July 7, 2020

In its opinion filed on May 22, 2020, the District Court of Appeal of Florida Second District (“Florida Appellate Court”) held: “The trial court’s erroneous conclusion that USF was the sole and the initial tortfeasor in this case prevented USF from presenting its causation defense to the jury. It also prevented USF from asking the jury to apportion damages among all responsible parties if the jury found USF liable. These errors deprived USF of a fair trial and require that we reverse the judgment against it and remand for yet another [fourth] trial.”

The Underlying Facts

The plaintiff underwent outpatient abdominal surgery performed by a surgeon employed by defendant University of South Florida d/b/a University of South Florida College of Medicine (“USF”). She was subsequently admitted to the hospital because she did not recover as expected following the surgery. The plaintiff was transferred to the ICU when her condition continued to deteriorate. Eventually, the critical care providers came to believe that the plaintiff’s condition was probably the result of an abdominal infection. They began to administer antibiotics, and a second surgery was performed to determine the source of the infection.

The surgeon who performed the second surgery discovered a perforation in the plaintiff’s small bowel and also found that the plaintiff had developed necrotizing fasciitis which had destroyed a large portion of her abdominal tissue. Because of complications from the infection and from the treatment she received while in the ICU, the plaintiff sustained catastrophic, life-altering injuries and she had to undergo multiple surgeries and was hospitalized for five months before she could be discharged to a rehabilitation facility.

The plaintiff filed her Florida medical malpractice claim against her surgeon, the hospital, and USF. The critical care team settled with the plaintiff before she filed her Florida medical malpractice lawsuit.

At trial, the plaintiff sought to prove that her surgeon had perforated her bowel during the surgery and that her injuries were caused by the failure of everyone involved in her care, including the critical care team, to timely diagnose her condition and begin administering antibiotics. The plaintiff presented the testimony of an ICU expert who opined that had antibiotics been administered in a timely manner, she would not have sustained the injuries for which she sought to recover.

USF argued that its surgeon did not depart from the standard of care when he performed the surgery, and even if he had, his alleged negligence did not cause the plaintiff’s injuries. USF argued that the plaintiff’s injuries were the result of the critical care team’s failure to timely administer antibiotics. USF further argued that the perforation had occurred postoperatively. The parties’ gynecological experts each testified that even if the injury to the bowel had occurred during the surgery, that in and of itself was not a departure from the standard of care but rather it was the alleged failure to discover the injury before concluding the surgery that the plaintiff’s gynecological expert said departed from the standard of care.

The plaintiff’s Florida medical malpractice case was tried before a jury three times. The jury in the third trial heard much of the same evidence presented to the first two juries, but minus the testimony of the ICU expert regarding the critical care team’s failure to timely diagnose and treat the plaintiff’s infection and his opinion that this was the cause of her injuries. The third jury returned a verdict against USF.

Florida Appellate Court Opinion

The Florida Appellate Court stated, “By granting the “motion in limine” and refusing to allow USF to present the testimony of [the plaintiff’s] ICU expert who had opined that the failure to timely start antibiotics caused [the plaintiff’s] injuries, the trial court deprived USF of its causation defense, the denial of which is a violation of due process.” The Florida Appellate Court further stated that it was error for the trial court to determine as a matter of law that USF’s surgeon and the critical care team were not joint tortfeasors: “[w]hether two physicians are joint tortfeasors is a question of fact that should be submitted to a jury.” Furthermore, “the court erred in concluding that USF’s surgeon was an initial tortfeasor under Stuart. The court based its conclusion on the belief that the initial injury was the perforation of [the plaintiff’s] bowel and that it was undisputed that the perforation occurred during the surgery. Not only was this disputed, but under Stuart, the initial injury must be the result of negligence. Even [the plaintiff’s] gynecological expert—who believed USF’s surgeon perforated the bowel—did not testify that in doing so, his conduct fell below the standard of care. Rather, he testified that it was the failure to realize there had been an injury that fell below the standard of care. Thus, regardless of when the bowel was perforated, the injury cannot constitute the “initial injury” under Stuart, and the trial court erred in its application of Stuart.”

[Under Stuart, “[w]here one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor.”]

Source Board of Trustees of the University of South Florida d/b/a University of South Florida d/b/a University of South Florida College of Medicine v. Carter, Case No. 2D18-1219.

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