IN THE SUPREME COURT OF FLORIDA PETITIONERS BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA AHKTAR QAZI, M.D, FLORIDA RADIOLOGY ASSOCIATES, P.A., Defendants/Petitioners, SUPREME COURT CASE NUMBER: FIFTH DISTRICT vs. CASE NUMBER: 5D RICHARD LARRY GOOLSBY, DANA RENE GOOLSBY, as parents and natural guardians of ASHLEY NICOLE GOOLSBY, a minor, Plaintiffs/Respondents. / PETITIONERS BRIEF ON JURISDICTION Eric P. Gibbs Counsel for Petitioners Hannah, Estes & Ingram, P.A. 37 North Orange Avenue, Suite 300 Orlando, Florida Telephone: Facsimile: Florida Bar Number: Raymond T. Elligett, Jr. Counsel for Petitioners Schropp, Buell & Elligett 3003 W. Azeele Street, #100 Tampa, FL Telephone: Facsimile: Florida Bar Number:

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 The Fifth District s Decision Expressly and Directly Conflicts with Ewing v. Sellinger and Gooding v. University Hospital Building, Inc. by Holding that a Medical Malpractice Plaintiff Need Not Show that Subsequent Care Would Have Been Affected Had a Negligently Interpreted X-ray Been Interpreted Correctly. CONCLUSION... 10

3 TABLE OF AUTHORITIES Cases Cecile Resort Ltd. v. Hokanson, 729 So.2d 446 (Fla. 5 th DCA 1999)... 3 Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4 th DCA 2000)... i, 3, 4, 5, 6, 7, 10 Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984). i, 3, 4, 5, 6, 7, 8, 10 Goss v. Permenter, 827 So.2d 285 (Fla. 5 th DCA 2002)... 8 Knight v. Waltman, 774 So.2d 731, 734 (Fla. 2d DCA 2000)... 9 Southland Distributing Co. of St. Petersburg v. Vernal, 497 So.2d 1240, (Fla. 2d DCA 1986)... 9 Voelker v. Combined Ins. Co.of America, 73 So.2d 403 (Fla. 1954)... 9 iii

4 STATEMENT OF THE CASE AND FACTS Petitioner, Ahktar Qazi, M.D. (Dr. Qazi) seeks discretionary review from the Fifth District Court of Appeal s reversal of the trial court s directed verdict granted in his favor. The trial arose from an allegedly negligent interpretation of an x-ray by Dr. Qazi. (A- 1). Plaintiffs alleged below that Dr. Qazi negligently interpreted Ashley Goolsby s newborn x-ray to be normal, when plaintiffs alleged it to in fact be abnormal and indicative of hip dysplasia. (A-2). At trial, there was evidence from the plaintiff that Ashley was found to have clinical signs of abnormal hips (e.g. clicking of her hips at birth). (A-2). For this concern, Ashley s pediatrician ordered an x-ray and referred Ashley to an orthopedist. (A-2). There was evidence that Dr. Qazi deviated from the applicable standard of care in his interpretation of the study. (A-2). However, there was no evidence that the child s orthopedist, who was consulted to follow the child for potentially abnormal hips, even saw Dr. Qazi s report. (A-3). The only physician to see Dr. Qazi s report was Ashley s pediatrician. (A-3). As the pediatrician had referred Ashley to an orthopedist and the pediatrician never testified what she would have done with a different interpretation from Dr. Qazi (A-3), at the close of Plaintiff s case in chief Defendant Qazi moved for directed verdict arguing that Plaintiffs had failed to prove causation. (A-2). The trial court granted Dr. Qazi s motion for directed verdict and entered a directed verdict. (A-1). The Fifth District reversed. (A-1). 1

5 SUMMARY OF THE ARGUMENT In directed verdict cases involving an allegation that an early medical provider failed to provide accurate information to a subsequent provider who might provide definitive care, the Fourth District applies a directed verdict analysis that requires an analysis of the evidence to see if a prima facie case of causation is made. Here, though, the Fifth District has applied an analysis that fails to determine whether causation has been proven. In place of that, the Fifth District determines only that the plaintiff need not prove what the subsequent provider would have done with the information that should have been provided and holds that in this case the evidence does not disprove causation. The Fifth District s decision conflicts with the Fourth District s in that, while reversing a trial court s directed verdict for a defendant, it does not affirmatively decide that the evidence proves causation. The conflict affects all malpractice cases in which the medical provider who is sued is not the one who would have provided definitive treatment, but is a provider who is only charged with identifying and relaying information (e.g. radiologists or pathologists). Under the Fifth District s decision, the burden appears to have been shifted to the earlier medical provider to disprove causation, at the directed verdict stage. The burden should be on the plaintiff to prove causation. ARGUMENT The Fifth District s Decision Expressly and Directly Conflicts with Ewing v. Sellinger and Gooding v. University Hospital Building, Inc. by Holding that a Medical Malpractice Plaintiff Need Not Show that Subsequent Care Would Have Been Affected Had a Negligently Interpreted X-ray Been Interpreted Correctly. 2

