ANTONIO F. DEFILIPPO, M.D. and SOUTH FLORIDA PSYCHIATRIC SERVICES, INC., Appellants,
GREGORY H. CURTIN and HILLARY B. CURTIN, as Successor Co-Personal Representatives of the Estate of Michael J. Curtin, deceased, for and on behalf of the Estate, and the Survivors thereof, Appellees.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marina Garcia Wood, Judge; L.T. Case No. CACE
C. Sharman, Jerome R. Silverberg and Cindy J. Mishcon of
Lewis Brisbois Bisgaard & Smith LLP, Fort Lauderdale, for
R. Falzone of Kelley Uustal, PLC, Fort Lauderdale, and Ronald
D. Poltorack of Ronald D. Poltorack, P.A., Boca Raton, for
defendant physician and his medical practice (collectively
"the physician") appeal from: (1) a jury verdict
finding that the physician's negligent supervision of an
advanced registered nurse practitioner ("ARNP")
caused the death of a patient at a drug detoxification
facility; and (2) the trial court's post-verdict order
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
physician raises several arguments on 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. We
reverse and remand for a new trial.
physician served as the detox facility's medical director
as an independent contractor. The ARNP was hired to provide
nursing services for the facility as an independent
ARNP's services included evaluating patients to determine
whether they could be admitted into the facility or instead
required hospital emergency room treatment. The ARNP was
permitted to perform these services pursuant to sections
464.003(2) and 464.012(3), Florida Statutes (2011), which
define the acts that an ARNP is permitted to perform under a
physician's general supervision.
perform under the physician's general supervision at this
facility, the ARNP executed a "Collaborative Practice
Agreement" with the physician. Under the agreement, the
ARNP was authorized to perform any service for which she was
licensed to practice, including admitting patients into the
detox facility. As to the physician's responsibilities,
the agreement provided, in pertinent part:
The physician shall provide general supervision for routine
health care and management of common health problems, and
provide consultation and/or accept referrals for complex
health problems. The physician shall be available by
telephone or by other communication devices when not
physically available on the premises. If the physician is not
available, his associate as assigned will serve as backup for
consultation, collaboration and/or referral purpose.
the physician entered into the agreement, he was supervising
"probably around eight" ARNPs at five to seven
different facilities through similar agreements.
evening, the patient arrived at the detox facility sometime
before 8:00 p.m. At that time, the ARNP, but not the
physician, was at the facility. The detox facility staff told
the ARNP that the patient had track marks consistent with
intravenous drug use. Later in the evening, when the ARNP
checked on the patient, he was sitting upright, speaking, and
his vital signs were improving. The ARNP's clinical
assessment was that the patient was experiencing withdrawal.
Her plan was to begin the detox process the next morning.
the ARNP did not contact the physician for consultation or
review. Thus, the physician did not know of the patient's
ARNP left the detox facility around 11:00 p.m. Before
leaving, she instructed the facility's staff to do a bed
check on the patient every fifteen minutes and take his vital
signs every thirty minutes.
sometime in the early hours of the following morning, the
patient died. The detox facility staff did not discover the
patient's death until they checked on him hours later.
medical examiner's autopsy concluded that the
patient's cause of death was endocarditis, which is an
acute bacterial infection of the inner lining of his heart
chamber and valves. The medical examiner further concluded
that the patient's recent intravenous drug use
contributed to the endocarditis.
patient's estate later sued the physician, the ARNP, and
the detox facility.
estate's claim against the physician ultimately was pled
as a claim for negligent supervision of the ARNP. 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
physician's answer alleged affirmative defenses,
including that liability should be allocated to the detox
facility as a Fabre defendant.
physician later moved for partial summary judgment,
essentially arguing that, as a physician, he owed no duty of
care under section 464.012, because ARNPs are the subject of
that statute. The trial court denied the motion, holding
that, to the extent section 464.012 required an ARNP to work
under a physician's supervision, section 464.012 created
a duty of care for the manner in which the physician
supervised the ARNP.
estate ultimately entered into a settlement agreement with
the ARNP and the detox facility. The estate's case
against the physician was set for trial.
trial, the physician moved in limine to exclude evidence of
his having exceeded the maximum number of offices he could
supervise under section ...