Siegel v. Husak

• Citation: 943 So.2d 209
• Decision Date: 25 October 2006
• Docket Number: No. 3D04-2310.,3D04-2310.
• Parties: Doreen SIEGEL, A.R.N.P. and Ace American Ins. Co., Appellants, v. John S. HUSAK, Appellee.
• Court: Florida District Court of Appeals

943 So.2d 209

Doreen SIEGEL, A.R.N.P. and Ace American Ins. Co., Appellants, v. John S. HUSAK, Appellee.

No. 3D04-2310.

District Court of Appeal of Florida, Third District.

October 25, 2006.

Greenberg Traurig and Arthur J. England, Jr., Elliot B. Kula and Daniel M. Samson; Weinberg, Wheeler, Hudgins, Gunn & Dial and Todd R. Ehrenreich and Lawrence E. Burkhalter, Miami, for appellants.

Deutsch & Blumberg and James C. Blecke; Charles B. Patrick, Miami, for appellee.

Before GERSTEN, SHEPHERD, and SUAREZ, JJ.

SHEPHERD, J.

This is an appeal by an advanced registered nurse practitioner and her insurer from an adverse jury verdict. The question presented is whether the nurse practitioner is individually responsible at law for a misdiagnosis, which was the ultimate responsibility of her supervising physician. Although there are circumstances in which a nurse practitioner can be found liable for the misdiagnosis of her supervising physician, we find there is a lack of competent substantial evidence in this case to support a verdict against the nurse practitioner and accordingly reverse the judgment below.

INTRODUCTION

In this medical malpractice action, the defendants were Dr. Lawrence Feldman and Doreen Siegel, a Florida licensed advanced registered nurse practitioner (ARNP). The plaintiff was John S. Husak, a marketing director for Celebrity Cruise Lines.

Broadly speaking, there are three types of nursing licensure recognized by the laws of this state — licensed practical nurses, registered nurses, and ARNPs. See §§ 464.003(4)-(6), Fla. Stat. (2003). ARNPs are registered nurses who have achieved further training and certification, after which they can perform additional supervised medical procedures and tasks that normally cannot be lawfully performed by other types of licensed nurses. See § 464.003(3)(e), Fla. Stat. (2003). Florida law requires these procedures and tasks be "identified and approved" under the auspices of the State Board of Nursing, see § 464.003(3)(c), Fla. Stat. (2003), or conducted pursuant to a protocol developed and agreed to by the supervising physician and the ARNP. § 458.348, Fla. Stat. (2003) (formal supervisory relationship); § 464.012, Fla. Stat. (2003)(certification of ARNPs); § 64B8-35.002, Fla. Admin. Code (2003). When operating within the context of an advanced or specialized nursing practice and supervised as required by law, "[an] advanced registered nurse practitioner may perform acts of nursing diagnosis . . . ." § 464.003(3)(c)(emphasis added). It is neither disputed in this case that Feldman had the ultimate responsibility for the diagnosis and treatment of Husak, nor that Feldman negligently diagnosed Husak's medical condition. The issue in the case is whether or not Siegel, who was working under the direct supervision of Feldman, was separately negligent for the misdiagnosis. Because Siegel was working under the direct supervision of Feldman, and because she did not commit any misdeed or act of negligence separate from that for which Feldman had the ultimate responsibility, we conclude the trial court erred in failing to direct a verdict in this case for Siegel.

FACTUAL BACKGROUND

This case arises out of a complaint filed by Husak against Feldman and Siegel. Siegel worked in Feldman's medical office under his supervision. The complaint alleges decreased arm use resulting from defendants' failure to properly diagnose ruptured tendons in Husak's arms and either to timely refer him for a MRI study of his condition or to an orthopedic surgeon.

The record reflects that on January 10, 2001, Husak traveled to Feldman's office for treatment for injuries suffered to his arms that morning while lifting weights during his morning workout in the gym at his place of employment. Husak testified that while working out, he slipped as he pulled forward on a weight machine, felt immediate pain, and heard a "popping sound" in his arms.

Husak was first seen by Siegel, who determined, both from the receptionists' record of Husak's case history and vital signs, and from her own examination, that Husak suffered from a muscle strain or sprain. Husak's chart includes Siegel's examination notes, her nursing diagnosis, and the fact Husak reported "popping sounds" in both arms. Feldman also saw and spoke with Husak during this visit, but the record is devoid of any evidence that he actually examined Husak. Nor is there any evidence Feldman did a post-visit review of Husak's chart to indicate his professional agreement or disagreement with Siegel's nursing diagnosis, as was required by the practice and protocol that existed between them.

