By: Paula J. Lozano
In Florida medical malpractice lawsuits, plaintiffs’ attorneys often sue not only the providers involved in the direct care of the patient, but also providers who were remotely in contact with the patient’s care. Plaintiffs’ attorneys often take the position that if an insurance policy exists – sue them and maybe we will get a few bucks. Occasionally, it is an effective tactic. By suing all potential parties, plaintiffs avoid a Fabre defense and an “empty chair” at trial, and they may actually obtain a nominal settlement just so the defendant-physician can avoid the cost and inconvenience of litigation or trial. However, defending such cases can become protracted and the litigation costs immense.
While the true focus of the lawsuit is on the primary care providers, secondary claims often involve a consulting physician’s failure to intervene or override the decisions of the treating physician. In the last several years, CSK attorneys were presented with this “failure to intervene” issue in four different lawsuits. The issues were as follows: (1) whether the treating obstetrician should have presented to the hospital to evaluate his patient after the emergency room physician called regarding use of a steroid for an allergic reaction; (2) whether the anesthesiologist who evaluated the patient in the Post Anesthesia Care Unit (“PACU”) should have convinced the surgeon to take the patient back to surgery to evaluate post-operative bleeding; (3) whether the consulting intensivist who saw the patient in the Intensive Care Unit (”ICU”) five hours after surgery should have overridden the surgeon’s orders and called another surgeon to take the patient back to surgery to explore for a developing hematoma; and, (4) whether the anesthesiologist administering an epidural to a patient in labor should have convinced the obstetrician to perform a C-Section. All patients suffered complications resulting in significant injuries.
In each case, the plaintiff’s attorney alleged negligence on the secondary physicians. Two cases resulted in a nominal settlement, another in a defense verdict, and the last in a dismissal before trial. Only one case pursued a Motion for Summary Judgment on behalf of the secondary physician, which the trial court denied. All four cases were in litigation for years with significant costs.
In Florida, there is presently no duty for a consulting physician to intervene or convince the treating physician to take a different course of action. However, no Florida court has held that such a duty does not exist. Therefore, plaintiffs’ attorneys are free to file claims against consulting physicians alleging that the provider had a duty to intervene. When confronted with such claims, it is advisable that defense attorneys file early dispositive motions seeking summary judgment. Convincing the courts in Florida that there is no legal duty for a consulting physician to intervene in the care of a patient is the best means of controlling defense costs. However, despite the absence of case law recognizing such a duty in Florida, establishing that plaintiffs have failed to meet their burden of proof as a matter of law is challenging.
In order to prevail in a medical malpractice matter, the plaintiff bears the burden of proving all four elements of the cause of action: (1) a duty owed to the patient; (2) a breach in the applicable standard of care; (3) a legal causal connection between the breach and the injuries; and, (4) damages. Too often, lawyers and courts gloss over the first element. However, because there is no case law imposing a duty for a physician to intervene in Florida, defense attorneys should aggressively pursue summary judgment on this first element.
Whether a legal duty exists in a negligence action is a question of law decided by the trial court.1 In all four CSK cases discussed above, the plaintiffs’ claims involved whether the secondary provider had a duty to intervene or override the treating provider’s orders. Currently, Florida imposes no such duty on physicians, nor does Florida negate such a duty. In fact, there is no Florida case on point. There are, however, cases from various other jurisdictions that support summary judgment on this question of duty.
