In its decision filed on July 10, 2014, the Supreme Court of Florida (“Florida Supreme Court”) held that testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible and will not insulate a defendant physician from liability for his or her own negligence. The burden on the medical malpractice plaintiff with regard to causation is only to establish that adequate care by the physician more likely than not would have avoided the plaintiff’s injury.
The Florida Supreme Court held that “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. To do so would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated. It would place a burden on the plaintiff to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to his or her testimony and irrespective of the standard of care for the defendant physician. To require the plaintiff to establish a negative inappropriately adds a burden of proof that simply is not required under the negligence law of this State.”
The Alleged Underlying Facts
The plaintiff saw the defendant neurologist on July 7, 2003 because he was experiencing back pain, leg pain, and unsteadiness on his feet, along with cramps in his hands and feet, numbness in his hands, and tingling in his feet. The neurologist found that the man had weakness in his finger extensors but determined that the man had normal reflexes and that the numbness and tingling were caused by peripheral neuropathy due to diabetes (but the neurologist did not perform a test to confirm diabetic neuropathy).
Nonetheless, the neurologist had the man admitted to the hospital where he had MRIs of his brain and lumbar spine. The MRI of the lumbar spine showed severe stenosis (abnormal narrowing) of the spinal canal, after which the neurologist arranged for a consultation with a neurosurgeon. On July 15, 2003, the neurosurgeon performed lumbar decompression surgery on the man, after which his condition did not significantly improve.
On September 11, 2003, the neurosurgeon ordered MRIs of the cervical, thoracic, and lumbar spine, which showed compression in both the lower back and neck. The neurosurgeon met with the man on October 3, 2003, at which time the man complained that the symptoms in his arms and hands had worsened since the surgery. The neurosurgeon’s physical examination of the man at that time revealed weakness in the man’s extremities and abnormal reflexes in his arms, after which the neurosurgeon recommended cervical decompression surgery to be performed within one month (the delay was due to the man needing to obtain medical clearance for the surgery).
On November 6, 2003, the man was medically cleared for surgery but the surgery was not done in November. In December 2003, the man developed a deep venous thrombosis that prevented the surgery at that time. In January 2004, the man met with another neurosurgeon, who recommended that he have a second lumbar surgery, followed by cervical surgery on a later date. The lumbar surgery was performed but the cervical spine surgery was never performed. The man’s condition continued to deteriorate until he became a quadriplegic; he later died.
The man and his wife filed a Florida medical malpractice case that ultimately included as defendants both the original neurologist and the original neurosurgeon, alleging that they had failed to properly and timely diagnose the man’s conditions. All of the medical malpractice defendants (including the defendant neurosurgeon), except the neurologist, settled the medical negligence claims against them.
The defendant neurologist contended during trial that the original neurosurgeon’s negligence was the cause of the plaintiff’s injuries. The settling defendant neurosurgeon was included on the verdict form because he was alleged to have been wholly or partially at fault and the jury had to apportion liability among responsible parties on the basis of fault, regardless of whether each party was joined in the action.
The defendant neurologist provided expert testimony at trial that the original defendant neurosurgeon deviated from a reasonable standard of care because he failed to perform a complete lumbar decompression in July 2003. The defendant neurologist introduced into evidence at trial the deposition testimony of the original defendant neurosurgeon, which was taken before the neurosurgeon settled with the plaintiffs, in which he had testified that even if he had possessed the results of a cervical MRI in July, he would not have operated on the neck because the man had not yet experienced problems with his upper extremities.
The Florida medical malpractice jury returned its verdict in favor of the defendant neurologist, and the plaintiffs appealed.
The Florida Supreme Court’s Analysis
The Florida Supreme Court noted that the central concern in medical malpractice actions is the reasonably prudent physician standard and that the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician who is a defendant in a medical malpractice action – it is not only the final physician, but rather each treating physician who must act in a reasonably prudent manner. 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. To do so would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated. It would place a burden on the plaintiff to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to his or her testimony and irrespective of the standard of care for the defendant physician. To require the plaintiff to establish a negative inappropriately adds a burden of proof that simply is not required under the negligence law of Florida.
The Florida Supreme Court noted that in the present case, the defendant neurologist’s attorney told the jury that because the original neurosurgeon would not have done anything differently had the defendant neurologist ordered a cervical MRI, any purported negligence by the defendant neurologist could not be the cause of the man’s injuries. Such a statement was a misstatement of the law because it improperly shifted the burden of proof to the plaintiffs where the plaintiffs were required to establish only that the defendant neurologist’s care fell below that of a reasonably prudent physician and that, more likely than not, adequate care by the defendant neurologist would have prevented the man’s devastating injuries. As a result, the trial court erred when it permitted defense counsel to mislead the jury during closing statements.
The Florida Supreme Court further held that the trial court’s error was harmful because the defendant neurologist’s attorney erroneously told the jury that the plaintiffs had not proven causation based upon the neurosurgeon’s deposition testimony that was taken while the neurosurgeon was in an adversarial relationship with the Plaintiffs, when he was motivated by a desire to deny wrongdoing and avoid liability, but the jury could not be informed of the defendant neurosurgeon’s pre-trial settlement with the plaintiffs.
Ruby Saunders, etc., et al., Petitioners vs. Willis Dickens, M.D., Respondent. No. SC12-2314. Read the Florida Supreme Court’s entire opinion by clicking here.
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