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Siegel v. Cross Senior Care, Inc.

Florida Court of Appeals, Third District

January 17, 2018

Robert Siegel, etc., Appellant,
v.
Cross Senior Care, Inc., et al., Appellees.

         An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 13-21696 Michael A. Hanzman, Judge.

          Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.

          Fuerst Ittleman David & Joseph, PL, and Christopher M. David, Michael B. Kornhauser, and Jeffrey J. Molinaro, for appellees.

          Before LOGUE, SCALES, and LUCK, JJ.

          LOGUE, J.

          At the age of 88, Sybil Siegel died at Mount Sinai Medical Center of end stage dementia and end stage chronic obstructive pulmonary disease. Robert Siegel, her son, sued Cross Gardens Care Center, LLC and several of its administrators. Cross Gardens operated the nursing facility where Ms. Siegel resided before admission to Mt. Sinai. In closing argument, Siegel asked the jury for $400, 000 for pain and suffering and $90, 161.86 in medical and funeral expenses. The jury entered a verdict for Siegel but awarded only $5000 in medical expenses and $1133 for funeral expenses. The trial court set aside this award and entered a judgment notwithstanding the verdict. Siegel appealed.

         We affirm on all grounds and write only to address the court's decision to set aside the verdict. At trial, Siegel's theory rested almost entirely on the testimony of Dr. Lee Fisher, an expert in family medicine. Dr. Fisher never treated or examined Ms. Siegel. His opinions were based exclusively on his review of Ms. Siegel's medical records. However, his major opinions were contradicted by the medical records upon which they were purportedly based. The question presented on appeal is whether Dr. Fisher's opinions had sufficient evidentiary weight to be submitted to the jury. The trial court found that they did not. We agree.

         Facts

         Because the issue is the sufficiency of Dr. Fisher's opinions, we first provide Dr. Fisher's opinion and then review the medical evidence. Dr. Fisher's opinion focused on what he perceived as Ms. Siegel's lack of care in the nursing home prior to her transfer to Mt. Sinai. In particular, his opinion was based on the lack of entries in Ms. Siegel's nursing notes from February 10, 2013, when her condition was noted as stable, to February 25, 2013, when she was transferred to Mt. Sinai with pneumonia.

         Focusing on this fourteen-day "gap" in the nursing notes, Dr. Fisher offered an opinion as follows: (1) during the fourteen-day gap, Ms. Siegel was not being properly monitored at the nursing home; (2) during the fourteen-day gap, Ms. Siegel's pneumonia flared up essentially unnoticed; (3) on February 21, 2013, Ms. Siegel's pneumonia reached a critical phase; (4) if Ms. Siegel had been monitored and if the nurse's notes had included the entries reflecting Ms. Siegel's worsening pneumonia, Ms. Siegel would have been transferred to Mt. Sinai on February 21, 2013, rather than February 25, 2013; (5) if Ms. Siegel had been transferred to Mt. Sinai on February 21, 2013, she would have recovered; (6) if she had recovered, Ms. Siegel would have lived another three years because she had been repeatedly hospitalized for pneumonia and other illnesses in the prior decades and she had always recovered; and (7) Ms. Siegel died of pneumonia.

         The evidence showed that, in 1995, Ms. Siegel was debilitated by a stroke. After the stroke, she required assistance for everyday functions such as eating, dressing, bathing, and using the bathroom. Since as far back as 2005, Ms. Siegel had suffered from various maladies including urinary tract infections and a feeding tube infection. She had been hospitalized for pneumonia in January 2005, May 2005, June 2005, April 2007, August 2010, and July 2012. In 2012 alone, she suffered from urosepsis, septicemia, a urinary tract infection, an E. Coli infection, and two instances of pneumonia.

         Ms. Siegel resided at the nursing home at issue for seventeen years. The Defendant, Cross Gardens, operated the facility during the last six months of Ms. Siegel's stay, from September 2012 through February 2013. At the time Cross Gardens took over the facility, Ms. Siegel was already suffering from dementia and chronic obstructive pulmonary disease, among other illnesses. All parties agreed that Cross Gardens did not cause Ms. Siegel to have these illnesses.

         Cross Garden's nursing notes for Ms. Siegel on February 10, 2013 indicated her condition was stable. There were no other entries in the nursing notes until February 25, 2013, when she was transferred to Mt. Sinai with pneumonia.

         While there were no other nursing notes during this period, there were other medical records. During the "gap" period, Cross Garden's records show that nurses screened Ms. Siegel for pain three times a day every day. In addition, the records show that on February 11, 2013, she was x-rayed. On February 12, 2013, her blood was drawn and tested (white blood cells elevated indicating possible infection). On February 15, 2013, she was seen by Dr. Suarez who prescribed Nuedexta, which moderates extreme mood changes like sudden laughing and crying.

         On February 21, 2013, she was again x-rayed. Among other things, the x-ray showed no evidence of pneumonitis. Pneumonitis is inflammation of the lung tissue from all causes. A subcategory of Pneumonitis is pneumonia in which the inflammation is caused by infection. The x-ray indicated that Ms. Siegel did not have "consolidation" which, as Dr. Fisher himself testified, is what the x-ray would have shown if Ms. Siegel had pneumonia on February 21, 2017. Dr. Fisher agreed the February 21, 2013 x-ray "ruled out pneumonia."

         On February 22, 2013, Ms. Siegel was examined and all of her vital signs were within normal ranges. On February 19, 20, 21, 22, 23, and 24, 2013, her respiratory condition was examined twice a day and was within normal ranges.

         On February 25, 2013, the medical records indicated she was in distress and having trouble breathing in the morning. Her condition fluctuated during the day. A doctor was summoned around noon and the decision was made to transfer her to Mt. Sinai, where she was ...


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