On Saturday, January 13, 2001, Husak called Siegel's personal number to report swelling and bruising in his arms. Siegel repeated the diagnosis and recommended course of treatment, and asked Husak to return on January 15, 2001. On that day, Siegel again examined Husak. Husak's arms were black and blue, but there was no deformity in his muscles and he had full range of motion. Siegel prescribed anti-inflammatory medication and rest, and established a follow-up appointment for January 19. Feldman saw and spoke with Husak at the January 15 visit, and this time signed Husak's chart, indicating that in his professional opinion Husak had been properly diagnosed.

On January 19, 2001, Husak visited Siegel in Feldman's office for a third time. She again examined him, noting the bruising and tenderness were improving. Feldman did not see Husak on this date, but later signed Husak's chart to reflect concurrence with Siegel's recommendations in accordance with the practice established between them. On two of these three visits, Husak received cosmetic treatments from Siegel in the form of a Botox injection and glycol peels.

Four months later, in May 2001, Husak, on his own initiative, sought a MRI study of his arms through Feldman's office. The results of the MRI, which included Husak's biceps but not his tendons, showed a condition consistent with muscle sprain. Siegel, who by then had left Feldman's employ but was covering somebody's shift as a favor, happened to be in the office on the date Husak came to retrieve the MRI results, and Siegel handed the results to Husak. According to her testimony, Siegel did not discuss the results with Husak because she did not order the MRI herself. The MRI results showed "[f]indings consistent with Type 1 Muscle Strain involving the distal biceps muscle or areas of muscle contusion."

In July 2001, Husak sought an orthopedic consultation. At this time, Husak saw Dr. Keith Hechtman, an orthopedic surgeon, who advised Husak he had torn biceps tendons. Hechtman advised Husak surgery was unnecessary because Husak's job did not require heavy labor, Husak had full range of motion, and Husak's only limitation was an inability to use weight machines.

Later that same month, Dr. Raj Pandaya, an orthopedist, examined Husak. Pandaya confirmed Hechtman's diagnosis of ruptured biceps tendons and recommended surgery with orthopedic surgeon Dr. Bernard Morrey. Pandaya testified Husak would have had a greater chance at a full recovery had the surgery occurred within the first week-and-a-half of the injury.

Ultimately, Morrey performed reconstructive surgery on Husak's biceps. Although Husak did not have 100% recovery, Morrey placed no weight-lifting or other limitations on Husak subsequent to the surgery. According to his employer, Husak was able post-operatively to satisfactorily perform his employment duties. There is conflict in the record concerning the extent to which his imperfect tendons affect Husak in the performance of his daily personal tasks.

After a six-day trial, a jury awarded Husak $1,848,068.50 medical expenses, lost earnings, and pain and suffering, apportioning fifty percent of the fault to Feldman as a Fabre defendant.¹ Siegel's post-trial motions included a motion for judgment notwithstanding the verdict, new trial, remittitur, and for setoff, all of which were denied and now assigned as error on this appeal. Because we conclude that the trial court erred in not granting Siegel's motion for judgment notwithstanding the verdict, we need not consider Husak's other grounds for error.

DISCUSSION

At the outset, it is important to recognize that Florida law does not permit ARNPs to perform acts of medical diagnosis and treatment without supervision. Section 464.003(3)(c), Florida Statutes (2003), provides "[an] advanced registered nurse practitioner may perform acts of nursing diagnosis and nursing treatment of alterations of the health status."² (Emphasis added). However, Florida law expressly states an ARNP may only perform such tasks pursuant to a formal protocol established between a supervisory physician and the nurse, see § 458.348(1)(a), Fla. Stat. (2003), and further that in all circumstances, the physician "shall maintain supervision for directing the specific course of medical treatment." § 464.012(3), Fla. Stat. (2003). In this case, the protocol established between Feldman and Siegel included Feldman's obligation, in his supervisory capacity (usually on the same or next day), to promptly review the chart or file of each patient seen by Siegel and to initial his concurrence or disagreement with Siegel's work. The record is devoid of any testimony that Feldman ever looked at that portion of Husak's chart reflecting his first visit. If so, Feldman would have seen Siegel's note that "popping sounds" accompanied Husak's injury. It is not disputed that a "popping sound" is a symptom of a ruptured tendon and an indicator of a need for a referral.

There is no evidence in the record that Siegel violated a Florida standard of care for ARNPs at the time she made her "nursing diagnosis." In fact, the evidence is to the contrary. Nurse Siegel placed on Husak's chart and in his file all of the information from which her supervisor, Dr. Feldman, could have made the correct diagnosis or referral had he been attentive. For...