Saunders v. Dickens
| Decision Date | 10 July 2014 |
| Docket Number | No. SC12–2314.,SC12–2314. |
| Citation | 151 So.3d 434 |
| Parties | Ruby SAUNDERS, etc., et al., Petitioners, v. Willis DICKENS, M.D., Respondent. |
| Court | Florida Supreme Court |
Douglas F. Eaton of Eaton & Wolk, PL, Miami, FL, for Petitioner.
Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale; and Richard T. Woulfe of Bunnell and Woulfe P.A., Fort Lauderdale, FL, for Respondent.
Edward J. Carbone of Carlton Fields, P.A., Tampa, FL, for Amicus Curiae The Florida Defense Lawyers' Association.
George A. Vaka and Nancy Ann Lauten of Vaka Law Group, Tampa, FL, for Amicus Curiae The Florida Justice Association.
Ruby Saunders, individually and as Personal Representative of the Estate of Walter Saunders,1 seeks review of the decision of the Fourth District Court of Appeal in Saunders v. Dickens, 103 So.3d 871 (Fla. 4th DCA 2012), on the basis that it expressly and directly conflicts with the decision of the Fifth District Court of Appeal in Goolsby v. Qazi, 847 So.2d 1001 (Fla. 5th DCA 2003), and the decision of the Third District Court of Appeal in Muñoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
Walter Saunders met with Dr. Willis Dickens, M.D., a neurologist, on July 7, 2003, because he was experiencing back pain, leg pain, and unsteadiness on his feet. Saunders also informed Dr. Dickens that he was experiencing cramps in his hands and feet, numbness in his hands, and tingling in his feet. The physical examination revealed weakness in Saunders's finger extensors. Dr. Dickens concluded that because Saunders displayed normal reflexes, the numbness and tingling in Saunders's hands was caused by peripheral neuropathy
due to diabetes. However, he did not perform a test to confirm diabetic neuropathy. After the physical examination, Dr. Dickens recommended that Saunders be admitted to the hospital. When Saunders arrived at the hospital, Dr. Dickens ordered an MRI of Saunders's brain and lumbar spine. The MRI results for the brain were normal; however, the MRI of the lumbar spine demonstrated severe stenosis (narrowing) of the spinal canal.
After he received the lumbar spine MRI
results, Dr. Dickens asked Dr. Guillermo Pasarin, a neurosurgeon, for a consultation. Dr. Pasarin testified during depositions that on July 10, 2003, he performed a complete neurological examination of Saunders. Saunders did not inform him of any upper extremity problems, and Dr. Pasarin did not observe any upper extremity abnormalities or read the notation written by Dr. Dickens with respect to Saunders's symptoms in his hands. Dr. Pasarin reviewed the MRI results, ordered additional radiological diagnostic studies of Saunders's lumbar spine, and concluded that a lumbar decompression procedure was necessary. Dr. Pasarin performed the surgery on July 15, 2003.
After the surgery, Saunders's condition did not significantly improve. On September 11, 2003, Dr. Pasarin ordered cervical, thoracic, and lumbar MRIs, which revealed compression in both the lower back and neck. After he received the MRI films, Dr. Pasarin met with Saunders on October 3, 2003, at which point Saunders reported that the symptoms in his arms and hands had worsened since the surgery. Dr. Pasarin conducted a physical exam of Saunders, which revealed weakness in his upper extremities and abnormal reflexes in his arms. Dr. Pasarin recommended that cervical decompression surgery
be performed within one month, but required that Saunders first obtain medical clearance for surgery. Although Saunders was cleared for surgery on November 6, 2003, Dr. Pasarin did not schedule the surgery in November, and Saunders developed a deep venous thrombosis in December that prevented him from undergoing surgery at that time.
In January 2004, another neurosurgeon met with Saunders. This neurosurgeon concluded that Saunders should undergo a second lumbar surgery and, at a later date, a cervical spine surgery. The neurosurgeon performed the lumbar surgery, but the cervical spine surgery was never performed. Saunders's condition continued to degenerate until he progressed to quadriplegia
. He passed away during the pendency of the appeal.
