ON REHEARING, FOURTH DISTRICT REVERSES FOR A NEW TRIAL IN A CASE FINDING RESPONSIBILITY AGAINST A PHYSICIAN FOR NEGLIGENT SUPERVISION AGAINST A DETOX FACILITY.
Defilippo v. Curtin, 43 Fla. L. Weekly D2063 (Fla. 4th DCA September 5, 2018):
A man went into a detox facility and died there the same night. The physician who served as the detox facility’s medical director supervised approximately eight nurse practitioners (ARNPs) at five to seven different facilities.
The patient arrived at approximately 8:00 p.m., and the ARNP was at the facility. The staff told the ARNP that the patient had track marks consistent with intravenous drug use, and later that evening when she checked on the patient he was sitting upright, speaking and his vital signs were improving. The ARNP’s clinical assessment was that the patient was experiencing withdrawal. Her plan was to begin the detox process the next morning.
The ARNP did not contact the physician for consultation, rendering the doctor unaware of the patient’s existence.
When she left the facility around 11:00 p.m., the ARNP instructed the facility’s staff to do a bed-check every 15 minutes and to take his vital signs every 30 minutes. However, sometime in the early hours of the morning the patient died. That fact was not discovered until the staff checked him hours later.
The patient’s estate sued the physician, the ARNP and the detox facility (settling with the latter two). The physician moved for partial summary judgment, arguing that he owed no duty of care under section 464.012, because ARNPs are the subject of that statute. That motion was denied.
Before trial, the doctor moved in limine to exclude evidence of having exceeded the maximum number of offices he could supervise under section 458.348. The trial court denied that motion as well.
During closing argument, the plaintiff argued that the physician should be held liable because he violated duties under both of those sections.
The Fourth District concluded the trial court erred in two respects: (1) by precluding the doctor from testifying that he was not at the detox facility when the patient was admitted, that he was not notified of the patient’s existence until after the patient died; and (2) by instructing the jury that the physician’s alleged violation of section 458.348 was evidence of negligence, because the estate did not present any evidence that the violation caused or contributed to his death.
The court focused on the definition of relevancy, defining it as evidence tending to prove or disprove a material fact, and then finding that the physician’s absence from the facility and his lack of knowledge was relevant to a key point in the case.
The court also found error in the giving of the jury instruction based on the statute. There was no evidence to support that the violation of 458.348 caused or contributed to the patient’s death. The court noted that error was not harmless, because the trial court gave the jury instruction, therefore creating a reasonable possibility that the jury who believed the estate did not prove its negligent supervision claim may have nevertheless have held the physician liable simply because he violated that section.