Duty in a Medical Malpractice Case

By Ted Babbitt Published April 2014

Granicz v. Chirillo, Case No. 2D12-5244 (Fla. 2nd District, Feb. 19, 2014) was a medical malpractice case against a primary care doctor who was treating plaintiff’s decedent for depression.  The patient was on an antidepressant for a period of time and then voluntarily stopped taking it because of side-effects.  She called the doctor’s office and detailed symptoms of significant depression.  She informed the doctor’s office that she had stopped taking the antidepressant and the doctor ordered another medication for her without asking that she come in for an examination.  Plaintiff’s experts testified that this fell below the applicable standard of care and that had the patient been seen, it was more likely than not that her eventual suicide could have been prevented.

The trial judge granted a motion for summary judgment, holding as a matter of law, that the physician had no duty to prevent the patient’s suicide because it was an unforeseeable event, not under his control.

The Second District reversed, finding that because plaintiff’s experts had testified that the defendant physician had breached the applicable standard of care by failing to recognize the seriousness of the plaintiff’s symptoms, by failing to speak to the patient and insist that she come in for an evaluation, by failing to refer her to an expert in depression and by failing to conduct a proper evaluation of the antidepressant that was ordered which was known to cause suicidal ideations.

In  its reversal, the Second District discusses the distinction between a defendant’s duty and proximate cause.  At Page 5, the Court holds:

The Florida Supreme Court has discussed the trial

court’s role in assessing foreseeability in the context

of determining the issue of duty.  See McCain v. Fla.

Power Corp., 593 So. 2d 500, 502-04 (Fla. 1992).

“The duty element of negligence focuses on whether

the defendant’s conduct foreseeably created a

broader ‘zone of risk’ that poses a general threat of

harm to others.”  Id. at 502.  This concept is not to be

confused with the proximate cause element of

negligence which focuses on “whether and to what

extent the defendant’s conduct foreseeably and

substantially caused the specific injury that actually

occurred.”  Id.  The duty element is a question of

law for the court to resolve; the element of proximate

cause presents a fact question for the jury.

 

By focusing on whether Jacqueline’s suicide was

foreseeable, the trial court analyzed Dr. Chirillo’s

duty under the standard of proximate cause.  The

proper inquiry that the court should have made to

determine the legal issue of duty “is whether the

defendant’s conduct created a foreseeable zone of risk

not whether the defendant could foresee the specific

injury that actually occurred.”  McCain, 593 So. 2d

at 504.

 

*           *           *

In this case, Granicz provided expert testimony

regarding the standard of care for a primary care

physician when a patient being treated for depression

calls the office and complains of symptoms that

suggest worsening depression.  According to this

testimony, the standard of care requires physicians

to personally assess the patient’s condition to

determine if she is having thoughts of suicide and

to intervene if necessary.  This evidence is

sufficient to establish that Dr. Chirillo owed a legal

duty to Jacqueline that precluded summary judgment.

 

This recitation of the law has broader application than medical malpractice suicide cases.  The distinction between establishing a duty as opposed to the issue of proximate cause is often confused and this case clarifies the distinction.  The duty issue is answered by whether defendant’s conduct expanded the zone of risk to the plaintiff while the issue of proximate cause focuses on foreseeability of the actual injury and is almost always a jury question.

With respect to medical malpractice suicide cases, it is important to note that this case is in conflict with the First District case of Lawlor v. Orlando, 795 So. 2d 147 (Fla. 1st DCA 2001) which rejected a similar argument and held as a matter of law that a psychotherapist did not have a legal duty to prevent a patient’s suicide because it was unforeseeable.

While the Supreme Court will eventually have to resolve the conflict between these two decisions, the underlying legal reasoning of Granicz, supra, gives substantial guidance in medical malpractice cases.