Siegel v. Cross Senior Care, Inc.

• Decision Date: 17 January 2018
• Docket Number: No. 3D16–600,3D16–600
• Citation: 239 So.3d 738
• Parties: Robert SIEGEL, etc., Appellant, v. CROSS SENIOR CARE, INC., et al., Appellees.
• Court: Florida District Court of Appeals

239 So.3d 738

Robert SIEGEL, etc., Appellant,

v.CROSS SENIOR CARE, INC., et al., Appellees.

No. 3D16–600

District Court of Appeal of Florida, Third District.

Opinion filed January 17, 2018

Rehearing Denied March 5, 2018

Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.

Fuerst Ittleman David & Joseph, PL, and Christopher M. David, Michael B. Kornhauser, and Jeffrey J. Molinaro, for appellees.

Before LOGUE, SCALES, and LUCK, JJ.

LOGUE, J.

At the age of 88, Sybil Siegel died at Mount Sinai Medical Center of end stage dementia

and end stage chronic obstructive pulmonary disease. Robert Siegel, her son, sued Cross Gardens Care Center, LLC and several of its administrators. Cross Gardens operated the nursing facility where Ms. Siegel resided before admission to Mt. Sinai. In closing argument, Siegel asked the jury for $400,000 for pain and suffering and $90,161.86 in medical and funeral expenses. The jury entered a verdict for Siegel but awarded only $5000 in medical expenses and $1133 for funeral expenses. The trial court set aside this award and entered a judgment notwithstanding the verdict. Siegel appealed.

We affirm on all grounds and write only to address the court's decision to set aside the verdict. At trial, Siegel's theory rested almost entirely on the testimony of Dr. Lee Fisher, an expert in family medicine. Dr. Fisher never treated or examined Ms. Siegel. His opinions were based exclusively on his review of Ms. Siegel's medical records. However, his major opinions were contradicted by the medical records upon which they were purportedly based. The question presented on appeal is whether Dr. Fisher's opinions had sufficient evidentiary weight to be submitted to the jury. The trial court found that they did not. We agree.

Facts

Because the issue is the sufficiency of Dr. Fisher's opinions, we first provide Dr. Fisher's opinion and then review the medical evidence. Dr. Fisher's opinion focused on what he perceived as Ms. Siegel's lack of care in the nursing home prior to her transfer to Mt. Sinai. In particular, his opinion was based on the lack of entries in Ms. Siegel's nursing notes from February 10, 2013, when her condition was noted as stable, to February 25, 2013, when she was transferred to Mt. Sinai with pneumonia

.

Focusing on this fourteen-day "gap" in the nursing notes, Dr. Fisher offered an opinion as follows: (1) during the fourteen-day gap, Ms. Siegel was not being properly monitored at the nursing home; (2) during the fourteen-day gap, Ms. Siegel's pneumonia

flared up essentially unnoticed; (3) on February 21, 2013, Ms. Siegel's pneumonia reached a critical phase; (4) if Ms. Siegel had been monitored and if the nurse's notes had included the entries reflecting Ms. Siegel's worsening pneumonia

, Ms. Siegel would have been transferred to Mt. Sinai on February 21, 2013, rather than February 25, 2013; (5) if Ms. Siegel had been transferred to Mt. Sinai on February 21, 2013, she would have recovered; (6) if she had recovered, Ms. Siegel would have lived another three years because she had been repeatedly hospitalized for pneumonia and other illnesses in the prior decades and she had always recovered; and (7) Ms. Siegel died of pneumonia.

The evidence showed that, in 1995, Ms. Siegel was debilitated by a stroke

. After the stroke, she required assistance for everyday functions such as eating, dressing, bathing, and using the bathroom. Since as far back as 2005, Ms. Siegel had suffered from various maladies including urinary tract infections and a feeding tube infection. She had been hospitalized for pneumonia in January 2005, May 2005, June 2005, April 2007, August 2010, and July 2012. In 2012 alone, she suffered from urosepsis, septicemia, a urinary tract infection, an E. Coli infection, and two instances of pneumonia.

Ms. Siegel resided at the nursing home at issue for seventeen years. The Defendant, Cross Gardens, operated the facility during the last six months of Ms. Siegel's stay, from September 2012 through February 2013. At the time Cross Gardens took over the facility, Ms. Siegel was already suffering from dementia

and chronic obstructive pulmonary disease, among other illnesses. All parties agreed that Cross Gardens did not cause Ms. Siegel to have these illnesses.