6 The Fifth District s decision conflicts directly with Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4 th DCA 2000) and Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984). The decisions conflict with regard to what they require a plaintiff to prove in medical malpractice cases against physicians charged with relating diagnostic information to subsequent treating physicians who may provide definitive care. The Fifth District recognized a possible conflict when it wrote that it disagreed with Ewing if Ewing 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 of the correct diagnosis. This case does not involve such affirmative proof of an absence of causation, but conflicts regarding what proof of causation is sufficient in such cases. The Ewing court correctly applied the directed verdict standard (directed verdict should be granted when there is no reasonable evidence on which a jury could legally predicate a verdict in favor of the non-moving party Cecile Resort Ltd. v. Hokanson, 729 So.2d 446 (Fla. 5 th DCA 1999)) and determined whether the evidence proved causation by the standard described in Gooding: that the plaintiff must prove that what was done or failed to be done probably would have affected the outcome. Ewing at In contrast, the Fifth District here reversed a directed verdict in apparent reliance on the fact that causation had not been affirmatively disproved, without ever determining that the evidence in the record in fact proved causation. Thus, in cases in which a defendant seeks a directed verdict due to a plaintiff s failure to prove causation, the Fifth District s decision shifts the burden of disproving causation to that defendant in derogation of Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 3

7 1984) and in conflict with Ewing. The Ewing court upheld a directed verdict in favor of an obstetrician alleged to have failed to do a risk evaluation which, according to plaintiff s expert, would have revealed the need for physician attendance during labor which would in turn have resulted in a caesarean section delivery. Id. at However, the physician who was on call at the time, and who would have been asked to attend the delivery, testified that he would not have done a caesarean section delivery as the labor was progressing adequately. Id. at The Ewing court held that given this evidence the plaintiff failed to prove causation. Id. At Based on the testimony of the treating physician that he would not have altered the treatment, the Ewing court concluded that the causal chain from appellee s negligence to appellant s injuries has not been proven, and we affirm. Id. (Emphasis added). Here the fact pattern is similar. Plaintiffs alleged the Dr. Qazi failed to correctly interpret an x-ray to show evidence of hip dysplasia, and further alleged that had the condition been diagnosed it could have been treated. The evidence showed that the pediatrician was the only doctor to see Dr. Qazi s report, and the Fifth District assumes that had the report indicated hip dysplasia the pediatrician would have done something to address it. The question of what the subsequent provider (the potential attending physician in Ewing and the pediatrician in the instant case) would do if warned of a potential problem was presented in both cases. 4

8 The Ewing court explained that, pursuant to Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984), the plaintiff must prove that what was done or failed to be done probably would have affected the outcome. Ewing at The Ewing court wrote that the first physician s alleged failure (securing another physician s attendance at the labor) would not have affected the outcome because the physician who was available to intervene and perform a c-section testified that he would not have done so. Id. at Thus the Ewing court looked at and described the evidence in the record at the time of the motion for directed verdict and determined that the plaintiff failed to prove causation by failing to meet the requirement from Gooding that the negligence probably would have affected the outcome. Here the Fifth District s opinion does not suggest any evidence from the pediatrician that she would have done anything differently had she received a different report, but nonetheless reverses the directed verdict. The Fifth District s decision, therefore, changes the law to require no such determination of whether a plaintiff has proved causation. The Fifth District s opinion does not discuss the proof of causation or even state that it was sufficient. Instead the Fifth District described only what the plaintiff need not prove: the Goolsbys were not obliged to prove that the pediatrician would not have been negligent, or the precise steps the pediatrician would have taken to insure the health of her patient, if Qazi s reading had been positive for hip dysplasia. From the Fifth District s opinion, it cannot be discerned what the plaintiff was required to prove or indeed what the 5

9 Plaintiffs proof of causation was. A consequence of the Fifth District s lack of analysis of the plaintiff s proof, and a second basis of conflict with Ewing, is that the decision appears to shift the burden of disproving causation to the defendant at the directed verdict stage of a trial. The Fifth District wrote, Ashley s pediatrician did not testify that she would have ignored a reading of dysplasia if that had been Qazi s opinion. The Fifth District also held that it is not a fair inference to say that the pediatrician would have ignored an opinion she herself ordered. This language conflicts with mandate of Gooding, followed in Ewing, that the trial and appellate courts must look at the evidence to see if it proves causation, not whether it disproves causation. Defendants do not have the burden, when seeking a directed verdict, of offering evidence to disprove causation as they do at the summary judgment stage. Instead, the plaintiff must have offered affirmative evidence establishing a prima facie case, including the element of causation, at the directed verdict stage. The Fifth District s decision, though, effectively reverses this burden. The distinction that the Ewing case involved affirmative proof of what the subsequent provider would have done does not negate the conflict. A directed verdict is based on an analysis of the evidence at the end of Plaintiff s case in chief or at the close of all evidence. Fortuitously for the defendant in Ewing, the evidence included affirmative proof of no causation. However, had no such proof been present in Ewing, the result would have been the same because there was apparently no other 6

