Posner v. Walker, 3D04-1796.

• Decision Date: 22 February 2006
• Docket Number: No. 3D04-1796.,3D04-1796.
• Citation: Posner v. Walker, 930 So.2d 659 (Fla. App. 2006)
• Parties: Ira POSNER, M.D., Ira Posner, M.D., P.A., Appellants, v. William Leslie WALKER, etc., et al., Appellees.
• Court: Florida District Court of Appeals

930 So.2d 659

Ira POSNER, M.D., Ira Posner, M.D., P.A., Appellants, v. William Leslie WALKER, etc., et al., Appellees.

No. 3D04-1796.

District Court of Appeal of Florida, Third District.

February 22, 2006.

Rehearing Denied June 27, 2006.

Hicks & Kneale, and Mark Hicks, and Dinah Stein, Miami, for appellants.

Ginsberg & Schwartz, and Arnold R. Ginsberg; Goldberg & Hirsh, and Jeffrey Stephen Hirsh, Miami, for appellees.

Before, LEVY, RAMIREZ, and SUAREZ, JJ.

RAMIREZ, J.

Ira Posner, M.D. and Ira Posner, M.D., P.A. appeal the trial court's final judgments in the amount of $1,925,000.00 entered on a jury verdict in favor of William Leslie Walker and Gregory Keith Strickland. During more than ten years, Dr. Posner treated Patsy Walker for various ailments and wrote numerous prescriptions for pain. She died from a drug overdose from medication prescribed by a different doctor. We reverse because we conclude that the plaintiffs failed to establish any breach of Dr. Posner's standard of care in his treatment of Walker.

I. The Treatment

Dr. Posner, a board-certified orthopedic surgeon, had been treating Patsy Walker since January 1985, initially for a back injury she suffered at her nursing job. Dr. Posner observed that Walker was suffering from recurring blood clots in her right leg and a pinched lumbo-sacral nerve root. He restricted Walker's lifting and prescribed anti-inflammatory medications. Walker's pain worsened, and she was hospitalized to receive stronger, intravenous pain medications. She was discharged and again hospitalized for the pain in October.

Walker's hospitalizations were helpful at first, but the pain returned, so she continued to see Dr. Posner. By January 1986, Walker was having terrible pain again in her back. Dr. Posner performed a myelogram, which was negative. He gave Walker epidural steroid injections to treat the pain in her sciatic nerve. In 1986, Walker underwent a hemorrhoidectomy, which improved her pain. In June 1986, Dr. Posner gave her a final, 30-day prescription for Tylenol No. 3, a short-acting opioid, and discharged her from his care.

Dr. Posner did not hear from Walker again until November 1986, when, after reinjuring herself at work, she returned to him with pain. When Walker failed to respond to Dr. Posner's treatments, she was hospitalized for her pain again in December 1986.

During this period, Dr. Posner prescribed physical therapy for Walker, which she received many times over the years, not always helping her and sometimes worsening her pain. In December 1987, Dr. Posner again discharged her from his care.

In March 1988, Walker fell in the shower and was taken to an emergency room, where she was diagnosed with a compression fracture of one of her vertebrae. Dr. Posner treated her again. Although the fracture resolved, the pain persisted, and Dr. Posner prescribed therapy and Tylenol No. 3.

In March 1989, Dr. Posner recommended to Walker that she seek treatment at a pain clinic run by Dr. Hubert Rosomoff at the University of Miami. Walker refused. Dr. Posner gave her a prescription for 30 more Tylenol No. 3 and discharged Walker from his care.

In April 1989, Walker fell and fractured three ribs. Although the ribs healed, Walker returned in May because of a reexacerbation of the pain in her back and leg. She continued to see Dr. Posner from time to time. During this period, Dr. Posner treated her pain with Percocet (a pain narcotic), Tylenol No. 3 or an anti-inflammatory.

In October 1990, Walker called Dr. Posner and told him that she had run out of Percocet, had not taken any for four days, and was in unbearable pain. Dr. Posner sought another opinion. Dr. Basil Yates, a neurosurgeon, repeated all of the studies on Walker, and in January 1991, determined that Walker did not have any reason to hurt and thus did not need treatment.

Due to Walker's physical manifestations of pain, Dr. Posner disagreed with Dr. Yates' conclusion that Walker did not require treatment. Dr. Posner also rejected a request by a claims examiner that he stop prescribing narcotics for Walker, concluding that the decision involved medical judgment and that Walker needed medication to control her pain.

