IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA

Transcription

1 Electronically Filed 10/21/ :27:04 PM ET RECEIVED, 10/21/ :28:38, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA ZOILA GUTIERREZ, as Personal Representative of the Estate of DILIA DOLORES JAQUEZ, vs. Petitioner, CASE NO. SC ROBERT JEFFREY CHASKES, D.O., SANDRA ST. ELOI, ARNP and VOHRA HEALTH SERVICES, P.A., Respondents. / BRIEF OF PETITIONER ON JURISDICTION On review from the Third District Court of Appeal of the State of Florida FORD & DEAN, P.A N.E. 191st Street, Suite 600 Aventura, FL and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Ste West Railroad Ave. West Palm Beach, FL (561) Attorneys for Appellee bdr@flappellatelaw.com ajr@flappellatelaw.com fa@flapppellatelaw.com

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES iii-iv STATEMENT OF THE CASE AND FACTS 1-2 SUMMARY OF ARGUMENT 3 ARGUMENT 4-9 THE THIRD DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S MANY DECISIONS PROHIBITING THE DISTRICT COURTS FROM REWEIGHING THE EVIDENCE ON CAUSATION AND SUBSTITUTING ITS JUDGMENT FOR THE JURY S. CONCLUSION 10 CERTIFICATE OF SERVICE 11 CERTIFICATE OF COMPLIANCE 12 ii

3 TABLE OF AUTHORITIES Cases Page Caldwell v. Halifax Convalescent Ctr., 566 So.2d 311, 313 (Fla. 1st DCA 1990) 8 Castillo v. E.I du Pont de Nemours & Co., Inc., 854 So.2d 1264, (Fla. 2003) 5 Chaskes v. Gutierrez, 116 So.3d 479 (Fla. 3d DCA 2013) 1, 3 Cox v. St. Joseph s Hosp., 71 So.3d 795, 799 (Fla. 2011) 4, 5, 9 Daytona Linen Serv. v. Davis, 454 So.2d 46, (Fla. 1st DCA 1984) 8 ERP Operating Limited P ship v. Sanders, 96 So.3d 929 (Fla. 4th DCA 2011), rev. granted, No. SC , 2013 WL (Fla. Aug. 2, 2013) 9 Fetterman & Associates, P.A. v. Friedrich, 69 So.3d 965 (Fla. 4th DCA 2011), rev. granted, 97 So.3d 823 (Fla. 2012) 9 Friedrich v. Fetterman & Assocs., P.A., No (Fla. Nov. 15, 2011) 9 Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, (Fla. 1984) 4, 5, 9 Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187, 1189 (Fla. 1977) 4, 5 Hughes v. Slomka, 807 So.2d 98 (Fla. 2d DCA 2002) 9 iii

4 Olsten Health Services, Inc. v. Cody, 979 So.2d 1221 (Fla. 3d DCA 2008) 7 Reaves v. State, 485 So.2d 829 (Fla. 1986) 1 Sanders v. ERP Operating Ltd. P ship, No. SC (Fla. Jan. 14, 2013) 9 Wales v. Barnes, 278 So.2d 601, 604 (Fla. 1973) 4 Wallace v. Dean, 3 So.3d 1035, 1040 (Fla. 2009) 4 Constitutional Provisions Art. V, 3(b)(3), Fla. Const. 4 iv

5 STATEMENT OF THE CASE AND FACTS This is a medical-malpractice action brought by Zoila Gutierrez ( Gutierrez ), as Personal Representative of the Estate of her mother, Dilia Dolores Jaquez ( Jaquez ), against Dr. Robert Chaskes ( Dr. Chaskes ), Nurse Sandra St. Eloi ( Nurse St. Eloi ), and Vohra Health Services, P.A. ( Vohra Health ). The jury rendered a verdict against the Defendants, who appealed to the Third District. Holding there was insufficient evidence of causation, the Third District reversed in a nearly 30-page opinion. Chaskes v. Gutierrez, 116 So.3d 479 (Fla. 3d DCA 2013). Gutierrez strongly disagrees with the Third District s mischaracterization of the facts. However, she limits this statement of the facts to those found within the four corners of the Third District s decision. 1 Then 87, Jaquez fell and broke her hip (A4). She was taken to a hospital where she underwent hip surgery (A5). During her stay at the hospital, Jaquez developed a large pressure ulcer (bedsore) at the base of her spine (A5-6). After her discharge from the hospital, Jaquez was admitted to a nursing home, where the sore was treated by the Defendants (A2, 6). 2 Despite their treatment, the sore did not get better and, in fact, became infected (A6-11, 11 n.20, 15, 21). Jaquez stayed 1 See Reaves v. State, 485 So.2d 829 (Fla. 1986). 2 This lawsuit was not about the development of Jaquez s bedsore from nonexistent to stage four. As the Third District noted, Gutierrez did not sue the medical providers treating Jaquez when the bedsore developed and she stipulated that the Defendants did not cause the bedsore (A2-3 & nn.1-2). 1

