Defilippo v. Curtin
| Decision Date | 25 July 2018 |
| Docket Number | No. 4D17-1477,4D17-1477 |
| Parties | ANTONIO F. DEFILIPPO, M.D. and SOUTH FLORIDA PSYCHIATRIC SERVICES, INC., Appellants, v. GREGORY H. CURTIN and HILLARY B. CURTIN, as Successor Co-Personal Representatives of the estate of Michael J. curtin, deceased, for and on behalf of the estate, and the survivors thereof, Appellees. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Marina Garcia Wood, Judge; L.T. Case No. CACE 12-012918 (18).
Joelle C. Sharman, Jerome R. Silverberg and Cindy J. Mishcon of Lewis Brisbois Bisgaard & Smith LLP, Fort Lauderdale, for appellants.
Todd R. Falzone of Kelley Uustal, PLC, Fort Lauderdale, and Ronald D. Poltorack of Ronald D. Poltorack, P.A., Boca Raton, for appellees.
The defendant physician and his medical practice (collectively "the physician") appeal from: (1) a jury verdict finding that the physician's negligent supervision of an advanced registered nurse practitioner ("ARNP") caused the death of a patient at a drug detoxification facility; and (2) the trial court's post-verdict order granting the estate's request to allocate 100% of the liability upon the physician, after the jury had found the physician 20% liable and the detox facility 80% liable as a Fabre defendant.
The physician raises several arguments on appeal. We conclude the trial court erred in three respects: (1) by precluding the physician from testifying that he was not at the detox facility when the patient was admitted, and was not notified of the patient's existence until after the patient died; (2) by instructing the jury that the physician's alleged violation of section 458.348, Florida Statutes (2011), was evidence of negligence; and (3) by granting the estate's request to allocate 100% of the liability upon the physician, after the jury had found the physician 20% liable and the detox facility 80% liable as a Fabre defendant. We reverse and remand for a new trial.
The physician served as the detox facility's medical director as an independent contractor. The ARNP was hired to provide nursing services for the facility as an independent contractor.
The ARNP's services included evaluating patients to determine whether they could be admitted into the facility or instead required hospital emergency room treatment. The ARNP was permitted to perform these services pursuant to sections 464.003(2) and 464.012(3), Florida Statutes (2011), which define the acts that an ARNP is permitted to perform under a physician's general supervision.
To perform under the physician's general supervision at this facility, the ARNP executed a "Collaborative Practice Agreement" with the physician. Under the agreement, the ARNP was authorized to perform any service for which she was licensed to practice, including admitting patients into the detox facility. As to the physician's responsibilities, the agreement provided, in pertinent part:
The physician shall provide general supervision for routine health care and management of common health problems, and provide consultation and/or accept referrals for complex health problems. The physician shall be available by telephone or by other communication devices when not physically available on the premises. If the physician is not available, his associate as assigned will serve as backup for consultation, collaboration and/or referral purpose.
When the physician entered into the agreement, he was supervising "probably around eight" ARNPs at five to seven different facilities through similar agreements.
One evening, the patient arrived at the detox facility sometime before 8:00 p.m. At that time, the ARNP, but not the physician, was at the facility. The detox facility staff told the ARNP that the patient had track marksconsistent with intravenous drug use. Later in the evening, when the ARNP checked on the patient, he was sitting upright, speaking, and his vital signs were improving. The ARNP's clinical assessment was that the patient was experiencing withdrawal. Her plan was to begin the detox process the next morning.
Significantly, the ARNP did not contact the physician for consultation or review. Thus, the physician did not know of the patient's existence.
The ARNP left the detox facility around 11:00 p.m. Before leaving, she instructed the facility's staff to do a bed check on the patient every fifteen minutes and take his vital signs every thirty minutes.
Tragically, sometime in the early hours of the following morning, the patient died. The detox facility staff did not discover the patient's death until they checked on him hours later.
