IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA Case No. 4D Florida Bar No

Transcription

1 DAVION MCKEITHAN, a minor, by and through his parent and next best friend, DELORES MCKEITHAN and DELORES MCKEITHAN, individually, IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA Case No. 4D Florida Bar No vs. Petitioners, HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a SAINT LUCIE MEDICAL CENTER, Respondent. / BRIEF AND APPENDIX OF PETITIONERS ON JURISDICTION (Conflict Certiorari) GINSBERG & SCHWARTZ Two Datran Center, Suite So. Dadeland Boulevard Miami, Florida (305) and- ANDY M. CUSTER, ESQ. Alpizar & Ville 1528 Palm Bay Road N.E. Palm Bay, Florida (321) Attorneys for Petitioners

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3 TABLE OF CONTENTS Page TABLE OF CITATIONS AND AUTHORITIES... -ii- INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT... 4 ARGUMENT/JURISDICTIONAL STATEMENT/APPLICABLE (APPELLATE) STANDARD OF REVIEW THE OPINION RENDERED HEREIN IS IN EXPRESS AND DIRECT CONFLICT WITH BOTH GOOLSBY AND MUNOZ CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 APPENDIX... A.1 - A.2 -ii-

4 TABLE OF CITATIONS AND AUTHORITIES Cases Page EWING v. SELLINGER, 758 So.2d 1196 (Fla. App. 4 th 2000)... Passim GOOLSBY v. QAZI, 847 So.2d 1001 (Fla. App. 5 th 2003)... Passim MUNOZ v. SOUTH MIAMI HOSPITAL, INC., 764 So.2d 854 (Fla. App.3 rd 2000)... Passim -iii-

5 I. INTRODUCTION The Petitioners, Davion McKeithan, a minor, by and through his parent and next best friend, Delores McKeithan and Delores McKeithan, individually, were the Plaintiffs in the trial court and were the Appellants in the District Court of Appeal, Fourth District. The Respondent, HCA Health Services of Florida, Inc., d/b/a St. Lucie Medical Center, was the Defendant/Appellee. In this brief of Petitioners [on jurisdiction, conflict certiorari], the parties will be referred to as the Plaintiffs and the Defendant and, where necessary for clarification or emphasis, by name. The symbol A will refer to the rule-required Appendix which accompanies this brief. All emphasis has been supplied by counsel unless indicated to the contrary. II. STATEMENT OF THE CASE AND FACTS From the opinion sought to be reviewed we learn the following: A. This is a medical negligence case. Plaintiffs, a mother and her minor child, sued the Defendant [hospital] for damages as a consequence of permanent injury to the child occasioned, allegedly, as a result of, inter alia, student nurse failure to access her employer s chain of command. (A.1) -1-

6 B. The jury found for the Defendant on certain claims. Other claims were not submitted to the jury as a consequence of the trial court s granting of the Defendant s motion for a directed verdict. (A.1) C. The Court affirmed that portion of the final judgment entered on the jury verdict. The Court affirmed the granting of the directed verdict for two (stated) reasons: * * * First, the Plaintiffs presented no competent testimony as to causation, that had the nurses accessed the chain of command, such conduct would likely have led to a different outcome for the patient. Second, under Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4 th DCA 2000), the Plaintiffs failed to present evidence that the failure of the nurses to access the chain of command would have affected the treatment decisions of the treating physician, who testified at trial... (A. 1). D. Affirming, for the express reasons stated, and in relying upon its prior opinion in EWING, supra, the Court put this case squarely in conflict with the opinion of the District Court of Appeal, Third District in MUNOZ v. SOUTH MIAMI HOSPITAL, INC., 764 So.2d 854 (Fla. App. 3 rd 2000) and with the opinion of the District Court of Appeal, Fifth District in GOOLSBY v. QAZI, 847 So.2d 1001 (Fla. App. 5 th 2003) wherein that Court held: We disagree with Ewing if it means that the negligent failure to diagnose a condition cannot be the cause of -2-

7 damages if a subsequent treater testifies that he would have shrugged off the correct diagnosis. * * * Instead, we agree with the majority in Munoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3 rd DCA 2000): And it is not for the defendants, who putatively violated their standard of care by failing to warn, to argue that their not doing so had no effect on the situation, when their doing the appropriate thing would have removed all doubt... * * * Only speculation can support the assumption that an adequate warning properly communicated, would not have influenced the course of conduct adopted by a physician, even where the physician had previously received the information contained therein. What the doctor might or might not have done had he been adequately warned is not an element plaintiff must prove as a part of her case. * * * 847 So.2d, at pages 1003 and E. As will be argued in a more appropriate section of this brief and contrary to what the Court in the subject opinion stated, neither what the hospital might have done [if the chain of command had been accessed,] nor what the end result might have been [if the physicians in the chain had acted] are elements of the Plaintiffs case in chief, at least not under the holdings of GOOLSBY and MUNOZ! -3-

