Catron v. Roger Bohn, D.C., P.A., 90-00902

• Decision Date: 15 May 1991
• Docket Number: No. 90-00902,90-00902
• Parties: 16 Fla. L. Weekly D1340 Dennis CATRON, Appellant, v. ROGER BOHN, D.C., P.A., and Bohn Chiropractic Clinic, Appellees.
• Court: Florida District Court of Appeals

Page 814

580 So.2d 814

16 Fla. L. Weekly D1340

Dennis CATRON, Appellant, v. ROGER BOHN, D.C., P.A., and Bohn Chiropractic Clinic, Appellees.

No. 90-00902.

District Court of Appeal of Florida Second District.

May 15, 1991.

Rehearing Denied June 18, 1991.

Cary Alan Cliff of Faerber & Miller, Naples, for appellant.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellees.

CAMPBELL, Judge.

Appellant, Dennis Catron, seeks reversal of the final summary judgment entered against him in his action for medical negligence against appellees, Dr. Roger Bohn, a chiropractic physician, and Bohn Chiropractic Clinic. The trial judge found "that the record disclosed no competent, substantial evidence that Dr. Roger Bohn committed or omitted some act which violated the standard of care of reasonable chiropractic health care providers...." We reverse.

In opposition to appellees' motion for summary judgment, appellant had submitted the affidavit of Dr. Michael D. Lusk, a board certified neurosurgeon, who examined and performed surgery upon appellant for the removal of spinal disc fragments subsequent to appellant's examination and treatment by appellee, Dr. Bohn. Appellees had submitted in support of their motion the affidavit of Dr. William R. Boritz, a doctor of chiropractic medicine. Dr. Boritz opined that "the care and examination afforded Dennis Catron by Roger Bohn, D.C., met and exceeded the standard of care for chiropractic within the Naples and similar communities in the State of Florida." Dr. Lusk, on the other hand, opined in substantial part as follows:

9. According to the medical records of Dr. Bohn, Dennis Catron presented to Dr. Bohn on July 14, 1987, with an oral history clearly indicative of cervical compression. The records of Dr. Bohn indicate that he took two (2) x-rays of Dennis Catron at that time.

10. The medical records of Dr. Bohn indicate that Dennis Catron presented himself to Dr. Bohn the following day, July 15, 1987, his condition now "advanced" and "worse symptomatically."

11. The medical records of Dr. Bohn for July 15, 1987, indicate on their face that Dr. Bohn performed treatment (the use of the word "treatment" appearing on the notes themselves as well as in response to Dennis Catron Interrogatory 6C of Dr. Bohn).

12. That the medical records of Dr. Bohn indicate that the patient was positive for LHermitte's Sign on July 15, 1987, which indicates spinal cord injury (spinal cord compression) in Dennis Catron.

13. That Dr. Bohn's medical records indicate that he also performed traction and distraction procedures on Dennis Catron during the same July 15, 1987, office visitation.

14. That, although I am familiar with Dr. Bohn's records of July 15, 1987, wherein he wrote of the possibility of referral for neurologic evaluation, his notes for the same day state "[patient] told to go home and stay still, no softball, scheduled appointment for Friday can't get in Thursday." This is indicative to me of a failure to immediately refer for neurological or neurosurgical examination and further indicative of an intent to continue chiropractic treatment.

15. That it is my considered medical opinion, within a reasonable degree of medical probability, that Dr. Roger Bohn, D.C. had sufficient medical history on July 14, 1987, which history was only further enhanced and "worse symptomatically" the following day, to clearly indicate the existence of serious cervical compression in Dennis Catron. That, with the indications so presented, Dr. Bohn should have discontinued further treatment or examination and immediately referred the patient for neurological or neurosurgical examination and treatment. Dr. Bohn's failure to cease examination and treatment in favor of immediate referral was a departure from the standard of care for physicians, including chiropractitioners, in Naples and similar communities in the State of Florida.

In order to have granted the summary judgment for appellees on the basis of a lack of competent substantial evidence in the record to support the allegation that Dr. Bohn violated the reasonable standard of care of chiropractic health care providers, the trial judge necessarily had to reject the affidavit of Dr. Lusk. The trial judge in the summary judgment does not specify the basis for his reasoning and neither do we have a transcript of the summary judgment hearing to illuminate his reasoning. We must conclude, however, from the arguments presented to us here that Dr. Lusk's affidavit was rejected because the trial judge concluded that under the terms of section 766.102(2)(a), (b), and (c), Florida Statutes (Supp.1988), Dr. Lusk was not qualified as an expert permitted to testify in a medical negligence action as a "similar health care provider" similar to Dr. Bohn's chiropractic specialty, nor did Dr. Lusk qualify as an expert that was "not a similar health provider" but permitted to testify because of the exception provided in section 766.102(2)(c)2.

