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.

Let’s take a closer look at the the Florida law that wrath relies on. 2005 Florida statute 395.002(13)(b) simply defines what constitutes a building as being a hospital. 395.1055(1)(a),(d) states

The agency shall adopt rules …..to implement the provisions of this part, which shall include reasonable and fair minimum standards for ensuring that:

(a)  Sufficient numbers and qualified types of personnel and occupational disciplines are on duty and available at all times to provide necessary and adequate patient care and safety….. (d)  Licensed facilities are established, organized, and operated consistent with established standards and rules.

The Florida Administrative Code Rule 59A-3.2085(4) contains all of the requirements, rules and guidelines which must be followed in order for hospitals to be licensed, and this particular section said:’

Each Class I and Class II hospital, and each Class III hospital providing surgical or obstetrical services, shall have an anesthesia department, service or similarly titled unit directed by a physician member of the organized professional staff.

(a) The anesthesia department of each hospital shall have written policies and procedures that are approved by the organized medical staff…. Such written policies and procedures shall include at least the following requirements:

1. A preanesthesia evaluation of the patient by the physician, or qualified oral surgeon in the case of patients without medical problems admitted for dental procedures, or certified registered nurse anesthetist where authorized by established protocol approved by the medical staff, except in the case of emergencies.

2. A review of the patient’s condition immediately prior to induction of anesthesia.

3. A mechanism for release of patients from postanesthesia care.

4. A recording of all pertinent events taking place during the induction of, maintenance of, and emergence from anesthesia.

5. Guidelines for the safe use of all general anesthetic agents used in the hospital.

(b) The responsibilities and qualifications of all anesthesia personnel, including physician, nurse and dentist anesthetists and all trainees, must be defined in a policy statement, job description, or other appropriate document.

(c) Anesthetic safety regulations shall be developed, posted, and enforced. Such regulations shall include at least the following:

1. A requirement that all operating room electrical and anesthesia equipment be inspected on no less than a semi-annual basis, and that a written record of the results and corrective action be maintained.

2. A requirement that flammable anesthetic agents be employed only in areas in which a conductive pathway can be maintained between the patient and a conductive floor.

3. A requirement that each anesthetic gas machine have a pin-index or equivalent safety system.

4. A requirement that all reusable anesthesia equipment coming in direct contact with the patient be cleaned or sterilized in the manner prescribed by current medical standards. well a bit long-winded and reading like a textbook for learning how to run anesthesia department the administrative rule has a glaring point of absence. And that would be any requirement. that the hospital in order to comply with licensing regulations had to ensure and directly observe that each was done in a non-negligent manner. It appears to only set forth requirements that the hospital must employ competent adequate numbers of professionals licensed in the provision of anesthesia if they are providing surgical services and that certain standard processes must occur preoperative evaluation and a plan for postoperative discharge.

Undeterred, Reth made the following specific claims against the defendants:

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.

For purposes of discussion this case is much more about vicarious liability than actual medical malpractice since whether malpractice occurred or not was not questioned before this court.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 or 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 this case one can easily argue that if the hospital did not have the right ability or duty to control the actual anesthesia activities which are alleged negligent, even though performed by employees or contractors subordinate to the hospital.

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. once that appeal was granted all the defendants were back in the soup and the denial of the hospital’s motion for directed verdict again became a material element of their defense.An appeal was filed by all defendants challenging the order for a new trial and a motion was filed by the hospital challenging the denial of a directed verdict finding them without liability.

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 according to a jury verdict, based solely 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 below.

UPDATE: Another appellate court in Florida issues a ruling within days of the ruling in this case which hinges on many of the same issues in which a surgery center is found not liable for the acts of medical providers allegedly negligently performing procedures. Of course we are covering it.

TARPON SPRINGS HOSPITAL FOUNDATION, INC. v. RETH

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