CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2006 WL 3019595
...Florida law requires these procedures and tasks be "identified and approved" under the auspices of the State Board of Nursing, see §
464.003(3)(c), Fla. Stat. (2003), or conducted pursuant to a protocol developed and agreed to by the supervising physician and the ARNP. §
458.348, Fla....
...and nursing treatment of alterations of the health status." [2] (Emphasis added). However, Florida law expressly states an ARNP may only perform such tasks pursuant to a formal protocol established between a supervisory physician and the nurse, see § 458.348(1)(a), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...We conclude the trial court erred in two
respects: (1) by precluding the physician from testifying that he was not
at the detox facility when the patient was admitted, and was not notified
of the patient’s existence until after the patient died; and (2) by instructing
the jury that the physician’s alleged violation of section 458.348, Florida
Statutes (2011), was evidence of negligence....
...In the second amended complaint,
the estate alleged that the physician violated a duty arising from section
464.012 to “maintain supervision for directing the specific course of
medical treatment” rendered by the ARNP. The estate further alleged that
the physician failed to comply with section
458.348, Florida Statutes
(2011), by exceeding the maximum number of offices he could supervise
in addition to his own primary practice location at the time of this incident.
The physician later moved for partial summary judgment, essenti...
...The estate’s case against the physician was
set for trial.
3
Before trial, the physician moved in limine to exclude evidence of his
having exceeded the maximum number of offices he could supervise under
section 458.348....
...the ARNP’s treatment of the patient and did not know of the patient’s
existence until after the patient’s death.
During closing argument, the estate argued that the physician should
be held liable because he violated his duties under sections
464.012 and
458.348.
The trial court instructed the jury that the physician’s alleged violation
of sections
464.012 and
458.348 was “evidence of negligence,” and that if
it found that he “violated the statute[s], you may consider that fact,
together with the other facts and circumstances in deciding whether [he]
was negligent.” The physician objected to these instructions....
...from
testifying that he was not at the detox facility when the patient was
admitted, and that he was not notified of the patient’s existence until after
the patient died; and (2) by instructing the jury that the physician’s alleged
violation of section 458.348 was evidence of negligence, because the estate
did not present any evidence that such violation caused or contributed to
the patient’s death....
...mission. The
error was not harmless, and the evidence was not cumulative. Although
other evidence was presented on this point, the physician was not provided
the opportunity to testify fully on this key point.
2. Error in Instructing the Jury on Section 458.348
On the second error, our standard of review was detailed in Barton
Protective Services, Inc....
...If the jury instructions, as a whole, fairly
state the applicable law to the jury, the failure to give a
particular instruction will not be an error.
Id. at 974 (emphasis added) (citations omitted).
5
Here, the trial court’s jury instruction on section 458.348 was
reasonably calculated to confuse or mislead the jury, because the facts did
not support giving the instruction, to the extent causation was an issue.
Section 458.348(4), Florida Statutes (2011), provides, in pertinent part:
(a) A physician who is engaged in providing primary health
care services may not supervise more than four offices in
addition to the physician’s primary practice location....
...isputed
that the physician violated either subsection by supervising ARNPs at five
to seven different facilities in addition to his primary practice location.
However, the estate presented no evidence to prove that the physician’s
violation of section 458.348 proximately caused the patient’s death....
...And typically [the physician]
would depend on me to be able to see and give a proper and quality
assessment, which I did. I could not have known [the patient] ha[d]
bacterial endocarditis.”
Because the estate presented no proximate cause evidence, the trial
court’s jury instruction that the physician’s violation of section 458.348
was “evidence of negligence,” and that if the jury found that he “violated
the statute[s], you may consider that fact, together with the other facts
and circumstances in deciding whether [he] was negligent,” was
reasonably calculated to confuse or mislead the jury....
...This error was not harmless. Because the trial court gave the jury
instruction, a reasonable possibility exists that a juror who believed the
estate did not prove its negligent supervision claim may nevertheless have
held the physician liable simply because he violated section 458.348....
