Aills v. Boemi
| Decision Date | 13 June 2008 |
| Docket Number | No. 2D07-233.,2D07-233. |
| Citation | 990 So.2d 540 |
| Parties | Christy AILLS, Appellant/Cross-Appellee, v. Luciano BOEMI, M.D., and Luciano Boemi, M.D., P.A., Appellees/Cross-Appellants. |
| Court | Florida District Court of Appeals |
Joel D. Eaton of Podhurst Orseck, P.A., Miami; and Garvin & Tripp, P.A., Fort Myers, for Appellant/Cross-Appellee.
Arthur J. England, Jr., and Edward G. Guedes of Greenberg Traurig, P.A., Miami; William R. Clayton of Greenberg Traurig, P.A., Fort Lauderdale; and Richard B. Mangan of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees/Cross-Appellants.
Christy Aills appeals an order for a new trial on damages only entered in her medical malpractice action against Luciano Boemi, M.D., and Luciano Boemi, M.D., P.A. (collectively referred to as Dr. Boemi). The trial court entered the order for a new trial on damages only after Ms. Aills had rejected the trial court's earlier order for a remittitur of the damages awarded to her by a jury. Dr. Boemi cross-appeals the trial court's order denying his motion for a directed verdict on liability or, alternatively, an award of a new trial and the denial of his motion for a remittitur of the jury's award of future economic damages. We affirm the trial court's order denying Dr. Boemi's motion for a directed verdict on liability. However, we conclude that the trial court erred in permitting Ms. Aills' counsel to argue to the jury—over Dr. Boemi's timely objection—a theory of medical negligence that was not within the issues presented at trial. For this reason, we reverse the order denying Dr. Boemi's motion for new trial and the order directing a new trial on damages only, and we remand for a new trial on all issues. Our disposition of Dr. Boemi's cross-appeal renders moot Ms. Aills' challenge to the proposed remittitur and Dr. Boemi's argument about the denial of his motion for a remittitur of the jury's award of future economic damages.
Dr. Boemi is a plastic surgeon. In February 2003, Ms. Aills consulted him about the performance of an elective surgical procedure. After speaking with Ms. Aills and conducting an examination, Dr. Boemi suggested to Ms. Aills that performing two distinct, but related, procedures would be the best way to achieve her goals. Ms. Aills ultimately decided to have Dr. Boemi perform the two surgical procedures that he had suggested. Before the surgery, Ms. Aills signed two consent forms—one for each procedure. On April 16, 2003, Dr. Boemi performed the surgery on Ms. Aills at a surgery center in Lee County, Florida.
Afterwards, Ms. Aills had serious complications as a consequence of the surgery. These complications became so severe that Dr. Boemi's trial counsel would later concede in his opening statement at trial that Ms. Aills had experienced "a horrific outcome." Ms. Aills remained under Dr. Boemi's care for approximately six weeks after the surgery. On June 2, 2003, Ms. Aills consulted Dr. Robert Brueck, another plastic surgeon, for further care. Dr. Brueck treated Ms. Aills extensively and performed numerous additional surgeries and procedures to treat and repair the consequences of the initial surgery performed by Dr. Boemi.
In August 2004, Ms. Aills filed an action for damages against Dr. Boemi. In her second amended complaint, Ms. Aills alleged not only that Dr. Boemi had negligently performed the two surgical procedures to which she had agreed but also that he had performed an additional third surgical procedure for which she had not given her consent. Ms. Aills' complaint asserted four separate causes of action against Dr. Boemi: count one, medical negligence; count two, battery; count three, lack of informed consent; and count four, fraud. Ms. Aills also asserted a claim for punitive damages.
In count one of her complaint, the claim for medical negligence, Ms. Aills alleged that Dr. Boemi was negligent in three particulars. First, Ms. Aills alleged that Dr. Boemi had negligently failed to obtain her informed consent to the proposed surgery. Second, Ms. Aills alleged that Dr. Boemi had negligently performed the surgical procedures. Third, Ms. Aills alleged that the design of the procedures that Dr. Boemi had performed was flawed. Notably, Ms. Aills did not allege any negligence by Dr. Boemi during the period in which he had treated her postoperatively. Ms. Aills never sought to amend her complaint to allege that Dr. Boemi had been negligent with regard to postoperative care.
