South Florida Injury Attorneys Blog
Medical malpractice litigation is not uncommon in Florida. As a result, many state courts have had the occasion to weigh in on the proper standard for medical negligence liability. Although there is harmony among state courts regarding most issues, division does occasionally arise and consequently require resolution by Florida’s highest court. For instance, in one recent case, Saunders v. Dickens, the Supreme Court of Florida resolved a conflict among various state appellate courts regarding the burden of proof for negligence in a medical malpractice action.
The alleged acts of medical negligence that gave rise to Saunders started on July 7, 2003. On that day, the plaintiff visited a neurologist and described symptoms including cramping and feelings of numbness in his extremities, back pain, leg pain, and unsteadiness. After this visit, the plaintiff was admitted to a hospital, where he underwent several MRIs, which did not include an MRI of the cervical spine area. The neurologist then consulted with a neurosurgeon after receiving the results of the MRIs. The neurosurgeon recommended a lumbar decompression procedure, and the plaintiff underwent surgery. However, the plaintiff’s condition failed to improve following the surgery. At this point, the plaintiff returned to the neurosurgeon, who conducted further exams and determined that the plaintiff was experiencing cervical decompression, which would require additional surgery. The surgery was never scheduled, although the plaintiff had been cleared for surgery on November 6.
However, the plaintiff experienced a deep vein thrombosis in December, which prevented the plaintiff from scheduling or undergoing surgery thereafter. The plaintiff then consulted with a different physician, who recommended a second lumbar decompression surgery as well as a cervical decompression surgery. The plaintiff underwent the lumbar surgery but never underwent the cervical surgery. The plaintiff’s condition continued to deteriorate and ultimately resulted in quadriplegia. During the pendency of this appeal, the plaintiff died.
After this series of events, the plaintiff and his wife brought suit against the neurologist, the neurosurgeon, Broward Neurosurgeons, LLC, and Broward General Medical Center, alleging negligence related to failure to diagnose and loss of consortium. The case eventually went to trial, after which the jury returned, inter alia, a general verdict in favor of the neurologist. At issue on appeal to the Fourth District Court of Appeal was whether a statement of law made by the defense counsel in his closing argument was improper. Counsel for the neurologist argued that the plaintiff had failed to establish causation on the negligence claim because the neurosurgeon testified that he would not have altered the course of treatment even if the neurologist had performed a cervical spine MRI that likely would have shown the cervical compression issue earlier. The Fourth District Court of Appeal found that the statement was not improper, relying on its earlier opinion in Ewing v. Sellinger, 758 So. 2d 1196, 1198 (Fla. 4th DCA 2000). The plaintiff argued that this result and Ewing were in direct conflict with precedent from the Fifth District Court of Appeal and Third District Court of Appeal, which had both held that the testimony of a subsequently treating physician cannot insulate an initial physician from liability, and appealed to the Supreme Court of Florida.
The Supreme Court of Florida first reviewed the standard of care for a medical malpractice action in Florida, which requires a plaintiff prove there is a duty by the physician, a breach of that duty, causation, and damages. With regard to the impact of a subsequent treating physician’s testimony on the determination of negligence of an earlier treating physician, the Supreme Court stated, “[b]ecause the central concern in medical malpractice actions is the reasonably prudent physician standard, the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician … [a] subsequent treating physician simply may not be present at the time a defendant physician makes an allegedly negligent decision or engages in a potentially negligent act. Further, it is not only the final physician, but rather each treating physician who must act in a reasonably prudent manner.” Accordingly, the Supreme Court held, “a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.” Consequently, in the case at hand, the Supreme Court found the counsel’s statement to be harmful, since it erroneously informed – and likely misled – the jury, and it quashed the decision below.
Although medical malpractice actions are common, the law nonetheless remains unsettled on many important issues. Accordingly, it is useful for anyone considering bringing legal actions for an act of possible medical negligence to get the guidance of experienced legal counsel. If you are in this position, the South Florida injury attorneys at Frankl Kominsky Injury Lawyers are ready to offer you assistance with your claim. The attorneys at Frankl Kominsky Injury Lawyers have many years of experience litigating medical malpractice actions in both state and federal court and are well informed on the sort of legal nuances that could arise in your case. Feel free to contact us for a free case evaluation.
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