Bratt ex rel. Bratt v. Laskas
| Decision Date | 21 May 2003 |
| Docket Number | No. 4D01-3386.,4D01-3386. |
| Citation | 845 So.2d 964 |
| Parties | Joshua N. BRATT, a minor, through his parents, natural guardians and next friends, Martin S. BRATT and Louise J. Bratt, and Martin S. Bratt and Louise J. Bratt, individually, Appellants, v. Suzanne LASKAS, M.D., Peter Averkiou, M.D., Jack J. Blanco, M.D., Jerry R. Wexler, M.D., Wexler, Blanco & Laskas, M.D., P.A., d/b/a Boca Raton Pediatric Associates, Lawrence M. Adams, M.D., Lawrence M. Adams, M.D., P.A., Peter G. Ballad, II, M.D., Peter G. Ballad, II, M.D., P.A., Jaime L. Baquero, M.D., Jamie L. Baquero, M.D., P.A., Boca Raton Community Hospital, Inc., Terry B. Cohen, M.D., Evan D. Goldstein, M.D., Jack F. Kareff, M.D., Joseph R. Purita, M.D., Quinn, Wollowick, Purita, Schosheim, Krebsbach & Stewart, Inc., Edward Kaplan, M.D., Jose M. Flores, M.D., Jose M. Flores, M.D., P.A., Stuart A. Friedman, M.D., Howard Martinez, M.D., Boca Infectious Disease Consultants, P.A., n/k/a Infectious Disease Associates, P.A., Virginia Rae, M.D., Virginia Rae, M.D., P.A., University of Miami, d/b/a University of Miami School of Medicine, Richard G. Curless, M.D., Rene Ruiz-Isasi, M.D. and Rene Ruiz-Isasi, M.D., P.A., Appellees. |
| Court | Florida District Court of Appeals |
Edward T. Dinna of Law Office of Edward T. Dinna, Fort Lauderdale, for appellant.
Esther E. Galicia of George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, for appellees Rene Ruiz-Isasi, M.D., and Rene Ruiz-Isasi, M.D., P.A.
Appellant, Joshua Bratt ("Bratt"), challenges the entry of final summary judgment in favor of appellee, Dr. Ruiz-Isasi ("Dr. Isasi"), in a medical malpractice action. He claims that the affidavits create genuine issues of material fact. We agree and reverse.
In the summer of 1993, Bratt attended summer camp in Massachusetts. After hiking in the wilderness, Bratt became extremely ill and developed a severe skin rash. When he returned to Florida, his parents took him to see his primary care physician, Dr. Laskas, who diagnosed the rash as scabies and prescribed a medicated shampoo. However, this resulted in transforming the rash into crusty sores similar to psoriasis. Bratt was then sent to two dermatologists for diagnoses.
While this was occurring, Bratt also developed gastrointestinal problems caused by an ascaris infection. Dr. Laskas prescribed medication, but when Bratt continued to have chronic abdominal pain, she sent him to Dr. Isasi, a pediatric gastroenterologist. His first visit with Dr. Isasi was approximately six weeks after returning from summer camp. Dr. Isasi performed several tests on Bratt and diagnosed him with an ascaris infection, as well as esophagitis, mild duodenitis, and reflux. He referred him to a dietician and prescribed medication. Dr. Isasi noticed Bratt's skin rash, and Mrs. Bratt informed the doctor of her son's history with the rash. Dr. Isasi did not think it was psoriasis and only confirmed that Bratt was seeing a dermatologist for the condition. In all, Dr. Isasi saw Bratt three times solely for his ascaris infection.
Over a year later, after Bratt had seen a dozen physicians and had developed various other symptoms, including severe headaches, he was seen in New York by Dr. Wolff, who diagnosed Bratt as suffering from Lyme's disease, an infection spread by a tick bite. Due to the late diagnosis, however, Bratt had already suffered permanent neurological damage.
Bratt and his parents filed a medical malpractice action against all of his treating physicians for failure to diagnose his medical condition as Lyme's disease. As to Dr. Isasi, Bratt alleged that gastrointestinal problems were common with Lyme's disease. As such, Dr. Isasi failed to comply with the professional standard of care by not considering Lyme's disease after being presented Bratt's history and symptoms, by not conducting appropriate examinations and tests to diagnose Lyme's disease, and by not treating or referring Bratt for treatment for Lyme's disease. These departures, Bratt alleged, were the proximate cause of his injuries.
After answering the complaint and denying the material allegations, Dr. Isasi moved for summary judgment attaching an affidavit of Dr. Perman, a board certified pediatric gastroenterologist, who reviewed the medical records, the discovery, and depositions. Dr. Perman opined that Dr. Isasi's diagnosis, care and treatment of Bratt were within the standard of care for pediatric gastroenterologists in the medical community and was not the proximate cause of Bratt's injuries. In addition, Dr. Perman opined that Dr. Isasi, as a pediatric gastroenterologist did not have a duty to diagnose or treat Bratt's skin rash where other physicians were treating that condition.
Bratt responded to Dr. Isasi's motion by filing the affidavits of Louise Bratt, his mother, and Dr. May, a pediatrician. The mother's affidavit included a detailed account of Bratt's medical history since developing the skin rash in Massachusetts, including the various physicians that saw and treated Bratt and the symptoms he presented to each. Dr. May's affidavit explained Lyme's disease and its multi-organ effect. He further attested that Bratt's symptoms should have alerted each attending physician to the possibility of Lyme's disease as a differential diagnosis to be ruled out, particularly when 75% of Lyme's disease cases come from seven Northeastern states, including Massachusetts where Bratt had been camping. Dr. May also stated that because Lyme's disease can produce a variety of medical problems, involving a number of major organ systems, "every modern clinician needs to be familiar with Lyme disease... be they pediatricians [or] ... gastroenterologists."
At the hearing, Dr. Isasi's attorney noted that Dr. May's specialty was pediatric hematology and oncology; therefore, he did not qualify as an expert in the prevailing professional standard of care for a pediatric gastroenterologist. Moreover, he claimed that Dr. May's opinions, given in 1996 during the pre-suit process were "out-dated" as they did not consider other discovery. Bratt countered that, as the non-moving party, he did not have to produce any evidence until Dr. Isasi demonstrated from his affidavits the non-existence of material issues of fact. Bratt asserted Dr. Perman's affidavit lacked specificity and failed to conclusively establish that no genuine issues of material fact remained. The court disagreed and entered final summary judgment in favor of...
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