46 So. 3d 1165
Fla. Dist. Ct. App.2010Background
- Drew sued St. Mary’s Hospital in a medical malpractice suit following a radiation treatment plan after breast-conserving surgery.
- Before treatment, Drew spoke with Dr. Ann Lewis about the treatment and transportation needs, and was told that transportation would not be necessary.
- At Kaplan Cancer Center, Drew was given Ativan to aid relaxation; she asked whether she could drive home afterward, and was told she could, or should ask the doctor, but no definitive warning was given.
- Approximately 1 hour 20 minutes after taking Ativan, Drew left Kaplan, drove home, and crashed, with ER noting the accident was caused by the drug.
- The trial court denied Drew’s directed verdict on comparative negligence and the jury found her 70% comparatively negligent; the court denied her motion for new trial, and the appellate court affirmed.
- The central issue on appeal was whether the trial court erred in denying a directed verdict on comparative negligence given Drew’s knowledge of Ativan and the doctor’s lack of explicit warnings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Drew may be comparatively negligent as a matter of law | Drew argues she had no duty to herself due to medical incompetence | Hospital contends Drew’s own knowledge and conduct support comparative negligence | No; there is a jury question on Drew’s reasonable care given her knowledge |
| Whether the doctor’s fiduciary duty to warn controls reliability of self-protective conduct | Drew contends the doctor failed to warn, breaching fiduciary duty and nullifying self-protection | Hospital argues no warning requirement to create comparative negligence due to medical context | Fiduciary duty to warn exists; failure to warn may support comparative negligence |
| Whether the trial court properly denied a directed verdict on comparative negligence | Drew argues the evidence could not support a finding of comparative negligence | Hospital asserts substantial evidence supports a jury finding of comparative negligence | Court affirmed denial of directed verdict; substantial evidence supports jury’s conclusion |
Key Cases Cited
- Langmead v. Admiral Cruises, Inc., 610 So.2d 565 (Fla. 3d DCA 1992) (comparative fault when plaintiff knew danger)
- Gonzalez v. G.A. Braun, Inc., 608 So.2d 125 (Fla. 3d DCA 1992) (negligence when plaintiff continued to use defective product despite knowledge)
- Kolosky v. Winn Dixie Stores, Inc., 472 So.2d 891 (Fla. 4th DCA 1985) (comparative negligence where awareness of dangerous condition present)
- Borenstein v. Raskin, 401 So.2d 884 (Fla. 3d DCA 1981) (to establish defense, patient must owe a duty to self and breach)
- Swamy v. Hodges, 583 So.2d 1095 (Fla. 1st DCA 1991) (to prove comparative negligence, doctor must show duty, breach, and proximate cause)
- Riegel v. Beilan, 788 So.2d 990 (Fla. 2d DCA 2000) (healthcare provider bears burden to plead and prove specific acts of patient negligence)
- Gracey v. Eaker, 837 So.2d 348 (Fla. 2002) (fiduciary relationship exists between physician and patient; duty to disclose known facts)
- Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976) (recognizing fiduciary duty and obligation to disclose facts material to decision)