       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 9, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2474
                         Lower Tribunal No. 09-92826
                             ________________

                           Rolando P. Ruiz, etc.,
                                    Appellant,

                                        vs.

                Tenet Hialeah Healthsystem, Inc., et al.,
                                    Appellees.


     An Appeal from the Circuit Court for Miami-Dade County, Jacqueline
Hogan Scola, Judge.

      Philip D. Parrish; The Gutierrez Firm, and Jorge P. Gutierrez, Jr., for
appellant.

      Chimpoulis, Hunter & Lynn, P.A., and Jonathon P. Lynn (Plantation);
Hicks, Porter, Ebenfeld & Stein, P.A., Dinah Stein and Erik P. Bartenhagen, for
appellees.

Before SUAREZ, EMAS, and FERNANDEZ, JJ.

      FERNANDEZ, J.
        Rolando P. Ruiz, etc., appeals from a final judgment entered in favor of

appellees Tenet Hialeah Healthsystem, Inc. and Arturo Lorenzo, M.D., and the

denial of his motion for reconsideration of the trial court’s directed verdict in this

medical malpractice action, or in the alternative, for a new trial. We affirm the

trial court’s entry of directed verdict in favor of Dr. Lorenzo because there is no

competent, substantial evidence that Dr. Lorenzo caused the tragic death of Ruiz’s

wife.

        Ruiz, the personal representative of the Estate of Maria Elena Espinosa, sued

to recover damages for the death of his wife Espinosa who died of exsanguination

during a surgical procedure to remove a cancerous tumor from her skull. Dr.

Lorenzo is the anesthesiologist who conducted Espinosa’s pre-anesthesia

evaluation.1

        Dr. Lorenzo declared in his sworn answer to an interrogatory that “[a]ll [he]

did was [Espinosa’s] anesthesia preparation evaluation.” Dr. Lorenzo testified at

trial that he saw Espinosa for three to five minutes after which Dr. Velazquez

completed the evaluation. Dr. Lorenzo check marked a series of boxes on the pre-

anesthesia evaluation. He signed the evaluation under the line marked “Physician”
1 The defendants at trial included one internist, anesthesiologists Dr. Lorenzo and

Dr. Guillermo Velasquez, and neurosurgeons Dr. Basil Yates and Dr. Pedro
Albanes. The internist and Dr. Velazquez settled before trial. Dr. Yates, Dr.
Albanes, and Dr. Lorenzo proceeded to trial. The jury returned a verdict against
Dr. Yates and Dr. Albanes after which they settled. The jury assigned no liability
to Dr. Velazquez.


                                          2
and wrote the date and time. He told Dr. Velazquez that “[t]here is nothing, no

major medical problems whatsoever. You may want to take a look at the EKG.”

Dr. Lorenzo saw the EKG, which was blurry but readable. The EKG reflected an

abnormality. He told Dr. Velasquez that the EKG was blurry. Dr. Lorenzo neither

advised Dr. Yates or Dr. Albanes that the EKG was blurry nor advised that it

reflected an abnormality. Dr. Lorenzo testified that the abnormal EKG did not

mean anything in light of the number of abnormal EKGs he saw on an average

week. The history and physical well-being of the patient must be considered and

Espinosa was one of the healthiest patients he had ever seen.

      Dr. Lorenzo further testified that he never saw the protein level in

Espinosa’s urine. He reviewed only the first page of lab results. The remaining

two pages of lab results included the results of Espinosa’s urinalysis, which

reflected an abnormal amount of protein in her urine. Dr. Lorenzo testified that,

had he seen the protein level, he would have told Dr. Yates that he needed to “find

out” why Espinosa was “spilling protein.” Dr. Lorenzo testified that the protein

level would not have affected his anesthetic.

