ROTHENBERG, J.
We deny the University of Miami's motion for certification to the Florida Supreme Court, but we grant the University of Miami's motion for clarification, withdraw our opinion issued February 11, 2015, and substitute the following in its stead.
The University of Miami, doing business as The University of Miami School of Medicine ("UM"), petitions this Court for certiorari relief from the trial court's order denying its motion for summary judgment on the plaintiffs' claims for medical malpractice based on UM's contention that it is entitled to immunity from suit under Florida's Birth-Related Neurological Injury Act, § 766.301, Fla. Stat., et seq. (1998) ("NICA"). We hold that the trial court departed from the essential requirements of the law by denying summary judgment as to the portion of the plaintiffs' claims alleging direct liability for medical malpractice, but that it did not depart from the essential requirements of the law by denying UM's motion for summary judgment as to the portion of the malpractice claim based on UM's vicarious liability for its employees. We accordingly grant in part and deny in part UM's petition.
Michael A. Ruiz ("Michael") was born on August 14, 1998, at Jackson North Maternity
Michael's parents, Miguel and Juanita Ruiz, filed a complaint on behalf of Michael and also on their own behalf (collectively, "the plaintiffs") against UM and the PHT for medical malpractice, alleging that Michael's injuries are a result of negligent medical care provided during the labor and delivery. The plaintiffs asserted that UM and the PHT were directly negligent and also pleaded various theories of vicarious liability based on the actions of their employees, Drs. Norris and Barker.
After the plaintiffs filed suit, the case was abated to allow an administrative law judge ("ALJ") to determine whether the injury was compensable under NICA. The plaintiffs filed a claim with the Division of Administrative Hearings ("DOAH") to receive compensation from the Florida Birth-Related Neurological Injury Association ("the Association"), which was established to provide no-fault compensation to claimants meeting the statutory requirements of NICA. See § 766.303, Fla. Stat. (1998). The ALJ determined that Michael's injury was compensable under NICA and approved the statute's maximum award of $100,000 in addition to attorney's fees and future medical care costs. See § 766.31, Fla. Stat. (1998). The ALJ also specifically found that the PHT had provided the plaintiffs with notice that it participated in the NICA plan, as required by section 766.316 of the Florida Statutes (1998) ("NICA's Notice Provision"), but that Drs. Norris and Barker had not complied with the notice requirements. The ALJ made no finding whether UM itself had given or was required to give notice of NICA participation under the statute.
UM timely appealed the ALJ's finding that its doctors had not given the required notice of NICA participation. This Court, however, affirmed the ALJ's order. Univ. of Miami v. Ruiz, 916 So.2d 865 (Fla. 3d DCA 2005). That appeal essentially ended the administrative portion of the proceedings and cemented the plaintiffs' ability to receive NICA benefits from the Association. However, the plaintiffs have neither accepted nor declined the award to this date, opting instead to hold in abeyance their decision whether to accept NICA benefits as their exclusive remedy while pursuing their civil suit against UM.
In April 2011, UM filed a motion for summary final judgment claiming immunity from suit under section 766.303 of NICA ("NICA's Immunity Provision"), which mandates compensation from the Association as the exclusive remedy for injuries found to be compensable under NICA. Further, UM argued that because it is not a participating hospital or doctor, it was not required to give notice under
This certiorari petition presents a narrow legal issue. We must determine if and when an entity that is neither a hospital nor a physician participating in the NICA plan may invoke NICA's immunity from suit when its employees are participating doctors who have waived their personal NICA immunity by failing to comply with NICA's Notice Provision. We hold that NICA immunity applies to such entities when the allegations of the complaint indicate that they were "directly involved" in the medical care provided during or immediately after labor and delivery, but that NICA immunity does not apply when the allegations are based on such entities' vicarious liability for the medical malpractice of their employees when those employees have failed to comply with NICA's Notice Provision. Because the plaintiffs have alleged both direct liability against UM and vicarious liability based on the actions of Drs. Norris and Barker, we grant UM's petition in part and deny UM's petition in part.
