02-3095 MERCY V. BAUMGARDNER

State: Florida

Court: Florida Third District Court

Docket No: 02-3095 MERCY V. BAUMGARDNER

Case Date: 12/24/2003

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D., 2003 MERCY HOSPITAL, INC. Appellant, vs. BARBARA BAUMGARDNER, and ETHBERT BAUMGARDNER, and ANNE M. JONES VALENTINE, Appellees. ** ** ** ** ** ** CASE NOS. 3D02-3095 3D02-2686 LOWER TRIBUNAL NOS. 02-6183 01-8858

Opinion filed December 24, 2003. An Appeal from the Circuit Court for Miami-Dade County, Norman S. Gerstein, Judge. Stephens Lynn Klein Lacava Hoffman & Puya, and Marlene S. Reiss, and Robert M. Klein; Lewis Fishman, for appellant. Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin, and Joel S. Perwin, for appellees. William A. Bell; Parenti, Falk, Waas, Hernandez & Cortina, and Gail Leverett Parenti, for the Florida Hospital Association, as amicus curiae. Before GERSTEN, GREEN, and FLETCHER, JJ. GERSTEN, J. 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, plaintiffs were Dr. DiRocco to filed for on bankruptcy, and the The

unable

recover

their

judgments.

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 2 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

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