R. Fred Lewis
R. Fred Lewis (PHIL SEARS)

The Florida Supreme Court made it harder Thursday for doctors to shift the blame in a medical malpractice case from Broward County.

In a 5-2 decision, the court quashed a Fourth District Court of Appeal decision favoring a doctor in the case of a man who became a quadriplegic and later died while his case was pending.

Writing for the majority, Justice R. Fred Lewis concluded another treating physician’s testimony that he wouldn’t have acted differently in a particular case is irrelevant.

Dr. Willis Dickens, a neurologist, was sued over his treatment of Walter Saunders in July 2003. Saunders had numerous symptoms caused by two spinal conditions, one in the lumbar region and another in the neck.

Saunders sued his doctors, their employer and Broward Health Medical Center. All but Dickens settled.

In his defense, Dickens called Dr. Guillermo Pasarin, the treating neurosurgeon, as a Fabre defendant. Dickens presented Pasarin’s deposition testimony indicating he wouldn’t have done anything differently than Dickens.

Dickens also introduced a neurosurgeon as an expert witness who testified Pasarin deviated from a reasonable standard of care because he failed to perform a complete lumbar decompression in July 2003.

The two key issues in the case dealt with what information Dickens omitted when he referred Saunders to Pasarin and which ailment should have been addressed first by surgeons—the neck compression or the lumbar compression.

Saunders’ experts claimed the neck surgery should have been done first. With that, there would have been less likelihood of paralysis, plaintiffs attorney Douglas Eaton of Eaton & Wolk in Miami said.

The majority said it was reinforcing “the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated.”

“It is not only the final physician, but rather each treating physician, who must act in a reasonably prudent manner,” Lewis wrote. “A physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.”

Escaping Liability

The Supreme Court decision also reversed Ewing v. Sellinger, a 2000 Fourth District decision relied on to affirm the trial court ruling for Dickens. The high court sided instead with Third and Fifth district decisions in conflict with Ewing.

“Our client will get a new trial, and the defense will not be able to escape liability by pointing to the testimony of the former defendant who had settled out,” Eaton said.

It was in Pasarin’s interest to say he would not have acted differently if he was better informed about Saunders’ condition because he would have been admitting his own liability, Eaton said. But the jury was given the impression Pasarin was a neutral third-party.

Lewis noted the jury could not know Pasarin was an adversarial party because by law juries are not informed of settlements.

“The trial court erred when it permitted defense counsel to mislead the jury during closing statements. Moreover, we conclude this error was harmful,” Lewis said.

Lewis said the only burden the plaintiff should carry on causation is to establish whether adequate care by the doctor more likely than not would have avoided the injury.

Justice Ricky Polston dissented, with a concurrence from Justice Charles Canady. Polston argued the case was not in conflict with the Third and Fifth district decisions. Therefore, the court did not have jurisdiction.

Saunders was 59 when he was treated and died several years ago. His wife, Ruby Saunders, proceeded with the claim for his estate.

Nancy Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire and Richard Woulfe of Bunnell & Woulfe in Fort Lauderdale represented Dickens. They did not respond to requests for comment by deadline.