Because this issue is before us on UM's petition for certiorari, UM must establish that the trial court's order denying summary judgment departed from the essential requirements of the law in a way that will cause irreparable harm in order to obtain relief. Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So.3d 344, 351 (Fla.2012). As a jurisdictional threshold, we must first address whether the trial court's denial of UM's motion for summary judgment based on its asserted immunity under NICA's Immunity Provision, if error, is the type of error that would cause irreparable harm to UM not subject to redress on plenary appeal. Id.
A party typically cannot invoke an appellate court's certiorari jurisdiction based on the denial of a motion to dismiss or a motion for summary judgment because such orders can generally be remedied by a final appeal. See San Perdido, 104 So.3d at 351-52. However, when the motion for summary judgment hinges on the application of a complete statutory immunity from suit—in contrast to mere immunity from liability—requiring a party entitled to that immunity to continue litigating the suit constitutes irreparable harm in and of itself. See id. at 351-55 (explaining the distinctions between immunity from liability and immunity from suit).
Every court that has addressed this issue has construed NICA's Immunity Provision to grant immunity from suit, not immunity from liability. Pediatrix Med.
In determining whether the trial court departed from the essential requirements of the law by denying UM's claim for NICA immunity, we have carefully examined NICA, the case law interpreting NICA's provisions, and the common law doctrines of vicarious liability and respondeat superior.
NICA was passed and the Association was created "to provide a no-fault alternative remedy for a `limited class of catastrophic [birth-related neurological] injuries that result in unusually high costs for custodial care and rehabilitation.'" Ruiz, 916 So.2d at 868 (alteration in original) (quoting § 766.301(2), Fla. Stat. (1998)). In passing NICA, the legislature sought to shelter medical personnel providing obstetrical services from the increasingly high costs of medical malpractice insurance, particularly given the likelihood of suit and the magnitude of potential damages when a baby is delivered with a neurological injury. § 766.301, Fla. Stat. (1998). To effectuate this relief, NICA provides an exclusive set of rights and remedies for claimants with injuries meeting the NICA definition
NICA's Notice Provision requires participating physicians and hospitals with
§ 766.316.
Although NICA's Notice Provision makes no reference to NICA's Immunity Provision or discusses waiver of immunity in the statute itself, it is now well-established Florida law that a party who is required to give notice under NICA's Notice Provision and fails to do so waives its right to assert the exclusivity of remedies defense provided in NICA's Immunity Provision. Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309-10 (Fla.1997). Further, due to the inclusion of the conjunctive word "and" in section 766.316, the Florida Supreme Court has interpreted NICA's Notice Provision to require independent notice from both participating physicians and participating hospitals—notice by one does not satisfy the notice requirement for the other. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings, 29 So.3d 992, 998 (Fla.2010) ("NICA v. DOAH").
The Florida Supreme Court also held in NICA v. DOAH that the waiver of immunity for failure to comply with NICA's Notice Provision is severable as to each entity required to give notice:
Id. at 999 (footnote omitted).
Thus, when there is compliance with NICA's Notice Provision by some but not all of the NICA participants, the claimant is faced with the choice of accepting the NICA benefits to the exclusion of any and all civil remedies he or she may have against any entities directly involved in the delivery, or the claimant can eschew the NICA benefits and take his or her chances in a civil suit against the party or parties who have waived NICA immunity by failing to comply with the NICA Notice Provision.
The common law doctrine of respondeat superior provides that an employer may be held liable for the actions of its employee if the employee was acting within the scope of his employment when he committed the tortious act. Mercury Motors Exp., Inc. v. Smith, 393 So.2d 545, 549 (Fla.1981). The historical underpinnings of the doctrine of respondeat superior are to hold the master responsible for the acts of his servant because the master alone is able to direct the servant:
