Generally one does not contemplate whether health care providers who treat them in a hospital setting are employees of the hospital or independent contractors. The thought of who would be liable should an unfortunate act of malpractice occur is not even a consideration given the circumstances that originally brought that person to the hospital to seek treatment. However, in the instance that an act of malpractice does occur, these issues become of paramount importance as it usually means the difference between whether or not compensation for injuries will be made.

To further complicate the issue, the legal theories under which a victim of malpractice may seek compensation against a hospital when an independent contractor commits malpractice are currently in a state of flux depending on what jurisdiction the case is filed. Given the disparate treatment throughout the state, the Florida Supreme Court needs to settle this issue and has the opportunity to do so in addressing the issue of nondelegable duty given the Third District Court of Appeal’s recent decision in Tabraue v. Doctors’ Hospital, (Fla. 3rd DCA 2019).