A key issue that arises in negligence litigation generally and medical negligence cases in particular is properly defining and asserting the applicable duty of care. Since the existence of a legally cognizable duty of care is essential for every claim of negligence, successfully proving that a defendant’s conduct was negligent depends on properly fitting that conduct within the borders of a recognized duty of care. This requirement is at the heart of the Second District Court of Appeal’s recent decision in Granicz v. Chirillo, in which the court addressed whether a physician could be held liable for medical negligence following the suicide of a patient.
As noted above, the Granicz litigation arose from a patient’s suicide on October 9, 2008. Prior to her suicide, the patient had been receiving treatment for depression from her primary care physician, the defendant in this case. Prior to 2005, the patient had been taking Prozac, but the physician switched her medication to Effexor at the time he began treating the patient in 2005. At some time in June or July of 2008, the patient stopped taking her medication because of side effects. On October 8, 2008, the patient called the office of the physician and spoke with a medical assistant. The patient told the medical assistant that she hadn’t been feeling right since June or July and had ceased taking her Effexor. In addition, the patient informed the medical assistant that she was under mental strain, been prone to crying, suffering from gastrointestinal problems, and having sleeping issues that resulted in increased reliance on sleeping medication. The medical assistant recorded this information in a note for the physician. The physician reviewed the note shortly thereafter and decided to change her medication to Lexapro and refer her to a gastroenterologist. Afterward, an employee from the physician’s office called the patient and told her she could pick up samples of Lexapro as well as a prescription for the drug from the office, which the patient did later that day. However, an appointment with the physician was never scheduled, and the physician never spoke with the patient directly. On the following day, the patient’s husband found the patient hanging in the garage of their home.
Following this tragic series of events, the husband, as the personal representative of the patient’s estate, brought suit against the physician. The complaint alleged that the physician failed to exercise his duty of reasonable care in the treatment of the patient by:
- Failing to recognize that when the patient contacted his office on October 8, 2008 she was experiencing a change in symptoms, was depressed, and was seeking medical intervention and guidance;
- Failing to speak with the patient and direct his staff to advise her to immediately come to the office for evaluation;
- Failing to refer her to a physician trained in the management of patients suffering from depression; and
- Failing to conduct a proper evaluation before prescribing Lexapro, an anti-depressant known to cause suicidal ideations in some patients.
The complaint further alleged that the suicide was directly and proximately caused by these breaches of duty. The physician moved for summary judgment, arguing that he had no duty of care to prevent the unforeseeable suicide of a patient who was not presently in his control. The trial court concurred and granted the physician’s motion, holding that as a matter of law the physician did not owe a duty of care to prevent the suicide of an outpatient.
However, the Second District Court of Appeal unanimously reversed. First, the court set forth the test for foreseeability necessary for the existence of a duty of care, which focuses on whether “the defendant’s conduct foreseeably created a broader `zone of risk’ that poses a general threat of harm to others,” McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992). This standard is distinct from the foreseeability necessary for proximate cause to exist, which focuses on “whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” Id. In the current case, the court found that the trial court erred by applying the test for proximate causation, which is a factual question to be resolved by a jury, to the question of whether a legal duty of care exists.
Under Florida law, a physician has “a duty to use the ordinary skills, means and methods that are recognized as necessary and which are customarily followed in the particular type of case according to the standard of those who are qualified by training and experience to perform similar services.” Sweet v. Sheehan, 932 So. 2d 365, 368 (Fla. 2d DCA 2006) (internal quotation marks omitted). The applicable standard of care is “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” Id. at 368 (internal quotation marks omitted). In this case, the plaintiff, in opposition to the motion for summary judgment, filed the depositions of two expert witnesses, a board-certified psychiatrist and a board-certified internist and clinical assistant professor, both of whom testified that the physician failed to adhere to the applicable standard of care when a patient being treated for depression calls a primary care physician and complains of adverse symptoms by not personally assessing the symptoms and determining whether there was any suicidal ideation. The Second District held that this evidence was sufficient to establish that a legal duty of care to exists, precluding the grant of summary judgment.
While this decision will allow the estate to take its case to a jury, the Second District did note that the reasoning of its decision was in direct conflict with the First District Court of Appeal’s decision in Lawlor v. Orlando, 795 So. 2d 147 (Fla. 1st DCA 2001) and certified this conflict to the Supreme Court of Florida. Accordingly, the Supreme Court of Florida may soon ultimately decide what duty of care applies to a physician when an outpatient commits suicide. Notwithstanding this need for doctrinal resolution, it is clear that medical negligence cases are involved undertakings that contain complex issues of legal doctrine and evidence. Accordingly, it behooves anyone who’s been injured in a case of possible medical malpractice to promptly seek the assistance of competent counsel. Frankl & Kominsky’s South Florida medical negligence attorneys have handled multiple medical negligence suits and are well equipped to address questions you may have about your rights. Please feel free to contact us for a free case consultation.