      Dr. Velazquez testified that he did a full evaluation on Espinosa from

beginning to end after Dr. Lorenzo’s evaluation. Dr. Velazquez completed and

signed the anesthesia evaluation. He evaluated the EKG and all three pages of




                                         3
Espinosa’s lab results. He also made the determination that Espinosa could safely

undergo general anesthesia.

      Numerous other witnesses testified at trial. Dr. Yates and Dr. Albanes

testified. Ruiz introduced the expert testimony of anesthesiologist Dr. William

Mazzei, neurosurgeon Dr. Michael Joseph Chaparro, and Dr. Carlos Moreau,

anesthesiologist and Medical Director at the hospital where Espinosa died. None

of the expert witnesses testified that Dr. Lorenzo’s evaluation of Espinosa fell

below the standard of care such that any breach more likely than not caused

Espinosa’s death.

      The trial court granted Dr. Lorenzo’s motion for directed verdict, finding

that there was no proof of causation. We agree with this conclusion.

      A de novo standard of review governs the review on appeal of a trial court’s

decision to grant a directed verdict. Hancock v. Schorr, 941 So. 2d 409, 412 (Fla.

4th DCA 2006). The plaintiff in a medical malpractice case must establish (1) the

standard of care the defendant owes; (2) the defendant’s breach of the standard of

care; (3) and that said breach proximately caused the damages claimed. Chaskes v.

Gutierrez, 116 So. 3d 479, 485 (Fla. 3d DCA 2013). See also Hancock, 941 So. 2d

at 412. “Florida courts follow the more likely than not standard of causation and

require proof that the negligence probably caused the plaintiff’s injury.” Chaskes,

116 So. 3d at 487; Hancock, 941 So. 2d at 412.



                                        4
      While all evidence must be viewed in a light most favorable to the non-

moving party, the court can only rely on reasonable conclusions drawn from

competent, substantial evidence upon which a jury could rationally rely in finding

for the non-movant. Hancock, 941 So. 2d at 409. A review of the record in the

light most favorable to Ruiz supports the trial court’s conclusion on the issue of

causation. There is no competent, substantial evidence at trial from which a jury

could reasonably conclude that Dr. Lorenzo’s behavior fell below the standard of

care, or that any breach of the standard of care more likely than not caused

Espinosa’s death. It is undisputed that Dr. Lorenzo conducted a brief anesthesia

evaluation on Espinosa and that he signed the anesthesia evaluation. The evidence

is unequivocal that Dr. Velasquez completed the full anesthesia evaluation from

beginning to end.

      In addition, the record is devoid of competent, substantial evidence upon

which to conclude that the blurry EKG or the abnormal protein level results caused

Espinosa’s death. The record reflects that no cardiac issues precluded Espinosa

from undergoing safe anesthesia. Espinosa’s autopsy revealed no evidence of

coronary artery disease. The record is abundantly clear that the primary cause of

Espinosa’s death was exsanguination.

      The trial court thus correctly granted Dr. Lorenzo’s motion for directed

verdict. We therefore affirm.



                                        5
      Affirmed.

      SUAREZ, J., concurs.


                                    Ruiz v. Tenet Hialeah Healthsystem, Inc., et. al.,
                                                                        3D15-2474

EMAS, J., dissenting.

      Introduction

      The question presented is whether the trial court erred in directing a verdict

upon its determination that there was insufficient evidence for a jury to find that

Dr. Lorenzo’s negligence was a legal cause of Mrs. Espinosa’s death. Viewing the

evidence and all reasonable inferences in a light most favorable to Rolando Ruiz,

personal representative of Mrs. Espinosa’s estate, I conclude there was sufficient

evidence upon which the jury could have found that the negligence of Dr. Lorenzo

was a legal cause of the death of Mrs. Espinosa. In my view, therefore, the trial

court erred in granting a directed verdict in favor of Dr. Lorenzo at the close of

Ruiz’s case, and I respectfully dissent.

