McFeely v. Prudential Healthcare Plan, Inc.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

CASE NO. 1D02-1942

MARK McFEELY and LISA McFEELY,
individually and as parents and natural
guardians of their son, PATRICK
McFEELY, a minor,

Appellants,

v.

PRUDENTIAL HEALTHCARE PLAN
INC. D/B/A PRUDENTIAL
HEALTHCARE HMO AND D/B/A
PRUCARE HMO AND D/B/A
PRUDENTIAL HEALTH CARE SYSTEM
AND D/B/A PRUDENTIAL HEALTH
CARE SYSTEM OF SOUTH FLORIDA
AND THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA D/B/A
PRUCARE AND D/B/A PRUDENTIAL
HEALTH CARE SYSTEM AND D/B/A
PRUDENTIAL HEALTH CARE SYSTEM
OF SOUTH FLORIDA,

Appellees.
_____________________________/

Opinion filed May 6, 2003.

An appeal from the Circuit Court for Duval County. L. Haldane Taylor, Judge.

Charles B. Patrick, P . A., Miami and James C. Blecke of Deutsch & Blumberg, P.A.,
Miami., for Appellants.

James M. Kaplan and Thomas M. Hartwig, of Wilson, Elser, Moskowitz, Edelman &
Dicker, LLP, Miami, attorneys for Prudential Healthcare Plan Inc. and the Prudential
Insurance Company of America, Miami; Jeptha F. Barbour of Marks, Gray, Conroy
& Gibbs, Jacksonville, for Julie Buckley, M.D.; Charles T. Shad, Jacksonville, for
Jacksonville Health Care Group, for Appellees.

PER CURIAM.

On behalf of their son, Patrick, Mr. and Mrs. McFeely brought a medical

malpractice action against appellees Prudential Healthcare Plan, Inc. and the Prudential

Insurance Company of America (Prudential). The question on this appeal is whether

Prudential may be ultimately held responsible for the alleged negligence of a physician,

Dr. Julie Buckley, who was employed by the Jacksonville Health Care Group (JHCG)

and worked at a PruCare clinic. In the final summary judgment on appeal, the trial

court observed, “while the exhibits, depositions, etc., in dicate a substantial amount of

control as to the business arrangement between Prudential and JHCG, there is no

evidence regarding the exercise of control by Prudential regarding the medical care,

treatment and services provided, particularly as to these plaintiffs.” The trial court

entered final judgement, concluding that Dr. Buckley was not the agent of Prudential.

We reverse.

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The trial court appears to have relied almost entirely upon the case of Villazon

v. Prudential Health Care Plan , Inc . , 794 So. 2d 625 (Fla. 3d DCA 2001), review

granted, 800 So. 2d 617 (Fla. 2001), to support its ultimate decision that Prudential

would have no vicarious liability for the alleged negligence of Dr. Buckley. The

Florida Supreme Court has now quashed Villazon. See Villazon v. Prudential Health

Care Plan, Inc., 28 Fla. L. Weekly S267, S271 (Fla. Mar. 28, 2003). The supreme

court in Villazon stated: “Here, the record evidence reflects significant indicia of

PruCare’s right to control the means by which medical services were rendered by

Member Physicians to Member Patients. The facts peculiar to each case must govern

the ultimate disposition.” Id. at S271.

The facts pertinent to agency in this case are different than the facts present in

Villazon. Nevertheless, our review of the record, particularly the Physician Work

Rules, the Letter of Understanding, and the JHCG Physician’s Salary Plan (signed off

on by Prudential), suggests to us that this record will support an inference of control

sufficient to present a jury question on agency under Villazon. In Florida law, agency

status is a question of fact, except in those cases where the party opposing summary

judgment is unable to point to any conflicting facts or inferences to be drawn from the

facts. See Robinson v. Linzer, 758 So. 2d 1163 (F l a . 4 th DCA 2000) (holding

inconsistent contractual terms create issue of fact as to agency relationship between

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a hospital and a phys ic ian ) ; T heodore ex rel. Theodore v. Graham, 733 So. 2d 538

(Fla. 4th DCA 1999) (stating a genuine issue of material fact existed as to whether a

physician was controlled or subject to control of Department of Health and

Rehabilitative Services); Robbins v. Hess, 659 So. 2d 424, 427 (Fla. 1st DCA 1995)

(“Generally, the issue of agency or apparent agency is a question of fact to be

determined by a jury. The question can be resolved by summary judgment in only

those cases where the evidence is capable of but one determination.”).

REVERSED and REMANDED for further proceedings.

BOOTH, WOLF, and KAHN, JJ., CONCUR.