Santa Lucia v. LeVine
198 So. 3d 803
| Fla. Dist. Ct. App. | 2016Background
- Plaintiff Dr. Raymond Santa Lucia (patient) sued surgeon Dr. Steven LeVine (and his practice) for medical malpractice based on (1) lack of informed consent and (2) failure to obtain a preoperative consultation regarding the patient’s rare neuromuscular disorder (myotubular myopathy).
- Surgery itself was completed without intraoperative incident, but postoperatively the patient failed extubation, required reintubation and mechanical ventilation, coded several times, and suffered alleged permanent injuries.
- Plaintiff’s surgical standard-of-care expert (Dr. Hellinger, a general surgeon) testified that a surgeon unfamiliar with the disorder should consult specialists (neurology, pulmonology, primary care) to learn disease-specific risks and obtain informed consent, but he was not familiar with myotubular myopathy and did not identify specific risks such consultants would have disclosed.
- A neurologist (Dr. DiDio) testified generally that neuromuscular patients face increased pulmonary risk from general anesthesia, but gave no details about specific risks, likelihoods, or what a consultation would have revealed; the anesthesiologist (Dr. Smith) had warned the patient preoperatively about high risk of postoperative ventilation and the patient proceeded with surgery.
- The jury found LeVine 90% liable and awarded $1.2 million noneconomic damages, later reduced under statute to a $450,000 final judgment; on appeal the Second DCA reversed, holding plaintiff failed to prove breach/causation and a directed verdict should have been entered for LeVine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved a breach of informed consent (disclosure of material, surgery-specific risks) | LeLucia: LeVine failed to obtain informed consent about risks tied to his neuromuscular disease | LeVine: No expert showed what specific risks he should have disclosed; anesthesiologist had already warned patient | Held for LeVine — plaintiff failed to prove specific, material disclosure that reasonably should have been made |
| Whether plaintiff proved breach by failing to obtain a preoperative consultation | LeLucia: Surgeon should have consulted specialists to learn disease-specific risks before surgery | LeVine: No testimony that a consultation would have changed management, consent, or prevented injury | Held for LeVine — plaintiff failed to prove causation from the lack of consultation |
| Whether causation was established for either theory (informed consent or consultation) | LeLucia: He testified he would not have had surgery if properly informed | LeVine: Single self-serving statement and nonspecific expert testimony are speculative and insufficient | Held for LeVine — causation not established as a matter of law; speculative stacking of inferences insufficient |
| Whether the trial court erred denying directed verdict for defendant | LeLucia: Events and testimony supported jury verdict | LeVine: Insufficient evidence on breach/causation warrants directed verdict | Held for LeVine — directed verdict required; final judgment reversed and remanded with instructions to enter directed verdict |
Key Cases Cited
- Shartz v. Miulli, 127 So. 3d 613 (Fla. 2d DCA 2013) (standard for reviewing directed verdict and expert foundation)
- Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla. 1984) (elements of malpractice and proximate cause standard)
- Thomas v. Berrios, 348 So. 2d 905 (Fla. 2d DCA 1977) (expert testimony required to establish informed consent disclosures)
- Ditlow v. Kaplan, 181 So. 2d 226 (Fla. 2d DCA 1965) (need for proof of community practice and specific risks in informed consent cases)
- Ritz v. Fla. Patient's Comp. Fund, 436 So. 2d 987 (Fla. 4th DCA 1983) (necessity of evidence regarding nature/extent of risks for jury submission)
- Cox v. St. Josephs Hosp., 71 So. 3d 795 (Fla. 2011) (speculation is insufficient to prove causation)
- Aragon v. Issa, 103 So. 3d 887 (Fla. 4th DCA 2012) (expert opinion cannot be based on pure speculation)
- Gouveia v. Phillips, 823 So. 2d 215 (Fla. 4th DCA 2002) (only practitioners with subject knowledge competent to prescribe needed disclosures)
- Presidential Women's Ctr., 937 So. 2d 114 (Fla. 2006) (physician duty to inform varies with circumstances; reasonable patient standard)