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Donshik v. Sherman9/10/2003
Appellants, Gary R. Donshik, M.D. and Cardiology Associates, Inc. (collectively, "Dr. Donshik"), appeal a final judgment entered against them, pursuant to a jury verdict, in a medical malpractice action brought by appellee, Alan Sherman, Guardian of the person and property of Joseph Sherman. Dr. Donshik raises three issues on this appeal, one of which we find to be meritorious enough to warrant a new trial. We therefore reverse the final judgment for the reasons specified herein.
This action began after Joseph Sherman ("Sherman") sustained a major debilitating stroke in April 1988 while under the medical care of Dr. Donshik for cardiovascular disease. Dr. Donshik, a board certified physician in cardiovascular disease and internal medicine, had been treating Joseph Sherman for over ten years. Prior to his stroke, Sherman, 68 years old, was overweight with a longstanding history of asymptomatic bilateral carotid artery disease, high blood pressure, smoking, elevated lipids and hypertension. He had undergone coronary by-pass surgery ten years prior to the stroke at issue here.
The issue in this case was whether Dr. Donshik was negligent in failing to prophylactically treat Sherman surgically, rather than medically, to reduce the risk of another stroke. The plaintiff's theory of liability in this case was essentially that because Sherman was suffering from asymptomatic carotid artery disease, Dr. Donshik should have recommended that he be treated surgically, to reduce the risk of a stroke, in accordance with the findings from an earlier Asymptomatic Carotid Atherosclerosis Study ("ACAS").
According to the ACAS findings, which were published in the Journal of the American Medical Association in March 1995 , ninety-five percent (95%) of the study's patients who opted for the surgical procedure known as a carotid endarterectomy avoided a stroke, whereas eighty-nine percent (89%) of the patients who were treated only medically avoided a stoke. For males, the study found that ninety-six percent (96%) of the participants who had the surgery remained stroke free and eighty-eight percent (88%) who were treated medically remained stroke free. Sherman's experts all opined that, in accordance with this report, he would have remained stroke free had Dr. Donshik treated him surgically rather than medically. Although Dr. Donshik and the defense experts acknowledged the significance of the ACAS report, they disagreed that it was authoritative or that it set the standard of care for the treatment of all asymptomatic patients. They maintained that the ACAS report was inapplicable to Sherman because although there were patients in the study with individual risk factors such as obesity, bilateral carotid artery disease, smoking history, etc., Sherman had, not one, but all of these risk factors. The defense further contended that the ACAS report's findings revealed that there was an overwhelming probability that a patient would not suffer a stoke with either medicinal or surgical treatment.
During Sherman's case in chief the plaintiff was permitted to introduce the ACAS report into evidence through one of the plaintiff's experts. The defense objected on grounds that the admission of this report impermissibly bolstered the credibility of the plaintiff's expert opinions and was otherwise violative of section 90.706 of the Florida Evidence Code. See ยง 90.706, Fla. Stat. (1987). This objection was overruled.
The plaintiff thereafter successfully argued to the jury that Dr. Donshik breached the standard of care set forth in the ACAS report by not treating Sherman surgically. The jury returned a verdict for the plaintiff. After the denial of post-trial motions, Dr. Donshik insti
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