Ms. Aills relied primarily on the testimony of two expert witnesses to prove her claims of negligence and lack of informed consent. One of these witnesses was Dr. Brueck, the board-certified plastic surgeon who had treated Ms. Aills after she had left the care of Dr. Boemi. The other expert was Dr. Paul Glat, another board-certified plastic surgeon. Both of these experts devoted a substantial portion of their testimony to the alleged omission by Dr. Boemi to adequately inform Ms. Aills of the risks of the surgery that he proposed to perform on her. Dr. Brueck and Dr. Glat also testified that Dr. Boemi performed a third surgical procedure on Ms. Aills, which was not explained to her and to which she had not consented.
With respect to Ms. Aills' allegations of negligence, neither Dr. Brueck nor Dr. Glat testified that Dr. Boemi had departed from the prevailing professional standard of care in connection with his postoperative treatment of Ms. Aills. In addition, neither of Ms. Aills' experts testified that Dr. Boemi's treatment of Aills after her surgery did anything to cause or to exacerbate her postsurgical complications. On the contrary, Dr. Brueck testified that "the design and execution of the [surgical] procedures is what caused the damage." Dr. Glat's testimony on this issue was similar. He testified that Ms. Aills' problems resulted from an inadequate blood flow caused by the procedures performed by Dr. Boemi.
Two board-certified plastic surgeons testified on Dr. Boemi's behalf. One of these plastic surgeons was Dr. Scott Spear. At the time of trial, Dr. Spear was chairman of the Department of Plastic Surgery and a professor of plastic surgery at Georgetown University School of Medicine. Dr. Spear had also served as the president of the American Society of Plastic Surgery.
Dr. Spear testified that the surgical procedures that Dr. Boemi had performed on Ms. Aills were limited to the two procedures to which Ms. Aills had agreed. In other words, Dr. Spear denied that Dr. Boemi had performed a third surgical procedure on Ms. Aills for which she had not given her consent. Dr. Spear also testified that Dr. Boemi had appropriately warned Ms. Aills of the risks of the two procedures to which she had consented.
Dr. Spear acknowledged that Ms. Aills had experienced a very unfortunate outcome from the surgery. However, he testified that Dr. Boemi met the prevailing professional standard of care in connection with his treatment of Ms. Aills. According to Dr. Spear, the postsurgical complications experienced by Ms. Aills were within the known risks of the procedures to which she had consented.
Dr. Boemi's other expert witness was Dr. David Abrahamson. Dr. Abrahamson's testimony was substantially similar to the testimony of Dr. Spear.
The verdict form submitted to the jury in this case required the jury to make a separate determination of liability for each of the four causes of action that Ms. Aills had alleged against Dr. Boemi.1 With respect to the negligence claim asserted in count one, the jury was asked to determine: "Was there negligence on the part of LUCIANO BOEMI, M.D.[,] in his treatment and care of CHRISTY AILLS which was a legal cause of loss, injury[,] or damage to Plaintiff, CHRISTY AILLS?" Neither of the parties requested an interrogatory verdict that would have required the jury to make separate findings on any particular theory of medical negligence.
During his closing argument, Ms. Aills' trial counsel began to argue that Dr. Boemi had failed to provide appropriate care to Ms. Aills during the postoperative period. Dr. Boemi's counsel immediately objected to this line of argument. At a sidebar conference, Dr. Boemi's counsel explained that opposing counsel's remarks were improper because of the absence of any basis in the record "that the postoperative care was negligent" and "that it would have made a difference." Ms. Aills' counsel responded that his remarks were "fair comment" because "we have already put on testimony ... that the entire thing that this doctor did caused her to have her harm." The trial court overruled the objection.
After the objection was overruled, Ms. Aills' trial counsel continued his remarks with a description of what he said were the consequences of Dr. Boemi's postoperative negligence. Later in his closing argument, Ms. Aills' trial counsel returned to the theme of postoperative negligence. Counsel informed the jury that there were three separate grounds upon which they could find in favor of Ms. Aills on her negligence claim: (1) the design of the surgical procedures by Dr. Boemi; (2) the manner in which Dr. Boemi had performed the surgery; and (3) "the failure to detect and treat a surgically caused impairment of blood supply," i.e., a deficiency in Dr. Boemi's postoperative care of Ms. Aills. The first two grounds were alleged in the complaint and supported by expert witness testimony from Dr. Brueck and Dr. Glat, but the third ground was not.
The jury returned a verdict in favor of Ms. Aills on her negligence claim. However, the jury's verdict was in favor of Dr. Boemi on Ms. Aills' claims for battery, lack of informed consent, and fraud. Thus the jury agreed that Dr. Boemi had been negligent in his...
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Aills v. Boemi
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