Anesthesiologist Case May Lower Bar for Fla. Med Mal Suits

Law360 (February 13, 2018, 3:20 PM EST) — If the Florida Supreme Court revives claims against an anesthesiologist whose quick clearance for surgery of a woman allegedly contributed to her death, experts say it could make it easier for medical malpractice plaintiffs in the state to allege causation, or that a health care provider proximately caused a person’s injuries.

The state’s highest court agreed in January to rule on whether Dr. Arturo Lorenzo was properly cut loose from a suit accusing health care providers including Hialeah Hospital of negligent treatment that caused the death of patient Maria Elena Espinosa just prior to brain surgery. Lorenzo, an anesthesiologist, is accused of improperly clearing the patient for surgery despite certain red flags, including an abnormal electrocardiogram and lab results.

The Third District Court of Appeal ruled 2-1 in August that the patient’s family failed to present evidence proving Lorenzo — who spent just three to five minutes conducting the initial portion of an anesthesia evaluation while the assigned anesthesiologist was running late to the surgery — played a causal role in Espinosa’s death, and issued a directed verdict in Lorenzo’s favor.

A well-respected judge, District Judge Kevin Emas, however, issued a lengthy dissent, arguing that the red flags were sufficient evidence to preclude a directed verdict.

At stake is Florida malpractice plaintiffs’ ability to assert claims against doctors who may have tangentially contributed to a patient’s injuries, so long as plaintiffs can prove they played some part, according to Andrew S. Bolin of Beytin McLaughlin McLaughlin O’Hara Bocchino & Bolin PA.

Bolin, a medical malpractice defense attorney, told Law360 that the current suit is a follow-on to Saunders v. Dickens, a 2014 Florida Supreme Court case that determined a subsequent treating physician’s negligence can’t insulate a prior physician’s alleged negligence.

Even though the subsequent treating physicians said they would have acted no differently despite a previous doctor’s alleged negligence, the Supreme Court concluded in Saunders that such evidence is inadmissible and irrelevant and shouldn’t be presented to a jury when determining causation.

The high court said the only issue was that, more likely than not, the defendant physician proximately caused the injury.

“When the Saunders case was handed down in 2014, it got a lot of attention from both the plaintiffs and defense bar — it was a case that certainly looked at causation in medical malpractice differently than anything we had seen in the past,” he said. “In the Ruiz case, the Florida Supreme Court is looking to revisit the Saunders decision to give further clarity on what they were communicating.”

The appeals court’s ruling in the instant case, Bolin said, determined that because Lorenzo only treated the patient for a brief period of time and early on, there was no competent evidence that subsequent physicians would have acted differently based upon the actions of Lorenzo.

“This is really a focus on causation and the way that causation is going to play a part in what the plaintiff has to prove,” he said.

Lani Dornfeld, a health law attorney with Brach Eichler LLC, said the case is difficult because there were multiple physicians responsible for Espinosa’s care and surgical procedures, and Lorenzo only served as a fill-in anesthesiologist for three to five minutes before handing off care to the other anesthesiologist.

“It would seem to be a logical conclusion that [he] is the anesthesiologist responsible, and not Dr. Lorenzo,” she said.

But the Florida Supreme Court is looking to make a distinction between simple cause-and-effect and causation, the latter which implies proximate cause and liability, according to medical malpractice defense attorney James J. Nosich of Nosich & Ganz Attorneys at Law.

“The plaintiffs are arguing ‘but for’ the anesthesiologist’s involvement or negligence, the patient would’ve never gotten into the operating room, so therefore anything that happened in the operating room is on the anesthesiologist,” he said, “While the defense is arguing more about proximate cause, or that there was nothing linked to [Lorenzo’s] alleged negligence.”

Nosich said he wouldn’t be surprised if the directed verdict is overturned, saying Judge Emas laid out a lengthy and logical dissenting opinion.

“You can certainly say that Emas took the time to really hash out his position. I thought it was lengthy and well-thought out; he went through testimony piece-by-piece,” said Nosich. “He’s a really smart judge, and he obviously feels strongly about it — it’s a well-written dissent.”

Personal injury plaintiffs attorney Jeffrey R. Davis said he, too, would not be surprised if the Florida Supreme Court revives the case and sends it back for a retrial on the issue of Lorenzo’s liability.

Davis said Judge Emas correctly states that the majority is looking at the evidence too narrowly and should have viewed the evidence in a light most favorable to the plaintiff.

“If you do that, there was enough evidence, [Emas] says. And by the way, the test is not what the judges think the outcome of the case should be — the judges are gatekeepers who have to decide whether there is a requisite offering of proof, not the weight of it — that’s the jury’s job,” he said.

“The [Court of Appeal] had this decision as a fait accompli and agreed with the trial court and crafted their opinion to support it.”

Given the current makeup of the Florida Supreme Court and its decisions in medical malpractice cases in recent years, Bolin said he believes there is a 60-40 chance that it revives the claims against Lorenzo.

“I think it is likely that we will see this decision overturned on the authority of the Saunders decision and perhaps even a greater highlighting of causation in that regard,” he said. “In my opinion, it would lower the bar significantly for causation and erode what has been the standard in Florida for a very long time. It would erode the basis for causation and the importance causation plays as an essential element in a medical malpractice case.”

Espinosa’s family is represented by Jorge P. Gutierrez Jr. of The Gutierrez Firm and Philip D. Parrish PA.

Lorenzo is represented by Jonathon P. Lynn of Chimpoulis Hunter & Lynn PA and Dinah Stein of Hicks Porter Ebenfeld & Stein PA.

The case is Ruiz v. Tenet Hialeah Healthsystem Inc. et al., case number SC17-1562, in the Supreme Court of Florida.

– Additional reporting by Carolina Bolado. Editing by Philip Shea and Kelly Duncan