In a medical malpractice case, there may be multiple parties responsible for a victim’s injuries. Conversely, a physician or medical provider may try to deflect attention away from his or her own negligence by claiming other parties were partly or solely to blame. Florida law can get complicated in this area, and as a result, defense attorneys may sometimes try to exploit the rules to the detriment of an injured plaintiff.
Last Minute Change of Defense Unfairly Prejudices Widower’s Case
Recently the Florida Second District Court of Appeal ordered a new trial in a medical malpractice case where the defendant prevailed after engaging in what the appeals court found to be inappropriate “gamesmanship.”
The victim in this case was a woman hospitalized for a pulmonary embolism. Several doctors treated her including a cardiologist. The treatment was unsuccessful and the woman died. Her husband then filed a malpractice and wrongful death lawsuit against a number of parties. Eventually, all of the other parties settled or were dismissed from the case, leaving the cardiologist as the sole defendant at trial.
Prior to trial, the cardiologist pleaded what is known under Florida law as a Fabre defense. This refers to a 1993 Florida Supreme Court decision that held in any type of negligence action, either side may request the jury apportion fault among all of the responsible parties, even those who are not named as defendants in the lawsuit. Here, the cardiologist initially asked the trial judge to order the jury to apportion any liability between himself and three other doctors who were not named defendants. The case then proceeded to trial on the basis of that defense.
But after the plaintiff finished presenting his case to the jury, the defendant informed the judge he wished to drop the Fabre defense. In other words, the jury would now only consider the defendant’s liability on an “all-or-nothing” basis. The plaintiff objected and asked for a mistrial. While the trial judge said was “troubled” by the defense’s last minute change of strategy, the court overruled the plaintiff’s objections. The jury subsequently returned a verdict for the cardiologist.
After the judge denied the plaintiff’s motion for a new trial, he appealed. The Second District said the trial judge erred in not granting a new trial. The defense’s actions “generated prejudice that [the plaintiff’s] counsel could not cure,” the appeals court said, explaining, “From our review of the record, it is apparent that [defense] trial counsel engaged in conduct designed to acquire the benefit of the Fabre defense, i.e., having evidence of the negligence of others introduced at trial, without the cost of having fault apportioned between the Fabre defendants and himself.”
Get Advice from a Florida Medical Malpractice Attorney
The Second District made it clear that it disapproved of the type of “gamesmanship” displayed by the defendant in the case above. Hopefully other Florida courts will take a similar approach to doctors who try to manipulate the rules in order to avoid accountability for their own negligence. If you have been injured due to a physician’s negligence and need legal assistance from an experienced Clearwater medical malpractice attorney, contact the Law Office of Paul B. Genet, P.A. at (727) 538-8865 right away.
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