Saunders and his wife filed a failure to diagnose action which included a loss of consortium claim against Dr. Pasarin; Broward Neurosurgeons, LLC; and Broward General Medical Center. They later amended the complaint to include Dr. Dickens as a defendant in the action. All defendants except Dr. Dickens settled with the Saunders. The action against Dr. Dickens proceeded to trial, and Dr. Dickens raised as an affirmative defense that Dr. Pasarin's negligence was the cause of Saunders's injury. Dr. Pasarin was included on the verdict form as a Fabre2 defendant.
During trial, the Saunders presented the expert testimony of a neurologist, who testified that Dr. Dickens had breached the standard of care for a neurologist. He testified that the upper body symptoms displayed by Saunders would lead a reasonable physician to believe that a problem in the neck or brain existed. Further, he testified that after an MRI had clearly demonstrated that the brain was not the cause of the upper body symptoms, the neck would be the next area that a reasonable and prudent physician should and would evaluate. The neurologist also testified that although peripheral neuropathy
due to diabetes could have caused some of Saunders's upper body symptoms, Dr. Dickens breached the standard of care when he failed to consider other potential causes, such as a cervical cord compression. The neurologist opined it was more likely than not that Saunders's condition would have stayed the same or improved had he been diagnosed with a cervical cord compression in July 2003. However, the expert also stated that a neurologist would defer to a neurosurgeon with regard to whether and when to operate and how to execute the procedure.
The Saunders also presented the testimony of an orthopedic spinal surgeon who met with Mr. Saunders in 2006. At that point, Saunders was a quadriplegic, which the orthopedic surgeon testified was due to a cervical spine injury
. The orthopedic surgeon testified that a lumbar cord compression would not cause symptoms in a person's hand, but rather, such symptoms would be caused by an issue in the cervical spine or brain. However, he acknowledged that the findings of Dr. Pasarin could also be associated with lumbar stenosis. It was his opinion that had surgery been performed on the cervical cord compression in July 2003, Saunders more likely than not would not have progressed to quadriplegia.
Dr. Dickens presented a neurosurgeon as an expert witness, who testified that based on the July 2003 MRI, as well as the notes and findings of both Dr. Dickens and Dr. Pasarin, it was within a reasonable standard of care for Dr. Pasarin to operate on Saunders's lumbar spine in July 2003. He explained that the numbness and tingling in Saunders's hands could have been attributed to something other than a neck problem, but the pain, weakness, and difficulty walking were undoubtedly the result of a lumbar spine problem. Further, he testified that because the primary complaint related directly to Saunders's legs, there was no reason to suspect a cause other than a lower back problem. He also explained that the major symptoms experienced by Saunders could not have been caused by a cervical cord compression, and a decision on whether to perform surgery on the neck would have been reached after surgery on the lower back. It was his opinion that Dr. Pasarin deviated from a reasonable standard of care because he failed to perform a complete lumbar decompression in July 2003. This failure caused additional injury to Saunders, who was required to undergo a second lumbar surgery in January 2004.
Dr. Dickens also presented a neurologist, who testified that it was within a reasonable standard of care for Dr. Dickens to focus on Saunders's lumbar spine in July 2003. He explained that a complaint of pain and weakness in the back, without any reference to neck pain or a demonstration of hyper reflexes during the physical examination, signified that the lumbar back, rather than the neck, was the cause of the symptoms. He also testified that tingling in the hands and feet is a common symptom of diabetic neuropathy
. However, he acknowledged that, had a cervical MRI been performed in July, it likely would have demonstrated the cervical compression that was discovered in September.
Dr. Dickens also introduced the depositions of Dr. Pasarin, which had been taken prior to the settlement between Dr. Pasarin and the Saunders. In the depositions, Dr. Pasarin stated that even if he possessed the results of a cervical MRI in July, he would not have operated on the neck because Saunders had not yet experienced problems with his upper extremities.
At the close of the evidence, Dr. Dickens moved for a directed verdict. He contended that the depositions of Dr. Pasarin rendered it impossible for the Saunders to establish that Mr. Saunders's injury was caused by any negligence of Dr. Dickens. The trial court determined that causation was an issue for the jury to decide and denied the motion for a directed verdict. During closing statements, counsel for the Saunders asserted that Mr. Saunders would not have progressed to quadriplegia
had Dr. Dickens recognized in July 2003 that Mr. Saunders's upper body symptoms were the result of a cervical problem. Counsel stated:
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