Intervening Cause Instruction for Negligent Medical Treatment

When a plaintiff is injured in an automobile accident and obtains medical treatment for the injuries, the physician who provides that medical care is often put on trial in a subsequent personal injury suit arising from the accident. It is common practice for defendants in automobile cases to hire expert witnesses who criticize the treating physician’s decisions and suggest to the jury that plaintiff’s complaints come from the negligent medical treatment rather than from the initial injury.

The seminal case on this scenario is the Florida Supreme Court case of Stuart v. Hertz Corp., 351 So. 2d 703 (Fla. 1977). In that case the Supreme Court stated at 707:

Where one who has suffered personal injuries by
reason of the negligence of another exercises
reasonable care in securing the services of a
competent physician or surgeon, and in following
his advice and instructions, and his injuries are
thereafter aggravated or increased by the
negligence, mistake, or lack of skill of such
physician or surgeon, the law regards the
negligence of the wrongdoer in causing the
original injury as the proximate cause of the
damages flowing from the subsequent
negligent or unskillful treatment thereof, and
holds him liable therefor.

Where is the line drawn as to when an instruction must be given to the jury informing them of the Stuart v. Hertz doctrine? In the recent case of Tucker v. Korpita, 36 Fla. L. Weekly D2494 (Fla. 4th DCA, Nov. 16, 2011). The Fourth District tried to determine just where that line is drawn. The case under discussion was a rear end collision wherein the plaintiff had undergone a discectomy following the injuries suffered in the automobile accident. Defendants put witnesses on the stand who testified that the performance of a discectomy under these circumstances was not only totally contraindicated but could arguably make things worse. Plaintiffs requested the following jury instruction from Emory v. Florida Freedom Newspapers, 687 So.2d 846 (Fla. 4th DCA 1997).

Where one who has suffered personal injuries as a
result of the negligence of another seeks medical
treatment from a physician or surgeon, and the
injured person’s injuries are thereafter aggravated
or increased by the negligence, mistake or lack of
skill of such treatment, the law regards the
negligence of the one causing the original injury
as the proximate cause of the damages flowing
from the later negligent, unskillful, or unsuccessful
treatment of the physician or surgeon.

The trial court refused to give the instruction and the Fourth District reversed. In Tucker, supra, at D2495, the Court held:

We, therefore, find that the specific testimony
presented to the jury mandated the intervening
cause instruction as requested. The specific
testimony in this case went beyond merely
questioning the medical advisability of the
treatment advocated by appellant’s experts,
or questioning the wisdom of the diagnosis,
prognosis, or causal relationship between the
purported injuries and the alleged incident.
Rather, appellee’s experts concluded that
the treatment utilized by appellant’s experts
“would make things worse or could make
things worse clinically.” The former scenario
may not generally require an intervening
cause instruction, while the latter situation,
like in the case at bar, should result in the
instruction being given as requested.

As in Emory, the admission of testimony
regarding inappropriate medical treatment,
and the fact that it specifically could
“accelerate the degenerative process” in
appellant according to the appellee’s expert
witness, “created a reasonable possibility
that the jury was indeed misled” in the
absence of a jury instruction addressing
the issue.” 687 So. 2d at 848. As such,
we reverse and remand for a new trial.

Testimony such as that presented in the case under discussion puts the plaintiff in the untenable position of not only having to prove liability in the automobile case but also forces the plaintiff to defend the medical treatment provided by the treating physician. It is almost as if the treating physician were being sued for malpractice creating a trial within a trial in the automobile case. Stuart v. Hertz, supra, has been the law in Florida for 35 years. The logic of that opinion is inescapable. The tortfeasor, having set in motion by negligent acts an injury, should be held liable for all of the consequences of that injury. Stuart v. Hertz specifically argued that absent such a finding plaintiffs would be forced to defend malpractice issues in what should be a simple automobile case. Absent negligence on the part of the plaintiff in obtaining medical care, the law places the burden of injuries on the defendant who caused them and not on the plaintiff who was simply seeking relief from those injuries. This case amplifies the Stuart v. Hertz opinion and makes it clear that when a defendant interjects the issue of causation based upon medical care obtained by a plaintiff, the plaintiff is entitled to an instruction that even if the injuries were made worse by the medical care obtained by the plaintiff, the defendant remains liable for the entire injury.

Originally published in April 2012