The Third District Court of Appeal State of Florida (“Florida Appellate Court”) affirmed the directed verdict in favor of the defendant anesthesiologist in an opinion filed on August 8, 2017, determining that there was no competent, substantial evidence that the defendant anesthesiologist caused the death of the plaintiff’s wife, who died of exsanguination during a surgical procedure to remove a cancerous tumor from her skull. The defendant anesthesiologist had conducted the wife’s pre-anesthesia evaluation.
The plaintiff’s wife had been taken in for surgery at 8:40 a.m. and her heart began failing at about 8:45 a.m., before the actual surgery began. At 11:44 a.m., the plaintiff’s wife was pronounced dead on the operating table. Her death certificate listed her cause of death as “heart failure.” A neurosurgeon testified during the Florida medical malpractice trial that the patient may have died of a heart attack.
The defendant anesthesiologist testified during the Florida medical malpractice trial that he saw the plaintiff’s wife for three to five minutes after which another anesthesiologist (“other anesthesiologist”) completed the evaluation. The defendant anesthesiologist check-marked a series of boxes on the pre-anesthesia evaluation and signed the evaluation under the line marked “Physician” and wrote the date and time.
The defendant anesthesiologist saw the pre-surgery EKG, which reflected an abnormality, was blurry but readable, and told the other anesthesiologist that the EKG was blurry but did not advise the other anesthesiologist or the surgeon that the EKG reflected an abnormality: the defendant anesthesiologist told the other anesthesiologist that “[t]here is nothing, no major medical problems whatsoever. You may want to take a look at the EKG.”
Additionally, the pre-surgery lab tests showed protein in the patient’s urine but the defendant anesthesiologist reviewed only the first page of the lab results and the results of the urinalysis were on a subsequent page. The defendant anesthesiologist testified that had he seen the urinalysis results, he would have advised the surgeon of the results and that the surgeon needed to find out why the patient was “spilling protein,” but that the protein level would not have affected his anesthetic.
The other anesthesiologist testified during the Florida medical malpractice trial that he did a full evaluation on the patient, from beginning to end, after the defendant anesthesiologist’s evaluation; that he evaluated the EKG and all three pages of the lab reports; that he determined that the patient could safely undergo general anesthesia; and, that he completed and signed the anesthesia evaluation.
None of the expert witnesses testified during the Florida medical malpractice trial that the defendant anesthesiologist’s evaluation of the patient fell below the standard of care such that any breach more likely than not caused the patient’s death. The defendant anesthesiologist moved for a directed verdict. The trial court granted the motion, finding that there was no proof of causation. The plaintiff appealed.
The Florida Appellate Court Opinion
The Florida Appellate Court held that there was no competent, substantial evidence at trial from which a jury could reasonably conclude that the defendant anesthesiologist’s behavior fell below the standard of care, or that any breach of the standard of care more likely than not caused the patient’s death: it was undisputed that the defendant anesthesiologist conducted a brief anesthesia evaluation on the patient and that he signed the anesthesia evaluation; that the unequivocal evidence was that the other anesthesiologist completed the full anesthesia evaluation from beginning to end; the record was devoid of competent, substantial evidence upon which to conclude that the blurry EKG or the abnormal protein level results caused the patient’s death; the record reflected that no cardiac issues precluded the patient from undergoing safe anesthesia; and, the autopsy revealed no evidence of coronary artery disease.
The Florida Appellate Court stated that it was abundantly clear from the record that the primary cause of the patient’s death was exsanguination. The Florida Appellate Court held that the trial court had correctly granted the defendant anesthesiologist’s motion for directed verdict.
The Dissenting Opinion
The dissenting opinion stated that viewing the evidence and all reasonable inferences in a light most favorable to the plaintiff, there was sufficient evidence upon which the jury could have found that the negligence of the defendant anesthesiologist was a legal cause of the death of the patient, and therefore the trial court erred in granting a directed verdict in favor of the defendant anesthesiologist at the close of the plaintiff’s case.
At trial, the defendant anesthesiologist conceded that the plaintiff’s wife was his patient and that he was the acting anesthesiologist for the wife during the time he evaluated her for surgery. He also testified that regardless of any prior medical clearance provided by the wife’s primary care physician, he was ultimately responsible for medically clearing her for surgery.
