Summary
attending physician not vicariously liable for cover physician who, with advance knowledge and consent of the patient, treats in absence of attending physician
Summary of this case from Hall v. FrankelOpinion
No. 92-2041.
October 12, 1993.
Appeal from the Circuit Court, Dade County, Juan Ramirez, Jr., J.
Perse Ginsberg and Arnold R. Ginsberg, Lawrence B. Rodgers, Miami, for appellants.
Don Russo, Elizabeth Koebel Russo and Patrice Talisman, Coconut Grove, for appellees.
Before SCHWARTZ, C.J., and HUBBART and COPE, JJ.
Addressing the issue left unresolved in Goldschmidt v. Holman, 571 So.2d 422, 423 n. 2 (Fla. 1990), we hold that the trial court correctly entered summary judgment that, as a matter of law, a physician is not vicariously liable for the alleged malpractice of a "covering" doctor who, with the advance knowledge and concurrence of his patient, treats the patient while the "original" doctor is unavailable. Reed v. Gershweir, 160 Ariz. 203, 772 P.2d 26 (Ct.App. 1989); Humphrey v. Alvarado, 185 Ga. App. 486, 364 S.E.2d 618 (1988); Bottger v. Cheek, 815 S.W.2d 76 (Mo. Ct. App. 1991); Myers v. Holborn, 58 N.J.L. 193, 33 A. 389 (1895); Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 523 N.E.2d 284, 528 N.Y.S.2d 8 (1988); Feigelson v. Ryan, 108 Misc.2d 192, 437 N.Y.S.2d 229 (Sup.Ct. 1981); Johnston v. Ward, 288 S.C. 603, 344 S.E.2d 166 (Ct.App. 1986). As these cases demonstrate, this fact pattern does not involve either the control by or justified reliance upon the original physician which are required to establish actual and apparent agency, respectively. See generally Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491 (Fla. 1983); Variety Children's Hosp. v. Perkins, 382 So.2d 331 (Fla. 3d DCA 1980).
Affirmed.