Kansas provides direct, persuasive support. Specifically, in Dodd-Anderson By and Through Dodd-Anderson v. Stevens, the appellate court considered adopting a duty for a secondary physician to override the judgment and decisions of another physician.2 In the case, the plaintiffs alleged that the consulting physician negligently failed to intervene in the treating physician’s treatment of a child. The plaintiffs’ expert opined that the secondary physician “should have done something….should have examined and assumed control.”3 Plaintiffs often rely upon such evidence in Florida. However, the Kansas court disagreed, upheld the entry of summary judgment, and provided the following rationale:
[N]o reasonable person, applying contemporary standards, would recognize and agree that a physician has, or should have, a legal duty to unilaterally and perhaps forcibly override the medical judgment of another physician, particularly a treating physician. 4
In fact, the court opined that such a duty would result in “medical, and ultimately legal, chaos.”5 Although the court noted the obvious and endless adverse consequences to the medical community and patients, it did not elaborate on these consequences.6
Alabama lends further support to challenge these “failure to intervene” cases. In Wilson v. Athens-Limestone Hosp., the parents filed a wrongful death action against the hospital and hospital-employed pediatrician alleging improper discharge of their four year old who ultimately died.7 The emergency room physician consulted the child’s pediatrician, Dr. Teng, who had a pre-existing physician-patient relationship with the child.8 Dr. Teng presented to the emergency department, saw the child, and spoke to the emergency room physician, but did not diagnose, treat, or make any recommendations for the patient.9 Still, the plaintiffs alleged that Dr. Teng had a duty to intervene, which he breached by negligently failing to ensure the child received proper care through admission and administration of medication.10 The trial court, however, disagreed and granted the defendants’ directed verdict at trial. The appellate court also agreed and, citing Dodd-Anderson, found that Dr. Teng owed the patient no duty to intervene or override the independent medical judgment of the emergency room physician who retained control of the child.11
More recently, in Gilbert v. Miodovnik, the Court of Appeals for the District of Columbia relied on Dodd-Anderson to determine that a Medical Director did not owe a duty to intervene in the patient’s care.12 In this case, the plaintiff received obstetrical care and treatment from a midwifery group who counseled the patient on the dangers and increased risks of complications giving birth vaginally after two prior C-Sections (VBAC). The midwifery group often consulted with Dr. Miodovnik during “chart review” meetings regarding various patients.13 When the midwives brought this patient to his attention during a routine chart review, Dr. Miodovnik expressed great concern, recommended the patient have a C-section, and instructed the midwives to reiterate the dangers and risks involved in a VBAC in order to obtain proper consent.14 However, the midwives failed to again inform the patient of the risks and failed to again obtain her consent to forego the C-section.
Thereafter, while the patient ultimately agreed to a C-section at the last minute, her uterus ruptured causing significant damages to the baby.15 The plaintiff argued that because Dr. Miodovnik was the Medical Director who gave advice when the midwives presented her case, he owed the patient a duty to intervene, override the judgment of the nurse midwives, and directly communicate with and counsel the patient that the VBAC was inadvisable.16 However, the Court of Appeals found that a traditional physician-patient relationship did not exist between the plaintiff and Dr. Miodovnik, since he never met with or examined the patient.17 The Court of Appeals also found that even though Dr. Miodovnik consulted on the case, he had no duty to intervene, take charge of the patient’s care and treatment plan, or even monitor the situation.18 In summary, the patient already had skilled treating practitioners managing her care, which Dr. Miodovnik neither supervised nor had a duty to supervise.19
In CSK’s experience in medical malpractice lawsuits over the years, plaintiffs persist in making creative arguments that challenge the existence of a duty to intervene. From a practical standpoint, the case law from Kansas, Alabama and the District of Columbia support the proposition that secondary providers consulting on patients’ care, or merely discussing care with the treating provider, have no such duty to intervene or override the treating physician’s plan. In Florida, there is no case law that specifically addresses the issue. However, the holdings from these other jurisdictions provide aggressive defenses to allegations that a physician had the duty to intervene. Florida counsel should raise these defenses early via the filing of dispositive motions in cases where the plaintiffs assert a physician’s duty to intervene, before extraordinary time and resources are expended in litigation. The challenge we continue to face in Florida, however, is finding trial courts willing to grant these motions.
1 McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992).
2 905 F. Supp. 937 (D. Kan. 1995), aff’d, 107 F.3d 20 (10th Cir. 1997).
3 Id. at 947.
4 Id. at 948.
7 894 So. 2d 630 (Ala. 2004).
8 Id. at 631.
10 Id. at 633.
11 Id. at 635.
12 990 A.2d 983 (D.C. 2010).
13 Id. at 986.
15 Id. at 987.
16 Id. at 991.
18 Id. at 996-97.
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