Hadley v. Terwilleger

873 So. 2d 378, 2004 WL 689532
CourtDistrict Court of Appeal of Florida
DecidedApril 2, 2004
Docket5D03-1279
StatusPublished
Cited by1 cases

This text of 873 So. 2d 378 (Hadley v. Terwilleger) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hadley v. Terwilleger, 873 So. 2d 378, 2004 WL 689532 (Fla. Ct. App. 2004).

Opinion

873 So.2d 378 (2004)

Cynthia HADLEY, etc., Appellant,
v.
John E. TERWILLEGER, M.D., et al., Appellees.

No. 5D03-1279.

District Court of Appeal of Florida, Fifth District.

April 2, 2004.
Rehearing Denied May 24, 2004.

*379 Keith M. Carter of Morgan, Colling & Gilbert, P.A., Tampa, for Appellant.

Rafael E. Martinez and Michelle M. Perez-Sotolongo of McEwan, Martinez & Dukes, P.A., Orlando, for Appellees.

SHARP, W., J.

Cynthia Hadley appeals from an adverse final judgment and the denial of her motion for a new trial in a medical malpractice case. Hadley filed suit against John E. Terwilleger, M.D., the Estate of M. Vann Parker, M.D.[1] and Sanford Pediatrics Associates, Inc. (Sanford Pediatrics), the doctors' medical association[2] for negligence in failing to diagnose and treat her minor daughter for tuberculosis meningitis, and the resulting injuries suffered by the child caused by the disease, which were severe and permanent.[3] Hadley argues on appeal that the trial court erred by refusing to instruct the jury on concurring cause, Florida Standard Jury Instruction 5.1(b). We agree and reverse for a new trial.

This court, as well as others,[4] have concluded that where the facts of the case support the theory of the plaintiff's case, viewed most favorably towards the plaintiff,[5] that when a defendant's negligence, operating in combination with the negligent act of another, or a natural cause such as a disease or pre-existing condition, results in injury or damage to another, a concurrent cause instruction should be given. Florida Standard Jury Instruction 5.1(a), was the sole instruction given in this case.

Florida Standard Jury Instruction 5.1(a) provides:

*380 Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that but for the negligence, the loss, injury or damage would not have occurred. (emphasis added)

Florida Standard Jury Instruction 5.1(b) provides:

In order to be regarded as the legal cause of loss, injury or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury, or damage even though it operates in combination with the act of another, some natural cause, or some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such loss, injury or damage.

In this trial, Hadley established through her testimony that she took her daughter to Sanford Pediatrics on September 2, 1995, the day after her daughter became ill at school and had to be brought home. She saw Dr. Parker. The child was running a high fever and was vomiting, complaining of a headache and her neck hurting. These conditions continued and grew worse over the next few days. Hadley returned to Sanford Pediatrics on September 5th and 7th with her daughter and saw both Dr. Parker and Dr. Terwilleger. The doctors diagnosed a viral infection, prescribed pain medication and antibiotics, but did not perform a lumbar puncture, which could have led to an earlier diagnosis of meningitis.

After the third visit to Sanford Pediatrics, where (in Hadley's view) she was receiving no help, on September 9th, Hadley took her daughter to the emergency room at Volusia Medical Center when the child's symptoms continued to worsen. The treating doctor also failed to suspect meningitis and discharged her. The disease progressed and on September 12th, Hadley was called at work to come home because her daughter looked like she was dead. She took her to the emergency room where the child began having convulsions. She was immediately admitted on an emergency basis to the Intensive Care Unit of the Arnold Palmer Hospital for Children and Women, in Orlando. She was comatose and having seizures. On the 15th of September, TB meningitis was suspected and specific treatment for it began, but it was not officially diagnosed for more than ten days.

The two expert witnesses for Hadley (Dr. Klein and Dr. Webber) testified that TB meningitis is a rare disease and difficult to diagnose. They both said the defendant doctors should have suspected meningitis and done a lumbar puncture either on September 5th or September 7th. They based their opinions on Hadley's deposition testimony in which she recounted the child's high fever, vomiting, headaches, back and neck aches, and the child's increased weakness from September 2nd to the 7th. The medical records kept by Sanford Pediatrics do not substantiate such severe symptoms, and both doctors agreed that if the Sanford Pediatric medical records were accurate, no deviation from the standard of care (not suspecting meningitis and failing to do a lumbar puncture) occurred. However, Hadley's deposition testimony is corroborated by the medical histories she gave when her daughter was admitted to the Volusia Medical Center and Arnold Palmer. Dr. Klein said the fact that Hadley brought her sick child in for the same symptoms which she felt were growing worse, alone, should have caught the defendant doctor's attention, since mothers know their children *381 best. This should have lowered their threshold for suspecting meningitis.

Dr. Weber testified:
[I]t is significant, and, you know, virtually every pediatrician ... if you have an infant or a child coming with fever, even though we know the majority of them are some kind of viral, relatively benign illness, that we always want to rule out—usually by history and physical in pediatrics, occasionally with diagnostic studies, you want to make sure they don't have a more severe illness. And the one that always jumps to mind is meningitis.

Dr. Klein testified that had a lumbar puncture been performed on September 5th or 7th, it would have revealed meningitis, and treatment could have begun earlier. Although he could not say the child would have avoided all of the resulting injuries from the disease had she been diagnosed a week or so earlier, the longer the child went without treatment, the more tissue was damaged by the disease. Dr. Klein said:

Meningitis is a frequent event as a concern for children in the sense that an organism that colonizes the upper respiratory tract then gets into the blood and, from the blood, reaches the covering of the brain, which is called the meninges. And if there's inflammation, it's called meningitis. And there are a lot of different organisms that cause meningitis, the most serious are usually bacteria. There are many episodes of meningitis that are caused by viruses, and some of them can be serious. And so having a low threshold for diagnosis of meningitis is very important because early treatment may prevent severe consequences.

Both doctors testified that had the child been diagnosed in the earlier stages of the disease, she would likely have suffered no permanent injury, and if diagnosed in the second stage, less damage. She was in the third or final (often fatal) stage of the disease when treated at Arnold Palmer, after which permanent damage or death can be expected. However, in their opinions, the child was in the first or second stages when seen by the defendants.

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Related

Malcolm v. State
873 So. 2d 378 (District Court of Appeal of Florida, 2004)

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Bluebook (online)
873 So. 2d 378, 2004 WL 689532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hadley-v-terwilleger-fladistctapp-2004.