We conclude under the facts of this case that Dr. Lusk's affidavit should have been considered and summary judgment for appellees thereby denied.

The facts, as we must accept them for the purpose of our review of the summary judgment for appellees, establish that on approximately July 14, 1987, appellant, Mr. Catron, consulted Dr. Bohn with complaints of pain and stiffness in his back, shoulders and neck. He was examined and treated by Dr. Bohn and scheduled for another appointment for July 15, 1987, when he was again examined and treated by Dr. Bohn. Dr. Bohn filed answers to interrogatories served on him by appellant that state as follows: (1) As to the nature of his examinations of Mr. Catron: "X-ray, orthopedic and neurological examinations."

(2) As to his description of his examination and treatment of Mr. Catron:

Description of examination is contained in office notes. Treatment consisted of trigger point therapy to the upper trapezius muscles for pain relief of muscle spasms. Energy point stimulation with a mild negative charge to same area. Blocked pelvis category III for pelvic stabilization. Approximately 4-6 oz. of sustained pressure posterior to anterior on C2 and 5. Additional orthopedic tests were performed at that time on the cervical spine to test for disc involvement and cord pressure. This procedure consisted of supine cervical distraction and compaction using light pressure with slight rotation.

(3) As to the conclusions he drew as a result of his evaluation and examination of Mr. Catron: "Following the first day's evaluation, a herniated disc was indicated in the cervical spine with associated radiculitis and myofascitis. Upon an extended examination on July 15, 1987 a possible ruptured disc with cord pressure was suspected, however, appeared inconsistent with case history as reported by the patient."

(4) As to the findings he made from each x-ray: "Widening of the intervertebral disc space, indicating disc protrusion at the posterior aspect of C4-5-6 on the lateral film."

(5) As to his prognosis and diagnosis of Mr. Catron: "Following the initial examination: Cervical disc syndrome, Cervical brachial symdrome [sic]. Upon additional evaluation on July 15, 1987: Possible disc rupture with associated cord pressure. Refer out for additional neurological evaluation."

(6) As to his advice to Mr. Catron: "Mr. Catron was informed of my findings following his first visit. However, I was unable to contact the patient following his second visit to be referred out for additional neurological testing by Dr. Bercaw because the patient did not have a phone at the time."

After Mr. Catron's second appointment with Dr. Bohn, Mr. Catron consulted another chiropractor who referred him to the emergency room at the hospital where he was admitted and subsequently operated on by Dr. Lusk. It is important to our resolution of this appeal to focus on the circumstances surrounding the alleged failure of Dr. Bohn to comply with the reasonable standard of care for chiropractors of the community. Dr. Bohn's own expert, Dr. Boritz, in his affidavit, bases his opinion that Dr. Bohn complied with the appropriate standard of care on the following statement: "Based upon a review of his records and the answers to interrogatories, it appears that Dr. Bohn correctly diagnosed a disc problem at C5/C6 and attempted to contact Mr. Catron by telephone in order to refer him to a neurologist for further work up." Dr. Lusk, on the other hand, in his opposing affidavit, bases his opinion of Dr. Bohn's failure to meet the appropriate standard of care on Dr. Bohn's failure to immediately refer Mr. Catron to a neurologist and for Dr. Bohn to immediately cease treatment.

It appears to us that both Dr. Boritz and Dr. Lusk agree that the appropriate standard of care for a chiropractor in his treatment of Mr. Catron was not to subject Mr. Catron to any chiropractic manipulation or treatment but refer him immediately to a neurologist. Dr. Boritz in his affidavit does not refer to "treatment" by Dr. Bohn but only to "examination." However, even Dr. Bohn seems to admit that he did not ever actually refer Mr. Catron to a neurologist but only sought to contact him for the purposes of referral after examination and treatment. Even viewed in the light most favorable to Dr. Bohn, it is a disputed question of fact as to when and what treatment he gave to Mr. Catron and whether he timely or ever actually referred Mr. Catron to a neurologist.

Under those circumstances, it appears conclusively that Dr. Lusk's affidavit should have been considered pursuant to the provisions of section 766.102.

Two provisions of section 766.102 appear to mandate the consideration of Dr. Lusk's affidavit in this case. Subsection 766.102(1) requires that a person seeking damages based on death or personal injury resulting from the negligence of a health care provider must establish that health care provider's negligence based upon proof that...