IN THE SUPREME COURT OF FLORIDA CASE NO. SC06-2429 PALMS WEST HOSPITAL ...

IN THE SUPREME COURT OF FLORIDA CASE NO. SC06-2429

PALMS WEST HOSPITAL,

Petitioner, v.

JAMES DONALD STONE, et al.,

Respondents. ____________________________/

L.T. CASE NO. 4D05-4042

BRIEF ON JURISDICTION OF RESPONDENT, JAMES D. STONE

JANE KREUSLER-WALSH and REBECCA MERCIER VARGAS of KREUSLER-WALSH, COMPIANI

& VARGAS, P.A. Suite 503 - Flagler Center 501 South Flagler Drive West Palm Beach, FL 33401 (561) 659-5455

and JOSEPH JOHNSON of BABBITT, JOHNSON, OSBORNE & LECLAINCHE, P.A. 1450 CentrePark Blvd., Suite 100

West Palm Beach, FL 33401 (561) 684-2500

TABLE OF CONTENTS

Page

Statement of the Case and Facts

1

Summary of Argument

4

Argument

5

THIS COURT LACKS JURISDICTION BECAUSE THE

DECISION BELOW DOES NOT CONFLICT WITH CASES

SETTING FORTH GENERAL PRINCIPLES OF APPARENT

AGENCY.

5

A. The decision does not conflict with cases requiring a

representation by the principal to impose vicarious liability.

6

B. There is no conflict with cases stating there must be

reasonable reliance.

9

C. The decision is not of exceptional importance.

10

Conclusion

10

Certificate of Service

11

Certificate of Font

12

i

TABLE OF CITATIONS

Case

Cedars Med. Ctr., Inc. v. Ravelo, 738 So. 2d 362 (Fla. 3d DCA 1999)

Cuker v. Hillsborough County Hosp. Auth., 605 So. 2d 998 (Fla. 2d DCA 1992)

Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989)

Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So. 2d 55 (Fla. 4th DCA 1982)

Izquierdo v. Hialeah Hosp., Inc., 709 So. 2d 187 (Fla. 3d DCA 1998)

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)

Jones v. Tallahassee Mem'l Reg'l Healthcare, Inc., 923 So. 2d 1245 (Fla. 1st DCA), review denied, 935 So. 2d 500 (Fla. 2006)

Lensa Corp. v. Poinciana Gardens Ass'n, 765 So. 2d 296 (Fla. 4th DCA 2000)

Liberatore v. NME Hosps., Inc., 711 So. 2d 1364 (Fla. 4th DCA 1998)

Mancini v. State, 312 So. 2d 732 (Fla. 1975)

Mobil Oil Corp. v. Bransford, 648 So. 2d 119 (Fla. 1995)

TABLE OF CITATIONS, CONT'D

ii

Page 6

4, 7, 8 2, 6 3, 8

2, 3, 8 5

4, 7, 8 3 8

5, 6 2, 9

Case

Orlando Reg'l Med. Ctr., Inc. v. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990), disapproved on other grounds, Boulis v. Fla. Dep't of Transp., 733 So. 2d 959 (Fla. 1999)

Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987)

Reed v. Good Samaritan Hosp. Ass'n, 453 So. 2d 229 (Fla. 4th DCA 1984)

Roessler v. Novak, 858 So. 2d 1158 (Fla. 2d DCA 2003)

State v. Walker, 593 So. 2d 1049 (Fla. 1992)

Stone v. Palms West Hosp., 941 So. 2d 514 (Fla. 4th DCA 2006)

Valdez v. Pasadena Healthcare Mgmt., Inc., 975 S.W.2d 43 (Tex. App. 1998)

Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842 (Fla. 2003)

Other Authorities

Art. V, ? 3(b)(3), Fla. Const.

Page

7, 9 2, 6

8 2, 3, 7, 9

8 passim

8 3

5, 8

iii

STATEMENT OF THE CASE AND FACTS Respondent/plaintiff, James D. Stone, restates the statement of the case and facts because petitioner/defendant, Palms West Hospital ("Palms West"), improperly omitted relevant portions of the Fourth District's opinion.1 Plaintiff, James Stone, had been experiencing numbness in his extremities (Op. *1). After he became incontinent, his doctor instructed him to go to the closest emergency room (Op. *1). Mr. Stone went to the emergency room at the defendant hospital, Palms West (Op. *1). Palms West's nurses told Mr. Stone and his mother that his doctors did not "belong to" Palms West (Op. *2). The nurses informed Mr. Stone and his mother that Palms West would provide him with "their own doctors" instead (Op. *2). Palms West selected the doctors that treated Mr. Stone, "without any input or choice" from him (Op. *6; see Op. *2-3). Mr. Stone brought a medical malpractice action against the doctors that treated him and Palms West, alleging that Palms West was vicariously liable for the doctors'

1 Citations to the Fourth District's opinion in Stone v. Palms West Hosp., 941 So. 2d 514 (Fla. 4th DCA 2006), are to the opinion in the appendix to Palms West's jurisdictional brief (Op. __). All emphasis is supplied unless otherwise indicated.

1

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