Roessler v. Novak

858 So. 2d 1158 (Fla. Dist. Ct. App. 2003)



An apparent agency exists only if all three of the following elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation. Apparent authority does not arise from the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent himself. Rather, apparent authority exists only where the principal creates the appearance of an agency relationship. 


The patient was admitted through the hospital's emergency room with a diagnosis of a perforated viscus. The radiologist performed scans of the patient's abdomen after the patient was admitted. The patient developed serious complications after surgery was performed on the perforated viscus. He filed his action for medical malpractice against the hospital and radiologist, among others, asserting in part that the hospital was vicariously liable for the negligence of the radiologist in failing to include abdominal abscess as a possible differential diagnosis. The radiologist worked for an independent contractor that provided radiological services to the hospital, and the trial court's summary judgment was based on the status of the radiologist as an independent contractor. The case was appealed to the Court of Appeal of Florida.


Was summary judgment proper?




The Court pointed out that the hospital provided the patient with the services of the radiologist along with all of the other services the patient received while hospitalized. The patient accepted those services and did not retain his own specialist. Summary judgment was precluded because the hospital's actions in presenting the radiologist to the patient created questions of material fact as to whether it was vicariously liable for the radiologist's negligence under the doctrine of apparent agency. The trial court's judgment was reversed and the case was remanded for further proceedings consistent with the court's opinion.

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