1 Modern Tort Law: Liability and Litigation § 7:2 (2d ed.) (footnotes omitted).
The doctrine of respondeat superior is well recognized in Florida law, and our Supreme Court has held:
Mercury Motors, 393 So.2d at 549. In such cases, the employer essentially stands in the shoes of the negligent employee for whom it is responsible. See Am. Home Assurance Co. v. Nat'l R.R. Passenger Corp., 908 So.2d 459, 467-68 (Fla.2005) ("The vicariously liable party is liable only for the amount of liability apportioned to the tortfeasor."); Williams v. Hines, 80 Fla. 690, 86 So. 695, 697-98 (1920) ("[T]he employer is liable [for the negligent acts of an employee], not as if the act was done by himself, but because of the doctrine of respondeat superior—the rule of law which holds the master responsible for the negligent act of his servant, committed
As well-established common law doctrines, vicarious liability and respondeat superior apply to negligence claims for medical malpractice, even those stemming from NICA-compensable injuries, unless NICA "unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist." Thornber v. City of Ft. Walton Beach, 568 So.2d 914, 918 (Fla.1990). There is no such provision in NICA, nor has any case interpreting NICA determined that vicarious liability should not apply.
Thus, assuming that any negligent acts occurred within the scope of the employment, an employer will be held liable for the negligence of its employees to the extent those claims rely on vicarious liability through the doctrine of respondeat superior.
With these legal principles in mind, we turn now to the facts of the case before us. In the DOAH administrative proceedings, the ALJ found that the PHT had complied with NICA's Notice Provision but that the individual doctors, Drs. Norris and Barker, had not.
The plaintiffs have filed suit against the doctors' employer, UM, for medical negligence. In their complaint, the plaintiffs allege medical negligence against UM in a single count, in which they plead both that UM has
To the extent the plaintiffs have pled direct liability against UM for actions related to Michael's birth, UM is entitled to immunity. As explained above, NICA's Immunity Provision applies to any person or entity directly involved in the labor and delivery. § 766.303(2). The plaintiffs' direct negligence claims against UM allege that UM is directly responsible for actions related to the birth and delivery of Michael. Because the plaintiffs have alleged that UM is "directly involved" in the labor
As previously stated, the only way a party who is otherwise entitled to NICA Immunity can waive its immunity is by failing to comply with NICA's Notice Provision when it is required to do so. Braniff, 696 So.2d at 309-10. UM is neither a "hospital with a participating physician on its staff" nor a "participating physician," and it is therefore not required to give notice of NICA participation under the terms of NICA's Notice Provision. See § 766.316 ("Each hospital with a participating physician on its staff and each participating physician, ... shall provide notice ...."). Because there is no NICA notice requirement for UM, it cannot have waived any immunity to which it would otherwise be entitled by failing to give notice. Thus, the plaintiffs cannot proceed on their theory of direct liability against UM, and the trial court departed from the essential requirements of the law by failing to grant summary judgment as to that portion of the plaintiffs' claim against UM.
The plaintiffs have also pled that UM is vicariously liable for the medical negligence of its employees, Drs. Norris and Barker, under the theory of respondeat superior. Under this theory of vicarious liability, UM is not being sued for its own direct negligence related to the labor and delivery, but rather by mere virtue of being the employer of the allegedly negligent Drs. Norris and Barker. These claims essentially state that Drs. Norris and Barker were negligent during their direct involvement in the labor and delivery and that UM, although it has
We therefore hold that UM cannot claim NICA immunity from vicarious liability based on the alleged negligence of its doctors who waived their right to invoke NICA's Immunity Provision by failing to provide the statutorily-required notice of NICA participation.
Petition granted in part; denied in part.
These rulings appear to be premised on the belief that allowing a NICA award to remain in limbo until a plaintiff is able to ultimately determine whether a civil suit will yield a higher award would defeat the legislative purpose of the statute. These cases hold that when an ALJ determines that a claimant's injuries are compensable under NICA and approves an award, the claimant must elect prior to filing suit whether to accept the ALJ's award and forego any rights to a civil suit against those directly involved in the labor and delivery, or expressly waive any rights to the NICA award and proceed with his civil suit against any defendants not subject to immunity. Although this issue was discussed at oral argument, it was not raised or argued in the parties' briefs. We therefore also decline to resolve this issue until a time if and when it has been fully developed and is properly before us.
