On June 3, 2013, the Florida Supreme Court accepted review of a medical malpractice case to address the issue of whether it is impermissible burden shifting for a defendant-doctor to argue that the plaintiff failed to present testimony from another doctor that he or she would have done anything differently than the defendant-doctor.  See Saunders v. Dickens, 103 So. 3d 871 (Fla. 4th DCA 2012) (No. SC12-2314).


The plaintiff presented to Dr. Dickens, a neurologist, with symptoms consistent with lumbar stenosis.  Dr. Dickens requested a neurosurgical consultation with Dr. Pasarin, who examined and then operated on the plaintiff’s lumbar spine.  Two months later, when the plaintiff’s condition had not improved, Dr. Pasarin ordered additional MRIs, which showed that the lumbar surgery had not been successful.  Dr. Pasarin determined that the plaintiff had cervical myelopathy and recommended cervical decompression surgery within the next month.  Although the plaintiff was cleared for surgery in November 2003, Dr. Pasarin failed to schedule him for surgery that month.  In December, the plaintiff developed a deep venous thrombosis, which prevented him from undergoing surgery.  The plaintiff was thereafter never able to have the cervical surgery and was ultimately rendered a quadriplegic.

The Trial

After the plaintiff settled with the hospital, the surgical group, and Dr. Pasarin, the case proceeded to trial against Dr. Dickens only.  The plaintiff’s surgical expert testified that had the plaintiff received a neck operation to remove the compression when he first presented to Dr. Dickens, the plaintiff would not have become a quadriplegic.  The defense presented expert testimony that Dr. Dickens met the standard of care and that the plaintiff’s problems were related to his lumbar disc disease. The defense also introduced the deposition testimony of Dr. Pasarin, who testified that nothing in Dr. Dickens’ note would have prompted him to order an MRI of the neck.  Dr. Pasarin also testified that had Dr. Dickens ordered a cervical MRI at that point, and had the findings been identical to those seen in later films, he would still not have performed neck surgery if his exam did not find upper extremity dysfunction.  Dr. Dickens moved for a directed verdict, arguing that Dr. Pasarin’s testimony made it impossible for the plaintiff to prove that Dr. Dickens’ negligence caused the plaintiff’s damages.  The trial court denied the motion, reasoning that the issue was for the jury.

During closing arguments, defense counsel argued that there was no causation, relying on Dr. Pasarin’s testimony that he would have done nothing differently if he had seen an MRI of the plaintiff’s cervical spine when he first presented to Dr. Dickens. Defense counsel argued that the plaintiff needed to prove and did not prove that “but for Dr. Dickens not doing the [neck] MRI, Dr. Pasarin would have operated on [the plaintiff’s] neck in July.”  Counsel for the plaintiff objected that this was not a correct statement of the law and argued that defense counsel was improperly shifting the burden of proof on the issue of Dr. Pasarin’s negligence, which was an affirmative defense that Dr. Dickens had the burden to prove.  The jury returned a verdict finding no negligence on Dr. Dickens’ part that was a legal cause of injury to the plaintiff. 


The plaintiff argued on appeal that defense counsel’s closing argument was improper and warranted a new trial.  The Fourth District, however, held that defense counsel’s causation argument was not improper, based on its own precedent.  In Ewing v. Sellinger, 758 So. 2d 1196 (Fla. 4th DCA 2000), the Fourth District concluded that the plaintiffs failed to prove causation where the obstetrician’s alleged negligence would not have affected the treatment decision of a subsequent physician and thus would not have affected the patient’s outcome.

The Fourth District noted that two of its sister courts have rejected its reasoning in Ewing.  In Goolsby v. Qazi, the Fifth District 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.”  In Munoz v. South Miami Hospital, Inc., the Third District stated, “What the [non-party] 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.”

Despite the foregoing, the Fourth District held that defense counsel’s closing argument on causation was proper. The Fourth District noted that unlike in Ewing, the trial court in the case before it declined to grant the defendant’s motion for a directed verdict, and, instead, submitted the case to the jury, thus allowing the plaintiff to argue to the jury in closing why they should reject Dr. Dickens’s causation argument.

The parties are currently in the midst of the briefing process.  Oral argument will be scheduled at a later date.