Nursing Home Patient’s Family Can’t Revive Axed Jury Win

By Y. Peter Kang
January 17, 2018

Law360, Los Angeles (January 17, 2018, 8:54 PM EST) — A Florida appellate panel on Wednesday affirmed a trial judge’s decision to overturn a jury verdict in favor of the son of an elderly woman who allegedly died because of a nursing home’s negligence, saying the plaintiff’s medical expert’s opinion was contradicted by the evidence.

In a 2-1 ruling, a three-judge panel for the Third District Court of Appeal upheld the trial judge’s decision to set aside a jury’s verdict in favor of Robert Siegel in a suit accusing Cross Gardens Care Center LLC of providing negligent care for his mother, Sybil Siegel, which purportedly contributed to her death at the age of 88. The majority said Siegel’s medical expert, Dr. Lee Fisher, submitted a medical opinion that was contradicted by the patient’s medical records and that therefore his opinion should never have been presented to the jury.

The appeals court said the burden was on Robert Siegel to prove that the alleged negligence “more likely than not” caused the patient’s death.

“An examination of Dr. Fisher’s opinions indicates that, time and again, he drew inferences from the medical records that were not more-likely-than-not,” the 12-page majority opinion states. “Indeed, at critical points, his opinions are directly contradicted by the very medical records upon which they are purportedly based.”

In Fisher’s opinion, Sybil Siegel died of pneumonia and the nursing home’s medical staff had failed to properly monitor her and order her timely transfer to a hospital, but the panel said the doctor makes this assumption based on the fact that there were no entries in the nurse’s notes for a two-week period.

“The problem with this inference is that it is contradicted by the raft of medical reports indicating that Ms. Siegel’s condition was being constantly monitored, recorded, and reported throughout that period,” the majority said. “Dr. Fisher’s inference that the ‘gap’ in the notes signified that she was not monitored is worse than speculation: it is contradicted by the only evidence Dr. Fisher or the jury had.”

The majority also took issue with Fisher’s theory that Siegel could have lived for an additional three years had she received timely treatment, an assessment based on the fact that she had been previously hospitalized for pneumonia and survived.

“This is a total non sequitur,” it said. “It does not follow that because a person was admitted with pneumonia at age 60, 70, or 80 and survived that she will necessarily survive if she is admitted with pneumonia at age 88.”

The panel noted that Fisher never personally examined the patient so his assertion that she died of pneumonia is contradicted by the medical records, which state that the patient’s official cause of death was end-stage dementia and end-stage chronic obstructive pulmonary disease.

“Dr. Fisher’s opinion that pneumonia caused her death, which is based entirely on the medical records, but which is flatly contradicted by the medical records, is entitled to no evidentiary weight,” the court said.

In a dissenting opinion, Judge Robert J. Luck voted to reinstate the jury’s verdict, saying the legal principles for reviewing judgments notwithstanding the verdict does not allow the court to reweigh testimony and choose between conflicting evidence.

“After reviewing the conflicting records, listening to Dr. Fisher’s direct and cross-examination, and hearing the attorneys’ arguments during closing about why he should and shouldn’t be believed, the jury credited Dr. Fisher’s testimony in finding that the nursing home violated chapter 400, which caused the Siegel family’s injuries,” Luck said. “We should not reweigh Dr. Fisher’s testimony and substitute our view for the jury’s.”

Siegel had sought nearly $500,000 in damages, but the jury awarded a sum of approximately $6,100.

An attorney for the nursing home said he was pleased with the appellate ruling.

“We think the trial court and the Court of Appeal got it right,” said Christopher M. David of Fuerst Ittleman David & Joseph PL. “We think this opinion will go a long way in relieving nursing homes of being forced to prove negatives when defending themselves in court.”

An attorney for Siegel declined to comment on Wednesday.

Judges Thomas Logue, Edwin A. Scales III and Robert J. Luck sat on the panel for the Third District.

Siegel is represented by Douglas F. Eaton of Eaton & Wolk PL.

The nursing home is represented by Christopher M. David, Michael B. Kornhauser and Jeffrey J. Molinaro of Fuerst Ittleman David & Joseph PL.

The case is Robert Siegel v. Cross Senior Care Inc. et al., case number 3D16-600, in the Third District Court of Appeal, Florida.

–Editing by Jill Coffey.