Chaskes v. Gutierrez

• Decision Date: 12 July 2013
• Docket Number: 3D11–1967.,Nos. 3D11–3127,s. 3D11–3127
• Parties: Robert Jeffrey CHASKES, D.O., Sandra Saint–Eloi, ARNP and Vohra Health Services, P.A., Appellants, v. Zoila GUTIERREZ, as Personal Representative of the Estate of Dilia Dolores Jaquez, Appellee.
• Court: Florida District Court of Appeals

116 So.3d 479

Robert Jeffrey CHASKES, D.O., Sandra Saint–Eloi, ARNP and Vohra Health Services, P.A., Appellants,

v.Zoila GUTIERREZ, as Personal Representative of the Estate of Dilia Dolores Jaquez, Appellee.

Nos. 3D11–3127, 3D11–1967.

District Court of Appeal of Florida,

Third District.

May 15, 2013.

Rehearing Denied July 12, 2013.

Hicks, Porter, Ebenfeld & Stein and Mark Hicks and Dinah Stein, Miami, for appellants.

Ford & Dean and William A. Dean, Aventura; Burlington & Rockenbach, Bard D. Rockenbach and Adam J. Richardson, West Palm Beach, for appellee.

Before WELLS, C.J., and LAGOA and LOGUE, JJ.

WELLS, Chief Judge.

Robert Jeffrey Chaskes, D.O., Sandra Saint–Eloi, A.R.N.P., and their employer Vohra Health Services, P.A., appeal from a final judgment in this medical malpractice action for the negligent treatment of a sacral decubitus ulcer (a bedsore). The defendant doctor and nurse treated then eighty-eight-year-old Dilia Jaquez over a period of two weeks while she was at Miami Gardens Nursing Center following transfer from Memorial West Hospital where Jaquez had undergone surgery for a broken hip. During her stay at Memorial West, Jaquez developed the sacral ulcer which had deteriorated by the time she was released to Miami Gardens to a stage IV bedsore.¹ On April 8, 2009, Gutierrez, as personal representative of Jaquez's estate, bought suit claiming that Dr. Chaskes's and Nurse Saint–Eloi's care and treatment of Jaquez's bedsore while at Miami Gardens fell below the standard of care and was a legal cause of damage for which they and Vohra Health were liable. ² Gutierrez chose not to seek relief from Memorial West where the bedsore developed and initially deteriorated, nor from several of the other medical institutions or individuals which or whom subsequently treated Jaquez, but limited her claim to Dr. Chaskes, Nurse Saint–Eloi, and Vohra Health. The defendants alleged Gutierrez's comparative fault and subsequently joined Memorial Hospital West and Miami Gardens Nursing Center as Fabre³ defendants.

The case was tried before a jury in April of 2011. At the close of the evidence and shortly before the jury retired, the court below dismissed Memorial West from the action. Defendants' motion for a directed verdict on proximate causation grounds was denied,⁴ and the jury returned a verdict in Gutierrez's favor apportioning fault 65% to Dr. Chaskes, 25% to Nurse Saint–Eloi, 0% to plaintiff Gutierrez, and 10% to Fabre defendant Miami Gardens Nursing Center. The jury awarded $13,000, for past medical bills and expenses and $337,000. for past pain and suffering, for total damages of $350,000. Defendants moved to set aside the verdict and enter judgment in accordance with their motions for directed verdict. Alternatively, defendants moved for a new trial or remittitur. The trial court denied the post-trial motions and entered a final judgment against defendants for $315,000 according to the jury's apportionment of fault. A final judgment of $138,650 also was entered against the defendants for attorney's fees and costs.

Because we agree with defendants' position that Gutierrez failed to satisfy the standard established in Gooding v. University Hospital Building, Inc., 445 So.2d 1015, 1018 (Fla.1984), as to either this doctor or nurse, we reverse the final judgment rendered in Gutierrez's favor and remand for entry of judgment in favor of Dr. Chaskes, Nurse Saint–Eoli and their employer Vohra Health. We also reverse the fees and costs order in Gutierrez's favor which followed the final judgment. This analysis makes it unnecessary to address the remaining points argued by the defendants.⁵

FACTS

On April 30, 2008, Dilia Dolores Jaquez, then age eighty-seven, fell and broke her hip. According to Gutierrez, before her fall, Jaquez had been reasonably healthy, living at home with Gutierrez, travelling alone long distances by air, and taking no medications.

Following her fall, Jaquez was transported to Memorial West Hospital and admitted for hip surgery. Although she tolerated the surgery well, she subsequently suffered a number of set-backs and generally deteriorated during her hospital stay. In addition to suffering from anemia, which required a blood transfusion, her white blood cell count shot up, she developed a urinary tract infection, hematuria (bloody urine), and acute renal failure. She also lost her appetite and was found to be suffering from significant erosive gastritis, a hiatal hernia, and duodenitis. Additionally, she was unable to engage in meaningful therapy to get back on her feet, and from time to time she became disoriented and confused. As one of her physicians noted the day before she was discharged, “[f]rom a functional standpoint ... [Jaquez's] progress has been very slow. She still requires maximum assistance for bed mobility, total assistance with transfers, and standing balance is dependent.” In part because of this immobility, Coumadin, an anti-coagulant was prescribed to prevent “deep venous thrombosis ... and pulmonary embolism.” ⁶ She also developed a large pressure ulcer (bedsore) at the base of her spine which had deteriorated to stage IV by the time she was discharged from Memorial West to Miami Gardens on May 23, 2008.

