IRWIN LIGHTERMAN, M.D., APPELLANT,
v.
MARTHA PORTER, INDIVIDUALLY, AND AS MOTHER AND NATURAL GUARDIAN OF AUDRA PORTER, A MINOR, APPELLEE

Fla. 3d DCA | 1989-09-19
No. 88-2902
Before BARKDULL, HUBBART and COPE, JJ.
548 So. 2d 891 Florida District Court of Appeal, Third District (1989) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Dr. Lighterman appeals a partial summary judgment finding him vicariously liable for a hospital technician's negligent bandaging that resulted in the amputation of a child's finger. The court reverses, holding that disputed facts exist regarding whether the doctor remained present during bandaging and exercised control over the technician, precluding summary judgment on the borrowed servant doctrine.


Holding

The partial summary judgment against Dr. Lighterman on liability is reversed because material factual disputes exist regarding whether the doctor remained present during bandaging, whether he assumed direction and control of the technician's actions, and whether bandaging constitutes a duty requiring professional skill subject to the surgeon's control or merely a ministerial service.


Headnotes

[1] Summary judgment is improper when a disputed issue of material fact exists.

[2] The borrowed servant doctrine requires the alleged master to have the ability and authority to direct and control the pertinent acts of the employee.

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Key Quotes

“[T]his principle has utterly no application to the case ... in which the negligence occurred when the surgery had long since been completed and the surgeon was neither physically present nor any longer directing the activities of the hospital employees.”

Establishes that the borrowed servant doctrine does not apply when the surgeon is absent and no longer directing employee activities.

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Facts & Procedural History

Ms. Porter brought her daughter Audra to Miami General Hospital's emergency room for treatment of finger lacerations. Ms. Porter, a nurse at the hospi…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant Irwin Lighterman, M.D., appeals entry of partial summary judgment against him on the issue of liability in a medical malpractice action. As there exists a disputed issue of material fact, we reverse.

Ms. Porter, plaintiff below, brought her daughter Audra to the emergency room of Miami General Hospital for treatment of lacerations Audra had suffered to two of her fingers. While waiting in the emergency room, Ms. Porter, a nurse at the hospital, noticed Dr. Lighterman, whom she knew, and prevailed upon him to treat her daughter. Dr. Lighterman, a plastic surgeon, was neither an employee of the hospital nor on emergency room duty at the time. After stitching Audra's fingers, Dr. Lighterman asked that Audra’s fingers be bandaged and the emergency room nurse assigned an emergency room technician to do the job. The parties dispute whether Dr. Lighterman remained to inspect the bandage. While Ms. Porter asserts that he did, Dr. Lighterman maintains that he left for a previously scheduled engagement before the bandaging was performed. In either event, the bandage was too tight. Gangrene ensued, ultimately resulting in the amputation of one of Audra’s fingers and the bringing of this lawsuit against Dr. Lighterman for medical malpractice.

The trial court entered partial summary judgment against Dr. Lighterman on liability. The court reasoned that the emergency room technician, although an employee of the hospital, was the “borrowed servant” of Dr. Lighterman, for whose negligence the doctor would be vicariously liable. See, e.g., Buzan v. Mercy Hospital, Inc., 208 So. 2d 11 (Fla. 3d DCA 1967). See generally Insinga v. LaBella, 643 So. 2d 209 (Fla.1989); 1 D. Louisell & H. Williams, Medical Malpractice para’s 16.07-08 (1988).

This court has said of the borrowed servant doctrine:

[T]his principle has utterly no application to the case ... in which the negligence occurred when the surgery had long since been completed and the surgeon was neither physically present nor any longer directing the activities of the hospital employees. It is a fundamental rule that the respondeat superior doctrine applies only when the alleged master has the ability and authority to direct and control the pertinent acts of the employee. ... Based upon this doctrine, the courts have unanimously held that in a post-surgical situation such as this one, the hospital and not the physician is liable for the acts of its employees.

Variety Children’s Hosp., Inc. v. Perkins, 382 So. 2d 331, 335 (Fla. 3d DCA 1980) (citations omitted).

In the present case there are disputed issues of material fact over whether the doctor had departed prior to the bandaging, or remained during the bandaging and if so, whether he actually assumed direction and control of the bandaging. Also unresolved on this record is the related question whether bandaging, even if performed in the physician’s presence, is a duty “involving professional skill, which would render the actor subject to the surgeon’s control,” or a ministerial service “which would not implicate the borrowed servant doctrine.” Vargas v. Dulzaides, 520 So. 2d 306, 307 (Fla. 3d DCA) (citation omitted), review dismissed, 528 So. 2d 1184 (Fla.1988); see Buzan v. Mercy Hospital, Inc., 203 So. 2d at 12.

The partial summary judgment should not have been entered.

Reversed.


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Citator

Cited By

  • …1103 (1980); Antonini v. Hanna Indus., 94 Nev. 12, 573 P. 2d 1184 (1978); Snetcher & Pittman v. Talley, 168 Okla. 280, 32 P. 2d 883 (1934); see also Shelby Mutual Ins. Co. v. Aetna Ins. Co., 246 So. 2d 98 (Fla.1971); see e.g., Lighterman v. Porter, 548 So. 2d 891 (Fla. 3d DCA 1989); Vargas v. Dulzaides, 520 So. 2d 306 (Fla. 3d DCA), review dismissed, 528 So. 2d 1184 (Fla.1988); Jaar v. University of Miami, 474 So. 2d 239 (Fla. 3d DCA 1985), review denied, 484 So. 2d 10 (Fla.1986). Applying that principle, we…
  • Bradley v. S. Baptist Hosp. OF Fla., Inc., 943 So. 2d 202 (Fla. 1st DCA 2006)
    …surgery, Florida courts have not extended the doctrine to a situation far removed from a medical procedure. See Parmerter v. Osteopathic Gen. Hosp., 196 So. 2d 505 (Fla. 3d DCA 1967) (extending the doctrine to a delivery room); Lighterman v. Porter, 548 So. 2d 891 (Fla. 3d DCA 1989) (extending the doctrine to an emergency room). Courts in other jurisdictions have similarly refused to extend the borrowed servant doctrine to post-operative settings. See, e.g., Perkins, 382 So. 2d at 335 (citing cases and statin…

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