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Error To Grant Directed Verdict For Defendant Anesthesiologist, Where There Was Evidence To Permit A Reasonable Fact Finder To Conclude The Physician Was Negligent.

Feb 08th, 2019 in News by admin


Ruiz v. Tenet Hialeah Healthsystem, 43 Fla. L. Weekly S655 (Fla. December 20, 2018):

After the plaintiff’s wife died during surgery, her husband brought a medical malpractice action against several of her treating physicians and a hospital.

The plaintiff’s late wife had noticed a large mass on the back of her head which was ultimately diagnosed by a neurosurgeon (without a biopsy) as an osteosarcoma. Imaging studies showed it had invaded the decedent’s skull, and could be pressing upon her brain. The neurosurgeon recommended immediate surgery.

The decedent agreed to the surgery, and had her pre-surgery exam and lab work done. The EKG result was flagged as abnormal.

On the morning of the surgery, the anesthesiologist was running late, and another anesthesiologist agreed to perform the pre-anesthesia evaluation. That doctor reviewed some of the test results in the chart (but not all of them), but believed any abnormality was caused by a malfunction of the EKG machine. He also did not see the abnormal urinalysis results.

The anesthesiologist did not inform the surgeons of the abnormal test results and signed off to clear the decedent for surgery.

During surgery, the decedent lost a large amount of blood, suffered a significant drop in blood pressure and died after cardiac arrest. The autopsy revealed that rather than being an osteosarcoma, the woman’s tumor was actually a multiple myeloma; a kind of cancer that is treated only through radiation and chemotherapy, not surgery.

The trial judge had granted a directed verdict in favor of the anesthesiologist, holding that even assuming he was negligent, he did nothing more than place the decedent in a position to be injured by the independent actions of a third party. Because the trial court concluded that no evidence would allow a reasonable fact finder to conclude that the anesthesiologist was the “primary cause” of the death, the court granted the directed verdict.

The Florida Supreme Court reviewed the District Court’s affirmance. It wrote, directed verdicts can only be affirmed where no proper view of the evidence can sustain a verdict in favor of the non-moving party. Also, in proving causation in Florida, we use the “more likely than not” standard, meaning only that the negligence “probably caused” the plaintiff’s injury.

Medical malpractice jurisprudence makes clear that a physician may be the proximate cause of a patient’s injury, even if that physician is not the primary cause of the injury. Under these facts, the anesthesiologist had to show there was no competent substantial evidence in the record to permit a reasonable fact finder to conclude he was negligent. Because the trial court did not go through that analysis, the supreme court quashed the Third District’s decision, and remanded it to consider the record in light of the proper standard.