10 proof tending to indicate what the subsequent physician would have done. 1 Had there been such evidence, it would have conflicted with the subsequent physician s testimony as to what he would have done and directed verdict would have been improper. Goss v. Permenter, 827 So.2d 285 (Fla. 5 th DCA 2002). The Fifth District s language indicating that the plaintiff did not need to prove what the pediatrician would have done falls short of a basis to find that the plaintiff did prove causation. The same is true of the court s inference discussion indicating causation had not been disproven. In other words, even if plaintiff was not required to prove what the pediatrician would have done (a point Petitioner does not concede), the Fifth District has not described what plaintiff is required to show nor held that whatever proof Plaintiff did provide met the standard of Gooding: that the failure to do something probably affected the outcome. In writing that it is not a fair inference to say that the pediatrician would have ignored a different report from Dr. Qazi, the Fifth District has missed the point and possibly created another conflict. The question is not whether the pediatrician would have ignored a different report, but whether she would have taken action beyond referring Ashley to an orthopedist, which she did. At this point, it appears that the Fifth District is giving the plaintiff the benefit of an inference of causation. The Fifth District s opinion notes the testimony from the pediatrician that she referred Ashley to an orthopedist. But the Fifth District cites no testimony from the pediatrician that she would have done anything different from that with a different report from Dr. Qazi. Therefore the Fifth District is allowing the plaintiff to benefit from an inference despite the plaintiff not asking the available witness the direct questions that would have addressed the issue. The Fifth District simply does not describe the evidence which would support an inference of causation. Speculation cannot support an inference. Knight v. Waltman, 774 So.2d 731, 734 (Fla. 2d DCA 2000) (a jury can draw reasonable inferences, but cannot 7

11 speculate to create facts not in evidence). If it was the intent of the Fifth District to hold that a reasonable inference on causation can be drawn from the evidence in this case, that would create a conflict. While juries may draw reasonable inferences, any reasonable inference deducible from circumstantial evidence that would authorize a plaintiff s recovery must outweigh each and every contrary reasonable inference if the plaintiff is to prevail. Voelker v. Combined Ins. Co.of America, 73 So.2d 403 (Fla. 1954). See also Southland Distributing Co. of St. Petersburg v. Vernal, 497 So.2d 1240, (Fla. 2d DCA 1986) (appellate court must analyze the evidence to see if the inference that justifies the plaintiff s recovery outweighs all other reasonable inferences). As suggested above, it would be inappropriate to allow a party to benefit from an inference after the party chose not to offer direct evidence that was available (as the Plaintiffs failed to do when they chose not to question the pediatrician on this point). Even if it is appropriate to allow inferences under such circumstances, the Fifth District offers no basis to conclude that the pediatrician would have done anything different from what she did: refer Ashley to an orthopedist. The Fifth District s Goolsby decision conflicts with Ewing and Gooding. The conflict complicates all cases involving an allegation of negligent failure to provide correct diagnostic information to a subsequent physician who may provide definitive care. In such cases, Ewing and Gooding require that the plaintiff offer evidence proving causation by showing that the subsequent physician would undertake some action. The Goolsby decision, though, removes that burden from the plaintiff and shifts the burden of disproving causation to the defendant. CONCLUSION Petitioner respectfully requests that this court grant discretionary review. 8

12 Respectfully submitted. Eric P. Gibbs Counsel for Petitioners Hannah, Estes & Ingram, P.A. Post Office Box 4974 Orlando, FL Telephone: Facsimile: Florida Bar Number: Raymond T. Elligett, Jr. Counsel for Petitioners Schropp, Buell & Elligett 3003 W. Azeele Street, #100 Tampa, FL Telephone: Facsimile: Florida Bar Number:

13 CERTIFICATE OF SERVICE I CERTIFY that on, 2003, a copy of the foregoing Brief on Jurisdiction has been furnished via U.S. Mail to: Brian Hill, Esquire 915 North Nova Road Holly Hill, Florida Mayanne Downs, Esquire 25 East Pine Street Orlando, Florida Jennings L. Hurt, Esquire/ Vance Dawson, Esquire 201 East Pine Street, 15 th Floor Orlando, Florida Eric P. Gibbs Counsel for Petitioners Hannah, Estes & Ingram, P.A. Post Office Box 4974 Orlando, FL Telephone: Facsimile: Florida Bar Number: Raymond T. Elligett, Jr. Counsel for Petitioners Schropp, Buell & Elligett 3003 W. Azeele Street, #100 Tampa, FL Telephone: Facsimile: Florida Bar Number: CERTIFICATE OF COMPLIANCE This Brief has been typed in Times New Roman 14-point font. Eric P. Gibbs 1 As noted by Judge Cope in his concurring opinion in Munoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000), a plaintiff can address the question of what would have been done for the patient in the form of testimony regarding what the standard of care requires of the subsequent physician. The Fifth District s opinion here is silent as to any evidence of this type having been introduced. 1