In response to the Supreme Court’s release of a new, Standard Jury Instruction on subsequent injuries caused by medical negligence, it should be noted that Abbey, Adams, Byelick & Mueller, L.L.P., took the position and submitted its comments to the Jury Instructions Committee that the language of the proposed instruction was an incomplete statement of the law. Following are the comments provided by this Firm to the Jury Instruction Committee which we continue to believe appropriately address the deficiencies with the newly-adopted instruction:
Dear Committee Members:
On October 1, 2011, comments were invited by this
Committee regarding various proposed jury instructions in civil cases. Among the proposals, was the addition of an
instruction titled “Subsequent Injuries Caused by Medical Treatment.” Our position and concerns regarding the
suggested wording of the proposed jury instruction are best explained through
the use of a hypothetical:
Committee regarding various proposed jury instructions in civil cases. Among the proposals, was the addition of an
instruction titled “Subsequent Injuries Caused by Medical Treatment.” Our position and concerns regarding the
suggested wording of the proposed jury instruction are best explained through
the use of a hypothetical:
Smith was on his way home from a doctor who had
scheduled a back surgery for the next week.
He was rear-ended in a motor vehicle accident with minimal damage to the
rear of his vehicle. Throughout records
of subsequent medical treatment, there was no indication that Smith’s back was
injured or that his back condition was aggravated by the accident. However, for the first time, Smith began
complaining of neck symptoms. One day
after the accident, Plaintiff contacted Attorney Jones, whom Smith identified
from a billboard. A staff member at
Attorney Jones’s office suggested Smith consult Dr. Brown. Dr. Brown commenced treatment and, three
months later, performed a back surgery upon Smith. The back surgery was negligently performed
and left Smith a quadriplegic. Smith
filed a lawsuit in which he attempted to attribute the negligent back surgery
to the motor vehicle accident.
scheduled a back surgery for the next week.
He was rear-ended in a motor vehicle accident with minimal damage to the
rear of his vehicle. Throughout records
of subsequent medical treatment, there was no indication that Smith’s back was
injured or that his back condition was aggravated by the accident. However, for the first time, Smith began
complaining of neck symptoms. One day
after the accident, Plaintiff contacted Attorney Jones, whom Smith identified
from a billboard. A staff member at
Attorney Jones’s office suggested Smith consult Dr. Brown. Dr. Brown commenced treatment and, three
months later, performed a back surgery upon Smith. The back surgery was negligently performed
and left Smith a quadriplegic. Smith
filed a lawsuit in which he attempted to attribute the negligent back surgery
to the motor vehicle accident.
Since 1932, the Florida Supreme Court has
pronounced “where one who has suffered personal injuries by reason of the
negligence of another exercises reasonable care in securing the services of a
competent physician or surgeon, and in following his advice and instructions,
and his injuries are thereafter aggravated or increased by the negligence, mistake
or lack of skill of such physician or surgeon, the law regards the negligence
of the wrongdoer in causing the original injury as the proximate cause
of the damages flowing from the subsequent negligent or unskilled treatment
thereof, and holds him liable therefore.”
J. Ray Arnold Corp. v. Richardson, 141 So. 133 (Fla. 1932)
(emphasis added). This black letter rule
of law was reinforced in Stuart v. Hertz Corp., 351 So. 2d 703 (Fla.
1977). Since that time, this rule of law
has commonly been referred to as the “Stuart v. Hertz instruction.” However, there has been no standard jury
instruction addressing this situation.
Instead, litigants have requested a special instruction regarding
subsequent medical negligence crafted to incorporate the Richardson/Stuart
principle of law. In the following
cases, the Courts authorized use of a special jury instruction that tracked the
Richardson/Stuart rule:
pronounced “where one who has suffered personal injuries by reason of the
negligence of another exercises reasonable care in securing the services of a
competent physician or surgeon, and in following his advice and instructions,
and his injuries are thereafter aggravated or increased by the negligence, mistake
or lack of skill of such physician or surgeon, the law regards the negligence
of the wrongdoer in causing the original injury as the proximate cause
of the damages flowing from the subsequent negligent or unskilled treatment
thereof, and holds him liable therefore.”
J. Ray Arnold Corp. v. Richardson, 141 So. 133 (Fla. 1932)
(emphasis added). This black letter rule
of law was reinforced in Stuart v. Hertz Corp., 351 So. 2d 703 (Fla.
1977). Since that time, this rule of law
has commonly been referred to as the “Stuart v. Hertz instruction.” However, there has been no standard jury
instruction addressing this situation.
Instead, litigants have requested a special instruction regarding
subsequent medical negligence crafted to incorporate the Richardson/Stuart
principle of law. In the following
cases, the Courts authorized use of a special jury instruction that tracked the
Richardson/Stuart rule:
1.
Forina v. Zann, 609 So. 2d 629 (Fla. 4th
DCA 1992);
Forina v. Zann, 609 So. 2d 629 (Fla. 4th
DCA 1992);
2.
Barrios v. Darrach, 629 So. 2d 211 (Fla.
