Third District Court of Appeal agrees medical malpractice case should not be moved

By Carrie Salls | May 5, 2018

MIAMI – The Florida Third District Court of Appeal upheld a trial court order denying a motion filed by medical personnel sued for malpractice.

The lawsuit was filed by the parents of a sick infant who wanted to move the trial to Collier County from Miami-Dade for convenience purposes, according to an opinion filed April 18.

The opinion said the lawsuit was filed by Jesus Garcia and Norma Cisneros, the parents of Pedro Garcia, after Cisneros brought Pedro Garcia to the emergency room and doctor’s office on multiple occasions, beginning when he “developed a serious intestinal condition that caused him to vomit green bile” when he was six days old.

Pedro Garcia was diagnosed with colic following one of the emergency room visits, but when an x-ray was ordered on a subsequent visit to the Physicians Hospital, doctors found that he had volvulus, which is a twisted intestine.

As a result of the diagnosis, Pedro Garcia was transported by helicopter to Joe DiMaggio Children’s Hospital.

“At Joe DiMaggio Children’s Hospital, Pedro received lifesaving treatment, including five surgeries, and remained there for close to two and a half months,” the opinion said.

The medical malpractice lawsuit was filed on April 11, 2016 in the Circuit Court for Miami-Dade County.

According to the appeals court opinion, the defendants named in the complaint include three individuals who live and work in Collier County. The medical facilities that Cisneros took Pedro Garcia to are located in Miami-Dade County, Collier County and Leon County, respectively.

The defendants’ motions for a change of venue “all argued that Miami-Dade County would be inconvenient for the parties and witnesses and that the interests of justice weighed in favor of transferring venue to Collier County,” the appeals court opinion said. “None of the doctors’ affidavits addressed or established substantial inconvenience or undue expense that would require a change of venue for the convenience of the anticipated witnesses.”

The trial court agreed with Cisneros and Jesus Garcia, saying in its order “that in order to successfully challenge a plaintiff’s forum selection the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses," according to the appeals court opinion.

Appeals court Judge Vance E. Salter wrote a dissenting opinion, saying, “No basis has been shown to further burden the courts and jurors of Miami-Dade County with this Collier-centric matter.”

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