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Mark R. Mohan, et al. v. Orlando Health, Inc., et al., Case No. 5D13-3869 (5thDCA)

In Mohan, the Fifth DCA reversed an order dismissing a medical malpractice suit, finding that the plaintiff had stated cognizable causes of action against the defendant, Orlando Health. The plaintiffs had filed suit against Orlando Health, among others, alleging that during an operation at South Lake Hospital, the plaintiff’s ureter was mistakenly removed rather than his appendix. The plaintiff asserted counts against Orlando Health for direct liability, joint liability and vicarious liability. The trial court dismissed each of the counts. The Fifth DCA reversed.

The plaintiff’s first count against Orlando Health was for direct liability for negligent credentialing. Orlando Health moved to dismiss the count arguing that its management agreement, attached to the complaint, demonstrated that South Lake and not Orlando Health was solely responsible for all decisions relating to medical staff and credentialing. The plaintiffs argued that the document showed Orlando Health exercised a great deal of control over the hospital’s operations, including oversight of the medical staff. The Fifth DCA ruled that the allegations of the complaint, when coupled with the management agreement, fail to conclusively establish that Orlando Health was not involved in any credentialing decisions issued by South Lake Hospital. Therefore, a viable cause of action existed.

The trial court next dismissed claims for joint liability based on theories of partnership, purported partnership, joint venture and joint enterprise. The trial court reasoned that such a cause of action could not survive because such a relationship between two non-profit corporations is a “legal impossibility.” The Fifth DCA summarily rejected this theory. Orlando Health conceded this theory on appeal, but argued that the Fifth DCA should affirm nonetheless based on the tipsy coachman doctrine. The Fifth DCA disagreed, finding that the exhibits to the complaint included documents that support the plaintiffs’ joint liability allegations, including a non-compete agreement and a lease agreement both suggesting that Orlando Health jointly controlled the hospital.

Lastly, the trial court dismissed the plaintiffs’ claims based on vicarious liability. The plaintiffs alleged that Orlando Health was vicariously liable based on its employment relationship with the South Lake Hospital CEO and three members of the hospital’s board. Orlando Health argued that while the CEO and board members were employees of Orlando Health, when making decisions relating to South Lake Hospital issues, they were not working within the course and scope of their employment with Orlando Health. The Fifth DCA ruled that at the pleading stage, nothing in the complaint or the exhibits to the complaint establishes that Orlando Health’s employees were not working within the course and scope of their employment with Orlando Health while also working for South Lake Hospital.

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