8 III. SUMMARY OF ARGUMENT As stated, supra, neither what the hospital might have done (in this case) if the chain of command had been accessed, nor what the end result might have been if the physicians in the chain had acted, are elements of the Plaintiffs case in chief under the holdings of both GOOLSBY and MUNOZ. Because this case holds to the contrary, conflict exists! IV. ARGUMENT/JURISDICTIONAL STATEMENT/APPLICABLE (APPELLATE) STANDARD OF REVIEW THE OPINION RENDERED HEREIN IS IN EXPRESS AND DIRECT CONFLICT WITH BOTH GOOLSBY AND MUNOZ. As stated, supra, neither what the hospital might have done (in this case) if the chain of command had been accessed, nor what the end result might have been if the physicians in the chain had acted, are elements of the Plaintiffs case in chief under the holdings of both GOOLSBY and MUNOZ. Because this case holds to the contrary, conflict exists! The threshold issue before the Court was whether Plaintiffs presented a prima facie case. The Court recognized, as prima facie established, student nurse failure to access the chain of command and damage to the minor claimant. The District Court -4-

9 affirmed the trial court s granting of the Defendant s motion for a directed verdict for two reasons. The Court believed: A. That the Plaintiffs were required to establish, but did not establish, that had the chain of command been accessed the hospital physicians would have overruled the treating physician s medical decision and that such action would have led to no (or less) injury to the minor child; and B. Under EWING v. SELLINGER, 758 So.2d 1196 (Fla. 4 th DCA 2000):... the Plaintiffs failed to present evidence that the failure of the nurses to access the chain of command would have affected the treatment decisions of the treating physician, who testified at trial... (A.1). As to the first stated reason, the District Court of Appeal, Fourth District, now requires as an element of a plaintiff s medical malpractice cause of action the entirely speculative factual matter of what the health care provider s physicians would have done (if the chain of command had properly been accessed) and that such action:... would have led to a different outcome for the patient... (A.1). Such holding in this regard conflicts with MUNOZ (and consequently GOOLSBY-- which adopted MUNOZ). Where, as here, the appropriate standard of care required the accessing of the chain of command, it was not for the Plaintiffs to establish, as part -5-

10 of their case in chief, what the physicians in the chain of command would have done if asked! As recognized in both GOOLSBY and MUNOZ:... what the doctor might or might not have done had he been adequately warned is not an element Plaintiff must prove as part of her case So.2d, at page 857. Regarding the Fourth District s second ground for affirmance that, under EWING, supra: the following is noted.... the plaintiffs failed to present evidence that the failure of the nurses to access the chain of command would have affected the treatment decisions of the treating physician, who testified at trial... (A.1) Prior to the opinion in this case there may have existed doubt concerning the actual holding of EWING. As stated in GOOLSBY:... we disagree with Ewing if it means that the negligent failure to diagnose a condition cannot be the cause of damages if a subsequent treater testifies that he would have shrugged off the correct diagnosis So.2d, at page In this case, the Fourth District has removed all doubt regarding what it meant in EWING. In point of fact, the Fourth District has now squarely held that there can be no liability on the part of the hospital (under the subject or similar facts) unless, and until, the Plaintiffs establish that the treating physician would have acted differently -6-

11 upon being approached by the chain of command physicians! The Fourth District requires that a plaintiff, in a medical negligence case, establish as part of his case in chief, the totally speculative matter of what a health care provider [Defendant] would have done (if presented with certain facts) and (if such was presented) how it would have responded [to the benefit of the injured Plaintiff.] The decisions in both GOOLSBY and MUNOZ rejected such requirements:... it is not for the defendants, who putatively violated their standard of care... to argue that their not doing so had no effect on the situation, when their doing the appropriate thing would have removed all doubt... * * * What the doctor might or might not have done had he been adequately warned is not an element plaintiff must prove as a part of her case So.2d, at page 1003 and Where, as here, a Plaintiff establishes prima facie that the requisite standard of care required an accessing of the hospital s chain of command and that damages were sustained as a consequence of the initial negligence, it should not be part of the Plaintiffs case in chief to prove what the Defendant would have done if its arguably negligent (student nurse) employee would have acted appropriately. This Court should harmonize the discussed opinions. The Court s explanation herein of what it meant in EWING puts this case in hopeless conflict with both GOOLSBY and MUNOZ. This Court should exercise its jurisdiction and review this case. -7-

12 V. CONCLUSION Based upon the foregoing reasons and citations of authority, the Plaintiffs respectfully urge this Honorable Court to accept jurisdiction and to review the merits of this case. Respectfully submitted, GINSBERG & SCHWARTZ Two Datran Center, Suite So. Dadeland Boulevard Miami, Florida (305) and- ANDY M. CUSTER, ESQ. Alpizar & Ville 1528 Palm Bay Road N.E. Palm Bay, Florida (321) Attorneys for Petitioners By: Arnold R. Ginsberg -8-

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was mailed to the following counsel of record this 4 th day of October, RONALD M. ROWARS, P.A. Harbor Federal Bank Building 2400 S.E. Midport Rd., Ste 120 Port St. Lucie, Florida (561) Attorney for Petitioners THOMAS C. HEATH, ESQ. Billing, Cochran, Heath, Lyles & Mauro, P.A. 888 SE Third Avenue, Ste 301 Ft. Lauderdale, Florida (954) Attorneys for Respondent JANIS BRUSTARES KEYSER, ESQ. MICHAEL V. BAXTER, ESQ. Billing, Cochran, Heath, Lyles & Mauro, P.A. 400 Australian Avenue, Ste. 500 West Palm Beach, Florida (561) Attorneys for Respondent Arnold R. Ginsberg CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that the foregoing was prepared in accordance with the rule requiring Times New Roman 14 point or Courier New 12 point. -9- Arnold R. Ginsberg

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15 INDEX TO APPENDIX Opinion, District Court of Appeal, Fourth District Dated, June 30, A.1 - A.2