The defendant anesthesiologist testified during trial that “when I do a patient, it doesn’t matter who sees the patient. I review everything from A to Z.” Nevertheless, the defendant anesthesiologist conceded that he did not “review everything from A to Z” for the plaintiff’s wife.
The Abnormal EKG
The defendant anesthesiologist testified during the Florida medical malpractice trial that he reviewed the EKG report and that an abnormal EKG report is an immediate red flag because cardiac issues are important when administering anesthesia. He testified that he could have ordered another EKG, which could have been completed in fifteen to twenty minutes, would have been higher quality than the one he was provided, and would not have inconvenienced the surgeons, but he nevertheless did not order another EKG. Although the defendant anesthesiologist testified that the EKG report “caught [his] eye” because it was “not normal at all,” he stated that the abnormal EKG finding on the report “doesn’t matter,” that he felt comfortable with the EKG, and that he wanted to save the patient the additional expense of another EKG.
The dissenting opinion pointed out that the defendant anesthesiologist’s position was contradicted not only by the plaintiff’s expert, but also by the medical director of the hospital who testified that a patient should not be taken to surgery with an abnormal EKG, and that the surgery in this case should not have proceeded until the abnormal EKG and the patient’s cardiovascular history were reconciled.
The Abnormal Urinalysis (Protein In The Urine)
The defendant anesthesiologist testified during the Florida medical malpractice trial that he did not look at the results of the patient’s urine test, which showed the presence of high levels of protein, another red flag requiring further investigation. The plaintiff’s expert testified, and the defendant anesthesiologist acknowledged, that protein in the urine is an abnormal finding, that he should have reported it to the surgeon, and had he done so, it was more likely than not that the surgery would not have occurred.
The plaintiff’s expert testified during the Florida medical malpractice trial that the patient’s tumor’s appearance on the MRI, coupled with its slow growth, and the presence of protein in the urine, should have placed multiple myeloma at the top of the list of differential diagnoses, because seventy-five percent of patients suffering from multiple myeloma secrete protein into the urine.
The defendant anesthesiologist testified that he knew that the patient was scheduled for surgery to remove a tumor from her skull and that a solitary non-aggressive tumor in the skull, together with protein in the urine, could be a sign of multiple myeloma, which ordinarily would not require surgery. He further testified that, had he seen the test result of protein in the urine, he would have advised the surgeon about it. Most importantly, the defendant anesthesiologist conceded that if either the abnormal EKG or the abnormal lab results had been brought to the surgeon’s attention, more likely than not the surgery would not have taken place that day.
The neurosurgeon who performed the surgery testified at trial that he would not have performed the surgery at that time if the anesthesiologist or the primary care physician had not cleared her. Therefore, the dissenting opinion stated, the question is whether the defendant anesthesiologist’s alleged negligence probably affected the outcome.
The dissenting opinion stated that the evidence presented at trial, taken in a light most favorable to the plaintiff, established the following five critical facts:
1. The defendant anesthesiologist signed the pre-anesthesia evaluation form, indicating he was responsible for performing the pre-anesthesia evaluation and indicating that, based upon his evaluation, the patient was cleared for surgery;
2. The defendant anesthesiologist was negligent in his review of the pre-operative test results, including his failure to clarify or reconcile the abnormal EKG, his failure to review or note the test results showing the presence of protein in the urine, and the failure to notify the surgeon of these issues;
3. If the defendant anesthesiologist had brought to the surgeon’s attention either the abnormal EKG or the abnormal lab results, it is more likely than not that the surgery would not have taken place.
4. A reasonably prudent anesthesiologist under the same circumstances would have notified the surgeon of these results and would not have cleared the patient for surgery; and,
5. The neurosurgeon would not have performed the surgery that day had the patient not been cleared for surgery, and thus the plaintiff’s wife would not have died on the operating table.
The dissenter would have held that the defendant anesthesiologist’s negligence “probably affected the outcome,” and the dissenter would hold that the trial court erred in directing a verdict in favor of the defendant anesthesiologist and would reverse and remand for a new trial on liability and damages as to the defendant anesthesiologist.
Source Ruiz v. Tenet Hialeah Healthsystem, Inc., No. 3D15-2474
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