      Established by Florida decisions so numerous as to preclude a need
      for their citation, are the rules that a trial court should not direct a
      verdict for defendant unless it is clear that there is no evidence
      whatever adduced that could in law support [] a verdict for plaintiff;
      and that an appellate court, on review of a judgment based on a
      directed verdict for defendant should consider the testimony adduced
      in the cause in the light most favorable to the plaintiff, disregarding
      conflicts in the evidence and indulging in the plaintiff's favor every
      reasonable intendment deducible from the evidence.



                                           6
Hurst v. Krinzman, 237 So. 2d 333, 334 (Fla. 3d DCA 1970). See also Coba v.

Tricam Indus., Inc., 164 So. 3d 637, 646 (Fla. 2015) (acknowledging: “A motion

for directed verdict or JNOV should be granted only if no view of the evidence

could support a verdict for the nonmoving party and the trial court therefore

determines that no reasonable jury could render a verdict for that party”) (citations

omitted); Riedel v. Sheraton Bal Harbour Assoc., 806 So. 2d 530 (Fla. 3d DCA

2001). This standard applies equally to this court’s review. Posner v. Walker, 930

So. 2d 659 (Fla. 3d DCA 2006).

      More importantly, and pertinent to the issue in this appeal, “a directed

verdict ‘is not appropriate in cases where there is conflicting evidence as to the

causation or the likelihood of causation.’” Friedrich v. Fetterman & Assoc., P.A.,

137 So. 3d 362, 365 (Fla. 2013) (quoting Cox v. St. Joseph’s Hosp., 71 So. 3d 795,

801 (Fla. 2011)).

      The evidence at trial, viewed in a light most favorable to Ruiz, the

nonmoving party, established:

      Discovery of the Tumor

      Sometime prior to May 2009, Mrs. Espinosa, a forty-five year old woman,

developed a soft lump on the back of her head and she reported it to her primary

care physician, Dr. Jorge Venereo. After obtaining a computerized tomography

(CT) scan, Dr. Venereo referred Mrs. Espinosa to neurosurgeons Dr. Yates and Dr.



                                         7
Albanes. Dr. Yates reviewed the CT imaging and advised Mrs. Espinosa that she

had a two and one-half inch non-aggressive tumor in her skull, and recommended

that it be removed as soon as possible.

      Dr. Yates referred Mrs. Espinosa to a radiologist for a magnetic resonance

imaging (MRI) study of her brain. After obtaining the MRI, Dr. Yates met with

Mrs. Espinosa and advised her that she needed to undergo surgery to remove the

tumor.

      Day of Surgery

      On the scheduled surgery date, after having been cleared for surgery by her

primary care physician, Mrs. Espinosa arrived at Hialeah Hospital between 5:00

a.m. and 6:00 a.m. for her pre-anesthesia evaluation. The main responsibility for

clearing a patient for surgery lies with the primary care physician and the

anesthesiologist, and the purpose of the pre-anesthesia evaluation is to document

the patient’s condition for surgery, assess the patient’s overall health, and uncover

any hidden conditions that may affect or render the patient a poor candidate for

surgery. Dr. Yates (Mrs. Espinosa’s surgeon) testified that if the anesthesiologist

does not clear the patient for surgery, he (Dr. Yates) would not go forward with the

surgery.

         Dr. Lorenzo’s Pre-Anesthesia Evaluation




                                          8
      The pre-anesthesia evaluation consists of an examination and interview of

the patient, review of the patient’s medical records, including the patient’s medical

tests and evaluations such as EKGs, blood and urine tests.           Although Mrs.

Espinosa’s surgery was assigned to anesthesiologist Dr. Velazquez, that doctor was

running late at the time Mrs. Espinosa arrived at Hialeah Hospital. Therefore, Dr.