Cross Garden's nursing notes for Ms. Siegel on February 10, 2013 indicated her condition was stable. There were no other entries in the nursing notes until February 25, 2013, when she was transferred to Mt. Sinai with pneumonia

.

While there were no other nursing notes during this period, there were other medical records. During the "gap" period, Cross Garden's records show that nurses screened Ms. Siegel for pain three times a day every day. In addition, the records show that on February 11, 2013, she was x-rayed. On February 12, 2013, her blood was drawn and tested (white blood cells elevated indicating possible infection). On February 15, 2013, she was seen by Dr. Suarez who prescribed Nuedexta, which moderates extreme mood changes like sudden laughing and crying.

On February 21, 2013, she was again x-rayed. Among other things, the x-ray showed no evidence of pneumonitis

. Pneumonitis is inflammation of the lung tissue from all causes. A subcategory of Pneumonitis is pneumonia in which the inflammation is caused by infection. The x-ray indicated that Ms. Siegel did not have "consolidation" which, as Dr. Fisher himself testified, is what the x-ray would have shown if Ms. Siegel had pneumonia on February 21, 2017. Dr. Fisher agreed the February 21, 2013 x-ray "ruled out pneumonia."

On February 22, 2013, Ms. Siegel was examined and all of her vital signs were within normal ranges. On February 19, 20, 21, 22, 23, and 24, 2013, her respiratory condition was examined twice a day and was within normal ranges.

On February 25, 2013, the medical records indicated she was in distress and having trouble breathing in the morning. Her condition fluctuated during the day. A doctor was summoned around noon and the decision was made to transfer her to Mt. Sinai, where she was admitted that evening suffering from a urinary tract infection

and pneumonia.

On March 2, 2013, Mt. Sinai records indicated her "pneumonia

clinically improving."

On March 6, 2013, an advanced x-ray at Mt. Sinai revealed Ms. Siegel's condition was "not particularly impressive for pneumonia

."

On March 18, 2013, Ms. Siegel died in the hospital. The death certificate listed the cause of her death as end stage dementia

and end stage chronic obstructive pulmonary disease.

As mentioned above, in closing Siegel asked for approximately $500,000 and the jury awarded him approximately $6000. After the verdict, Siegel moved for new trial or additur and Cross Care moved for a judgment notwithstanding the verdict. The trial court denied the motions for new trial and additur and granted the judgment notwithstanding the verdict. In doing so, he commented:

This case, in the Court's view, is built on a total house of cards.... [T]he opinion of this doctor is pure ipse dixit; it was unsupported by anything. And ... there's no evidence she would have recovered if she had gotten to Mount Sinai three days earlier.

This appeal followed.

Analysis

"In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury." Gooding v. University Hospital Bldg., Inc., 445 So.2d 1015, 1017 (Fla. 1984). The burden was therefore on Siegel as the plaintiff to establish that the defendant's negligence caused Ms. Siegel's death. To meet this burden, Mr. Siegel could not rely on conjecture or simply prove that causation was possible. The plaintiff must carry the affirmative burden of proving causation was more likely than not:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Id. at 1018 (citation omitted) (emphasis added).

An examination of Dr. Fisher's opinions indicate that, time and again, he drew inferences from the medical records that were not more-likely-than-not. Indeed, at critical points, his opinions are directly contradicted by the very medical records upon which they are purportedly based.

The one hard fact on which Dr. Fisher's opinions are based is that there were no entries in the nurse's notes from February 10, 2013 to February 25, 2013. This "gap" was undisputed. From this "gap," however, Dr. Fisher draws the inference that the nurses were not monitoring Ms. Siegel's condition. The problem with this inference is that it is contradicted by the raft of medical reports indicating that Ms. Siegel's condition was being constantly monitored, recorded, and reported throughout that period. During the two week "gap" period, she was screened for pain three times a day. She was x-rayed twice. Her blood was drawn and tested. She was prescribed and given a new drug. Her vital signs were repeatedly taken and recorded. When a breathing problem occurred (on February 25, 2013), the fact was immediately recorded, she was monitored all day, and a doctor was summoned. Dr. Fisher's inference that the "gap" in the notes signified that she was not monitored is worse than speculation: it is contradicted by the only evidence Dr. Fisher or the jury had.

Dr. Fisher's first opinion in his theory of liability, therefore, runs afoul of the holding of a legion of cases like Rodriguez v. Pino, 634 So.2d 681, 686 (Fla. 3d DCA 1994) (quoting Iden v. Kasden, 609 So.2d 54, 57 (Fla. 3d DCA 1992) ) that an " ...