WEST PALM BEACH – A Florida appeals court has reversed and remanded medical malpractice litigation originally brought in a Broward County court, finding that the use of an expert witness was unnecessary and that a defense witness was improperly excluded from the proceedings.
Florida Fourth District Court of Appeals Judge Melanie G. May handed down a ruling to that effect on July 3, in Maria Joanna Lazzari and Morela Lazzari’s lawsuit versus Pablo Guzman, M.D., and Holy Cross Hospital, Inc.
“The defendant doctor began treating the patient in 2012. In 2013, the 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 doctor approximately one month after surgery. According to the doctor’s evaluation, the patient was not experiencing any post-surgery complications,” May said.
“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 90 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.”
May explained that in his answer, Guzman pled the cardiac surgeon was a potential Fabre defendant. The plaintiff ultimately settled with the cardiac surgeon and Jackson Memorial. Only two defendants – Guzman and Holy Cross Hospital – remained in the case for trial.
After hearing arguments from both sides, the trial court did not allow the doctor to call the cardiac surgeon as a witness, suggesting his testimony would be cumulative, and granted the plaintiffs’ summary judgment motion on the Fabre defense.
The jury awarded the plaintiffs $1 million, but after the plaintiffs rejected the verdict as inconsistent, they requested additional damages. Ultimately, the plaintiffs were awarded $4,643,770 in past and future medical expenses – a result which Guzman appealed to the Fourth District, arguing the trial court erred when it dismissed the Fabre defense.
“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,” May stated.
“Similar to Barrios v. Darrach, 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.”
May added that Guzman was able to testify about his decision not to prescribe the anticoagulant medication and why his decision did not constitute negligence, which 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,” May decreed.
As to the exclusion of the cardiac surgeon as a witness, the Fourth District appeals court found that the surgeon was in fact improperly excluded from the trial court proceedings.
“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,” May stated.
“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. Finding error in the exclusion of the cardiac surgeon as a witness, we reverse on this ground as well. Because we reverse the partial summary judgment and the trial court’s decision to exclude the defense witness, we need not reach the additur issue. We reverse and remand the case for a new trial on liability and damages.”
Fourth District judges Dorian K. Damoorgian and Burton C. Conner concurred with May’s ruling and joined in it.
Fourth District Court of Appeals, State of Florida cases 4D2023-0268 & 4D2023-0384
Circuit Court for the Seventeenth Judicial Circuit, Broward County case CACE21-010977
From the Florida Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com