Ouellette v. Patel

967 So. 2d 1078, 2007 WL 3313378
CourtDistrict Court of Appeal of Florida
DecidedNovember 9, 2007
Docket2D06-3397
StatusPublished
Cited by6 cases

This text of 967 So. 2d 1078 (Ouellette v. Patel) 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
Ouellette v. Patel, 967 So. 2d 1078, 2007 WL 3313378 (Fla. Ct. App. 2007).

Opinion

967 So.2d 1078 (2007)

Doreen OUELLETTE, as Personal Representative of the Estate of Lewellyn Ouellette, deceased, Appellant,
v.
Bhasker J. PATEL, M.D., Appellee.

No. 2D06-3397.

District Court of Appeal of Florida, Second District.

November 9, 2007.

*1079 Jawdet I. Rubaii and Jack F. White, III, of Jawdet I. Rubaii, P.A., Clearwater, for Appellant.

Mindy McLaughlin, Judith W. Simmons, and Gabrielle S. Osborne of Burton, Schulte, Weekley, McLaughlin & Beytin, P.A., Tampa, for Appellee.

WALLACE, Judge.

Doreen Ouellette, as Personal Representative of the Estate of Lewellyn Ouellette, deceased, appeals a final summary judgment that terminated her medical malpractice action against Bhasker J. Patel, M.D. Because the circuit court erroneously failed to consider the expert witness affidavit that Mrs. Ouellette filed in opposition to Dr. Patel's motion for summary judgment, we reverse the summary final judgment and remand for further proceedings.

The Facts

On April 25, 1997, Dr. Patel, a cardiologist, admitted Mr. Lewellyn Ouellette to a hospital in New Port Richey for a percutaneous transluminal angioplasty (balloon angioplasty) of his right superficial femoral artery. After the procedure was completed, Mr. Ouellette developed an occlusion of the blood flow in the artery. Such an occlusion is a known complication of the procedure that is generally treated by surgery. After deciding that Mr. Ouellette required surgical intervention to restore blood flow in the leg, Dr. Patel contacted Raymond Waters, M.D., a vascular surgeon, for assistance. However, Dr. Waters was performing emergency surgery at another hospital and was unavailable. Dr. Patel's efforts to find another local surgeon to treat Mr. Ouellette were unsuccessful. Accordingly, Dr. Patel made arrangements for Mr. Ouellette to be transported to Tampa General Hospital (TGH) by helicopter. At TGH, another surgeon operated on Mr. Ouellette to correct the occlusion of the blood flow in his right leg. Several months later, Mr. Ouellette underwent an amputation of his right leg below the knee.

The Proceedings in the Circuit Court

In 1999, Mr. Ouellette filed a medical malpractice action against Dr. Patel, another doctor, and the hospital where Dr. Patel had performed the balloon angioplasty. In his complaint, Mr. Ouellette *1080 demanded a jury trial. The theory of Mr. Ouellette's claim against Dr. Patel was that Dr. Patel was responsible for the delay in obtaining the surgical treatment that was necessary to restore blood flow to Mr. Ouellette's right leg. Mr. Ouellette contended that the delay in obtaining surgical intervention stemming from Dr. Patel's alleged omissions ultimately led to the amputation of Mr. Ouellette's right leg. Mr. Ouellette died in January 2005, and Mrs. Ouellette, in her capacity as the personal representative of her late husband's estate, was substituted as the party plaintiff.

The plaintiff's medical expert was Gabor Kovacs, M.D. In March 2004, Dr. Patel took Dr. Kovacs' deposition. In his deposition, Dr. Kovacs offered his opinion concerning Dr. Patel's alleged breach of the prevailing professional standard of care:

Q. [by Dr. Patel's attorney] Moving forward on what Dr. Patel did appropriate[ly], obviously you believe stenting of the iliac was indicated, and that the angioplasty that he performed on [Mr. Ouellette's] right leg was also indicated.
A. Yes, it was indicated.
Q. Let's move on.
Obviously, we know what occurred in this particular case is a known risk and complication of angioplasty; correct?
A. It's a recognized risk.
Q. And as such, obviously, you're not critical of Dr. Patel for the technique in the surgery. Your criticisms begin after the complication first arose; correct?
A. Yes.
Q. Why don't you now tell me what it is, if anything, you believe Dr. Patel could have or should have done differently[?]
A. Well, Dr. Patel did the angioplasty; and when you do a procedure, to begin with . . . either you should be able to . . . handle [by yourself] the complications that you may be causing, or you should have some contingency plan, or some way of extricating yourself from a complication when it does[]—when it did occur.
Q. Now, let me interrupt you real quick. Is it your understanding that Dr. Patel did not have a backup plan to extricate himself in the event that he ran into trouble in [the] angioplasty?
A. That's the impression that I got from the records.
Q. Now, let me ask it to you this way. If you assume for me hypothetically, I understand you don't have impressions from the records in front of you, but if I understand your criticism correctly, if you assume for me hypothetically that Dr. Patel actually did have a surgeon on backup that was qualified and able to extricate him from any difficulties that arose from any known or accepted complication, then obviously that criticism would go away; correct?
A. Yes.
Q. What other criticisms do you have?
A. Well, that's the basic criticism[,] the fact that he undertook to do a procedure which I guess it's a matter of debate whether cardiologist[s] or even interventional radiologist[s] should be doing procedures that they cannot handle the complications of, but then having undertaken it, he had no way of helping the patient once the complication occurred.

Thus Dr. Kovacs' deposition testimony on the issue of the standard of care focused on the question of Dr. Patel's arrangements for surgical backup, not on his performance of the procedure itself.

In January 2006, Dr. Patel filed a motion for summary judgment. In his motion, Dr. Patel contended that Mrs. Ouellette could not establish a breach of the standard of care because "[t]he undisputed evidence in this case is that Dr. Patel did, *1081 in fact[,] have surgical back up for this procedure. . . . Therefore, Plaintiff's expert conceded that Dr. Patel would have met the standard of care." In support of his motion, Dr. Patel relied in part on the deposition testimony of Dr. Waters, the surgeon who was unavailable when Dr. Patel called him for assistance following Mr. Ouellette's balloon angioplasty.

In his deposition, Dr. Waters testified that in 1997 he regularly served as the surgical backup for cardiologists such as Dr. Patel who were performing balloon angioplasty procedures. However, according to Dr. Waters, the prevailing standard of care for such cardiologists did not require that they have a backup surgeon immediately available while the procedure was being performed. Dr. Waters recalled that Dr. Patel had informed him about his plan to perform a balloon angioplasty on Mr. Ouellette. Sometime between April 16 and April 25, the day of the procedure, Dr. Waters had agreed with Dr. Patel that "absent some emergency, [he] would be available as a surgical backup." On the day of the procedure, Dr. Waters was called to perform emergency surgery on a patient at another hospital. Thus, when Dr. Patel called Dr. Waters for assistance with Mr. Ouellette, Dr. Waters was unable to respond because he was already operating on another patient. Dr. Waters recalled that—on the day of the procedure, before Dr. Patel had called him to perform emergency surgery on Mr. Ouellette—neither Dr. Patel nor anyone from his staff had checked to see if Dr. Waters was, in fact, available.

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Cite This Page — Counsel Stack

Bluebook (online)
967 So. 2d 1078, 2007 WL 3313378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ouellette-v-patel-fladistctapp-2007.