Background
The defendant doctor began treating the patient in 2012. In 2013, the defendant doctor diagnosed the patient with mitral-valve stenosis, recommended a mitral valve replacement, and suggested a cardiac surgeon. The patient chose a different cardiac surgeon and underwent cardiac surgery in January of 2014.
The surgery went well, and the cardiac surgeon discharged the patient from the hospital three days later. He did not prescribe an anticoagulant medication for the patient at that time. The patient was next seen in the office by the cardiac surgeon’s colleague a couple of weeks after surgery. The colleague also did not prescribe an anticoagulant medication.
The patient returned to the defendant doctor approximately one month after surgery. According to the doctor’s evaluation, the patient was not experiencing any post-surgery complications. He did not prescribe an anticoagulant medication because “it could have caused major bleeding.” Two days later, the patient suffered a stroke, leaving her incapacitated and in need of full-time care.
Trial testimony revealed that anticoagulant therapy is recommended for the first ninety days after mitral valve replacement surgery by both the American College of Cardiology and the American Heart Association. The doctor was a member of both organizations and familiar with this recommendation. The plaintiff sued the doctor, the cardiac surgeon, and their respective hospitals for the alleged negligence in not prescribing an anticoagulant medication.
In his answer, the doctor pled the cardiac surgeon was a potential Fabre defendant. The plaintiff ultimately settled with the cardiac surgeon and Jackson Memorial. Only two defendants—the doctor and Holy Cross Hospital—remained in the case for trial. The Florida medical malpractice jury found in favor of the plaintiff and awarded damages, which were increased by the trial judge at the plaintiff’s request after the jury rendered its verdict. The defendant doctor appealed.
On appeal, the doctor argued the trial court erred in granting the plaintiff’s motion for partial summary judgment on the Fabre defense. He argued he was not required to provide an expert witness on the cardiac surgeon’s standard of care to ask the jury to apportion fault as to him.
Fabre Defense
Fabre (Fabre v. Marin, 623 So. 2d 1182, 1185–87 (Fla. 1993), receded from by Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So. 2d 249 (Fla. 1995)) allows a jury to consider the fault of anyone, including nonparties, who contribute to the plaintiff’s injuries. Fabre held: “When a plaintiff has been treated by successive physicians and at some point during the course of treatment has sustained a single injury, absent the proof that the negligence, if any, of the initial tortfeasor was the proximate cause of the injury as a matter of law, the jury should be presented all relevant information concerning the plaintiff’s care and treatment so that it can appropriately determine how the injury occurred. In the instant case, with the timely presentation of all the evidence, a jury could have concluded . . . it was [another doctor’s] actions which caused the injury or, alternatively, that the acts claimed to have been committed were not “demonstrably separable in time and effect,” both doctors being jointly responsible for the injury.”
Section 768.81(3)(a)2. requires the defendant to prove “by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.” The statute is conspicuously silent on whether that burden mandates the same type of expert witness testimony required of the plaintiff.
The District Court of Appeal of the State of Florida Fourth District stated in its July 3, 2024 opinion: “This case presents an unusual factual situation, as the very allegation of negligence (failure to prescribe an anticoagulant medication) is the same for both the doctor (cardiologist) and the Fabre cardiac surgeon—even though they are not technically in the same specialty. Here, the cardiac surgeon did not prescribe the anticoagulant medication following surgery; his colleague did not prescribe the anticoagulant medication in the follow-up visit two weeks later. And ultimately, the doctor did not prescribe the anticoagulant medication … this is a case where the patient was seen by successive medical providers, resulting in a single injury. This is not a case where the cardiac surgeon’s alleged negligence was different than that of the doctor. In fact, the plaintiff’s expert testified that had an anticoagulant medication been given at any point following the surgery, the plaintiff would not have suffered the stroke. One could consider this the very expert testimony the plaintiff argues was necessary to support the doctor’s Fabre defense.”
“The defendant doctor was able to testify about his decision not to prescribe the anticoagulant medication and why his decision did not constitute negligence. The doctor’s testimony could either have shifted responsibility to the Fabre defendant or supported the position that neither of them were negligent.”
” We hold that a separate specialty expert witness was unnecessary for the jury to apportion fault between the doctor and the cardiac surgeon in this case. Because the negligence allegations were the same for both the doctor and the Fabre defendant, it was unnecessary to provide an expert witness in cardiac surgery to request the jury to apportion fault between them. We therefore reverse the partial summary judgment.”
The Florida appellate court further held that excluding the cardiac surgeon’s testimony at trial was error: “While the cardiac surgeon’s testimony might have been somewhat duplicative, that fact alone was insufficient to exclude his testimony. Here, the cardiac surgeon could have explained why he did not prescribe anticoagulant medication, even if he was not permitted to testify about the patient’s reluctance to take the drug. After all, it was his initial decision that kept the patient off the anticoagulant medication for approximately one month following the surgery and prior to the doctor seeing the patient.”
“There was no need to explain why the cardiac surgeon was not a defendant simply because he testified. The trial court had discretion to limit the testimony to keep out improper evidence and prevent a “trial within a trial” regarding the cardiac surgeon’s preferences. Records were no substitute for the cardiac surgeon’s testimony. The cardiac surgeon’s testimony would have been highly relevant and could have explained why the anticoagulant medication was not prescribed long before the doctor saw the patient post-surgery.”
Source Guzman, M.D. v. Lazzari, Nos. 4D2023-0268 & 4D2023-0384.
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