In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving a nonfinal order granting the appellee, a patient, an amended motion for leave to amend her complaint to state a claim for punitive damages against the appellant, a doctor. In the lawsuit, the patient alleged that the doctor improperly treated her using a medically unnecessary course of radiation after she was referred to him by another physician to treat a lesion on her hand. After discussing various treatments with the doctor, the patient opted for radiation treatment. The patient now alleges that the doctor’s treatment fell “well outside” the standard of care. The trial court allowed the patient to amend her complaint to add a punitive damages claim following a hearing on the motion.
The patient was referred to the doctor following a diagnosis of a lesion on her hand as squamous cell carcinoma by a different physician following a biopsy. The patient disputes whether the diagnosis was correct. After meeting with the doctor and discussing various treatment options, the patient opted for a radiation treatment plan. In the course of obtaining the patient’s informed consent, the doctor informed her that surgery was an option, but it would likely impact her ability to maintain her current lifestyle as an avid golfer. The patient agreed to the treatment plan offered by the doctor, which called for radiation treatment twice a day, with treatments sometimes occurring as little as forty-five minutes apart. The doctor alleges that he prescribes this protocol to all of his patients undergoing radiation therapy.
At trial, the patient subsequently sought leave to amend her complaint to assert a claim for punitive damages. She asserts that the radiation treatment that she received from the doctor was not recognized as acceptable in the medical community and that the doctor unnecessarily subjected her to an increased risk of cancer in her lifetime from the radiation for his own financial gain. In making this claim, the patient stated that the doctor’s actions amounted to more than mere negligence, and instead constituted behavior reflecting a conscious disregard for her life and safety. The patient included three items of evidence: 1) an attestation by her expert stating that the doctor’s treatment fell “way outside” of the standard of care; 2) the doctor’s deposition; and 3) documents of two federal cases involving the doctor that included allegations of Medicare fraud and obstruction of a criminal health care investigation. At trial, the court allowed the patient to amend her complaint to add the punitive damages claim.
On appeal, the court examines if the patient made a “reasonable showing” under section 768.72 to recover punitive damages. The appeals court opinion stated that allegations of a breach of the standard of care, without more, cannot form the basis of a punitive damages claim by labeling the actions “grossly negligent.” Accordingly, the appeals court found that the patient’s expert did not provide enough to satisfy the punitive damages standard. The expert emphasized the need for radiation treatment to be administered over an extended time period so as not to expose a patient to excessive radiation and stated that he was not aware of any medical professional or peer-reviewed medical journal that condoned the doctor’s treatment plan. However, the court found that the doctor’s deposition testimony showed he had lectured on his radiation treatment protocol to other dermatologists. The doctor also stated that the expert’s stated timeframe for radiation treatment was “arbitrary.” Additionally, the court found that the patient did not proffer evidence to suggest that the doctor was aware that his treatment plan for her was unnecessary or likely to cause serious injury. Lastly, the appeals court held that the introduction of documents from federal cases involving the doctor was irrelevant to the issue at hand. The appeals court subsequently reversed the order and remanded it for further proceedings consistent with the opinion.
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