By Caroline Johnson Levine
There are many elements required to present and complete a successful trial. Consequently, there are also many opportunities to execute an unforced error in the presentation of evidence, which may result in an appellate court reversal. Therefore, it is important to ensure that every attorney argues, and each witness testifies, in a manner that is not misleading to the judge or jury. The Florida Supreme Court recently held in Saunders v. Dickens, 2014 WL 3361813 (Fla. 2014), that an attorney’s misleading statements to the jury will result in a reversal if those statements result in harmful error.
Walter Saunders visited Dr. Dickens, a neurologist, “because he was experiencing back pain, leg pain, and unsteadiness on his feet,” and tingling and numbness in his hands. Id. at 1. Dr. Dickens believed that Saunders’ condition was caused in part by “peripheral neuropathy due to diabetes.” Id. However, Dr. Dickens did not perform any tests to confirm his diagnosis. An MRI revealed a narrowing of Saunders’ spinal canal, and Dr. Pasarin, a neurosurgeon, performed a lumbar decompression operation on Saunders. Unfortunately, the operation resulted in a progressively degenerative condition for Saunders and eventually led to his quadriplegia and death.
In Dr. Dickens’ medical malpractice trial, he “raised the affirmative defense that Dr. Pasarin’s negligence was the cause of Saunders’ injury,” and Dr. Pasarin was included in the trial as a Fabre defendant. Dr. Dickens presented expert witnesses who testified that Dr. Dickens was not negligent and that it was Dr. Pasarin who deviated from a reasonable standard of care.
In Saunders, the court discussed the “burden of proof in negligence actions.” Id. at 5. “The elements of a medical malpractice action are: (1) a duty by the physician, (2) a breach of that duty, and (3) causation.” Id. at 6; see also Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984). The duty of a physician is to practice the standard professional level of “care, skill, and treatment that in consideration of all surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably prudent health care providers.” Saunders, 2014 WL 3361813, at 6; see also § 766.102, Fla. Stat., (2013).
In closing statements, Dr. Dickens’ attorney improperly shifted the burden of proof by arguing that a “subsequent treating physician [Dr. Pasarin] would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care.” Id. at 8. Further, Dr. Dickens’ attorney misstated the law by arguing that Saunders was “required to establish only that Dr. Dickens’ care fell below that of a reasonably prudent physician and that, more likely than not, adequate care by Dr. Dickens would have prevented Mr. Saunders’ devastating injuries.” Id. at 7. The Florida Supreme Court held that the trial court erred in allowing Dr. Dickens' attorney to make those misleading arguments in closing. Id. Saunders demonstrates that it only takes a few errant words to reverse a jury verdict.
