Thursday, December 10, 2009

Florida Supreme Court Accepts Jurisdiction Of Issue Relating To Sufficiency Of Plaintiff's Expert In MedMal Case

The Florida Supreme Court accepted jurisdiction in Cox v. St. Joseph's Hospital (SC09-1771).  The order accepting jurisdiction can be found here.  The Second District's opinion under review was discussed here.  The Petitioner's Brief on Jurisdiction can be found here and the Respondent's Jurisdictional Answer Brief can be found here

The Second District's opinion stated:
In moving for a directed verdict, the hospital and ER doctor argued that the Coxes failed to prove that Mr. Cox more likely than not would have benefitted from tPA....In negligence actions, Florida courts follow the "more likely than not" standard of causation, i.e., they require proof that the negligence "probably caused" the plaintiff's injury. Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984). " 'A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.' " Id. (quoting Prosser, Law of Torts § 41 (4th Ed.1971) (footnotes omitted)). A medical expert's opinion is not exempt from this rule. The supreme court has explained that "[t]he opinion of an expert is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion."....In the absence of competent evidence to prove that the failure to treat Mr. Cox with tPA more likely than not affected his outcome, the trial court should have granted the defense motion for a directed verdict. Under these circumstances, we must reverse the judgment.


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