Saunders v. Dickens, s. 4D09–5302
| Decision Date | 27 September 2012 |
| Docket Number | 4D10–2062.,Nos. 4D09–5302,s. 4D09–5302 |
| Citation | 103 So.3d 871 |
| Parties | Ruby SAUNDERS, individually and as Personal Representative of the Estate of Walter Saunders, Appellant, v. Willis DICKENS, M.D., Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Douglas F. Eaton of Eaton & Wolk, PL, Miami, for appellant.
Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Richard T. Woulfe of Bunnell and Woulfe, P.A., Fort Lauderdale, for appellee.
ON MOTION FOR REHEARING
On consideration of appellant's motion for rehearing, we withdraw the previous opinion and substitute the following.1
In this medical malpractice action, appellant Ruby Saunders, individually and as personal representative of the Estate of Walter Saunders, timely appeals a final judgment entered on a defense verdict in favor of appellee, Willis Dickens, M.D. (“Dr.Dickens”). Appellant also appeals a final judgment of attorney's fees entered in favor of Dr. Dickens. We affirm the underlying final judgment, but reverse the attorney's fee judgment and remand for further proceedings.
This case arises out of Dr. Dickens's alleged negligence in failing to diagnose and treat Walter Saunders's cervical cord compression, a condition which eventually caused Mr. Saunders to suffer from quadriplegia.
Mr. Saunders first presented to Dr. Dickens, a neurologist, on July 7, 2003, with symptoms that Dr. Dickens's physical examination showed were consistent with lumbar stenosis. Dr. Dickens ordered an MRI of Mr. Saunders's brain and lumbar spine. He did not order a cervical MRI.
The radiology report stated that the lumbar spine MRI showed severe stenosis (or narrowing) of the spinal canal in the lumbar region. According to Dr. Dickens, neurologists defer to neurosurgeons on the subject of whether surgery should be done and the type of surgery required. On July 9, 2003, Dr. Dickens requested a neurosurgical consultation with Dr. Guillermo Pasarin. Later that month, Dr. Pasarin examined Mr. Saunders and operated on his lumbar spine to relieve the lumbar stenosis.
On September 11, 2003, Dr. Pasarin reported that Mr. Saunders's condition had not significantly improved. Dr. Pasarin thus ordered an MRI of Mr. Saunders's lower back, mid-back, and neck. According to Dr. Pasarin, Mr. Saunders did not have any issues of upper extremity dysfunction, even at that time. The new MRIs showed an incomplete decompression and continuing pressure on the lowest level of the spine, which meant that the lumbar surgery had not been successful. These MRIs also showed that Mr. Saunders had pressure on the spinal cord in the neck, or cervical myelopathy. On October 3, 2003, Mr. Saunders reported to Dr. Pasarin that his arms and hands had progressively worsened since the July surgery. Dr. Pasarin determined that Mr. Saunders had cervical myelopathy.
Based on the new MRIs and the clinical findings, Dr. Pasarin recommended that Mr. Saunders have cervical decompression surgery. Dr. Pasarin felt that the surgery should be performed within the next thirty days. Although Mr. Saunders was cleared for the surgery on November 6, 2003, Dr. Pasarin failed to schedule him for surgery in the month of November. In December 2003, Mr. Saunders developed a deep venous thrombosis, which prevented him from undergoing surgery. He was thereafter never able to have the cervical surgery.
Mr. Saunders and his wife (“plaintiffs”) initially sued Dr. Pasarin, Broward Neurosurgeons, LLC, and Broward General Medical Center, alleging that their negligence in failing to properly diagnose and treat his cervical cord compression in July 2003 combined to render Mr. Saunders paraplegic.2 Later, plaintiffs added Dr. Dickens as a defendant in the lawsuit. Mrs. Saunders filed a claim for loss of consortium.
Plaintiffs settled with all defendants except Dr. Dickens. The case proceeded to trial in late 2009. Plaintiffs presented the expert testimony of a spinal surgeon and a neurologist. They also introduced the deposition testimony of the defense experts.
The neurologist for plaintiffs testified that the standard of care required a neurologist diagnosing Mr. Saunders to cover all of the areas that could be responsible for the symptoms, including the brain, the neck, the thoracic spine, and the lumbar spine. He further testified that Dr. Dickens breached the standard of care by failing to order an MRI of Mr. Saunders's neck after his initial evaluation in July 2003.
