Rodriguez v. Pino

• Decision Date: 08 March 1994
• Docket Number: 92-729,Nos. 91-2119,s. 91-2119
• Citation: 634 So.2d 681
• Parties: 19 Fla. L. Weekly D554, 19 Fla. L. Weekly D651 Jose RODRIGUEZ, M.D., and Barrio & Rodriguez, M.D., P.A., Appellants, v. Roberto PINO, as survivor and personal representative of the Estate of Albertina Berta Pino, Appellee.
• Court: Florida District Court of Appeals

Page 681

634 So.2d 681

19 Fla. L. Weekly D554, 19 Fla. L. Weekly D651

Jose RODRIGUEZ, M.D., and Barrio & Rodriguez, M.D., P.A., Appellants, v. Roberto PINO, as survivor and personal representative of the Estate of Albertina Berta Pino, Appellee.

Nos. 91-2119, 92-729.

District Court of Appeal of Florida Third District.

March 8, 1994.

Rehearing Denied April 26, 1994.

Stephens, Lynn, Klein & McNicholas and Philip D. Parrish, Miami, for appellants.

Keith Chasin, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and LEVY, JJ.

SCHWARTZ, Chief Judge.

Dr. Jose Rodriguez and his P.A. appeal from a final judgment entered on a jury verdict against him in a medical malpractice action for the wrongful death of Berta Pino. ¹ Mrs. Pino died as a result of respiratory failure on July 24, 1987. Her breathing tube ² became dislodged that day and she and Mr. Pino refused, for more than four hours, to allow the medical personnel to reinsert it. After she finally consented to the re-intubation, an emergency room physician performed the procedure. Several minutes later, however, Mrs. Pino "coded," and she was pronounced dead at 6:30 a.m. The plaintiff argues, and the jury apparently agreed, that Dr. Rodriguez should have gone to the hospital and re-intubated Mrs. Pino despite her and her husband's wishes. We reverse and hold that Dr. Rodriguez is not liable as a matter of law for Mrs. Pino's death because both she and her husband were competent and did not consent to the procedure Dr. Rodriguez allegedly should have performed.

I.

Mrs. Pino entered the hospital for open heart surgery, which was performed on July 14. During the procedure she was attached to a respirator. Dr. Rodriguez was called in as treating pulmonologist after the surgery. He ordered the tube removed because her arterial blood gases were satisfactory. Mrs. Pino breathed without the tube from July 15 through July 18. On the 18th, however, Mrs. Pino's cardiologist discovered that she had an accumulation of fluid in her lungs. This problem was diagnosed as Adult Respiratory Disease Syndrome (ARDS). As a result, Mrs. Pino was re-intubated.

On July 20 at approximately 8:00 a.m., the tube became dislodged. The hospital staff notified Dr. Rodriguez that Mrs. Pino's blood gas level was low. He ordered a blood gas test and stated that she was to be re-intubated if her blood gas level fell below 60. In the meantime, Mrs. Pino was refusing to allow reinsertion of the tube. Dr. Barrio, Dr. Rodriguez's partner, and other doctors, including Mrs. Pino's family physician and her cardiologist, tried to convince her to do so. She adamantly refused despite being told of the possible consequences of attempting to breathe without the tube. Dr. Rodriguez and Dr. Barrio discussed the situation and felt that there was nothing else they could do. At noon on the 20th, Mrs. Pino agreed to be re-intubated.

Four days later, at approximately 12:40 a.m., the tube became dislodged again. And, again, Mrs. Pino refused to be re-intubated. At 1:30 a.m., the hospital staff informed Dr. Rodriguez, who was not at the hospital, that Mrs. Pino's tube was out. He was told that she was placed on a non-rebreathing mask and was refusing to be re-intubated. Dr. Rodriguez ordered re-intubation and a blood gas study. He discussed with the nurse that Mrs. Pino seemed to be competent--she was awake, alert, oriented, and asking appropriate questions--but was simply refusing re-intubation just as she had done four days earlier.

Mr. Pino arrived at the hospital on the 24th shortly after the extubation and stayed with Mrs. Pino for the remainder of the morning. During that time, numerous medical personnel informed both Mr. and Mrs. Pino that she needed to be re-intubated, Dr Rodriguez had ordered re-intubation, and that she risked death by remaining without the tube. At one point, Mr. Pino stated that Mrs. Pino would be the one to make the decision regarding re-intubation. Mrs. Pino reported feeling better on the non-rebreathing mask and, in response to the nurses' pleas, said that she wanted to rest a while before the tube was reinserted. She even indicated that she would agree to be re-intubated later in the morning. Mrs. Pino's blood gas level increased dramatically between 2:00 a.m. and 3:00 a.m., presumably because she was moved from her bed to a chair to help improve her breathing. At 4:00 a.m., Mrs. Pino herself asked for another blood gas study.

