician or other health care provider with which PruCare, its agents or employees" makes such arrangements.
These contractual provisions, along with the contractual provisions between the HMO and the physicians, and the totality of the circumstances operating within the current reality of the interaction within the decision-making process, create genuine issues of material fact sufficient to withstand a motion for summary judgment with respect to the question of whether PruCare can be held vicariously liable for the alleged medical negligence of its member physicians when providing service pursuant to the PruCare health plan under theories of actual agency. PruCare has not conclusively demonstrated the absence of genuine issues of material fact.
As for the cause of action based on apparent agency, however, it must be remembered that apparent authority exists "only where the principal creates the appearance of an agency relationship." Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So. 2d 775, 777 (Fla. 3d DCA 1986). Therefore, as to the claim of apparent agency, because this issue has not been fully addressed, on remand the trial court should have the opportunity to reevaluate whether under an apparent agency theory there are genuine issues of material fact.
Accordingly, we quash the decision in Villazon to the extent of inconsistency with this opinion, and remand to the district court for further proceedings in accordance herewith.
It is so ordered.
ANSTEAD, C.J., PARIENTE and QUINCE, JJ., and SHAW and HARDING, Senior Justices, concur.
WELLS, J., concurs in part and dissents in part with an opinion.
WELLS, J., concurring in part and dissenting in part.
I concur with the majority on all issues except I dissent from the quashing of the district court's summary judgment on the issue of agency. I find that the majority decision's finding of a factual basis for agency on a "right to control" theory is not in accord with the record, which demonstrates that the physician was an independent practitioner. I believe this Court should not interfere with and frustrate what this business arrangement was clearly intended to be, which was an independent physician-health care benefit administrator arrangement. I would approve the decision of the district court on this issue.
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