3d DCA 1993);
Barrios v. Darrach, 629 So. 2d 211 (Fla.
3d DCA 1993);
3.
Letzter v. Cephas, 792 So. 2d 481 (Fla.
4th DCA 2001);
Letzter v. Cephas, 792 So. 2d 481 (Fla.
4th DCA 2001);
4.
Nason v. Shafranski, 33 So. 3d 117 (Fla.
4th DCA 2010);
Nason v. Shafranski, 33 So. 3d 117 (Fla.
4th DCA 2010);
5.
Tucker v. Korpita, 77 So. 3d 716 (Fla.
4th DCA 2011); and
Tucker v. Korpita, 77 So. 3d 716 (Fla.
4th DCA 2011); and
6.
Pedro v. Baber, 83 So. 3d 912 (Fla. 2d
DCA 2012).
Pedro v. Baber, 83 So. 3d 912 (Fla. 2d
DCA 2012).
By his concurring opinion in Nason, Judge
Farmer made the following comments concerning a proposed so-called “Stuart” instruction:
Farmer made the following comments concerning a proposed so-called “Stuart” instruction:
The jury instruction concerning defendant’s
liability for the doctor’s negligence in treating plaintiff for injuries caused
by defendant is a problem. I assume this
is either intervening or concurring causation or something of both. At any rate, I doubt that lay jurors easily
pick up this complex legal concept.
Truth be told, some lawyers have trouble with it.
liability for the doctor’s negligence in treating plaintiff for injuries caused
by defendant is a problem. I assume this
is either intervening or concurring causation or something of both. At any rate, I doubt that lay jurors easily
pick up this complex legal concept.
Truth be told, some lawyers have trouble with it.
The issue concerns whether the law recognizes the
doctor treating the victim for an injury caused by another person as part of a
connected chain of causation for the victim’s set of injuries. Or, instead, is the treating doctor an
entirely disconnected actor and any further injuries caused by the doctor a
separate matter for which the first actor is not responsible?
doctor treating the victim for an injury caused by another person as part of a
connected chain of causation for the victim’s set of injuries. Or, instead, is the treating doctor an
entirely disconnected actor and any further injuries caused by the doctor a
separate matter for which the first actor is not responsible?
. . . the answer is that the law considers the
treating doctor’s negligence in rendering medical care to the victim for the
initial injuries as part of the consequences caused by the original actor’s
negligence that required the medical treatment . . .
treating doctor’s negligence in rendering medical care to the victim for the
initial injuries as part of the consequences caused by the original actor’s
negligence that required the medical treatment . . .
Here is a subject begging for a good dose of plain
English. In this case, the special jury
instruction proposed by plaintiff [which directly tracked the black letter rule
of law stated in Stuart v. Hertz] is hopelessly muddled. If you persist in digging through it, you can
eventually discern a correct statement of law on concurring or intervening
cause by a subsequent treating doctor somewhere within but I sure wouldn’t want
to try this one out on lay jurors. Id.
at 123.
English. In this case, the special jury
instruction proposed by plaintiff [which directly tracked the black letter rule
of law stated in Stuart v. Hertz] is hopelessly muddled. If you persist in digging through it, you can
eventually discern a correct statement of law on concurring or intervening
cause by a subsequent treating doctor somewhere within but I sure wouldn’t want
to try this one out on lay jurors. Id.
at 123.
Hence, Judge Farmer proposed the following
alternative instruction:
alternative instruction:
The next issue for your consideration is the claim
that (defendant) is liable for the negligence of (doctor/hospital/nurse) in
treating (claimant) for injuries he claims to have suffered in (event). A person responsible for negligently injuring
another may also be further liable for the ensuing negligence of any healthcare
provider treating the injured party if:
that (defendant) is liable for the negligence of (doctor/hospital/nurse) in
treating (claimant) for injuries he claims to have suffered in (event). A person responsible for negligently injuring
another may also be further liable for the ensuing negligence of any healthcare
provider treating the injured party if:
(1) Injuries caused by the negligence of
(defendant) reasonably require medical care or treatment by a healthcare
providers;
(defendant) reasonably require medical care or treatment by a healthcare
providers;
(2) A healthcare provider gave (claimant)
medical care or treatment for injuries caused by (defendant) in (event); and
medical care or treatment for injuries caused by (defendant) in (event); and
(3) (Claimant) did not unreasonably fail to
comply with that healthcare provider’s medical advice and instructions. Id. at 123-124 (emphasis added).
comply with that healthcare provider’s medical advice and instructions. Id. at 123-124 (emphasis added).
