Cousins v. Duprey
| Decision Date | 21 July 2021 |
| Docket Number | No. 4D19-3602,4D19-3602 |
| Citation | 325 So.3d 61 |
| Parties | Robert COUSINS and Scott Sankey, Appellants, v. Ivette DUPREY, Appellee. |
| Court | Florida District Court of Appeals |
Dinah S. Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for appellants.
Dennis Grossman of Law Office of Dennis Grossman, Miami, and Max R. Price of Law Office of Max R. Price, P.A., Miami, for appellee.
Two attorneys appeal a sanctions order entered against them during a medical malpractice trial. They argue the trial court erred in sanctioning them and in determining the amount of the sanction. We agree and reverse.
The underlying case arose from a two-count complaint for medical malpractice.
The plaintiff suffered from Crohn's disease
. In 1990, she underwent surgery to remove certain diseased tissue. The defendant doctor first started treating the plaintiff nine years later. In 2007, the plaintiff's gastroenterologist referred her to the doctor to surgically remove a stricture and reconnect the small bowel. In 2008, the doctor performed a laparoscopic small bowel resection.
In the summer of 2009, the plaintiff suffered another flare-up of her Crohn's disease
. A colonoscopy revealed inflammation and a protrusion of the small intestine ("prolapsing") at the site of the ileocolonic anastomosis. The prolapse was caused by the stricture at that location that the doctor was supposed to have removed in 2008.
The plaintiff was referred to another physician for a second opinion. She underwent another surgery where the stricture at the ileocolonic anastomosis and two other strictures were removed and reconfigured.
The plaintiff sued the doctor who performed the 2008 surgery and his professional association ("P.A."). She alleged he was negligent in failing to "remove the culprit stricture" at "the site of [the ileocolonic] anastomosis" and failing to inform her "that he did not remove the stricture ...." Count two alleged vicarious liability against the doctor's P.A.
The doctor and his P.A. "specifically" denied the allegations and asserted as an affirmative defense that "the care and treatment rendered by [the defendants] were within the requisite standard of medical practice, and at no time was there any deviation from this standard."
The doctor submitted the following answer to an interrogatory propounded by the plaintiff.
Attorney Cousins’ name appeared below the signature block but only attorney Sankey's email address was listed. Attorney Sankey later testified that he "more likely than not" assisted the doctor with the interrogatory answers. Attorney Cousins testified he did not recall assisting the doctor.
Attorney Sankey later attended the doctor's deposition. Plaintiff's counsel questioned the doctor regarding the operative report he "dictated" following the surgery.
The doctor explained that although his operative report did not state that he examined the stricture at the ileocolonic anastomosis, the stricture was encompassed in the "area of disease" mentioned in the report.
At a subsequent deposition, the doctor's standard of care expert testified the doctor did not remove any stricture at the ileocolonic anastomosis. The doctor was "mistaken" at his deposition. Based on the records, the expert testified the doctor examined the ileocolonic anastomosis but, as part of his surgical decision-making process, did not deem it to have a clinically significant stricture requiring removal. The doctor's damage and causation expert and the plaintiff's expert also agreed the doctor did not remove the stricture at the ileocolonic anastomosis.
In opening statement, attorney Cousins stated the doctor would tell the jury he did not remove the stricture at the ileocolonic anastomosis "because he made a surgical decision that he removed all the diseased areas that he saw and visualized" and "that was his medical judgment at the time." The plaintiff objected and argued the doctor's new "medical judgment" defense was a "surprise" and contrary to his deposition testimony. The plaintiff requested "[i]n a sense like a motion in limine" that the doctor be prohibited from introducing a new theory that he made a judgment call not to remove the ileocolonic anastomosis stricture.
Attorney Cousins responded the doctor "said a lot of different things in his deposition" because he "was being harangued to the point where I'm convinced [he] would have said anything." The parties were "splitting hairs" because "everything is a judgment call" and the plaintiff never asked him whether he exercised his judgment in making his decision during the surgery. Attorney Cousins suggested that he would instruct the doctor not to use the term "judgment call" in his testimony, but that the "clear inference from [the deposition testimony] is if he didn't think it was diseased, he didn't remove it."
The trial court read through the doctor's deposition testimony. The following discussion took place.
The plaintiff explained that given the time and money expended in preparing for the trial, the only appropriate remedy would be to strike the doctor's pleadings and have him pay attorney's fees and costs including expert witness fees because "the bell has been rung here and I don't think there is a way to unring that bell." Plaintiff's counsel explained:
[I]f we allow the doctor to take the stand and start changing all of his testimony, the problem I have is I have got my expert here ready to take the stand, and we're not prepare[d] for that. We assumed he told the truth. Now we found out it was just a lie by the defense all along. And so I can't fix that today in terms of how do I now with...
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