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Mercy Hospital12/24/2003
Mercy Hospital, Inc. ("Mercy Hospital") appeals an adverse summary judgment finding the hospital liable for a staff physician's failure to comply with a financial responsibility statute. Plaintiffs Barbara and Ethbert Baumgarder and Anne Valentine (hereafter collectively referred to as "the plaintiffs"), cross-appeal the dismissal of their negligence claims against the hospital. We affirm on the main appeal and the cross-appeal.
The plaintiffs obtained judgments against Dr. Cesare DiRocco ("Dr. DiRocco") after successfully pursuing separate lawsuits for malpractice. Dr. DiRocco had privileges to practice medicine at Mercy Hospital, where the malpractice occurred.
Thereafter, Dr. DiRocco filed for bankruptcy , and the plaintiffs were unable to recover on their judgments. The plaintiffs then brought separate actions against Mercy Hospital alleging strict liability under Florida's financial responsibility law, Section 458.320(2)(b), Florida Statutes (2002), and negligence for failure to ensure that staff physician Dr. DiRocco complied with the statute.
Mercy Hospital moved to dismiss both complaints, and the plaintiffs filed motions for summary judgment on all claims. The trial court granted the plaintiffs' motions for summary judgment on the strict liability claims and entered individual judgments of $250,000 each for the plaintiffs. Mercy Hospital appeals the adverse summary judgment. The plaintiffs cross-appeal the dismissal of their negligence claims.
Section 458.320(2) requires physicians to comply with one of three financial responsibility options in order to obtain hospital staff privileges. A physician must have coverage in the amount of $250,000 per claim, by either establishing an escrow account, acquiring professional liability insurance, or maintaining a letter of credit. See § 458.320(2), Fla. Stat. (2002). Alternatively, a physician is exempt from the requirements of Section 458.320(2) if he or she agrees to pay any medical-malpractice judgment creditor $250,000 of any judgment, informs patients the doctor does not carry medical malpractice insurance, and provides written notification to the Florida Department of Health demonstrating compliance with the statute. See § 458.320(5)(g), Fla. Stat. (2002).
Mercy Hospital argues the trial court erred in granting summary judgment for the plaintiffs, contending Section 458.320(2) does not impose liability upon a hospital to ensure a physician's compliance. We disagree for the reasons expressed by our sister districts in Robert v. Paschall, 767 So. 2d 1227 (Fla 5th DCA 2000), review denied, 786 So. 2d 1187 (Fla. 2001), and Baker v. Tenet Healthsystem Hosp., Inc. 780 So. 2d 170 (Fla. 2d DCA 2001).
As noted in Robert v. Paschall, 767 So. 2d 1227, 1228 (Fla 5th DCA 2000): "The obvious intent of the legislature [in enacting Section 458.320(2)] was to make sure that a person injured by the medical malpractice of a doctor with staff privileges would be able to ultimately recover at least $250,000 of compensable damages. We read section 458.320(2)(b) as imposing a statutory duty on the hospital to assure the financial responsibility of its staff-privileged physicians who use the hospital for medical treatment and procedures." See also Baker v. Tenet Healthsystem Hosp., Inc. 780 So. 2d 170 (Fla. 2d DCA 2001)(hospital has a statutory duty to assure staff-privileged physicians are financially responsible).
We agree with the well-reasoned decisions of the Fifth and Second Districts. The statute mandates financial responsibility as a condition to maintaining staff privileges and imposes a duty on the hospital to ensure compliance. Accordingly, we affirm on the main appeal. Finding no
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