CopyPublished | Florida 4th District Court of Appeal
...We conclude the
trial court erred in three respects: (1) by precluding the physician from
testifying that he was not at the detox facility when the patient was
admitted, and was not notified of the patient’s existence until after the
patient died; (2) by instructing the jury that the physician’s alleged
violation of section 458.348, Florida Statutes (2011), was evidence of
negligence; and (3) by granting the estate’s request to allocate 100% of the
liability upon the physician, after the jury had found the physician 20%
liable and the detox facility 80% liable as a Fabre defendant....
...In the second amended complaint,
the estate alleged that the physician violated a duty arising from section
464.012 to “maintain supervision for directing the specific course of
medical treatment” rendered by the ARNP. The estate further alleged that
the physician failed to comply with section
458.348, Florida Statutes
(2011), by exceeding the maximum number of offices he could supervise
in addition to his own primary practice location at the time of this incident.
The physician’s answer alleged affirmative defenses, includi...
...ment with the
ARNP and the detox facility. The estate’s case against the physician was
set for trial.
Before trial, the physician moved in limine to exclude evidence of his
having exceeded the maximum number of offices he could supervise under
section 458.348....
...facility’s conduct “caused or contributed to cause the damage involved in
the case.” The trial court denied the motion.
During closing argument, the estate argued that the physician should
be held liable because he violated his duties under sections
464.012 and
458.348.
The trial court instructed the jury that the physician’s alleged violation
of sections
464.012 and
458.348 was “evidence of negligence,” and that if
it found that he “violated the statute[s], you may consider that fact,
together with the other facts and circumstances in deciding whether [he]
was negligent.” The physician objected to these instructions....
...cian from
testifying that he was not at the detox facility when the patient was
admitted, and that he was not notified of the patient’s existence until after
the patient died; (2) by instructing the jury that the physician’s alleged
violation of section 458.348 was evidence of negligence, because the estate
did not present any evidence that such violation caused or contributed to
the patient’s death; and (3) by granting the estate’s request to allocate
100% of the liability upon the phys...
...mission. The
error was not harmless, and the evidence was not cumulative. Although
other evidence was presented on this point, the physician was not provided
the opportunity to testify fully on this key point.
2. Error in Instructing the Jury on Section 458.348
On the second error, our standard of review was detailed in Barton
Protective Services, Inc....
...If the jury instructions, as a whole, fairly
state the applicable law to the jury, the failure to give a
particular instruction will not be an error.
Id. at 974 (emphasis added) (citations omitted).
Here, the trial court’s jury instruction on section 458.348 was
reasonably calculated to confuse or mislead the jury, because the facts did
not support giving the instruction, to the extent causation was an issue.
Section 458.348(4), Florida Statutes (2011), provides, in pertinent part:
(a) A physician who is engaged in providing primary health
care services may not supervise more than four offices in
addition to the physician’s primary practice location....
...isputed
that the physician violated either subsection by supervising ARNPs at five
to seven different facilities in addition to his primary practice location.
However, the estate presented no evidence to prove that the physician’s
violation of section 458.348 proximately caused the patient’s death....
...And typically [the physician]
would depend on me to be able to see and give a proper and quality
assessment, which I did. I could not have known [the patient] ha[d]
bacterial endocarditis.”
Because the estate presented no proximate cause evidence, the trial
court’s jury instruction that the physician’s violation of section 458.348
was “evidence of negligence,” and that if the jury found that he “violated
7
the statute[s], you may consider that fact, together with the other facts
and circumstances in deciding whether [he] was negligent,” was
reasonably calculated to confuse or mislead the jury....
...This error was not harmless. Because the trial court gave the jury
instruction, a reasonable possibility exists that a juror who believed the
estate did not prove its negligent supervision claim may nevertheless have
held the physician liable simply because he violated section 458.348....
