In its decision filed on August 26, 2015, the Third District Court of Appeal State of Florida (“Appellate Court”) overturned a Florida medical malpractice jury’s award of damages in the amount of $4,101,776 to a young child and her parents. The Florida medical malpractice jury had determined that the defendant pediatrician, who was the child’s primary pediatrician for the first six years of her life, was negligent in his failure to timely diagnose the young child’s kidney disease, which ultimately led to renal failure, the need for dialysis, and multiple kidney transplants.
The Underlying Facts
The defendant pediatrician performed routine urinalyses for the child that revealed elevated levels of protein in the child’s urine (which is a potential indicator of kidney disease) in five separate urinalyses over the first three years, for which the defendant pediatrician did not follow up because he believed that each of the samples had been contaminated with bacteria because the child was still in diapers. A sixth urine specimen showed no elevated protein levels after which no further urine samples were collected or tested between the ages of three and six (the child exhibited no symptoms of any illness and appeared healthy although she was small and underdeveloped for her age).
When the child began exhibiting abnormal symptoms, including periodic episodes of swelling around her eyes and in her legs, excessive drinking and urination, and abnormal weight gain of six pounds over a period of one-month, her parents brought her to the hospital. A kidney biopsy noted elevated levels of C1q protein and the child was diagnosed with Diffuse Proliferative Immunecomplex Glomerulonephritis, but no formal diagnosis of the underlying disease that caused the kidney failure and no opinion regarding the onset or duration of kidney disease were made at that time.
About seven months later, the child had successful kidney transplant surgery during which her diseased kidneys were removed. Nonetheless, the child will likely need dialysis and additional kidney transplants during her lifetime.
The plaintiffs filed their Florida medical malpractice lawsuit against the defendant pediatrician, alleging that the child’s kidney failure is the result of C1q nephropathy, which takes years to cause the type of damage observed in the removed kidneys, and should have been discovered by the defendant pediatrician before the disease caused end-stage renal failure.
The defendant pediatrician alleged that the child did not have chronic, longstanding disease of C1q nephropathy, but rather a faster-moving disease called Rapidly Progressive Glomerulonephritis (“RPGN”). He also argued that even if the underlying disease was in fact C1q nephropathy and had he correctly diagnosed the illness, there was nothing that he could have done to prevent the child’s renal failure and the resulting dialysis and kidney transplants.
A pre-trial court order limited both sides to one expert per medical specialty. However, the plaintiffs were allowed to call four expert pathologists during trial to testify regarding the timing and diagnosis of the disease but the defendant was limited to one expert. The plaintiff also called their designated expert nephrologist to testify at trial regarding how different the result would have been had C1q been diagnosed earlier, but the expert refused to specifically state that the child would have recovered in full or that she would not have needed to go on dialysis or have kidney transplant surgery had her disease been diagnosed earlier.
The defendant’s designated expert nephrologist testify that there was no known treatment for the types of C1q nephropathy that could have caused the child’s renal failure, so even assuming the child had C1q nephropathy and the defendant had made that diagnosis after the first urine test, the child still would have required dialysis and a kidney transplant (the defendant’s expert also testified that if the child had RPGN instead of C1q nephropathy, there is no way that the defendant could have discovered the disease in time to save the child’s kidneys).
During the plaintiffs’ closing argument to the jury, the plaintiffs’ lawyer told the jury that the child clearly had C1q nephropathy, not RPGN, because so many physicians had testified during trial that C1q had caused her kidney disease. The plaintiffs’ attorney also told the jury that the plaintiffs’ expert nephrologist had testified the child could have been completely cured with the use of some steroids and ACE inhibitors had she been diagnosed earlier, which the Appellate Court found to be completely fabricated because the expert had not provided such testimony.
The Appellate Court overturned the Florida medical malpractice jury’s verdict based on the plaintiffs’ violation of the one expert per specialty rule and for materially misrepresenting the evidence in closing arguments, both of which the Appellate Court said unfairly and materially prejudiced the defendant pediatrician and denied him his right to a fair trial. The Appellate Court concluded, “The plaintiffs in this case resorted to unfair tactics to secure a jury verdict in their favor. They violated the one expert per specialty rule by offering, over [the defendant’s] objection, the testimony of four pathologists regarding the type of disease that had caused [the child’s] injuries. Then, in closing argument, they misrepresented the evidence by telling the jurors that they had heard conclusive evidence of causation when no such evidence had been presented. The combination of these errors gave the jury the impression that several doctors believed the disease that caused [the child’s] renal failure was C1q nephropathy and that C1q nephropathy could have been easily treated. These errors clearly deprived [the defendant] of a fair trial. Accordingly, we conclude that the trial court erred by denying [the defendant’s] motion for a new trial. Reversed and remanded.”
Source Vargus, et al.. v. Gutierrez, et al., Nos. 3D14-48 & 3D13-1923.
If you or a loved one were harmed as a result of medical malpractice in Florida, you should promptly find a Florida medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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