Gary D. Fox
Gary D. Fox (J. Albert Diaz)


Case No.: 2D12-5244

Date: Feb. 19, 2014

Case type: Medical malpractice

Court: Second District Court of Appeal

Author of opinion: Judge Morris Silberman

Lawyers for petitioner: James B. Tilghman Jr. and Gary D. Fox, Stewart, Tilghman, Fox, Bianchi & Cain, Miami

Lawyers for respondents: Anne Sullivan Magnelli and Scott A. Cole, Cole, Scott & Kissane, Miami

Panel: Judges Silberman, Stevan T. Northcutt and Marva Crenshaw

Originating court: Sarasota Circuit Court

The next stop for a medical malpractice case based on a suicide is either the Florida Supreme Court or a Sarasota Circuit Court jury.

If the case brought by the estate of Jacqueline Granicz gets to the high court, it may shape public policy on the assignment of liability when a person under a doctor’s outpatient care kills herself.

If, instead, the case goes directly to jurors, they will have to scrutinize the actions of Dr. Joseph Chirillo, a primary care physician, and determine whether those actions were the proximate cause of his patient’s death.

Finding that Chirillo had no legal duty to prevent Granicz’s “unforeseeable” suicide, a trial judge granted summary judgment for the defense. The Second District Court of Appeal reversed and remanded.

“The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others,” Judge Morris Silberman wrote, quoting from a 1992 Florida Supreme Court ruling.

“The duty element is a question of law for the court to resolve; the element of proximate cause presents a fact question for the jury,” Silberman concluded.

The court certified conflict with Lawlor v. Orlando, a 2001 ruling by the First District Court of Appeal.

Gary Fox, who represents Robert Granicz, Jacqueline’s husband, said he will push for the earliest possible trial date, though he believes Chirillo’s attorneys will seek an appeal.

Chirillo’s lawyer, Scott Cole of Cole, Scott & Kissane in Miami, declined to comment.

“If they do try to appeal, I like our chances in the Supreme Court because nothing this court did was controversial. It simply applied the existing law to the case,” said Fox of Stewart, Tilghman, Fox, Bianchi & Cain in Miami.

“And it is a very compelling case,” he added.

Tale Of Depression

Jacqueline Granicz, a 55-year-old wife and mother, had a history of depression. She had been taking Prozac when she first went to Chirillo in 2005.

He put her on the antidepressant Effexor. But there were side effects, and in the summer of 2008 Granicz quietly stopped taking the drug.

On Oct. 8, 2008, she called Chirillo’s office and told his medical assistant she hadn’t “felt right since late June-July,” according to the Second District opinion. She said she cried easily, had to take sleeping pills and was having stomach problems.

She blamed Effexor for her symptoms and told the assistant she had stopped taking it. The assistant reported what Granicz said in a note to Chirillo.

When he read the note, the doctor decided to switch Granicz to another antidepressant, Lexapro, and to refer her to a gastroenterologist. His assistant summoned her to pick up a prescription for Lexapro but did not schedule an appointment with Chirillo.

The next day, according to Fox, Richard Granicz lived a nightmare he’d never expected.

Seeing his wife’s car parked outside their two-car garage, he used his door-opener. “He sees her hanging from one of the struts that support the garage door, and of course he just absolutely loses it,” Fox said. There was no note.

The medical malpractice action claims Chirillo breached his duty of reasonable care by failing to either see his patient or send her to someone better able to treat her.

“He was obliged to do one of a couple of things,” Fox said. “Either bring her into his office so he could examine her and assess for himself what kind of shape she was in mentally, [or] if he didn’t want to do that, if he was too busy or too lazy, what he needed to do was pick up the phone and tell her you need to see somebody now.

“He was just so not clued into what her problems were, he was sending her to a gastroenterologist.”

Conflicting Decision

Fox admits medmal actions resulting from suicides are difficult and many lawyers won’t touch them.

“The defense always is, it’s her own fault, she did it to herself,” he said. “A lot of people don’t appreciate the fact that what leads to suicide is a disease, in this case depression, and the person has no more control over the depression than she would have if she’d been diagnosed with uterine cancer.”

The last time a Florida appellate court took a close look at the issue was 2001 in the Lawlor case.

The estate of Bryan Wood sued Jacqueline Orlando, a psychotherapist, claiming her treatment of him as an outpatient fell below the standard of care and led to his 1995 suicide. Orlando had not seen Wood for more than three months.

“Although Florida law would clearly impose a duty on a psychotherapist for failure to safeguard a patient from harming himself in a custodial setting, … no Florida cases extend the duty of custodial supervision and care to the outpatient relationship,” the court wrote in an unsigned opinion.

The First District wouldn’t make that leap.

In a dissent, Judge Robert Benton focused on the plaintiff’s expert, who said Orlando’s treatment of Wood fell below the prevailing professional standard of care in several ways.

“On this record, I cannot agree that as a matter of law Dr. Orlando had no duty to provide ‘appropriate psychotherapy’ or that no factual dispute exists about whether her alleged failure to do so proximately caused the suicide,” Benton wrote.

Second District Judge Silberman cited Benton’s dissent for the proposition that only a jury can answer the proximate cause question.

That’s exactly the audience Fox wants to hear his case.

“Most of these cases are lost, and we may lose this one,” he said. “But if we lose it, we’re not going to go down without one hell of a fight.”