Vargas v. Gutierrez

• Decision Date: 26 August 2015
• Docket Number: 3D14–48.,Nos. 3D13–1923,s. 3D13–1923
• Citation: 176 So.3d 315
• Parties: Jose Luis VARGAS, M.D., etc., et al., Appellants, v. Monica A. GUTIERREZ, etc., et al., Appellees.
• Court: Florida District Court of Appeals

176 So.3d 315

Jose Luis VARGAS, M.D., etc., et al., Appellants,

v.Monica A. GUTIERREZ, etc., et al., Appellees.

Nos. 3D13–1923

3D14–48.

District Court of Appeal of Florida, Third District.

Aug. 26, 2015.

Rehearing Denied Oct. 8, 2015.

Hicks, Porter, Ebenfeld & Stein, P.A., and Dinah Stein, Miami, and Mark Hicks; Ilisa W. Hoffman, Miami, for appellants.

Bambi G. Blum, Miami; Kurzban Kurzban Weinger Tetzeli & Pratt, and Marvin Kurzbanand Jed Kurzban, Miami, for appellees.

Opinion

ROTHENBERG, J.

Jose Luis Vargas, M.D., and Jose Luis Vargas, M.D., P.A. (collectively, “Dr. Vargas”) appeal the trial court's denial of their motion for a directed verdict and, in the alternative, for a new trial. We affirm the denial of Dr. Vargas's motion for a directed verdict but reverse and remand for a new trial based on the plaintiffs' violation of the “one expert per specialty” rule and for materially misrepresenting the evidence in closing arguments, both of which unfairly and materially prejudiced Dr. Vargas and denied him his right to a fair trial.

FACTUAL BACKGROUND

Monica Gutierrez (“Monica”) and her parents (collectively, “the plaintiffs”) brought this action against Dr. Vargas for his alleged negligent failure to timely diagnose Monica's kidney disease, which ultimately led to renal failure, dialysis, and multiple kidney transplants. The jury entered a verdict in favor of the plaintiffs in the amount of $4,101,776.

The following facts are undisputed. Monica Gutierrez (“Monica”) was born in August 2000, and Dr. Vargas was Monica's primary pediatrician for the first six years of her life. During that six-year period, Monica's parents brought Monica to Dr. Vargas for several routine checkups. During these checkups, Dr. Vargas took urine samples from Monica consistent with typical practice. The urinalysesfrom these samples revealed elevated levels of protein in Monica's urine—a potential indicator of kidney disease—in five separate tests over the first three years of Monica's life. Dr. Vargas did not follow up on these test results, believing that each of the samples had been contaminated with bacteria because Monica was still in diapers. Record testimony established that it is quite common for infants to have bacterial contamination of their urine samples due to constant contact with bacteria in their diapers. Although Monica was small and underdeveloped for her age, she otherwise exhibited no symptoms of any illness and appeared healthy. After a sixth urine specimen showed no elevated protein levels, no further urine samples were collected or tested during the following three years when Monica was between the ages of three and six.

During September 2006, however, Monica began exhibiting abnormal symptoms, including periodic episodes of swelling around her eyes and in her legs, excessive drinking and urination, and abnormal weight gain of six pounds over a one-month period of time. Dr. Vargas was not notified of these symptoms, and no treatment was sought until October 2006 when Monica's condition worsened and her parents brought her to Miami Children's Hospital (“MCH”). At that point, Monica had an elevated temperature and swelling of her lower extremities, and she was suffering from renal (kidney) failure.

Monica was immediately examined by Dr. Paredes, a pediatric nephrologist, who took a kidney biopsy and sent the tissue sample to Dr. Victor Pardo, a pathologist at MCH, for examination and diagnosis. Dr. Pardo examined several tissue slides from the kidney biopsy and noted elevated levels of C1q protein. Based on these findings, Dr. Pardo diagnosed Monica with “Diffuse Proliferative Immunecomplex Glomerulonephritis.” Dr. Pardo finalized his conclusions in a written report that was sent to Dr. Paredes, but Dr. Pardo never saw or administered care to Monica or spoke directly to Dr. Paredes. Importantly, Dr. Paredes never made a formal diagnosis of the underlying disease that caused the kidney failureor offered any opinion regarding the onset or duration of Monica's kidney disease.

Due to the severity of the damage to Monica's kidneys, Dr. Paredes placed Monica on dialysis until a kidney donor could be located. Approximately seven months later, Monica underwent successful kidney transplantsurgery, and her diseased kidneys were removed. Following the transplant, one of the removed kidneys was sent to a different pathologist at MCH, Dr. Philip Ruiz, for further examination. Dr. Ruiz noted in his report that the tissue on the kidney was severely scarred to the point that he could not accurately diagnose what disease had caused the damage,but he opined that the kidney had failed due to a chronic immune complex disease. Similar to Dr. Pardo, Dr. Ruiz did not ever see or administer care or treatment to Monica, did not communicate with Dr. Paredes, and did not offer an opinion as to the cause, identity, or duration of Monica's kidney disease. While Monica's kidney transplantwas successful, she will likely need dialysis and additional kidney transplantsduring her lifetime.

