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Florida Neurosurgery Malpractice Lawsuit Reversal

neurosurgery malpractice lawsuitA Florida neurologist practicing medicine for 57 years will be forced to go to trial again in a neurosurgery malpractice lawsuit after the Florida Supreme Court ruled he could not pass the blame to another physician for his own negligence.

Florida’s highest court reversed a Fourth District Court of Appeal ruling that initially absolved Dr. Willis Dickens in a case where he provided treatment to a man, Walter Saunders, who later died a quadriplegic.

Florida neurology malpractice lawsuit details

Dr. Dickens first examined the plaintiff, Mr. Saunders, who exhibited symptoms consistent with lumbar stenosis. He consulted with Dr. Guillermo Pasarin, a neurosurgeon, who examined and then operated on the plaintiff’s lumbar spine.  Two months later, when Saunders’ condition had not improved, Dr. Pasarin ordered additional MRIs, which showed that the lumbar surgery had not been successful.  Dr. Pasarin 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 then. In December, the plaintiff developed a deep venous thrombosis, which prevented him from undergoing surgery.  The plaintiff was never able to have the cervical surgery and ultimately became a quadriplegic.

Saunders then sued Dr. Dickens, Dr. Pasarin and his surgical group, who later settled with Saunders, and Broward Health Medical Center, which also settled. Only Dr. Dickens refused to settle.

Defendant blames surgeon he referred

Instead, Dr. Dickens, in his own trial, used the testimony of the absent Dr. Pasarin as a “Fabre defendant”, loosely defined as an individual who the defendant alleges to be the one who’s really at fault and should incur part or all of the blame for the damage in question.

Dickens presented Pasarin’s previous statements in his own settlement case with Saunders indicating he wouldn’t have done anything differently than Dickens. Dickens also introduced a neurosurgeon as an expert witness who testified Pasarin deviated from a “reasonable standard of care” because he failed to perform a complete lumbar decompression in July 2003.

According to Saunders’ attorneys, there was a lack of important patient information that should have been passed from Dr. Dickens to Dr. Pasarin with the referral, and the question of which surgery should have been completed first—the neck or lumbar compression surgeries. Their medical experts claimed the neck surgery should have been done first, reducing the likelihood of paralysis. The reverse was done and so was the damage.

In the 5-2 decision, the majority opinion, written by Justice R. Fred Lewis and joined by Chief Justice Jorge Labarga and Justices Barbara Pariente, Peggy Quince and James E.C. Perry said, “A physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.”

The majority said it was reinforcing “the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated.”

“It is not only the final physician, but rather each treating physician, who must act in a reasonably prudent manner,” Lewis wrote.

Plaintiff to file a new malpractice lawsuit

The plaintiff’s attorney was pleased with the result for Mr. Saunder’s wife. “Our client will get a new trial, and the defense will not be able to escape liability by pointing to the testimony of the former defendant who had settled out,” the attorney said.