For purposes of our hypothetical, both the black
letter rule of law and Judge Farmer’s proposed instruction clearly require that
the medical malpractice arise from treatment of an injury caused by the
accident. The Stuart rule of law
specified:
letter rule of law and Judge Farmer’s proposed instruction clearly require that
the medical malpractice arise from treatment of an injury caused by the
accident. The Stuart rule of law
specified:
Where one who has suffered personal injuries by
reason of the negligence of another, exercises reasonable care in securing
the services of a competent physician or surgeon and in following his advice
and instructions, and his injuries are thereafter aggravated or increased by
the negligence, mistake or lack of skill of such physician or surgeon, the law
regards the negligence of the wrongdoer in causing the original injury as the
proximate cause of the damages flowing from the subsequent negligent or
unskillful treatment thereof and holds him liable therefore.
reason of the negligence of another, exercises reasonable care in securing
the services of a competent physician or surgeon and in following his advice
and instructions, and his injuries are thereafter aggravated or increased by
the negligence, mistake or lack of skill of such physician or surgeon, the law
regards the negligence of the wrongdoer in causing the original injury as the
proximate cause of the damages flowing from the subsequent negligent or
unskillful treatment thereof and holds him liable therefore.
The Committee’s proposed jury instruction titled
“Subsequent Injuries Caused by Medical Treatment” states:
“Subsequent Injuries Caused by Medical Treatment” states:
If you find that (defendant) caused [loss]
[injury] [or] [damage] to (claimant), then (defendant) [is] also responsible
for any additional [loss] [injury] [or] [damage] caused by medical care or
treatment reasonably obtained by (claimant).
[injury] [or] [damage] to (claimant), then (defendant) [is] also responsible
for any additional [loss] [injury] [or] [damage] caused by medical care or
treatment reasonably obtained by (claimant).
Arguably, the proposed instruction is not a
correct statement of the Richardson/Stuart principle as it contains no
requirement that the negligent medical treatment be provided for an injury
caused by the defendant. For example,
the rule of law would not allow Smith to recover damages caused by Dr. Brown
from Defendant Jones in our hypothetical; however, the proposed jury
instruction might.
correct statement of the Richardson/Stuart principle as it contains no
requirement that the negligent medical treatment be provided for an injury
caused by the defendant. For example,
the rule of law would not allow Smith to recover damages caused by Dr. Brown
from Defendant Jones in our hypothetical; however, the proposed jury
instruction might.
The risk that the instruction can be used in this
manner was brought to our attention in a case currently pending before the
Second District Court of Appeal, Timmie Leigh Keyser et al., vs. Jim Coats
in his official capacity as Sheriff of Pinellas County, Case No.:
2D11-1835. Mrs. Timmie Keyser, a
Sheriff’s deputy, was allegedly injured as a passenger in her personal vehicle
when it was rear-ended by a Sheriff’s Office vehicle. Prior to the accident, Mrs. Keyser had a long
history of neck pain and treatment. Three months after the accident, she
underwent a neck surgery which left her a quadriplegic. The parties agreed Mrs. Keyser’s quadriplegia
was a product of malpractice by the surgeon.
The primary issue was whether the accident caused the surgery. On her appeal of an unfavorable judgment,
Mrs. Keyser cited the proposed jury instruction to support the argument that
she was entitled to a partial directed verdict determining that her
quadriplegia resulted from the accident regardless of whether the
negligent treatment resulted from the accident.
See footnote 6, page 14 of Appellants’ Initial Brief,
enclosed. In addition to the Initial
Brief, enclosed please find copies of our Answer Brief, and Appellants’ Reply
Brief.
manner was brought to our attention in a case currently pending before the
Second District Court of Appeal, Timmie Leigh Keyser et al., vs. Jim Coats
in his official capacity as Sheriff of Pinellas County, Case No.:
2D11-1835. Mrs. Timmie Keyser, a
Sheriff’s deputy, was allegedly injured as a passenger in her personal vehicle
when it was rear-ended by a Sheriff’s Office vehicle. Prior to the accident, Mrs. Keyser had a long
history of neck pain and treatment. Three months after the accident, she
underwent a neck surgery which left her a quadriplegic. The parties agreed Mrs. Keyser’s quadriplegia
was a product of malpractice by the surgeon.
The primary issue was whether the accident caused the surgery. On her appeal of an unfavorable judgment,
Mrs. Keyser cited the proposed jury instruction to support the argument that
she was entitled to a partial directed verdict determining that her
quadriplegia resulted from the accident regardless of whether the
negligent treatment resulted from the accident.
See footnote 6, page 14 of Appellants’ Initial Brief,
enclosed. In addition to the Initial
Brief, enclosed please find copies of our Answer Brief, and Appellants’ Reply
Brief.
Thus, we suggest in order for the instruction to
accurately reflect the law, it should use the following, or similar, language:
accurately reflect the law, it should use the following, or similar, language:
If you find that (defendant) caused [loss]
[injury] [or] [damage] to (claimant), then (defendant) [is] also responsible
for any additional [loss] [injury] [or] [damage] caused by medical care or
treatment reasonably obtained by (claimant) for the treatment of injuries
resulting from (event).
[injury] [or] [damage] to (claimant), then (defendant) [is] also responsible
for any additional [loss] [injury] [or] [damage] caused by medical care or
treatment reasonably obtained by (claimant) for the treatment of injuries
resulting from (event).
We very much appreciate your consideration of this
matter and will be pleased to further explain our position to the Committee if
desired.
matter and will be pleased to further explain our position to the Committee if
desired.
Thank you for your consideration of this matter.