Wolfsen v. Applegate

• Decision Date: 18 June 1993
• Docket Number: No. 92-996,92-996
• Parties: 18 Fla. L. Week. D1463 Lisa N. WOLFSEN, as Personal Representative of the Estate of Julia Wolfsen, Deceased, Appellant, v. Clarence W. APPLEGATE, M.D., R. James Mabry, M.D., J. Brian Sheedy, M.D., and Hematology/Oncology Associates, Appellees.
• Court: Florida District Court of Appeals

Page 1050

619 So.2d 1050

18 Fla. L. Week. D1463

Lisa N. WOLFSEN, as Personal Representative of the Estate of Julia Wolfsen, Deceased, Appellant, v. Clarence W. APPLEGATE, M.D., R. James Mabry, M.D., J. Brian Sheedy, M.D., and Hematology/Oncology Associates, Appellees.

No. 92-996.

District Court of Appeal of Florida First District.

June 18, 1993.

William J. Vosper, Jr. of Vosper & Maizys, Stillwater, NJ, Jean Anne Kneale of Hicks, Anderson & Blum, P.A., Miami, for appellant.

Thomas J. Guilday and Pamela K. Frazier of Huey, Guilday, Kuersteiner & Tucker, P.A., Tallahassee, for appellee Applegate.

S. William Fuller, Michael W. Kehoe and Cynthia D. Simmons of Fuller, Johnson & Farrell, P.A., Tallahassee, Robert C. Downie, II of Oertel, Hoffman, Fernandez & Cole, for appellees Mabry, Sheedy, and Hematology/Oncology Associates.

WEBSTER, Judge.

Appellant, as personal representative of the estate of Julia Wolfsen, seeks review of an order dismissing medical negligence claims made against appellees, for noncompliance with the "reasonable investigation requirements" of sections 766.201-.206, Florida Statutes (1989). We conclude that the trial court erroneously determined that medical expert affidavits failed to "corroborate reasonable grounds to support the claim[s]," and misconstrued the applicable statutory provisions. Accordingly, we reverse.

In February 1991, pursuant to section 766.106(2), Florida Statutes (1989), Wolfsen's attorney notified Dr. Edwin D. Crane, III (who had been Wolfsen's gynecologist), Dr. R. James Mabry, Jr. (who had been Wolfsen's hematologist), and Dr. Clarence Applegate (who had been Wolfsen's nephrologist) that Wolfsen intended to commence litigation against each of them for medical malpractice. Enclosed with each letter were the affidavits of two physicians, Drs. Stanley Goldfarb (a board-certified nephrologist) and Richard Stein (a board-certified hematologist).

After reciting that he had reviewed Wolfsen's medical records relating to her care and treatment by Drs. Crane, Mabry and Applegate, Dr. Goldfarb's affidavit states:

I am of the opinion, based upon what I have reviewed thus far, that Dr. E.D. Crane III, fell below prevailing standards of care when he negligently prescribed the drug Anaprox, to a patient [Wolfsen] with renal disease, which has caused severe deterioration of her kidney function. I am also of the opinion that if Drs. Mabry and Appelgate [sic] were working as a team with Dr. Crane, or if they were informed individually that Ms. Wolfsen was prescribed Anaprox, then they, in addition to Dr. Crane, deviated from acceptable medical standards of care.

It is a widely known fact for such a commonly used drug as Anaprox, that a gynecologist, hematologist and a nephrologist should be aware that it is contraindicated for a person with pre-existing renal problems.

Attached to Dr. Goldfarb's affidavit was his report to Wolfsen's attorney. In that report, Dr. Goldfarb stated that he understood that Wolfsen had had a history of thrombocytopenia (a decrease in the number of blood platelets) and reduced renal function. "She went off to college in Tallahassee and her medical problems became the responsibility of a team of physicians including ... Dr. Mabry, the hematologist, Dr. Applegate, the nephrologist, and Dr. Crane, the gynecologist. They concentrated on three medical problems, respectively: her platelet abnormalities, her renal disease, and her abnormal and severe vaginal bleeding." Dr. Goldfarb concluded his report with the following comment: "To the extent that the two internists, Dr. Applegate and Dr. Mabry[,] were part of a team caring for Ms. Wolfson [sic], they should have been aware of the use of Anaprox by Dr. Crane. If this was the case, then they in addition to Dr. Crane deviated from accepted medical practice in Ms. Wolfson's [sic] use of Anaprox."

The affidavit of Dr. Stein likewise recites that he had reviewed Wolfsen's medical records relating to her care and treatment by Drs. Crane, Mabry and Applegate. It then states:

I am of the opinion, based upon what I have reviewed thus far, that Dr. E.D. Crane III, fell below prevailing standards of care when he negligently prescribed the drug Anaprox to a patient [Wolfsen] with renal disease, which caused severe deterioration of her kidney function.