At discharge, Memorial West prescribed for Jaquez, among other things, “continued wound care as [per] pressure ulcer protocol [with] Accuzyme ⁷ and Lyofoam ⁸, [and] cleans[ing] with normal saline daily.” Dr. Jesus Gonzales, Jaquez's primary treating physician at Miami Gardens, ordered continuation of this treatment when Jaquez was admitted to Miami Gardens late in the evening on that same day. He also ordered a wound consultation with Vohra Health, an entity which provides wound care to nursing home residents.

The following day, Dr. Chaskes, a Vohra Health employee, ordered discontinuation of the Accuzyme treatment prescribed for Jaquez's bedsore and prescribed instead Santyl,⁹ a medication he found more effective for enzymatic debridement of bedsores. Dr. Chaskes also ordered continuedcleaning of Jaquez's ulcer on a daily basis.

Two days later, on May 26, Dr. Chaskes and Nurse Saint–Eloi (also a Vohra Health employee), visited Jaquez. By that time, Dr. Gonzales had noted that although the bedsore had no odor, it was producing a small amount of purulent ¹⁰ discharge. He also noted that the sore was not granulating ¹¹ but instead was covered by dead tissue or slough. During their visit, Dr. Chaskes and Nurse Saint–Eloi surgically debrided the bedsore, applying a topical anesthetic (benzocaine) and using a scalpel to cut out dead muscle and other tissue. But because of the threat of excessive bleeding stemming from Jaquez's anti-coagulation (Coumadin) therapy, they were unable to remove all of the necrotic tissue that they found and opted to treat the remaining small amount of necrotic tissue with enzymatic debridement (with Santyl) followed by removal of any remaining necrotic tissue at their next weekly visit. As before, they ordered daily cleansing of the sore, and to further promote healing, they ordered treatment with Mycolog, an anti-fungal agent, and packing with calcium alginate. ¹² They also recommended a pressure mattress for Jaquez's bed, that she be turned or repositioned every two hours, a gel cushion for her chair and that she be allowed to sit up no more than one hour at a time, all to lessen pressure on the sore.

Two days later, Jaquez was transported to the emergency room at Jackson Memorial Hospital to address a Coumadin overdose. While there, her sacral ulcer was evaluated and described to be much as it was when Dr. Chaskes and Nurse Saint–Eloi treated it on May 26. It had no odor although it was producing a moderate amount of purulent discharge. And while it still had some white/yellow slough, it had begun to show signs of granulation. No treatment of the ulcer was administered during Jaquez's two day stay at Jackson Memorial other than dressing changes.

At 11:30 pm on the evening of May 29, after the two-day stay at Jackson Memorial, Jaquez was readmitted to Miami Gardens. By this time, she had become both bowel and bladder incontinent. On readmission to Miami Gardens, the orders previously issued by Dr. Chaskes for care of Jaquez's sore were reinstated. And as before, nurses' notes confirm that she was experiencing no pain.

On June 2, Nurse Saint–Eloi visited Jaquez again. Anticipating a follow up debridement, Saint–Eloi had ordered administration of pain medication one-half hour before the procedure was to begin. When Saint Eloi examined the sore, she found it to have deteriorated. It now had an odor and was producing a large amount of exudate or discharge. She also saw that the skin around the wound was beginning to strip away.¹³ Using a topical anesthetic (Benzocaine) and a scalpel as she had before, Saint–Eloi surgically removed necrotic subcutaneous tissue, necrotic muscle fascia, and slough from the bedsore, cutting more deeply into the sore than she had before. When she was done, she applied Bactroban, an antibiotic powder effectively used in the treatment of MRSA ¹⁴ infections, and Santyl, and then packed the wound with calcium alginate. Because Jaquez was already on a course of Bactrim, another powerful antibiotic, she did not request additional antibiotics but ordered application of Skin Prep ¹⁵ to the periwound area and continuation of the treatments for the sore that Jaquez had been receiving.¹⁶

Three days later, Jaquez's daughter advised Miami Gardens staff that she wanted to remove Jaquez from the facility. She was told that removing her mother was against medical advice (AMA). Moreover, and despite Dr. Chaskes's instructions that Jaquez was to sit in a chair for no more than one hour at a time, at the family's request, Jaquez had been out of bed and sitting up for greater time periods.

When Saint–Eloi examined Jaquez on June 9, during her regular weekly rounds, she found that the bedsore had developed a pus pocket and...