Surgery Went Wrong: Who Do You Sue, Surgeon, Anesthesiologist, or Hospital?

The answer depends on who employed each member of your surgical team and what specifically caused the harm. In Florida, surgeons and anesthesiologists are often independent contractors who carry their own malpractice insurance, while OR nurses, surgical techs, and residents are usually hospital employees whose mistakes fall on the hospital. A single botched operation can produce claims against several defendants at once, each covered by a different insurer, which is exactly why identifying the employment relationships before filing is the first task in any surgical malpractice case.

Why does it matter who you sue, isn’t it all the same insurance?

It matters because one surgery can involve three or more legally separate defendants, each with a different insurer and different policy limits. This is not just paperwork, it decides how much compensation may be available, which insurer defends which party, and how long your case might take. Many patients are surprised to learn that the surgeon, the anesthesiologist or CRNA, surgical assistants, circulating and scrub nurses, the hospital or surgery center itself, and the medical group that employs the surgeon may all be distinct legal parties. Hospitals typically carry the deepest insurance coverage. Under Florida’s comparative fault law (Fla. Stat. § 768.81), a jury assigns a percentage of fault to each negligent party. If you leave out a responsible defendant, you may leave money on the table.

Are surgeons and anesthesiologists actually hospital employees, or are they on their own?

In many cases, surgeons and anesthesiologists are not hospital employees. Instead, they hold “privileges” to operate at a facility but bill through their own practice or group, carry their own malpractice insurance, and the hospital does not direct how they perform surgery. This arrangement varies by hospital and by contract, so it is not true everywhere. At community hospitals like Hialeah Hospital and Palmetto General, anesthesia groups may contract independently. At Jackson Health System, attending physicians are typically University of Miami faculty, their employment status differs from private practice doctors, but the exact structure depends on current agreements. A patient who reviewed all the paperwork may still be surprised to learn their care team members were legally separate. Regardless of employment status, every provider must meet Florida’s standard of care under Fla. Stat. § 766.102(1).

Which surgical team members are almost always hospital employees?

Operating room nurses, both circulating and scrub, surgical technicians, and PACU nurses are typically direct hospital employees. In Miami-Dade teaching hospitals like Jackson, residents and interns are also hospital or university employees. When these staff members cause harm within the scope of their duties, the hospital is vicariously liable, meaning it answers for their actions. The hospital can also face direct liability for its own failures, such as understaffing, using faulty equipment, or ignoring safety protocols. In community hospitals like Hialeah Hospital and Palmetto General, nurses and techs are usually employees, while surgeons and anesthesiologists are more likely independent. Outpatient surgery centers in Miami-Dade are often separately owned; they carry their own insurance and can be liable if they improperly schedule high-risk patients for outpatient procedures. At public hospitals, which may include Jackson, claims are subject to Fla. Stat. § 768.28, which requires written notice before suing and may limit damages.

Can the hospital still be responsible even if the surgeon was an independent contractor?

Yes, under certain theories. Florida courts have recognized “apparent agency”, also called ostensible agency, where a hospital may be held liable for an independent contractor’s negligence if it presented that provider as its own and the patient had no reason to know otherwise. Whether this applies depends on the specific facts of your case. Separately, hospitals have a duty to properly credential physicians before granting surgical privileges. If a hospital gives operating rights to a surgeon who lacked required training or had a disciplinary history that should have disqualified them, the hospital may face direct negligence liability. This analysis still uses the prevailing professional standard of care under Fla. Stat. § 766.102(1).

What if the surgeon or anesthesiologist carries little or no malpractice insurance?

Florida law provides financial-responsibility options for physicians that may not require a traditional malpractice policy, consult an attorney to confirm current requirements. Practically, if a surgeon has no or minimal insurance, any judgment against them may be uncollectible. This makes it essential to identify all possible defendants early, especially the hospital or surgery center, which typically carry substantial coverage. Suing only an underinsured provider can leave a seriously injured patient without a practical recovery. Even when the surgeon is judgment-proof, the anesthesia group, the facility, or the hospital may still be viable targets with deep insurance policies. That is why mapping employment status and insurance sources from day one is critical.

How is fault divided when the surgeon, the anesthesiologist, and the hospital all share blame?

Under Florida’s comparative fault law (Fla. Stat. § 768.81), a jury assigns a percentage of fault to each negligent party. Each defendant then pays only their share of the total damages. In medical malpractice cases, the rule that bars recovery for a plaintiff more than 50 percent at fault does not apply; any share of fault you bear reduces your damages but does not bar them. The table below summarizes typical roles:

Defendant	Typical employment status	Who their insurance covers	Direct vs. vicarious liability	Notes specific to Miami-Dade
Operating Surgeon	Often independent contractor	Own malpractice policy	Direct liability for operative errors	May hold privileges at multiple Miami-Dade hospitals
Anesthesiologist / CRNA	Often part of an independent anesthesia group	Group policy	Direct liability for anesthesia errors	CRNA supervision question is fact-specific
OR Nurses & Surgical Techs	Typically hospital employees	Hospital’s policy	Vicarious liability on hospital	Standard across Hialeah Hospital, Palmetto General, and others
Residents & Interns	Hospital/university employees at teaching hospitals like Jackson	Institution’s policy	Vicarious liability on institution	Public-hospital rules under § 768.28 apply cautiously
Hospital / Surgery Center	Institutional defendant	Facility policy (typically deepest coverage)	Direct and vicarious liability	Credentialing duty applies; surgery centers have separate regulatory obligations

Fault allocation governed by Fla. Stat. § 768.81.

Frequently asked questions

Can I sue both the surgeon and the hospital for the same surgical error?
Yes. If both the surgeon’s actions and the hospital’s systems or staffing contributed to your harm, you can name both as defendants. Each may bear a separate share of fault under Florida law.

Is a bad surgical outcome automatically malpractice in Florida?
No. Florida law requires proof that the provider failed to meet the prevailing professional standard of care (Fla. Stat. § 766.102). Not every complication qualifies as negligence.

Do the rules change if my surgery was at Jackson Health System instead of a private hospital?
Yes. If Jackson is treated as a public hospital, Fla. Stat. § 768.28 applies, which may limit damages and requires written notice before suing. Consult a lawyer familiar with public entity claims before assuming the process is the same.

How long do I have to file a surgical malpractice claim in Florida?
Generally, you have two years from the date you knew or should have known about the injury. For most surgical errors discovered right away, that means two years from the surgery date (Fla. Stat. § 95.11).

What if the anesthesiologist was out of my insurance network, does that affect my malpractice claim?
No. Your insurance network status affects billing, not liability. Malpractice claims focus on whether the provider met the standard of care, not whether they were in-network.

Hurt in an accident in Hialeah? Call Wolfson & Leon at 305-965-3766 for a free consultation. We speak Spanish, and there is no fee unless we win.