A man met with a neurologist because he suffered from back pain, leg pain, unsteadiness on his feet, cramps in his hands and feet, numbness in his hands, and tingling in his feet. The physical examination revealed weakness in the man's finger extensors. The neurologist concluded that because he displayed normal reflexes, the numbness and tingling in his hands was caused by peripheral neuropathy due to diabetes. However, he did not perform a test to confirm diabetic neuropathy. After the physical examination, the neurologist recommended that the man be admitted to the hospital. The neurologist ordered an MRI of the man's brain and lumbar spine. The MRI results for the brain were normal. However, the MRI of the lumbar spine demonstrated severe stenosis (narrowing) of the spinal canal.
After he received the lumbar spine MRI results, the neurologist asked a neurosurgeon for a consultation. The neurosurgeon performed a complete neurological examination of the man. The man did not inform him of any upper extremity problems, and the neurosurgeon did not observe any upper extremity abnormalities or read the notation written by the neurologist with respect to the symptoms in his hands. The neurosurgeon reviewed the MRI results, ordered additional radiological diagnostic studies of his lumbar spine, and concluded that a lumbar decompression procedure was necessary. Eight days after the man presented to the neurologist, the neurosurgeon performed the surgery.
After the surgery, the man's condition did not significantly improve. About two months after the surgery, the neurosurgeon ordered cervical, thoracic, and lumbar MRIs, which revealed compression in both the lower back and neck. After he received the MRI films, the neurosurgeon met with the man, at which point he reported that the symptoms in his arms and hands had worsened since the surgery. The neurosurgeon conducted a physical exam, which revealed weakness in his upper extremities and abnormal reflexes in his arms. The neurosurgeon recommended that cervical decompression surgery be performed within one month, but required that the man first obtain medical clearance for surgery. The neurosurgeon did not perform the cervical decompression surgery.
Three months after the follow up appointment another neurosurgeon met with the man. This neurosurgeon concluded that he should undergo a second lumbar surgery and, at a later date, a cervical spine surgery. The neurosurgeon performed the lumbar surgery, but the cervical spine surgery was never performed. The man's condition continued to degenerate until he progressed to quadriplegia.
The man and his wife filed a failure to diagnose action which included a loss of consortium claim against the neurologist, the neurosurgeon, the neurosurgeon’s practice group, and the medical center where the first spinal surgery took place. All defendants except the neurologist settled. At trial the neurologist raised as an affirmative defense that the neurosurgeon's negligence was the cause of the injury.
During trial, the man and his wife presented the expert testimony of a neurologist, who testified that the neurologist had breached the standard of care. He testified that the upper body symptoms the man displayed would lead a reasonable physician to believe that a problem in the neck or brain existed. Further, he testified that after an MRI had clearly demonstrated that the brain was not the cause of the upper body symptoms, the neck would be the next area that a reasonable and prudent physician should and would evaluate. The plaintiff’s expert neurologist also testified that although peripheral neuropathy due to diabetes could have caused some of the man's upper body symptoms, the neurologist breached the standard of care when he failed to consider other potential causes, such as a cervical cord compression. The plaintiff’s expert neurologist opined it was more likely than not that the man’s condition would have stayed the same or improved had he been diagnosed with a cervical cord compression when he met with the neurologist. However, the expert also stated that a neurologist would defer to a neurosurgeon with regard to whether and when to operate and how to execute the procedure.
The man and his wife also presented the testimony of an orthopedic spinal surgeon who they met with after the man had become quadriplegic. The orthopedic surgeon testified the man was quadriplegic due to a cervical spine injury. The orthopedic surgeon testified that a lumbar cord compression would not cause symptoms in a person's hand, but rather, such symptoms would be caused by an issue in the cervical spine or brain. However, he acknowledged that the findings of the neurosurgeon could also be associated with lumbar stenosis. It was his opinion that had surgery been performed on the cervical cord compression when the first spinal surgery was performed, the man more likely than not would not have progressed to quadriplegia.
The neurologist presented a neurosurgeon as an expert witness, who testified that based on the initial MRI, as well as the notes and findings of both the neurologist and the neurosurgeon, it was within a reasonable standard of care for the neurosurgeon to operate on the man's lumbar spine when the initial spinal procedure was performed. He explained that the numbness and tingling in the man’s hands could have been attributed to something other than a neck problem, but the pain, weakness, and difficulty walking were undoubtedly the result of a lumbar spine problem. Further, he testified that because the primary complaint related directly to the man’s legs, there was no reason to suspect a cause other than a lower back problem. He also explained that the major symptoms the man experienced could not have been caused by a cervical cord compression, and a decision on whether to perform surgery on the neck would have been reached after surgery on the lower back. It was his opinion that the neurosurgeon deviated from a reasonable standard of care because he failed to perform a complete lumbar decompression at the time of the first procedure. This failure caused additional injury to the man, who was required to undergo a second lumbar surgery six months later.
