University of Miami v. Ruiz, ___ So. 3d ___, 40 Fla. L. Weekly D416 (Fla. 3d DCA February 11, 2015)
The plaintiffs’ son sustained a serious brain injury because of oxygen deprivation during delivery in the hospital because of the negligence of two doctors employed by the university. Both the hospital and the doctors participated in the Florida Birth Related Neurological Injury Compensation Act (NICA) and each was required by NICA to provide notice to obstetrical patients of his, her, or its participation. The hospital provided the required notice but the doctors did not. As a result, the hospital, but not the doctors, was entitled to NICA immunity. When the trial court denied the university’s motion for summary judgment based upon NICA immunity, the university filed a petition for certiorari. The appellate court held that the denial of summary judgment was reviewable by certiorari because NICA provides immunity from suit rather than mere immunity from liability. As a result, the denial of summary judgment, if erroneous, results in irreparable harm because it deprives the movant of the benefit NICA was designed to confer. In deciding the case on the merits, the court was guided by two principles: (1) Because the university was “neither a ‘hospital with a participating physician on its staff’ nor a ‘participating physician,” it was not required to provide notice of its participation in NICA. (2) NICA immunity “applies to any person or entity directly involved in the labor and delivery.” As a result, the trial court departed from the essential requirements of law to the extent that it denied summary judgment based upon the university’s direct liability for the plaintiff’s injuries, but the trial court did not depart from the essential requirements of law to the extent that it denied summary judgment based upon the university’s vicarious liability for its physician-employees’ negligence. Because an employer’s vicarious liability is based upon the liability of its employees, if the employees were not entitled to immunity, neither was the employer.
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