Amending a Medical Negligence Complaint in Florida

woman-in-hospital-1051476-m-2.jpgIn a recent case, a mother sued several medical professionals both on behalf of herself and her deceased 21-year-old daughter’s estate. She alleged that the medical professionals were negligent after her daughter died of MRSA lobular necrotizing pneumonia.

The defendants filed a motion asking the lower court to take judicial notice of a circuit court’s shelter orders in which there was found probable cause to remove the deceased’s children’s from her care. The shelter orders also found abuse of alcohol and drugs, failure to submit to drug testing and domestic violence. The mother objected on the grounds that the orders included inadmissible hearsay and character evidence.

The medical professionals argued that the daughter’s system had been affected by alcohol and hydrocodone that combined with the pneumonia to impair her breathing ability and resulted in death. At trial, its expert witness testified that she died of pneumonia complicated by aspiration and intoxication.


The defendants asked the court to take judicial notice of the shelter orders again and the mother again objected. The lower court did take judicial notice and admitted the orders as evidence. The medical professionals then withdrew their affirmative defense of comparative negligence.

The mother had not alleged comparative negligence from the outset, but now tried to amend the complaint to conform to the evidence at trial and request a comparative negligence jury instruction. The lower court denied this request. The medical professionals argued in their closing argument that they had gotten the diagnosis right and yet the alcohol and hydrocodone had depressed her respiratory effort and it was all topped off with lidocaine and pneumonia that had presented quickly.

The jury found in favor of the medical professionals by finding there was no negligence on the part of each of the defendants. The mother appealed, arguing the lower court should have allowed her to amend her complaint to conform to evidence presented at trial and include comparative negligence. She argued the judge should have let the jury consider her daughter’s comparative negligence so that the jury wasn’t in a “take it or leave it” position.

The appellate court explained that the mother’s only option to get a comparative negligence instruction to the jury was to amend the pleadings. Generally, even if defendants don’t raise comparative negligence, a plaintiff can plead comparative fault to get an instruction at the outset of the suit. Both parties had developed a comparative fault theory through discovery. There would have been no surprise to defendants in giving the jury instruction. The appellate court explained that in this case, there would have been no prejudice to the medical professionals in permitting the mother to amend.

The medical professionals argued that since the jury found the doctors’ actions within a reasonable standard of care, there was no need to apportion damages or find comparative negligence. The appellate court disagreed, explaining that the purpose of comparative fault is to allow apportionment. The jury could have found the medical professionals negligent and the legal cause of death while also finding the daughter’s actions a legal cause. The jury was instead forced into an “all or nothing” proposition by the prevention of A new trial was granted.

If you are seriously hurt or a loved one is killed due to a physician’s negligence, contact the knowledgeable Florida medical malpractice attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585. Our attorneys work hard to secure the compensation you deserve.

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