FLORIDA LAW WEEKLY

VOLUME 40, NUMBER 36

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“4 vs. 1.”

CASES FROM THE WEEK OF SEPTEMBER 4, 2015

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR NEW TRIAL WHERE PLAINTIFF VIOLATED THE COURT’S “ONE EXPERT PER SPECIALTY” RULING, AND EXACERBATED THE USE OF CUMULATIVE TESTIMONY BY MISREPRESENTING THE CAUSATION EVIDENCE IN CLOSING ARGUMENT.

Vargas v. Gutierrez, 40 Fla. Law Weekly D1971 (Fla. 3rd DCA August 26, 2015):

A pediatrician treated a baby/child for the first six years of her life. Over the first three years, the child’s urinalyses revealed elevated levels of protein consistently, but the doctor believed the samples had been contaminated because the child was still in diapers. The sixth specimen showed no elevated protein levels and so no tests were taken between ages 3 and 6.

After the child began exhibiting abnormal symptoms, including episodes of swelling around her eyes and legs and excessive drinking and urination, the parents ultimately took her to Miami Children’s Hospital where she was diagnosed as being in renal failure. The child had experienced severe damage to her kidneys, ended up on dialysis, but ultimately underwent successful kidney transplant surgery.

Plaintiffs posited that the pediatrician’s failure to timely diagnose her kidney disease led to the kidney failure. The doctor contended that the disease that destroyed the child’s kidneys was not a chronic long-standing disease, but a fast moving disease, and that nothing could have been done to stave off the renal failure.

The defendant moved to prevent the plaintiffs from presenting cumulative expert testimony (plaintiffs had four physicians) and the trial judge originally limited both sides to one expert per specialty. After the trial judge who entered that order retired, the second judge allowed the plaintiff to call four different pathologists: 1) the one who analyzed the biopsy when the child was admitted to MCH, 2) the one who analyzed the child’s kidneys after they were removed during her transplant surgery, 3) a designated expert pathologist, and 4) an expert rebuttal witness.

The court observed that the causation evidence was “thin,” and that plaintiffs’ counsel had actually misrepresented to the jury the expert nephrologist’s testimony regarding the chance of complete cure for the child.

Noting that deciding which physicians in a medical malpractice case are “experts” and which are “fact” witnesses is a difficult task, the court said there are two discrete methods of analyzing that issue. The first is the “status-based” approach which asks whether the expert was retained in anticipation of litigation of the trial. Physicians retained to render treatment or care to the patient are fact witnesses and treating physicians.

Alternatively, the “substance-based” approach looks to the content of a particular witness’s testimony to determine whether that witness is testifying as a medical expert witness or a treating physician fact witness. Treating physicians who limit their testimony to the facts of the treatment are properly labeled as treating physician witnesses, but if those physicians testify regarding the standard of care in the industry when it comes to treating the ailment, that testimony is also expert testimony and the treating physician is then listed and admitted as an expert.

The court admonished trial judges to look for “wolves in sheep’s clothing,” i.e., litigants attempting to elicit expert testimony disguised as fact testimony from a treating physician.

In this case, while the court affirmed the denial of the directed verdict for the defendant doctor, it found that the plaintiffs’ violation of the “one expert per specialty” rule (four experts) to defendant’s one, coupled with counsel’s “misrepresentation” (all to the court) of the evidence in closing regarding causation, necessitated a new trial for the defendant.

A DEFAULTING PARTY IS ENTITLED TO NOTICE AND OPPORTUNITY TO BE HEARD WHEN THE DAMAGES ARE UNLIQUIDATED.

Vercosa v. Fields, 40 Fla. Law Weekly D1979 (Fla. 4th DCA August 26, 2015):

A default on liability was entered, and a final hearing set to liquidate damages. The trial had been moved to another room at the courthouse, but no one told the defendants. By the time they reached it, the trial on damages was conducted without them.

The court reversed. It found that the defendants had been deprived of their due process because they had a right to be heard on unliquidated damages.

WHEN PSYCHIATRIC PATIENT TOOK EMPLOYEE’S UNATTENDED KEYS AND BADGE, ESCAPED FROM THE HOSPITAL AND WAS KILLED BY AN ONCOMING TRUCK ON THE HIGHWAY, THE ACTION STILL STEMMED FROM MEDICAL NEGLIGENCE (AND NOT ORDINARY NEGLIGENCE), THEREBY REQUIRING COMPLIANCE WITH PRESUIT.

Shands Teaching Hospital v. Lawson, 40 Fla. Law Weekly D2000 (Fla. 1st DCA August 28, 2015):

A woman was admitted into an adult psychiatric hospital and placed in a locked unit for safety reasons. She then procured one of the employee’s unattended keys and badge, and escaped from the hospital.

While making her way onto a nearby interstate highway, she walked into a path of a truck and was struck and killed. Her estate subsequently sued the hospital alleging ordinary negligence and disavowing medical negligence.

The hospital moved to dismiss, claiming that the complaint did sound of medical negligence, and because the estate failed to comply with presuit notice requirements the trial court should have granted the motion.

In an en banc decision, the First District agreed with the defendant. Reminding us that a claim for medical negligence is one that arises out of the rendering of, or the failure to render medical care services, the court rejected the plaintiff’s argument that this was not an action for negligent psychiatric treatment or diagnosis or care. In this case, the court rejected the plaintiff’s claim of ordinary negligence, because the breach allegedly arose from the hospital’s failure to provide the signature psychiatric service offered by its specialty “locked unit.” That was the service that the decedent’s condition required.

Additionally, the court opined that the proof required in the case would inevitably involve the medical negligence standard of care recognized as acceptable and appropriate by reasonably prudent similar health care providers. It distinguished this case from those where courts have reached the opposite conclusion, in instances like where a worker spilled hot tea on a patient, an employee inadvertently kicked a patient, and a slip and fall took place in a hospital.

Here, the court felt that the claim was grounded on the hospital’s duty to confine the decedent in its locked unit against her will. That allegation would require expert testimony to evaluate the issues of whether the hospital appropriately handled the decedent’s security.

The court also distinguished its decision in a case called Ashe, which found ordinary negligence when a psychiatric patient was released without documented approval of a psychiatrist or other approved physician violating the requirements of Florida’s Baker Act.

Instead, the court found the case more akin to the Third District’s decision in Perez, where hospital employees left a patient unrestrained and unattended and he fell from the bed and died. The court did find that case involved medical negligence.

The court granted the hospital’s motion to dismiss without prejudice to either allege presuit compliance or to reallege a theory with details manifesting an ordinary negligence claim (It is unclear as to whether the statute had run, but it seems as though maybe it did not. Two judges dissented and one concurred in part and dissented in part, revealing that there is no easy answer or consensus on the answers to these questions).

Kind regards Julie Littky-Rubin