6 at the nursing home for approximately one month and died of unrelated causes several months later (A13). At trial, Gutierrez presented Dr. James Stern as her expert on causation as to Dr. Chaskes (A13-14). He testified on the standard of care, and that Dr. Chaskes breached the standard of care, which breach caused injury to Jaquez (A13-20). The Third District specifically stated that Dr. Stern did testify that Dr. Chaskes failure to comply with this standard of care resulted in infection of the bedsore (A15). However, based on its own view of the evidence, the Third District held that Gutierrez did not present sufficient evidence of causation as to Dr. Chaskes (A15, 17, 18-20). Likewise, the Third District held that Gutierrez failed to present sufficient evidence of causation as to Nurse St. Eloi based on its own view of the evidence (A20-24). At trial, Gutierrez presented Joyce Black, a nurse with a doctorate in nursing, as her causation expert as to Nurse St. Eloi (A21). Dr. Black testified that Nurse St. Eloi s breach of the standard of care caused the bedsore to become infected and not heal (A21). The Third District reversed the judgment in favor of Gutierrez, because it believed there was insufficient evidence of causation. 2

7 SUMMARY OF ARGUMENT This Court should grant discretionary review of the Third District s opinion in Chaskes v. Gutierrez, because it expressly and directly conflicts with opinions of this Court. The Third District held that Gutierrez did not present sufficient evidence that Dr. Chaskes and Nurse St. Eloi s medical malpractice caused Jaquez s injuries. This decision misapplies the well-settled standard that appellate courts are required to apply in determining whether a plaintiff has offered evidence of causation sufficient to survive a defendant s motion for directed verdict. The Third District clearly, and improperly, reweighed the evidence and substituted its judgment for the jury s. 3

8 ARGUMENT THE THIRD DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S MANY DECISIONS PROHIBITING THE DISTRICT COURTS FROM REWEIGHING THE EVIDENCE ON CAUSATION AND SUBSTITUTING ITS JUDGMENT FOR THE JURY S. The Florida Constitution gives this Court discretionary subject-matter jurisdiction over any decision of a district court that expressly and directly conflicts with a decision of the Court, or of another district court, on the same question of law. See Art. V, 3(b)(3), Fla. Const. The Court has discretionary conflict jurisdiction over a decision of a district court that misapplies this Court s decisions. See Wallace v. Dean, 3 So.3d 1035, 1040 (Fla. 2009). This Court has addressed the standard for a directed verdict on causation many times, including in the medical malpractice context. See Cox v. St. Joseph s Hosp., 71 So.3d 795, 799 (Fla. 2011); Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, (Fla. 1984); Wales v. Barnes, 278 So.2d 601, 604 (Fla. 1973). The Court s decisions have made clear that a plaintiff establishes proximate cause when she presents any evidence, viewing it and the inferences therefrom in the light most favorable to her, that the defendant s negligence more likely than not caused the plaintiff s injuries. Cox, 71 So.3d at 799; Gooding, 445 So.2d at ; Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187, 1189 (Fla. 1977). This Court has specifically warned the district courts that they cannot 4