The surgical expert for plaintiffs testified that had Mr. Saunders received a neck operation to remove the compression when Mr. Saunders first presented to Dr. Dickens in July 2003, Mr. Saunders would not have become quadriplegic. To have the best outcome, the cervical cord surgery should have been done as soon as possible after the diagnosis.
The defense, on the other hand, presented expert testimony that Dr. Dickens met the standard of care and that all of Mr. Saunders's gait problems in July 2003 were related to his lumbar disc disease. The defense also introduced the deposition testimony of Dr. Pasarin, which (unbeknownst to the jury) was given when Dr. Pasarin was still a defendant in the case. Dr. Pasarin believed that Mr. Saunders suffered from two problems occurring at two different times: in July 2003, Mr. Saunders was suffering from lumbar disc disease, and in September 2003, Mr. Saunders began suffering from cervical cord compression. Dr. Pasarin acknowledged that once the cervical compression condition was diagnosed on October 3, 2005, neck surgery needed to be done “in a timely fashion,” meaning within a month.
Dr. Pasarin testified that the upper extremity findings in Dr. Dickens's July 7 note would not have prompted him to order an MRI of the neck. He also testified that had Dr. Dickens ordered a cervical MRI at that point, and the radiographic findings were identical to those ultimately seen in the September 27 films, Dr. Pasarin would still not have performed neck surgery if his exam did not find upper extremity dysfunction.
At the close of the evidence, Dr. Dickens moved for a directed verdict, arguing essentially that Dr. Pasarin's testimony made it impossible for the plaintiffs to prove that Dr. Dickens's negligence was a cause of harm to Mr. Saunders. The trial court denied the motion, reasoning that the issue was for the jury.
Before deliberations, the plaintiffs requested a special jury instruction based on this court's decision in Letzter v. Cephas, 792 So.2d 481 (Fla. 4th DCA 2001). The trial court denied the request. The jury instructions included the standard instruction on apportionment of fault and the standard “concurring cause” instruction.
During closing argument, defense counsel argued that there was no causation, relying on Dr. Pasarin's testimony that he would have done nothing different if he had seen an MRI of Mr. Saunders's cervical spine in July 2003. Defense counsel argued that the plaintiffs needed to prove that Counsel for plaintiffs objected that this was not a correct statement of the law and later argued that defense counsel was improperly shifting the burden of proof on the issue of Dr. Pasarin's negligence, which was an affirmative defense that Dr. Dickens had the burden to prove.
The jury returned a verdict finding no negligence on Dr. Dickens's part that was a legal cause of loss, injury, or damage to Mr. Saunders. The trial court entered a final judgment in accordance with the verdictand subsequently entered a final fee judgment against the plaintiffs.
On appeal, plaintiffs raised four arguments: (1) the trial court should have struck Dr. Dickens's pleadings under section 766.206, Florida Statutes, which governs presuit investigation of medical negligence claims; (2) defense counsel's closing argument was improper and warrants a new trial; (3) the trial court erred in refusing to give a Letzter instruction; and (4) the trial court erred in entering a fee judgment jointly and severally against Mr. and Mrs. Saunders where Mrs. Saunders's claim was for loss of consortium.
As to the first issue, we find no abuse of discretion in the trial court's refusal to strike Dr. Dickens's responsive pleading under section 766.206, Florida Statutes (2005). The trial court correctly found that Dr. Dickens complied with all presuit requirements within the required timeframes. For reasons stated below, we also find no error in the trial court's refusal to grant a mistrial because of several allegedly improper comments by defense counsel in closing argument.
“A trial court has broad discretion in ruling on motions for new trial and mistrial, and its denial of such motions is reviewed under an abuse of discretion standard.” Philippon v. Shreffler, 33 So.3d 704, 709 (Fla. 4th DCA 2010). “Generally, a mistrial or new trial should be granted only when counsel's arguments are so inflammatory and prejudicial that they deny the opposing party a fair trial.” Maksad v. Kaskel, 832 So.2d 788, 793 (Fla. 4th DCA 2002).
Although attorneys are afforded wide latitude in presenting closing argument, they must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Knoizen v. Bruegger, 713 So.2d 1071, 1072 (Fla. 5th DCA 1998). When arguing to the jury, a party may not make comments that mislead the jury as to the burden of proof. Cf. Paul v. State, 980 So.2d 1282, 1283 (Fla. 4th DCA 2008). It is also improper for counsel to misstate the law during closing argument. See City Provisioners, Inc. v. Anderson, 578 So.2d 855 (Fla. 5th DCA 1991) ().
We disagree that Dr. Dickens made an impermissible burden-shifting argument on the issue of Dr....
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