$______ VERDICT - MEDICAL MALPRACTICE - PODIATRIC SURGERY - PLAINTIFF CONTENDS SHE WAS NOT CANDIDATE FOR ELECTIVE METATARSAL JOINT REPLACEMENT SURGERY BUT DEFENDANT RECOMMENDED AND PERFORMED SURGERY DESPITE IT BEING CONTRAINDICATED BY TYPE 1 DIABETES - INFECTION AND FAILURE OF JOINT REQUIRING FURTHER SURGERIES TO REMOVE - PERMANENT DIFFICULTIES AND DISFIGUREMENT.

• Pages: 10-11

Additionally, during Phase I of the trial, a juror was seen speaking

and joking with the defendant as the juror was exiting the court-

room and again on the final day of trial. The plaintiff argued this

suggested there may have been improper juror conduct resulting in

the juror not being unbiased. The plaintiff’s Motion for New Trial

was premised mainly on one issue: the ruling excluding the prior

acts of violence was prejudicial error. Regarding motions for new

trial based on prejudicial error, “[a] trial judge is authorized to

grant a new trial when he or she becomes aware of a specific or

substantial prejudicial error.” citing Krolick v. Monroe ex rel.

Monroe, 909 So.2d 910, 914 (Fla. 2d DCA 2005).

As to punitive damages the Florida Standard Jury Instructions in

Civil cases specifically allows the jury to consider the frequency of

similar past conduct in determining the amount of punitive dam-

ages. The Florida Standard Jury Instruction further states that the

jury’s consideration of similar past conduct when assessing the

amount of punitive damages is in accord with the Florida Supreme

Court case of Owens-Corning Fiberglas Corp. v. Ballard , 749 So.2d

483 (Fla. 1999). In the Owens-Corning case, the Florida Supreme

Court expressly allowed the frequency of similar past conduct to be

considered by the jury in assessing punitive damages. So, the only

issue before the court was whether the conduct in the instant case

was similar to the incidents of past conduct which the court ex-

cluded. This case involves a violent altercation wherein the defen-

dant punched the plaintiff. The 2 incidents the court excluded were

similar and therefore, argued the plaintiff, germane to the Phase II

consideration of the amount of punitive damages.

The first instance the court excluded concerned a violent fight in

February 2016, just 16 months before the subject assault. Surveil-

lance video footage captured the defendant inviting 2 women to

engage in a violent fight. The video showed the defendant engag-

ing in words with one of the women, pointing towards the other

woman, and inviting them to begin to fight and a violent fight en-

sues. The defendant stands watching the women fight and even

walks closer to them in what can only be seen as his encouraging

the altercation. Eventually, he stops the fight by physically throwing

one of the women off of the other.

A month after the defendant made a public apology for this violent

altercation, he was arrested for resisting arrest and assaulting a

police officer. The defendant was in Miami Beach with a large

crowd that had spilled into the roadway disrupting normal vehicu-

lar traffic and creating a hazardous situation. The defendant was

given verbal commands to move off the roadway and onto the side-

walk. He ignored these requests and when the officer touched his

left arm, the defendant threatened the uniformed police officer and

aggressively tried to hit the police officer in the face. Fortunately,

the officer swerved from contact. The defendant then ignored the

officers’ repeated requests, requiring numerous officers to walk

into the crowd to apprehend the defendant for assaulting the police

officer and resisting arrest.

The 2 prior incidents of violent behavior excluded by the court

showed the frequency of similar past conduct. The defendant had a

concerning history of engaging in and encouraging violent fights

and acts. At the beginning of Phase II the court ordered that the

facts of the assault presented during Phase I not be rehashed. So,

not only was the plaintiff forbidden to discuss the facts of violence

presented in Phase I, he was also prevented from contradicting the

statements of the defendant and his mother with the evidence of

prior violent acts in Phase II. The plaintiff maintained that the de-

fendant’s prior violent and confrontational nature were wholly ad-

missible under the Florida Standard Jury Instructions and the

Florida Supreme Court’s decision in Owens-Corning in the second

phase of trial. The plaintiff argued that the ruling was extremely

prejudicial such that the plaintiff was entitled to a new trial on the

issue of the amount of punitive damages. Regarding the juror’s im-

proper contact with the defendant during trial, the plaintiff was en-

titled to appropriate discovery including a deposition of the juror,

the defendant and perhaps other members of the jury.

The plaintiff’s motion is pending.

$188,600 VERDICT – MEDICAL MALPRACTICE – PODIATRIC SURGERY – PLAINTIFF

CONTENDS SHE WAS NOT CANDIDATE FOR ELECTIVE METATARSAL JOINT

REPLACEMENT SURGERY BUT DEFENDANT RECOMMENDED AND PERFORMED

SURGERY DESPITE IT BEING CONTRAINDICATED BY TYPE 1 DIABETES – INFECTION

AND FAILURE OF JOINT REQUIRING FURTHER SURGERIES TO REMOVE – PERMANENT

DIFFICULTIES AND DISFIGUREMENT.

Broward County, FL

In this medical malpractice case, the plaintiff, a

64-year-old real estate agent, asserted that the

defendant podiatrist breached the standard of

care in treatment of the plaintiff, leaving her with

significant, permanent injury. The defendant

denied negligence and breaching of the standard

of care.

On March 8, 2017, the plaintiff was a woman suffering

Type 1 diabetes, including high A1C levels and blood

sugar. The plaintiff argued that her age and diabetes

made her an extremely high risk for surgeries, particularly

elective surgeries with hardware implantation. Despite

the plaintiff’s condition, the defendant podiatrist per-

formed an elective right first metatarsophalangeal joint

arthroplasty with joint replacement, hemi metatarsal

joint resurfacing with implant of Arthrosurface HemiCAP

resurfacing system. The plaintiff maintained that per-

forming the procedure on a patient with the plaintiff’s

history and conditions was ill advised, deviated from

medical standards and that the negative outcome ex-

perienced by the plaintiff was foreseeable by someone

with the medical background of the defendant.

The plaintiff held that the defendant violated his duty to

provide the plaintiff with competent and reasonable

podiatric care within the standard of care. The plaintiff

maintained that the defendant deviated from accept-

able standards by carelessly and negligently failing to

have adequate indication for the subject joint replace-

ment with hardware; recommending and performing

an elective joint replacement on a 64-year-old Type 1

diabetic which was contraindicated by an extremely

10 SUMMARIES WITH TRIAL ANALYSIS

Volume 32, Issue 9, September 2022 Subscribe Now