9 reweigh legally sufficient evidence of causation and substitute their own evaluation of the evidence in place of the jury s. Cox, 71 So.3d at ; Castillo v. E.I du Pont de Nemours & Co., Inc., 854 So.2d 1264, (Fla. 2003); Gooding, 445 So.2d at 1020; Helman, 349 So.2d at In this case, it is telling that the Third District almost entirely ignored the standard through which it was required to view the evidence. The Third District s only real reference to the standard can be found in one of the Opinion s thirty footnotes (A3 n.4). The Third District then misapplied the standard, reweighing the evidence on causation in its analysis, as well as rejecting the jury s judgment in favor of its own. From a review of the court s opinion, it is obvious it viewed the evidence and inferences therefrom in the light most favorable to the Defendants, not Gutierrez. As to Dr. Chaskes, the Third District specifically noted: Dr. Stern [Gutierrez s expert] did testify that Dr. Chaskes failure to comply with this standard of care resulted in infection of the bedsore (A15 (emphasis added)). Even though Gutierrez presented legally sufficient evidence that the Third District itself acknowledged, the court presented a lengthy analysis evading it. First, in the Opinion s facts section, the Third District presented almost ten pages of facts that were not at all relevant to the issue before it, demonstrating that 5

10 the court intended to reweigh the evidence, which it did (A4-13). Second, when it introduced Dr. Stern, the Third District pejoratively stated that Dr. Stern was a plastic surgeon with no regular nursing home care experience (A13). By contrast, when the court referenced Dr. Chaskes expert, it noted the expert was an internist working exclusively as a geriatrician in nursing homes for the past ten years (A15 n.25). It is clear from these statements on the qualifications of the witnesses that the Third District weighed the testimony that Dr. Stern gave, instead of evaluating its sufficiency. Third, after noting Dr. Stern s testimony on how the sores should have been treated, the court stated (A14-15 (footnote omitted)): Ignoring the fact[s] that Jaquez had just been released from a hospital following a three-week stay only a few days before Dr. Chaskes first saw her; that Jaquez was admitted to a different hospital only two days after Dr. Chaskes first saw her on May 26; and that Jaquez was readmitted to the second hospital again on June 13 hospitalizations during which not one of her many caregivers ever suggested much less actually treated the sore as Dr. Stern suggested Dr. Stern further opined that Dr. Chaskes fell below the applicable standard of care by failing to have her admitted to a hospital for treatment of the sore. This sentence cannot be viewed as anything but the court simply disagreeing with Gutierrez s evidence and the jury s verdict. Fourth, after acknowledging Dr. Stern s legally sufficient testimony on causation, the Third District then explained why it did not believe the testimony: While Dr. Stern did testify that Dr. Chaskes failure to comply with this standard 6

11 of care resulted in infection of the bedsore, he did not testify that had Dr. Chaskes complied with this standard of care that the sore either would have healed or that it would have healed more quickly and without pain 3 (A15). This sentence also cannot be viewed as anything other than the Third District reweighing the evidence and substituting its judgment for the jury s. As to Nurse St. Eloi, the Third District likewise acknowledged all of the evidence on causation in favor of Gutierrez and then simply rejected it based on its own view of the evidence (A21-24). The Third District stated: [I]t is not clear whether it was Nurse Saint-Eloi or Dr. Chaskes who performed the May 26th debridement (A21). This is another example of the court s failure to apply the directed verdict standard. Viewed in the light most favorable to Gutierrez, the Third District should have resolved the conflict in her favor and concluded that Nurse St. Eloi performed the debridement. The Third District failed to do this. After that debridement, the Third District noted that Gutierrez s expert for 3 The Third District dwelled on this healing notion, but there is no case law requiring a plaintiff in a medical malpractice case especially one like this, which was a survivor claim, not a wrongful-death claim to prove that the progressive condition would heal or not. Gutierrez s only obligation was to prove that the Defendants were negligent and their negligence caused the wound to become infected and deteriorate, which caused unnecessary pain, injury, and medical expense to Jaquez. Although intra-district conflict cannot create jurisdiction in this Court, it should be noted that, on this point, the Third District s decision in this case is inconsistent with its own decision in Olsten Health Services, Inc. v. Cody, 979 So.2d 1221 (Fla. 3d DCA 2008) (on rehearing). 7