The neurologist also presented an expert neurologist, who testified that it was within a reasonable standard of care for the neurologist to focus on the man's lumbar spine. He explained that a complaint of pain and weakness in the back, without any reference to neck pain or a demonstration of hyper reflexes during the physical examination, signified that the lumbar back, rather than the neck, was the cause of the symptoms. He also testified that tingling in the hands and feet is a common symptom of diabetic neuropathy. However, he acknowledged that, had a cervical MRI been performed at that time, it likely would have demonstrated the cervical compression that was discovered two months later.
The neurologist also introduced the depositions of the neurosurgeon, which had been taken prior to the settlement between the couple and the neurosurgeon. In the depositions, the neurosurgeon stated that even if he possessed the results of a cervical MRI at the time of the initial procedure, he would not have operated on the neck because the man had not yet experienced problems with his upper extremities.
At the close of the evidence, the neurologist moved for a directed verdict. He contended that the depositions of the neurosurgeon rendered it impossible for the couple to establish that the man’s injury was caused by any negligence of the neurologist. The trial court determined that causation was an issue for the jury to decide and denied the motion for a directed verdict. During closing statements, counsel for the couple asserted that the man would not have progressed to quadriplegia had the neurologist recognized prior to the first procedure that his upper body symptoms were the result of a cervical problem.
Counsel for the neurologist contended during closing statements that the couple had not established causation. Specifically, counsel stated that the only theory that would allow the couple to win would be that but for the neurologist not doing the cervical MRI, the neurosurgeon would have operated on the man’s neck at the time of the first procedure. Counsel went on to explain how the couple had failed to show evidence that supported the theory that had the neurologist ordered a cervical MRI, the neurosurgeon would have operated on the man’s neck. The couple objected on the basis that this was a misstatement of the law. The trial court overruled the objection, but reminded the jury that it was required to follow the law as provided in the jury instructions.
Subsequently, counsel for the couple sought a curative instruction that a Fabre defense, i.e., a defense in which a non-party was alleged to be wholly or partially at fault so that the jury may apportion a percentage of fault to that non-party, was an affirmative defense for which the defendant bore the sole burden of proof, and the couple was not required to prove that the neurosurgeon was negligent. The trial court declined to provide such an instruction on the basis that the jury had already been instructed on the law.
The Broward County Circuit Court, Seventeenth Judicial Circuit, entered final judgment on a jury verdict in favor of the neurologist. The man passed away and his wife was substituted as the personal representative of the estate. She appealed.
The Fourth District Court of Appeal affirmed in part, reversed in part, and remanded. The appellate court held that counsel for the neurologist did not improperly shift the burden of proof when he asserted that the couple had not established causation in light of the neurosurgeon's testimony that he would not have changed the course of treatment even if the neurologist had ordered a cervical MRI. The personal representative petitioned for further review on the basis that the appellate court’s decision conflicted with the decision of the Fifth District Court of Appeal in Goolsby v. Qazi, 847 So.2d 1001 (Fla. 5th DCA 2003), and the decision of the Third District Court of Appeal in Muñoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000), which held that the negligence of a physician cannot be defended on the basis of what a subsequent treating physician allegedly would have done had the first physician not acted negligently.
The Supreme Court of Florida reversed. The court held that the closing statement by the neurologist's counsel misled the jury and resulted in harmful error.
The closing statement by the neurologist's counsel misled the jury and resulted in harmful error. The neurologist's counsel misled the jury in his closing statement when he erroneously informed the jury that the couple had not proven causation for the man's quadriplegia based upon the treating neurosurgeon’s testimony in which he opined that he would not have treated the patient differently had the neurologist acted within the applicable standard of care. The court reasoned that not only the final physician, but each treating physician must act in a reasonably prudent manner.
The court determined that this error was harmful. The neurosurgeon had entered into a settlement with the couple prior to trial. The jury was not informed of the settlement. The couple was unable to address their prior adversarial relationship with the neurosurgeon. The jury was unaware that the neurosurgeon was motivated by a desire to deny wrongdoing and to avoid liability.
The Supreme Court of Florida reversed the trial court’s denial of the couple's objection to the neurologist’s closing argument and motion for curative instruction.
See: Saunders v. Dickens, 2014 WL 3361813 (Fla., July 10, 2014) (not designated for publication).
See also Medical Law Perspectives, May 2014 Report: Diabetes and Its Complications: Malpractice and Other Liability Issues