Sunday, July 5, 2009

Fourth DCA Reverses Grant of Summary Judgment and Comments on the Business Records Exception

In Ginsberg v. Northwest Medical Center, Inc. (4D08-3032), the Fourth DCA reversed the trial court's grant of summary judgment.

First, "the trial court erred in failing to require Northwest Medical to properly lay the predicate for the business records exception to hearsay before admitting the consent form into evidence."

Second, "Northwest Medical maintained that, prior to his surgery, Ginsberg had signed a consent form expressly negating any agency relationship between Northwest Medical and the independent contractor physicians. In pertinent part, the consent form stated: 'I acknowledge and agree that the surgeon and physician associates are independent contractors and are not employees or agents of Northwest Medical Center and that Northwest Medical Center does not control the manner or methods by which s u c h procedures are performed'."

"Here, the consent form alone fails to quiet all genuine issues of material fact. At the summary judgment hearing, Ginsberg explained that when he signed the consent form, he was in pain, did not have his glasses, and had taken pain medication, rendering him unable to understand the form. “‘If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.’”

Therefore, "We reverse and remand to provide Northwest Medical with the opportunity to attach an affidavit laying the proper predicate for the business records exception. In addition, on remand, the parties may submit additional record evidence in support of the granting or denial of summary judgment under the apparent agency theory, and thereafter, the trial court may reevaluate whether genuine issues of material fact exist."


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