Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 13-21696 Michael A. Hanzman, Judge.
& Wolk, PL, and Douglas F. Eaton, for appellant.
Ittleman David & Joseph, PL, and Christopher M. David,
Michael B. Kornhauser, and Jeffrey J. Molinaro, for
LOGUE, SCALES, and LUCK, JJ.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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 ...