Monica and her parents brought a medical malpractice suit against Dr. Vargas in 2008, alleging that Dr. Vargas should have followed up on Monica's positive urine samples and that, if he had done so, Monica could have been treated for her disease and been able to avoid dialysis and kidney failure. The plaintiffs allege that Monica's kidney failureis the result of a disease called C1q nephropathy, which takes years to cause the type of damage to Monica's kidneys that she had at the time of her admittance to MCH and should have been discovered by Dr. Vargas before the disease caused end-stage renal failure.

C1q nephropathyis a very rare disease that causes C1q proteins to build up in the kidneys, which damages and scars the kidneys over time. C1q nephropathyis a recently discovered form of kidney diseasethat is often referred to as a “silent killer” because C1q patients can display no symptoms right up to the point of renal failure. Indeed, there are often no outward indications that anything is wrong with C1q patients until they have reached late-stage kidney diseasewith swelling, high blood pressure, high cholesterol, and occasionally fever. One of the only ways to accurately diagnose C1q nephropathyis to have the patient submit to a biopsy of her kidney and to have a pathologist examine the tissue to determine if there are elevated levels of C1q protein in the patient's kidney samples.

Conversely, Dr. Vargas contends the disease that destroyed Monica's kidneys was not the chronic, longstanding disease of C1q nephropathy, but rather a faster-moving disease called Rapidly Progressive Glomerulonephritis(“RPGN”). Dr. Vargas also contends that even if the underlying disease was in fact C1q nephropathyand Dr. Vargas had correctly diagnosed the illness, there was nothing that Dr. Vargas could have done to prevent Monica's renal failureand the resulting dialysis and kidney transplants. In other words, Dr. Vargas claims that the dialysis and kidney transplantswere inevitable due to the nature of Monica's disease, and any action or inaction on his part did not cause Monica's injuries.

These issues were hotly disputed at trial, and both sides sought to introduce testimony from various medical experts regarding both the diagnosis and the treatment of the disease.¹Thus, Dr. Vargas filed a motion in limine to prevent the plaintiffs from presenting cumulative expert testimony regarding the timing and diagnosis of the disease, specifically arguing that Drs. Pardo and Ruiz should not be permitted to render expert opinion testimony on that subject and should be confined to offering factual testimony as “treating physicians.” Judge Platzer, who was presiding over the case at the time, granted Dr. Vargas's motion in part and limited both sides to “one expert per specialty.” Judge Platzer's ruling also specifically prohibited the plaintiffs from using the treating physicians to elicit expert opinion testimony regarding the timing of the disease.Judge Platzer retired before the case was resolved, and Judge Butchko was substituted in her place midway through the proceedings.

Despite Judge Platzer's ruling, the plaintiffs called not one, but four separate pathologistsat trial to testify regarding the timing and diagnosis of the disease: (1) Dr. Pardo, who analyzed the biopsy when Monica was initially admitted to MCH; (2) Dr. Ruiz, who analyzed one of Monica's kidneys after they were removed during Monica's transplant surgery; (3) Dr. Cohen, who examined several tissue samples at the plaintiffs' behest and was the plaintiffs' designated expert pathologist; (4) and Dr. Croker, who the plaintiffs called as an expert rebuttal witness following Dr. Vargas's case-in-chief. All of these pathologists testified that, in their medical opinion,the disease was most likely chronic C1q nephropathythat had been developing over a four-to-six-year period. Importantly, Drs. Pardo and Ruiz had not made these findings or diagnosed C1q nephropathyduring their initial examination of the kidneys. Conversely, Dr. Vargas was only permitted to call one pathologist: his designated expert, Dr. Craver, who testified that Monica's renal failurewas caused by RPGN, which would have been present for only four to six months rather than four to six years and would have been virtually undetectable prior to Monica's hospitalization.

Additionally, each side was permitted to call an expert pediatric nephrologist to testify regarding the respective courses C1q nephropathyand RPGN would take and what treatment options would have been available at various stages of the diseases. This testimony was critical to establish causation, i.e., that Dr. Vargas could have done something to prevent total kidney failurenecessitating the dialysis and kidney transplantif he had correctly diagnosed Monica's disease or referred her to a nephrologist when he initially discovered the positive protein tests several years prior.

The plaintiffs' designated expert...