Kling v. DiSclafani

983 So. 2d 648, 2008 WL 2064666
CourtDistrict Court of Appeal of Florida
DecidedMay 16, 2008
Docket5D07-2019
StatusPublished
Cited by2 cases

This text of 983 So. 2d 648 (Kling v. DiSclafani) 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
Kling v. DiSclafani, 983 So. 2d 648, 2008 WL 2064666 (Fla. Ct. App. 2008).

Opinion

983 So.2d 648 (2008)

Ronald KLING and Mary Jane Kling, Appellant,
v.
Antonio DiSCLAFANI, M.D., et al., Appellee.

No. 5D07-2019.

District Court of Appeal of Florida, Fifth District.

May 16, 2008.
Rehearing Denied June 11, 2008.

*649 Harvey J. Sepler, of Harvey J. Sepler, P.A., Hollywood, for Appellant.

Shelley H. Leinicke, of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Fort Lauderdale, for Appellee.

GRIFFIN, J.

Ronald and Mary Jane Kling ["Plaintiffs"] appeal the order entering summary final judgment in favor of Antonio DiSclafani, M.D. and Ocala Neurosurgical Center, Inc. ["Defendants"] in a medical malpractice case. Because the trial court erred in concluding there was no evidence of Dr. DiSclafani's negligence, we reverse.

Dr. DiSclafani and Dr. Barry J. Kaplan both worked for the Ocala Neurosurgical Center, Inc. On April 5, 2000, Dr. Kaplan performed a laminectomy and microdiskectomy on Mr. Kling's back at the Ocala Regional Medical Center. Following surgery, Dr. DiSclafani, a neurosurgery specialist, took over for Dr. Kaplan in caring for Mr. Kling. Dr. DiSclafani first saw Mr. Kling at about 8 a.m. on April 7, 2000. That same day, Mr. Kling's catheter was removed, and it was discovered that he was having trouble urinating. Dr. Edward King, a urology specialist, examined Mr. Kling. Dr. King apparently concluded that Mr. Kling's urinary problems resulted from a preexisting condition and were not the result of a neurological problem.

Dr. DiSclafani saw Mr. Kling again on the morning of April 8, 2000. He was apparently aware of Dr. King's opinion and felt that no further work up was warranted at that time. Later that day, around noon, Dr. DiSclafani was notified that Mr. Kling had weakness in his legs and burning in his buttocks, and he ordered an MRI. The MRI revealed that a hematoma or blood clot had developed somewhere in the junction of Mr. Kling's thoracic and lumbar spine and was causing compression on his spinal cord — a condition known as cauda equina syndrome. So, at about 7 p.m. that same day, Dr. DiSclafani took Mr. Kling back into the operating room on an emergent basis and evacuated the blood clot to alleviate the compression on his spinal cord.

On February 28, 2003, Plaintiffs filed this lawsuit against Defendants.[1] In *650 Count III of their Second Amended Complaint, Plaintiffs alleged that Dr. DiSclafani had a duty of reasonable care in his diagnosis, care and treatment of Mr. Kling;[2] that Dr. DiSclafani's conduct departed from the applicable professional standard of care; and that, as a result, Mr. Kling was injured.[3]

On September 20, 2004, Defendants deposed Plaintiffs' expert Dr. Lawrence B. Schlachter. Dr. Schlachter's testimony addressed the applicable standard of care and whether Dr. DiSclafani's conduct met that standard. After Dr. Schlachter's deposition, Defendants filed a motion for summary judgment, contending that Dr. DiSclafani's conduct indisputably met the standard of care that Dr. Schlachter articulated in his deposition testimony. The defense theory was that Dr. Schlachter testified in his deposition that the applicable standard of care would have been met if Dr. DiSclafani had operated on the cauda equina sometime between April 7 and April 8, 2000. Because Dr. DiSclafani did actually operate on April 8, 2000, Defendants reasoned that Dr. DiSclafani was "within the standard of care under Plaintiff's own neurosurgical expert witness."

In response, Plaintiffs filed an affidavit from Dr. Schlachter, purporting to clarify statements that Dr. Schlachter made in his deposition on which Defendant was basing the summary judgment motion. The trial court heard arguments on Defendants' motion on May 31, 2006, and denied Defendants' motion for summary judgment without prejudice.

Defendants subsequently filed a motion to strike and suppress Dr. Schlachter's affidavit. The motion asserted that the affidavit had "boldly" stated an opinion entirely different than that contained in Dr. Schlachter's deposition, solely for the purpose of blocking summary judgment. Further, the motion argued that Plaintiffs failed to correct any errors in Dr. Schlachter's deposition in accordance with the Rules of Civil Procedure and that they should not be allowed to correct such errors at this point through Dr. Schlachter's affidavit.

In response, Plaintiffs denied that Dr. Schlachter's deposition testimony exonerated Dr. DiSclafani of negligence. Rather, Dr. Schlachter's testimony established that *651 Dr. DiSclafani failed to diagnose Mr. Kling's condition in a timely manner and that the delay in diagnosis and consequent treatment damaged Mr. Kling. Also, they said that it steadfastly had been their position that Defendants' Motion for Summary Judgment was based on Defense counsel's erroneous perception of Dr. Schlachter's testimony, and, therefore, the filing of an errata sheet to the deposition would have been inappropriate. Plaintiffs accordingly asserted that the affidavit, which clarified Dr. Schlachter's deposition testimony, was proper. They argued that the trial court should deny Defendants' motions to strike and suppress Dr. Schlachter's statements and the motion for summary judgment. After a hearing, the trial court filed orders granting Defendants' motions to strike Dr. Schlachter's affidavit, granting Defendant's renewed motion for summary judgment and entering summary final judgment in Defendants' favor.

At issue is whether there is any evidence in the record to establish that Dr. DiSclafani's treatment of Mr. Kling fell below the standard of care appropriate for a neurosurgeon. In his deposition, Dr. Schlachter, a neurosurgeon, testified that the standard of care in treating cauda equina syndrome is surgical intervention as quickly as possible. Dr. Schlachter explained that the standard of care issue is separate from the issue of how long it may be possible to delay treatment without harming the patient. The deposition reflects the following exchange between defense counsel and Dr. Schlachter:

Q. (By Mr. O'Hara) From the standpoint of the time frame of intervention in a cauda equina syndrome, what is the range that is given in the literature that you have reviewed in number of days or hours?
A. Well, I'll start off by telling you that everything I have read says that early surgery is the standard of care. Everything I have read has said that one should operate as early as is possible to make the diagnosis to get the best result.
The literature then discusses other issues, which you are alluding to in your question which is how long can one wait and at what point does the waiting become harmful to the patient as opposed to not harming the patient. In other words, so what? It didn't hurt.
And these two points that I raise are really very different points. There is essentially no excuse for not diagnosing the syndrome, and there is no excuse for not operating early, period.

(emphasis added).

Dr. Schlachter then explained that Dr. DiSclafani fell below the standard of care in failing to properly examine and diagnose Mr. Kling on April 7th. Specifically, with respect to Dr. DiSclafani's examination of Mr. Kling, he said that it did not appear that Dr. DiSclafani conducted the "appropriate level of investigation" on the morning of April 7th to determine whether the inability to urinate was due to cauda equina syndrome.

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983 So. 2d 648, 2008 WL 2064666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kling-v-disclafani-fladistctapp-2008.