5D06-390 5D06-874 Christensen v. Cooper

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-390

Case Date: 11/12/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

CORINA CHRISTENSEN, INDIVIDUALLY, etc., et al., Appellant, v. EVERETT C. COOPER, M.D., COASTAL, etc., et al., Appellees. ________________________________/ Opinion filed November 16, 2007 Appeal from the Circuit Court for Brevard County, John D. Moxley, Jr., Judge. John A. Shipley of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., and Edna L. Caruso, of Edna L. Caruso, P.A., West Palm Beach, for Appellants. Henry W. Jewett, II, and Robert H. Peterson of Rissman, Barrett, Hurt, Donahue & McLain, Orlando, for Appellees. Case No. 5D06-390 & 5D06-874

TORPY, J. In this medical malpractice action, Appellant, Corina Christensen, challenges the directed verdict in favor of Appellees, an emergency room doctor and his employer. The lower court concluded that Appellees' alleged omissions were governed by the Good Samaritan Act ("the Act") and that Appellant's expert's testimony failed to

establish the requisite "reckless disregard" necessary to prove liability under the Act. Although we affirm the lower court's conclusion that the Act applies, we disagree with its conclusion that Appellant's expert's testimony was insufficient to present a jury question and remand this cause for a new trial. In 1998, the Christensens were riding a motorcycle when they were involved in a collision with a motor vehicle. They were transported by ambulance to Cape Canaveral Hospital. Appellee, Dr. Cooper, was the attending physician in the emergency room. Appellant recovered from her injuries. Mr. Christensen died at the hospital the day after the accident. Appellant, individually and as personal representative of her husband's estate, filed a complaint against a number of defendants, including Dr. Cooper, and his employer, Coastal Physician Services of Orlando, Inc. According to the allegations in the third amended complaint, when Mr. Christensen was transported to the hospital, he was complaining of multiple extremity pain as well as abdominal and pelvic pain. He was also exhibiting signs and symptoms of a patient with internal bleeding. Mr.

Christensen arrived at the hospital at approximately 11:00 p.m., but was not taken into surgery until 2:15 a.m. Dr. Matthew Lube performed the emergency surgery. During surgery, Dr. Lube discovered three to four liters of blood inside Mr. Christensen's abdominal cavity, along with a large amount of thrombus. He also discovered that Mr. Christensen had a fractured pelvis and grade five splenic laceration. The gist of

Appellant's theory of liability against Dr. Cooper was that he failed to recognize the severity of Mr. Christensen's internal injuries and emergent need for surgery and failed to call for surgical evaluation in a timely manner.

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By way of amendment to their answer, Appellees filed affirmative defenses to raise the immunity provisions of the Act, section 768.13, Florida Statutes (1998). In a partial summary judgment entered just prior to trial, the lower court determined that the Act applied because Dr. Cooper had treated Mr. Christensen under emergency conditions while Mr. Christensen was unstable. Based on that ruling, it was incumbent upon Appellant to prove that Dr. Cooper acted with "reckless disregard," as that phrase is defined by the Act. In recognition of this ostensibly higher burden, after ruling that the Act was applicable, the trial judge asked Appellant's counsel whether that ruling would impact her standard of care witness, Dr. Neimann. Appellant's counsel indicated that he had discussed this issue with the expert, who he anticipated would opine that Dr. Cooper's omissions amounted to a reckless disregard. He cautioned, however, that Dr. Neimann had not been asked this question in his prior depositions. To avoid any

prejudice to the defense, the trial court permitted Appellees' counsel to depose Dr. Neimann again prior to his trial testimony. Although that trial commenced, it ended in a mistrial due to Hurricane Frances in September 2004. Trial once again commenced the following year. Appellant called Dr. Neimann as her first witness. Dr. Neimann testified over two days, including direct, cross and redirect examinations. After Dr. Neimann's testimony, Appellees moved for a directed verdict. The court granted the motion. The court entered its final judgment in favor of Appellees, from which an appeal was taken. Thereafter, the lower court entered a The two appeals

separate judgment taxing costs, from which an appeal was taken. were consolidated.

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At the outset, we conclude that the lower court was correct in its determination that the Act applied. In making this determination, we reject Appellant's claim that

disputed issues of fact on whether Mr. Christensen was "stable" precluded summary judgment. However, we disagree with the trial court's conclusion that Appellant's

expert's testimony was insufficient to present a jury question under the Act. The 1998 version of the Act, applicable here, 1 provides in pertinent part: 768.13. Good Samaritan Act; immunity from civil liability (1) This act shall be known and cited as the "Good Samaritan Act." (2) ....

(b)1. Any hospital . . . , any employee of such hospital . . . , and any person licensed to practice medicine who in good faith renders medical care or treatment necessitated by a sudden, unexpected situation or occurrence resulting in a serious medical condition demanding immediate medical attention, for which the patient enters the hospital through its emergency room or trauma center, shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another. .... 3. For purposes of this paragraph, "reckless disregard" as it applies to a given health care provider rendering emergency medical services shall be such conduct which a health care provider knew or should have known, at the time such services were rendered, would be likely to result in injury so as to affect the life or health of another, . . . .

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