12 Nurse St. Eloi, Dr. Black, provided answers that either referred back to what was done incorrectly on the 26th or were at best contradictory (A23). Of course, the Third District was required to resolve any conflicts in favor of Gutierrez. Again, the Third District failed to do this. Although it is clear the Third District reweighed the causation evidence, the conclusion finds support in other parts of the opinion. For example, in its statement of the facts, the Third District wrote: While Gutierrez claimed her mother was suffering from the bedsore, each of the registered nurses providing care to Jaquez on a daily basis reported, as did all of her previous professional caregivers, that Jaquez had no pain (A12 (emphasis in original)). This sentence indicates the Third District believed the latter over the former a clear example of the Third District evaluating the evidence against Gutierrez. Had the Third District properly applied the standard this Court has mandated instead of reweighing the evidence and substituting its judgment for the jury s, it would have found that Gutierrez presented legally sufficient evidence that the Defendants caused her injury. 4 4 The Third District s decision is also inconsistent with the decisions of other district courts on the sufficiency of causation evidence. See Caldwell v. Halifax Convalescent Ctr., 566 So.2d 311, 313 (Fla. 1st DCA 1990) (experts testimony in response to questions framed in terms of [reasonable medical] probability held competent, substantial evidence); Daytona Linen Serv. v. Davis, 454 So.2d 46, (Fla. 1st DCA 1984) (holding [i]t is not necessary for a physician to utter the magic words reasonable medical probability to support a finding of causal 8

13 Because the Third District clearly has misapplied this Court s holdings on evaluating evidentiary sufficiency, its decision conflicts with the Court s precedent. Unfortunately, district courts reweighing of the facts, especially on causation, is a consistent problem in Florida, as demonstrated by the above-cited cases. Indeed, there are two cases on the issue currently pending before the Court. 5 This Court should exercise its discretion and accept jurisdiction of the instant case not only to do justice in this case by resolving the conflict created by the Third District, but to again remind the district courts of the scope of their review. relationship ); Hughes v. Slomka, 807 So.2d 98 (Fla. 2d DCA 2002) (expert s internally inconsistent testimony permitted an inference that satisfied Gooding and sufficed to withstand a motion for directed verdict on causation ). 5 This Court accepted jurisdiction in Fetterman & Associates, P.A. v. Friedrich, 69 So.3d 965 (Fla. 4th DCA 2011), rev. granted, 97 So.3d 823 (Fla. 2012) (table), where the Fourth District, in a 2-1 decision, reversed a final judgment on the ground the plaintiff failed to prove causation. The plaintiff specifically cited Cox and Gooding in seeking this Court s review. See Br. on Jur. of Petr. at 7-8, Friedrich v. Fetterman & Assocs., P.A., No (Fla. Nov. 15, 2011), available at The Court also accepted review in ERP Operating Limited P ship v. Sanders, 96 So.3d 929 (Fla. 4th DCA 2011), rev. granted, No. SC , 2013 WL (Fla. Aug. 2, 2013), where the Fourth District reversed a final judgment for the same reason. The plaintiff specifically cited Cox in seeking this Court s review. See Br. on Jur. of Petr. at 5, Sanders v. ERP Operating Ltd. P ship, No. SC (Fla. Jan. 14, 2013). 9

14 CONCLUSION This Court should grant discretionary review to resolve the conflict created by the Third District s decision in this case. 10

15 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true copy of the foregoing has been furnished to MARK HICKS, ESQ., and DINAH STEIN, ESQ. (dstein@mhickslaw.com; pgonzalez@mhickslaw.com; eclerk@mhickslaw.com), 799 Brickell Plaza, Ste. 900, Miami, FL 33131, by , on October 21, William A. Dean, Esq. FORD & DEAN, P.A N.E. 191st Street, Suite 600 Aventura, FL bill@forddean.com barbie@forddean.com and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite West Railroad Avenue West Palm Beach, FL (561) Attorneys for Petitioner By: /s/bard D. Rockenbach BARD D. ROCKENBACH Florida Bar No bdr@flappellatelaw.com fa@flappellatelaw.com By: /s/adam J. Richardson ADAM J. RICHARDSON Florida Bar No ajr@flappellatelaw.com fa@flappellatelaw.com 11

16 CERTIFICATE OF TYPE SIZE & STYLE Petitioner hereby certifies that the type size and style of the Brief of Petitioner on Jurisdiction is Times New Roman 14pt. By: /s/bard D. Rockenbach BARD D. ROCKENBACH Florida Bar No