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Liberatore v. Nme Hospitals Inc.6/17/1998
Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James T. Carlisle, Judge; L.T. Case No. CL 96-2104 AE.
Carmela and Umberto Liberatore, plaintiffs in a medical malpractice action., appeal the trial court's grant of final summary judgment in favor of one of the defendants, NME Hospitals Inc., d/b/a West Boca Medical Center (West Boca or hospital). We reverse the final summary judgment. We affirm West Boca's issue on cross-appeal.
The Liberatores filed suit against West Boca, Carmela's attending physician, Dr. Kaufman, and his professional associations, alleging the negligence of the hospital and Dr. Kaufman resulted in Carmela experiencing medical complications following the birth of her baby at the hospital. The Liberatores alleged Dr. Kaufman was either employed by West Boca, was its agent, apparent agent, or a joint venturer. West Boca now urges affirmance of the court's final summary judgment arguing the Liberatores failed to allege negligence on the part of the nurses, staff, or anesthesiologist at West Boca, and further Dr. Kaufman was not an agent or apparent agent of the hospital. We agree with only the latter argument.
In reviewing an order granting summary judgment, the appellate court must view every possible inference in favor of the party against whom the summary judgment was granted and if material issues of fact exist, summary judgment must be reversed. Smith v. Perry, 635 So. 2d 1019, 1020 (Fla. 1st DCA 1994). Utilizing this standard, our review of the record reveals material issues of fact exist regarding negligence on the part of West Boca's employees.
In their complaint, the Liberatores alleged in pertinent part:
19. That at the time and place aforesaid, the Plaintiff, Carmela Liberatore, came under the care and treatment of the apparent agents and/or agents, employees, personnel, nurses, physicians, hospital staff and hospital administration of the Defendant NME Hospitals, Inc. . . . .
21. That the Defendant, NME Hospitals, Inc., a foreign corporation, d/b/a West Boca Medical Center, by and through it's employees, and/or agents, including Defendant, Samuel Kaufman, M.D., owed a duty to Plaintiff, Carmela Liberatore . . . .
(Emphasis supplied.)
Further, the presuit affidavit of Dr. Paul Gatewood, attached to the Liberatores' complaint, alleged West Boca, "its agents, apparent agents, servants, employees and joint venturers" breached the prevailing professional standard of care. Dr. Gatewood's second affidavit, submitted in opposition to West Boca's Motion for Summary Judgment, stated the nurses attending to Carmela negligently began and continued an improper and unwarranted induction of labor and failed to recognize arrestive labor; while the anesthesiologist, as an employee, agent, or apparent agent of West Boca was negligent in management of the blood and fluid replacement during Carmela's surgery.
The Liberatores' complaint expressly alleged West Boca's nurses were negligent in their care of Carmela. Dr. Gatewood's presuit affidavit included a statement the hospital's employees breached the prevailing standard of care. Dr. Gatewood's second affidavit included more express statements of the nurses' negligent actions. On the strength of these allegations, West Boca had the burden of proving the absence of factual issues, overcoming all reasonable inferences which could be drawn in the Liberatores' favor. West Boca failed to meet this burden.
We expressly reject West Boca's suggestion their submission of deposition testimony in which the Liberatores responded to leading questions by stating they had "no crit
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