Yentes v. Papadopoulos

Decision Date02 December 2022
Docket Number2D21-3277
CourtCourt of Appeal of Florida (US)
PartiesREX YENTES and ANN YENTES, Appellants, v. XENOFON PAPADOPOULOS, M.D., and BOND & STEELE CLINIC, P.A., d/b/a BOND CLINIC, P.A., a Florida Profit Corporation. Appellees.

Appeal from the Circuit Court for Polk County; Dana Y. Moore, Judge.

Karl F. Pansler, Chase R. Pansler, and Hyat N. Katramiz of The Pansler Law Firm, P.A., Lakeland, for Appellants.

Joseph S. Justice and Pierre J. Seacord of Buckley, Seacord &amp Justice, P.A., Orlando, for Appellee Xenofon Papadopoulos M.D.

Thomas E. Dukes, III, and Wilbert R. Vancol of McEwan, Martinez Dukes & Hall, P.A., Orlando, for Appellee Bond &amp Steele Clinic, P.A., d/b/a Bond Clinic, P.A., a Florida Profit Corporation.

SMITH Judge.

Rex and Ann Yentes appeal a judgment on the pleadings granted in favor of Xenofon Papadopoulos, M.D. and Bond & Steele Clinic, P.A. d/b/a Bond Clinic, P.A. (the Clinic), in this medical malpractice action brought after Mr. Yentes suffered complications from a robotic prostatectomy. Because the trial court erred in granting judgment on the pleadings where factual issues remain unresolved, we reverse the judgment on the pleadings and remand for further proceedings.

By the time Dr. Papadopoulos and the Clinic filed their motion for judgment on the pleadings, the parties had narrowed the Yenteses' claims to one alleging that Dr. Papadopoulos was negligent in obtaining Mr. Yentes' informed consent. With regard to this claim, the Complaint alleges that Dr. Papadopoulos

failed to use the acceptable and appropriate level of skill, care and treatment, which is recognized by reasonably prudent similar health care providers, as necessary in light of all the relevant surrounding circumstances by doing or failing to do at least one or more of the following:
. . .
b) Failing to obtain an informed consent of Plaintiff, REX YENTES, informing him of all risks involved in this type of operation, particularly informing him that Dr. PAPADOPOULOS had never performed this type of operation before, or had performed it on a limited basis and that there would be a proctor attending the surgery as well.

The Yenteses also attached to the Complaint an affidavit from Richard D. Levin, M.D., who is board certified in urologic medicine. Dr. Levin's affidavit provides that in his professional opinion, under the prevailing standard of care Dr. Papadopoulos was required to inform Mr. Yentes of all of the risks involved in this type of operation, "particularly informing [Mr. Yentes] that Dr. Papadopoulos had never performed this type of operation before, or had performed it on a limited basis and that there would be a proctor attending the surgery as well." The affidavit further states that had Dr. Papadopoulos adhered to this standard of care, "to a reasonable degree of medical certainty, [Mr. Yentes] would not have chosen to undergo this type of surgery."

After a hearing on the motion for judgment on the pleadings, the trial court granted the motion, finding:

[T]here is no explicit duty that a physician must disclose prior experience with a specific procedure under Florida's "informed consent" standard. As an apparent case of first impression, this Court further declines to impose such a duty and expand Florida's "informed consent" standard for this instant action.

We review the trial court's order granting judgment on the pleadings de novo. U.S. Fire Ins. Co. v. ADT Sec. Servs., Inc., 134 So.3d 477, 479 (Fla. 2d DCA 2013).

It is well settled that in ruling on a defendant's motion for judgment on the pleadings, all the allegations set forth in the complaint must be taken as true and all the allegations in the answer, which are automatically denied, must be accepted as false. Whether to grant a motion for judgment on the pleadings must be decided wholly on the pleadings, without the aid of outside matters. The trial court may grant a motion on the pleadings only if the moving party is clearly entitled to judgment as a matter of law.

Tanglewood Mobile Sales, Inc. v. Hachem, 805 So.2d 54, 55 (Fla. 2d DCA 2001) (citations omitted).