His report to Wolfsen's attorney was, likewise, attached to his affidavit. In that report, Dr. Stein stated that he "consider[ed] the care rendered by the hematologists to be excellent"; and that the care Wolfsen received from Dr. Applegate "appear[ed] totally reasonable."

The parties participated in informal presuit discovery, as contemplated by section 766.106, Florida Statutes (1989). Wolfsen, who by this time had experienced renal failure, testified under oath. During her examination, she repeatedly and adamantly stated that Drs. Mabry and Applegate had told her that they and Dr. Crane would keep each other informed regarding her conditions, and work together as a team. According to Wolfsen, while Dr. Crane never explicitly said that he and Drs. Mabry and Applegate would use a team approach to her treatment, he told her that he would keep Dr. Applegate informed. Specifically, Wolfsen testified that Dr. Crane told her on the day that he prescribed Anaprox that he would inform Dr. Applegate that he had done so. Wolfsen also testified that, shortly after Dr. Crane had prescribed Anaprox, she told Dr. Mabry about the prescription. She said that she never told Dr. Applegate about the Anaprox prescription because she assumed that Drs. Crane and Mabry had informed him.

In an unsworn statement, Dr. Crane said that he had prescribed Anaprox for Wolfsen only because he had performed an endometrial biopsy, which almost always causes uterine cramps. In his opinion, Anaprox in the amount he had prescribed should not have had any adverse effect upon Wolfsen. Dr. Crane denied any agreement or understanding to act as a member of a team with Drs. Mabry and Applegate; and any type of routine communication with either doctor regarding treatment of Wolfsen.

Likewise in an unsworn statement, Dr. Mabry said that he was never made aware that Wolfsen was taking Anaprox. Moreover, in his opinion, Wolfsen's "renal failure most probably [was] a natural consequence of the pathophysiology of her underlying renal disease." When asked whether he had ever told Wolfsen that he "would be in close contact with Dr. Crane and Dr. Applegate in regard to their treatment and the drugs that they were going to prescribe," Dr. Mabry responded that he did not "recall saying anything just like that." However, he did say that he "communicate[d] continuously and frequently" with Dr. Applegate regarding Wolfsen's conditions; and that he "regularly sent" Dr. Crane copies of his office progress notes and other relevant documents.

Also in an unsworn statement, Dr. Applegate said that he had not known that Wolfsen had been prescribed Anaprox until he had received the notice of intent to initiate litigation. He said that he had never told Wolfsen that he and Drs. Crane and Mabry would work together as a team regarding her case. He denied that he had ever had any communication of any type with Dr. Crane regarding Wolfsen. However, he and Dr. Mabry communicated regularly regarding Wolfsen; among other things, keeping each other informed as to drugs each was prescribing.

After the informal presuit discovery had been completed, all three doctors filed motions, pursuant to section 766.206(1), Florida Statutes (1989), requesting the trial court to determine whether Wolfsen's claims "rest[ed] on a reasonable basis." Shortly before the hearing, Wolfsen filed an additional affidavit of Dr. Goldfarb. In that affidavit, Dr. Goldfarb recited that he had investigated "the circumstances surrounding Julia Wolfsen's renal failure," and reviewed her medical records. He opined, "based upon a reasonable degree of medical probability, that Dr. Crane fell below the national standards of care in prescribing Anaprox and in failing to properly monitor [Wolfsen's] condition while on Anaprox." He was "also of the opinion[,] based upon a reasonable degree of medical probability[,] that Doctors Applegate and Mabry fell below the standard of care in failing to properly monitor the drugs Julia Wolfsen was prescribed, including Anaprox, and failing to properly monitor her renal condition," explaining the facts upon which he based his conclusions.

At the hearing held on the doctors' motions requesting the court to determine whether Wolfsen's claims "rest[ed] on a reasonable basis," counsel for the doctors argued that the only issue was whether the affidavits from Drs. Goldfarb and Stein were sufficient to "corroborate reasonable grounds to support the claim[s] of medical negligence," as contemplated by section 766.203(2), Florida Statutes (1989). The trial court accepted this argument, over Wolfsen's response that the critical question was whether a "reasonable investigation" had been conducted, as contemplated by sections 766.201-.206, and that the requirement of corroborating affidavits from medical experts was merely one part of the investigation. Accordingly, it found it unnecessary to consider evidence regarding the sufficiency of the presuit investigation. However, it did allow Wolfsen to proffer such evidence.

The trial court then concluded that neither Dr. Goldfarb nor Dr. Stein had stated unequivocally that Drs. Crane, Mabry and Applegate had been working as a team in providing care and treatment to Wolfsen. Therefore, it concluded, further, that the affidavits failed to "corroborate reasonable grounds to support the claim[s] of medical negligence" as to Drs. Mabry (and his associate, Dr. Sheedy, and their association, Hematology/Oncology Associates of Northwest Florida) and Dr. Applegate. Accordingly, it dismissed the claims against them. However, it concluded that the affidavits were sufficient to "corroborate...