Unseen land mines are everywhere in medical malpractice cases, especially here in Florida. A recurring issue is the question of "causation" when the facts of a given case require proof that a subsequent treating physician would have acted differently but for the negligence of the defendant(s). For example, a misread radiology film results in a missed diagnosis. Had the defendant read the film properly and had the defendant communicated the diagnosis to the surgeon, the surgeon surely would have operated, correct? Maybe not. And what happens if the surgeon testifies that he would not have done anything differently?

What is the law in Florida? It depends...

The leading case on this issue is South Miami Hospital v. Munoz, 764 So. 2d 854 (Fla. 3d DCA 2000). There, the defendant obstetrician and the defendant nursing staff failed to report the results of an abnormal ultrasound to a child's treating pediatrician. The pediatrician testified that even if he were informed of the abnormal test results, he would not have acted any differently. The defendants moved for summary judgment, arguing that the plaintiff could not meet its burden of proof on causation. The trial court granted the defendants' motion for summary judgment. The plaintiff appealed. Judge Schwartz, writing for the Court, reversed, finding that the pediatrician's speculative testimony could not be given conclusive effect. The jury was entitled to consider the import of the communication by the other health care providers and what impact that might have had on the pediatrician. "[I]t is not for the defendants, who putatively violated their standard of care by failing to warn, to argue that their not doing so had no effect on the situation, when their doing the appropriate thing would have removed all doubt." Id at 857. The Court went on to quote an Ohio opinion as follows:

[O]nly speculation can support the assumption that an adequate warning, properly communicated, would not have influenced the course of conduct adopted by a physician, even where the physician had previously received the information contained therein. "What the doctor might or might not have done had he been adequately warned is not an element plaintiff must prove as a part of her case."

Seley v. G.D. Searle & Co., 67 Ohio St. 2d at 201, 423 N.E. 2d at 839 (quoting Hamilton v. Hardy, 37 Colo. App. 375, 387, 549 P. 2d 1099, 1109 (1976), overruled on different grounds by State Bd. of Medical Examiners v. McCroskey, 880 P. 2d 1188 (Colo. 1994).

But the 4th DCA issued Ewing v. Sellinger, 758 So. 2d 1196 (Fla. 4th DCA 2000). In Ewing, a birth injury case, the plaintiff sued for catastrophic injuries. The allegations were that the first physician failed to make arrangements to have a subsequent physician present for labor and delivery. The plaintiff alleged that, had the subsequent physician been present, the subsequent physician would have properly read and interpreted the fetal monitor strip and performed a more immediate c-section delivery. The subsequent physician, however, testified in Ewing that he would not have done anything differently even if he were ordered to be present for supervision during the course of labor. The defendant argued that the plaintiff failed to prove causation on these facts. Contrary to Munoz, the 4th DCA found for the defendant, ruling that the plaintiff failed to prove causation: "What Dr. Sellinger failed to do, i.e., continue Ewing's supervision under the care of a physician, would not have affected the outcome in the instant case because the physician who was available to intervene and perform a c-section testified he would not have done so." Id at 1198.

Just a few years later, the 5th DCA disagreed with Ewing in a case styled Goolsby v. Qazi, 847 So. 2d 1001 (Fla. 5th DCA 2003). There, the 5th DCA, agreeing with Munoz, stated, "We disagree with Ewing if it means that the negligent failure to diagnose a condition cannot be the cause of damages if a subsequent treater testifies that he would have shrugged off the correct diagnosis."

For the 3d and 5th DCAs, the jury is allowed to consider the otherwise speculative nature of the testimony of the subsequent treater in light of competing testimony from an expert who opines that the standard of care would have required intervention and a different outcome. The jury is free to accept or reject the speculative testimony of the subsequent treating physician. In the 4th DCA, meanwhile, as long as Ewing is good law, the rule is different and the subsequent treater’s speculative testimony is given conclusive effect.

The Ewing decision might not last long in the 4th DCA. In 2004, Judge Klein issued a concurring opinion in a case styled McKeithan v. HCA Health Services of Florida, 879 So. 2d 47 (Fla. 4th DCA 2004). With regard to Ewing, Judge Klein proclaimed, "I am not sure we were correct in Ewing." Id. at 49 (Klein, J., concurring). Also, two recent decisions from the 4th DCA offer a less than warm embrace of the Ewing rationale. See Saunders v. Dickens, 37 FLW D2274 (Fla. 4th DCA 2012) and Aragon v. Issa, et al., 37 FLW D2429 (Fla. 4th DCA 2012).

Time will tell.