"It is well settled that a Rule 1.140(c) motion for a judgment on the pleadings must be decided wholly on the pleadings-which includes considerations of exhibits attached thereto." Clarke v. Henderson, 74 So.3d 112, 114 (Fla. 3d DCA 2011); see also Fla. R. Civ. P. 1.130(b) ("Any exhibit attached to a pleading shall be considered a part thereof for all purposes."); Shay v. First Fed. of Miami, Inc., 429 So.2d 64, 65 (Fla. 3d DCA 1983) (analyzing a Rule 1.140(c) motion for judgment on the pleadings and considering the "facts asserted in appellants' compliant and exhibits thereto.").

However, in considering a motion for judgment on the pleadings, "the trial court is precluded from relying on matters outside the pleadings such as requests for admissions, interrogatories, answers to interrogatories, depositions, affidavits, stipulations, and any other documents permitted to be considered by Florida Rule of Civil Procedure 1.510." Britt v. State Farm Mut. Auto. Ins. Co., 935 So.2d 97, 98 (Fla. 2d DCA 2006) (citing Hart v. Hart, 629 So.2d 1073, 1074 (Fla. 2d DCA 1994). The trial court cannot grant a motion for judgment on the pleadings where factual questions remain unresolved. Tanglewood Mobile Sales, 805 So.2d at 55.

Florida's Medical Consent Law provides statutory immunity from liability to certain medical professionals for "operating on a patient without his or her informed consent" in certain circumstances, including when the physician obtained the patient's consent "in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person . . . operating on the patient" and "[t]he patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure" if the operating physician had provided the information as testified to by the expert. § 766.103(3)(a)1, (b), Fla. Stat. (2014) (emphasis added).

The dissent contends that section 766.103(3)(a)2 provides an "exhaustive list" of the information that a physician is required to relay to the patient in order to obtain informed consent and avoid liability. But the statute simply does not provide an exhaustive list of the information that should be conveyed to a patient prior to a medical procedure or treatment. In fact, this court has expressly acknowledged that "[t]he duty of the physician to inform and the extent of the information which may be required varies in each case depending upon the particular circumstances." Thomas v. Berrios, 348 So.2d 905, 907 (Fla. 2d DCA 1977) (citation omitted). This is because while subsection (a)2 lists three things-the procedure, the alternatives, and the risks inherent in the procedure-that a patient must have a "general understanding" of based on the information provided by the physician, this is not an exhaustive list of information the physician is required to disclose; it is an exhaustive list of what the patient must understand based on the information disclosed to him by the physician. And while the dissent argues that the "risks inherent in the procedure" are the same for every procedure of the same type, the statute expressly acknowledges that in order for there to have been informed consent on the part of the patient, "a reasonable individual, from the information provided by the physician . . . under the circumstances, would have a general understanding of the procedure, the medically accepted alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians." § 766.103(3)(a)2. The statute's reference to the circumstances surrounding the patient's understanding of the "substantial risks" necessarily acknowledges that the risks will not be the same for every procedure performed. Furthermore, the statute shields the physician from liability when "[t]he action of the physician . . . in obtaining the consent of the patient . . . was in accordance with an accepted standard of medical practice among members of the medical profession." § 766.103(3)(a)1. This court has held that the plaintiff is required to present expert testimony to establish what information should have been conveyed under the particular circumstances of their case. Santa Lucia v. LeVine, 198 So.3d 803, 809 (Fla. 2d DCA 2016) (quoting Copenhaver v. Miller, 537 So.2d 198, 200 (Fla. 2d DCA 1989)). The necessity of expert testimony to establish what information is required to have been conveyed, further precludes entry of judgment on the pleadings.

Here the trial court erred in granting the motion for judgment on the pleadings where a review of those pleadings reveals blatant questions of fact: specifically, whether expert testimony would establish that Dr. Papadopoulos failed to disclose pertinent information when obtaining Mr. Yentes' informed consent and whether a reasonable patient would forego the surgery with Dr. Papadopoulos if he had disclosed that he had never performed this surgery robotically without being supervised.[1] Therefore, the trial court erred in granting judgment on the pleadings in favor of Dr. Papadopoulos and the Clinic. See Britt, 935 So.2d at 98 (holding that the trial court erred in granting motion for judgment on the pleadings where factual questions exited). Accordingly, we reverse the trial court's final judgment on the pleadings and remand for further proceedings. We caution that this opinion should not be perceived as a comment on the merits of the Yenteses' claim or Dr. Papadopoulos' defenses. Contrary to the dissent's...

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