At 3:00 a.m., Dr. Rodriguez called the hospital to inquire as to Mrs. Pino's condition. Mrs. Pino's blood gas level was 70 at that time, which suggested adequate oxygenation, however, Dr. Rodriguez instructed the nurse to continue trying to persuade Mrs. Pino to consent to re-intubation. Dr. Rodriguez called the hospital one more time at 5:00 a.m. and was informed that Mrs. Pino had finally consented to be re-intubated. Dr. Holland, the emergency room physician on duty at the time, was paged at 5:18 a.m., and he performed the procedure at 5:21 a.m. Unfortunately, however, Mrs. Pino died from lack of oxygen at 6:30 a.m. The hospital staff did not call Dr. Rodriguez when Mrs. Pino "coded." Instead, the physician who responded to the code notified Dr. Rodriguez later that morning that Mrs. Pino had died.

At trial, it was established that Dr. Rodriguez would not have performed the re-intubation even if he had gone to the hospital that morning. Nurse McKay, one of the ICU nurses who cared for Mrs. Pino throughout the morning, testified that patients' breathing tubes frequently become dislodged and the emergency room physician would have been called to perform the re-intubation the moment Mrs. Pino provided consent. The appellee's experts agreed that an emergency room physician would probably perform the re-intubation. Nevertheless, they stated that Dr. Rodriguez's conduct fell below the standard of care because: (1) Mrs. Pino was not competent to refuse intubation; (2) the situation was an emergency and Mrs. Pino's consent was therefore implied; (3) Dr. Rodriguez had a duty to re-intubate Mrs. Pino; (4) Dr. Rodriguez should have gone to Mrs. Pino's bedside to assess her competency instead of relying on the nurses to make that determination; and (5) a timely intubation would have saved Mrs. Pino's life.

The jury returned a verdict against Dr. Rodriguez and the hospital and awarded damages, for which the hospital was 45 percent liable and Dr. Rodriguez was 55 percent liable, of more than $1,000,000. The jury found that Mrs. Pino refused to be re-intubated but that she was not competent to make the decision. On the other hand, the jury found that Mr. Pino was competent on the morning of the 24th and that he agreed that the intubation decision was up to his wife. ^{3 4}

II.

We agree with Dr. Rodriguez that the trial court should have stricken the plaintiff's experts' testimony and directed a verdict in his favor because the evidence fails to show either that Mrs. Pino was incompetent to refuse re-intubation or that the extubation constituted an "emergency" as defined by the law.

If Mrs. Pino were competent on the 24th, Dr. Rodriguez could not, as a matter of law, be liable for failing to re-intubate her. This is because a competent individual has the categorical authority to refuse even lifesaving medical treatment. In re Dubreuil, 629 So.2d 819, 822 (Fla.1993) ("[A]rticle I, section 23 of the Florida Constitution guarantees that 'a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one's health.' ") (quoting In re Guardianship of Browning, 568 So.2d 4, 11 (Fla.1990)); see Public Health Trust v. Wons, 541 So.2d 96 (Fla.1989); Satz v. Perlmutter, 362 So.2d 160 (Fla. 4th DCA 1978), aff'd, 379 So.2d 359 (Fla.1980). Indeed, a physician who treats a patient despite such a refusal is civilly (and criminally) liable for assault and battery. Chambers v. Nottebaum, 96 So.2d 716, 718 (Fla. 3d DCA 1957); see Dubreuil, 629 So.2d at 823-24 ("When a health care provider, acting in good faith, follows the wishes of a competent and informed patient to refuse medical treatment, the health care provider is acting appropriately and cannot be subjected to civil or criminal liability."). We hold, as a matter of law, that Mrs. Pino was indeed competent at the decisive time.

An approach to the issue of the decedent's competence begins with the proposition that a person is presumed to be competent unless the evidence shows otherwise. Campbell v. Stoner, 249 So.2d 474, 476 (Fla. 3d DCA 1971), cert. denied, 254 So.2d 361 (Fla.1971); 29 Fla.Jur.2d Incompetent Persons Sec. 168 (1981); see Lane v. Candura, 6 Mass.App. 377, 376 N.E.2d 1232, 1235 (1978) (evidence failed to show that patient incapable of appreciating the nature and consequences of her act); Grannum v. Berard, 70 Wash.2d 304, 422 P.2d 812, 814 (1967) ("law will presume ... competency rather than incompetency") (citation omitted); see also In re Romero, 790 P.2d 819, 822 (Colo.1990) (en banc) (holding that, since constitutional rights are implicated when one seeks to treat a patient against his will, presumption rebutted only by clear and convincing evidence that the individual is incompetent to make a decision regarding treatment); Grannum, 422 P.2d at 814 ("[T]he standard of proof required to overcome this presumption, in civil cases, is that of clear, cogent and convincing evidence.") (citations omitted).

In attempting to overcome this presumption, the appellee produced two medical experts. The substance of their opinions was simply that Mrs. Pino must have been incompetent on the 24th because she was acutely ill, in intensive care, on medication, sleep deprived, and hypoxemic. The first expert, Dr. Bone, said that while extubated, "she can't make good decisions at that time, and what you have is a medical emergency so you [re-intubate]." The second, Dr. Gallagher, suggested that, "taking all these facts [Mrs. Pino...