The Week In Torts – Cases from July 12, 2024

What’s good for the goose is NOT good for the gander
FLORIDA LAW WEEKLY
VOLUME 49, NUMBER 28
JULY 12, 2024
UNDER THE PARTICULAR FACTS, THE DEFENDANT IN A MEDICAL MALPRACTICE CASE DID NOT NEED EXPERT TESTIMONY TO SUPPORT HIS FABRE DEFENSE—TRIAL COURT ABUSED DISCRETION IN EXCLUDING WITNESS’S TESTIMONY AS CUMULATIVE
Guzman v. Lazzari, 49 Fla. L. Weekly D1410 (Fla. 4th DCA July 3, 2024):
In this medical malpractice case, a woman had mitral valve replacement surgery. Her surgeon did not prescribe anticoagulant medications for her, and then at her subsequent appointments with the defendant cardiologist, he did not either. The defendant cardiologist testified that he did not prescribe the medication at the appointment one month after surgery, fearing it would cause major bleeding.
Two days after that appointment, the plaintiff suffered an incapacitating stroke, and now requires full-time care.
The cardiac surgeon settled with the plaintiff before trial. The defendant cardiologist sought to blame him as a Fabre defendant.
The plaintiff moved for summary judgment on the Fabre defense, arguing that because the defendant failed to retain an expert witness on the applicable standard of care for the cardiac surgeon, the record lacked evidence to create a genuine issue of material fact. The trial court granted the motion finding that the record lacked competent evidence from a qualified expert to render an opinion on the standard of care for the cardiac surgeon.
The appellate court observed that the burden in a medical malpractice action is on the plaintiff to establish that the care provided was not that of a reasonably prudent physician. Because the plaintiff bears the burden of proof, it follows that plaintiffs are required to advance expert testimony under section 766.102 and defendants are not. Nothing in section 766.102(5) requires a defendant health care provider to present independent expert testimony to oppose an allegation on the breach of the standard of care.
The court noted that the case presented an unusual factual situation where the very allegation of negligence (failure to prescribe an anticoagulant medication) was the same for both the defendant cardiologist and the Fabre cardiac surgeon, even though the two are not technically in the same specialty. It explained that this was an instance where the patient was seen by successive medical providers resulting in a single injury.
The court also observed that the plaintiff’s expert testified that had an anticoagulant medication been given at any point following the surgery, the plaintiff would not have suffered the stroke. It explained that it believed that one could consider that expert testimony from the plaintiff as supportive of the doctor’s Fabre defense.
Under these facts, the court held that a separate expert specialty witness was not necessary for the jury to apportion fault between the defendant cardiologist and the Fabre cardiac surgeon, because the negligence allegations were the same for both. Therefore, it was unnecessary to provide expert witness testimony to support the Fabre defense, and the court reversed the partial summary judgment entered on this issue by the trial judge. [Authors note: these facts can certainly be distinguished down the line and limited to the case’s discrete facts].
The other issue involved allegedly cumulative testimony. The trial court refused to allow the defendant to call the cardiac surgeon as a witness, finding such testimony would be cumulative.
The appellate court ruled that a witness’s testimony is not cumulative merely because it is similar to another witness’s testimony. Conversely, a witness is permitted to confirm the view of another, and a trial court generally lacks the discretion to exclude merely confirmatory testimony.
The court found that this witness’s testimony would have been highly relevant and could have explained why the anticoagulant medication was not prescribed long before the defendant doctor saw the patient post-surgery and ruled that testimony would be admitted on retrial (the case resulted in a plaintiff’s verdict).
PLAINTIFF’S FAILURE TO FILE AN AMENDED COMPLAINT BY THE TRIAL COURT ORDERED DEADLINE RESULTING IN DISMISSAL, REQUIRED A 1.530 (AND NOT 1.540) MOTION TO TOLL THE TIME FOR FILING A NOTICE OF APPEAL
Stuckey v. BMW of North America, 49 Fla. L. Weekly D1416 (Fla. 4th DCA July 3, 2024):
The plaintiff’s complaint went through several incarnations, and the trial court ruled that it would give plaintiffs one more opportunity to file an amended complaint with a deadline. 37 days after that deadline, the plaintiffs moved for an extension of time to file their fourth amended complaint, requesting an additional 14 days.
The plaintiffs failed to file the fourth amended complaint in that time frame, and never set the motion for hearing. 56 days after the deadline to file the fourth amended complaint, the successor judge sua sponte entered a final order of dismissal based on the plaintiff’s failure to file the complaint in the almost 90 days since the trial court had given them permission to.
The next day, the plaintiffs moved to set aside the order of dismissal pursuant to Rule 1.540, asserting excusable neglect. The trial court denied that motion.
The appellate court explained that rule 1.540 motions do not toll the time for filing a notice of appeal, because the rule says nothing about affecting a final judgment or decree; that is found in Rule 1.530.
Even though the 1.540 motion was filed only one day after the dismissal, the appellate court also refused to consider it as a timely filed motion under Rule 1.530, advising it is a separate and distinct rule and admonishing litigants that they intermingle the provisions of these rules [Rule 1.530 and Rule 1.540] at their own risk.
Because the notice of appeal was not filed until almost three months after the dismissal, and because the plaintiffs failed to timely file a motion to toll the time for filing the notice of appeal, the appellate court dismissed the appeal as untimely.
NO ERROR FOR TRIAL COURT TO ENTER JUDGMENT IN ACCORDANCE WITH THE ARBITRATOR’S RULING ON A NON-BINDING ARBITRATION, WHEN THE APPELLANT FAILED TO FILE A MOTION FOR TRIAL DE NOVO WITHIN 20 DAYS OF THE SERVICE OF THE ARBITRATION DECISION AS REQUIRED BY RULE 1.820(H)(AND DID NOT FILE A RULE 1.540(B) MOTION BASED ON EXCUSABLE NEGLECT FOR THE UNTIMELINESS)
Lawnwood Medical Center v. Rouse, 49 Fla. L. Weekly D1420 (Fla. 4th DCA Jul. 3, 2024):
The Fourth District made clear in an en banc decision receding from prior precedent, that Section 44.103(5) requires that a trial de novo be filed within 20 days of an arbitration decision (and Rule 1.820(h) requires a party to file a “request for trial de novo” to seek such relief). The failure to do so removes the ability to challenge an arbitrator’s award before entry of final judgment.