The medical examiner's autopsy concluded that the patient's cause of death was endocarditis, which is an acute bacterial infection of the inner lining of his heart chamber and valves. The medical examiner further concluded that the patient's recent intravenous drug use contributed to the endocarditis.
The patient's estate later sued the physician, the ARNP, and the detox facility.
The estate's claim against the physician ultimately was pled as a claim for negligent supervision of the ARNP. In the second amended complaint, the estate alleged that the physician violated a duty arising from section 464.012 to "maintain supervision for directing the specific course of medical treatment" rendered by the ARNP. The estate further alleged that the physician failed to comply with section 458.348, Florida Statutes (2011), by exceeding the maximum number of offices he could supervise in addition to his own primary practice location at the time of this incident.
The physician's answer alleged affirmative defenses, including that liability should be allocated to the detox facility as a Fabre defendant.
The physician later moved for partial summary judgment, essentially arguing that, as a physician, he owed no duty of care under section 464.012, because ARNPs are the subject of that statute. The trial court denied the motion, holding that, to the extent section 464.012 required an ARNP to work under a physician's supervision, section 464.012 created a duty of care for the manner in which the physician supervised the ARNP.
The estate ultimately entered into a settlement agreement with the ARNP and the detox facility. The estate's case against the physician was set for trial.
Before trial, the physician moved in limine to exclude evidence of his having exceeded the maximum number of offices he could supervise under section 458.348. The trial court denied that motion as well.
During the trial, the trial court sustained the estate's objections to the physician's attempt to testify that he was not at the detox facility during the ARNP's treatment of the patient and did not know of the patient's existence until after the patient's death.
At the close of the evidence, the estate moved for a directed verdict on the physician's affirmative defense that liability should be allocated to the detox facility as a Fabre defendant. The estate argued, among other things, that the physician failed to meet his burden to prove that the detox facility's conduct "caused or contributed to cause the damage involved in the case." The trial court denied the motion.
During closing argument, the estate argued that the physician should be held liable because he violated his duties under sections 464.012 and 458.348.
The trial court instructed the jury that the physician's alleged violation of sections 464.012 and 458.348 was "evidence of negligence," and that if it found that he "violated the statute[s], you may consider that fact, together with the other facts and circumstances in deciding whether [he] was negligent." The physician objected to these instructions. The trial court overruled the objection.
The verdict form asked the jury, "Was there negligence on the part of [the physician] in failing to maintain supervision for directing the specific course of medical treatment rendered by [the ARNP] to [the patient], which was a legal cause of death of [the patient]?" The verdict form then instructed the jury that if they answered yes to that question, they also were to decide if there was negligence on the part of the detox facility which was a legal cause of the patient's death, and if so, to allocate the percentage of liability between the physician and the detox facility. The verdict form also asked the jury to determine the estate's damages.
The jury returned a verdict finding that: the physician's negligent supervision was a legal cause of the patient's death; the detox facility'snegligence also was a legal cause of the patient's death; 20% of the liability should be allocated to the physician and 80% to the detox facility; and the estate's damages amounted to $1,312,000.
Post-verdict, the estate filed a motion for judgment notwithstanding the verdict in accordance with its earlier motion for directed verdict on the physician's Fabre defense. The estate requested the trial court to set aside the jury's allocation of liability, and enter judgment against the physician in the full amount of the estate's damages. The court granted the motion, and entered judgment against the physician for $1,312,000.
The physician raises several arguments on appeal. We conclude the trial court erred in three respects: (1) by precluding the physician from testifying that he was not at the detox facility when the patient was admitted, and that he was not notified of the patient's existence until after the patient died; (2) by instructing the jury that the physician's alleged violation of section 458.348 was evidence of negligence, because the estate did not present any evidence that such violation caused or contributed to the patient's death; and (3) by granting the estate's request to allocate 100% of the liability upon the physician, after the jury had found the physician 20% liable and the detox facility 80% liable as a Fabre defendant. We address those errors in the order...
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