Florida Record

Sunday, August 18, 2019

Verdict overturned in medical-malpractice case

By Kristin Regula | Feb 11, 2017

Thomas E. Dukes III

DAYTONA BEACH, Fla. — A verdict in a 2015 medical-malpractice case was recently overturned by a Florida appeals court after it was discovered that testimony provided in the initial proceedings was considered prejudicial.

Accoring to a report on Law 360, the 5th District Court of Appeals ruled against a lower-court ruling against Dr. Annabel Torres and her medical insurer, The Doctors’ Company, after she was found liable two years ago for failing to properly treat a patient’s meningitis. The patient, William Plummer, had gone to see Torres on two occasions with the primary complaint of an earache. However, Plummer wound up in an emergency room days after his second visit with Torres and eventually died of meningitis.

Torres and The Doctors’ Company were sued by the patients’ wife, Nancy Plummer, in 2013 — slightly more than two years after William's death — for failing to properly diagnose the cause of William's earache, not doing a proper physical exam, not sending him to a specialist or an emergency room, and prescribing a Z-pak even though previously prescribed antibiotics did not work, according to the Law 360 report.

Despite the lower-court ruling in Plummer’s favor in 2015, the appeal was made shortly after the verdict by Thomas E. Dukes III, the attorney for Dr. Torres and The Doctors’ Company.

The verdict was appealed because Torres’ legal team never got the chance to review evidence — a packet that previously contained antibiotics — that was introduced during the trial proceedings.

“We think it would’ve made a difference,” Dukes told the Florida Record.

There were also expert witnesses brought into court to testify that Torres breached her duties as a physician by only prescribing antibiotics. Not only was the expert testimony also considered prejudicial, but one of the experts also even said that it was not inappropriate for Torres to have given a sample of an antibiotic, Levaquin, to Plummer’s husband.

“It constitutes unfair surprise,” Dukes said.

While the representation of evidence and testimony was a major reason the verdict was overturned during the appeals process, there was another unique factor in the case — the earache suffered by William Plummer.

Most symptoms of meningitis, according to the Mayo Clinic's website, are usually flu-like in nature with a headache, stiff neck and fever being chief comyplaints of the disease. A rash on an affected person’s body is a major sign that a person has meningitis, and a spinal tap — where fluid is taken from the spinal cord — is needed to make a diagnosis.

Earaches do not appear to be a normal symptom of meningitis.

“We think it was an unusual manifestation,” Dukes said. “We don’t think she could’ve predicted that.”

While the appeal was filed right after the verdict in 2015, it is common for the appeals process to be lengthy making this case no exception to that rule.

“It takes longer to get the case through appeal,” Dukes said.

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Fifth District Court of Appeal