In March 1991, Dr. Posner again suggested to Walker that she obtain alternative treatment at the pain clinic. Walker again refused. Dr. Posner then had Walker evaluated by Dr. Lebwohl, an orthopedist at the University of Miami, for another opinion. Dr. Lebwohl evaluated Walker in July and September. Although he found a vascular abnormality in her spine, he did not believe it was contributing to the pain. Thus, he could not help her surgically. Dr. Lebwohl did conclude, however, that Walker was suffering from chronic pain. He also noted the same injuries to Walker's nerve roots that Dr. Posner had seen in 1985.

Dr. Posner continued to treat Walker for her pain and prescribed Percocet for her in 30-pill dosages. Walker was injured again in August 1991; her leg and back pain returned and her calf contracture worsened. Dr. Alvin Stein, an orthopedic surgeon, observed that Walker's contracture was in a locked position and diagnosed Walker as showing classic symptoms for reflex sympathetic dystrophy.

In April 1992, Walker again had to be hospitalized so that she could be given stronger drugs to control her pain. Walker's pain was brought under control, but a month later her muscle contracture worsened to the point where she was walking on her toes. Dr. Posner operated on Walker's leg, which was successful and she was able to walk normally again, but her pain continued.

In October 1992, Dr. Posner learned that Walker was obtaining opioid medications from two physicians other than himself. Dr. Posner spoke to the other two physicians about not prescribing any pain medication to Walker and was told that they would not. Dr. Posner told Walker that she would have to stop seeking medication from other doctors.

Walker's pain continued, so Dr. Posner suggested to Walker that she be seen by a pain management team that he had formed. Dr. Posner's team consisted of himself, an anesthesiologist for interventional pain treatment, physical therapists for biofeedback and exercises, a psychologist to treat patients for the stress, an addictionologist to deal with withdrawals from pain medications, and a physiatrist to address rehabilitation. At that time, the only other pain clinic in South Florida was the one run by Dr. Rosomoff at the University of Miami. As part of her treatment, Walker was evaluated by the Dr. Posner's team addictionologist, Dr. Richard Weiss.

In July 1993, the pain team received a report from a pharmacist that Walker was misusing her prescription injectable morphine by directly injecting it instead of putting it in the pump. Also, Walker's family reported that Walker was becoming incoherent. The team decided they needed to get Walker off of the medications so that they could see what her level of pain was. The pain team ceased all medications and told Walker that that they would no longer provide her with medication unless she agreed to hospitalization and detoxification.

Following an automobile accident, Walker was admitted to a detoxification center on July 10, 1993. However, Walker left the center the next day against the advice of the admitting physician. Walker subsequently informed the pain team that she had ceased all medications on her own and had gone through withdrawal, thus detoxifying herself. However, Walker soon returned to having terrible, intractable pain. The pain team met again to discuss how to continue Walker's treatment. Dr. Weiss determined that she was probably addicted to her medications, but that she had a chronic pain syndrome that was causing her to use high doses of medication. Dr. Weiss concluded that Walker required continued narcotics to control her pain.

One of the pain team doctors then proposed placing Walker on MS Contin, an opioid analgesic that was new to the practitioners. MS Contin differed from the other drugs Walker had used in that it would last eight to twelve hours. The pain team believed it would more effectively control Walker's pain. At the next pain team meeting in August 1993, Dr. Weiss advised that he was prescribing Walker MS Contin at the rate of two pills per day. She was also receiving Percocet from Dr. Posner. Dr. Posner concluded that Walker was obtaining the medications from both doctors because one medication alone was not working adequately and she was attempting to control her pain with additional medication.

In September 1993, the pain team decided that they could not treat Walker without narcotics because of her severe levels of pain. By November 1993, the MS Contin had improved Walker's pain. Both Walker and the pain team were satisfied with her treatment. By December, however, Walker started to experience more pain in her body, which the pain team believed was caused by the spread of her reflex sympathetic dystrophy.

In September 1994, Walker's insurance company obtained a second opinion from Dr. Halperin, a hand surgeon, who concluded that Walker did not require treatment for her dystrophy. The entire pain team disagreed with Dr. Halperin, but they were willing to try his approach, which was to take Walker off all opioid medications. Walker was again referred to Dr. Weiss, the addictionologist. By October 16, Dr. Posner noted that Walker's pain was worsening as her medication levels were decreased.

Walker then started to obtain prescriptions for MS Contin from Dr. Barbara Mazzella, a physician with whom Walker had become acquainted through a support group. Dr. Posner was completely unaware of Dr. Mazzella. Walker did not tell Dr. Posner about Dr. Mazzella, and Dr. Mazzella never contacted him. Dr. Mazzella was providing Walker with prescriptions for other medications as well, such as Valium, injectable morphine ampoules, and a morphine syringe. These medications were not, in Dr. Posner's opinion, medically...