Velazquez’s colleague—Dr. Lorenzo—began Mrs. Espinosa’s pre-anesthesia

evaluation. After Dr. Lorenzo had already begun the evaluation (including an

examination of Mrs. Espinosa and review of her records), Dr. Velazquez arrived,

and he took over Mrs. Espinosa’s evaluation.        Mrs. Espinosa was ultimately

cleared for surgery.

      At trial, Dr. Lorenzo conceded that Mrs. Espinosa was his patient, and that

he was the acting anesthesiologist for Mrs. Espinosa during the time he evaluated

her for surgery. He also testified that regardless of any prior medical clearance

provided by Dr. Venereo (her primary care physician), Dr. Lorenzo was ultimately

responsible for medically clearing Mrs. Espinosa for surgery:

      Dr. Venereo can give me a certain amount of information, but I am
      the ultimate—I make the ultimate decision if the patient can have
      anesthesia or not. I really—I get the information Dr. Venereo gives
      me and then I evaluate the patient to see if she can go through the
      anesthesia. I am the one that makes that decision.

      Dr. Lorenzo testified that “when I do a patient, it doesn’t matter who sees

the patient.   I review everything from A to Z.”        Nevertheless, Dr. Lorenzo



                                         9
conceded that he did not “review everything from A to Z” for Mrs. Espinosa.

After evaluating her for approximately three to five minutes, Dr. Lorenzo told Dr.

Velazquez “[t]here is nothing, no major medical problems whatsoever. You may

want to take a look at the EKG.” Dr. Lorenzo then signed the pre-operative

evaluation form as the anesthesiologist performing the evaluation, and declaring

that it was safe from Mrs. Espinosa to undergo anesthesia and surgery.2

      The Abnormal EKG: A “Red Flag”

      During his evaluation of Mrs. Espinosa, the evidence at trial, viewed in the

light most favorable to Ruiz, established that Dr. Lorenzo asked Mrs. Espinosa a

series of questions from the pre-anesthesia evaluation form, regarding her cardiac,

respiratory, neurologic, hepatic and renal systems, made a number of notations,

and checked the box labeled “negative” for each of these system checks.



2 At trial, Dr. Lorenzo took the position that he did not actually perform the pre-
operative evaluation, that he merely “began” it, and that the evaluation was
actually performed by Dr. Velazquez. However, when asked in a pretrial
interrogatory to describe his participation, Dr. Lorenzo admitted that “all I did was
her anesthesia preparation evaluation.” Further, Plaintiff’s expert testified that an
anesthesiologist’s signature on the pre-operative form is very significant because it
signals that “they’re responsible for the pre-op evaluation of the patient.” The
Plaintiff’s expert also opined that, while it was unusual to see the signatures of two
anesthesiologists on the evaluation form, in his opinion, each doctor performed his
own evaluation of Mrs. Espinosa. At the very least, this testimony created a
disputed question of fact for the jury to resolve, and did not serve (and could not
have served) as a basis for the trial court’s decision to direct a verdict in favor of
Dr. Lorenzo.


                                         10
      Dr. Lorenzo had Mrs. Espinosa’s medical chart when he performed the pre-

anesthesia evaluation. Her medical chart included three pages of pre-operative lab

tests and results, as well as a pre-operative EKG. Dr. Lorenzo reviewed the EKG,

which included both the raw test results and a written report. Dr. Lorenzo testified

that although the EKG was “blurry” and “wasn’t optimal,” he could interpret it.3

However, Dr. Lorenzo noted that the report was inconsistent with both his own

examination and the history Mrs. Espinosa provided. Mrs. Espinosa reported she

had never suffered a heart attack, but the EKG report stated “probable right

ventricular hypertrophy” and “high lateral MI” (myocardial infarction, or heart

attack), as well as other abnormalities indicative of a possible prior heart attack.

The EKG itself also indicated that it was an “Abnormal EKG.”

      Dr. Lorenzo acknowledged that an abnormal EKG report is an immediate

red flag because cardiac issues are important when administering anesthesia. Dr.

Lorenzo could have ordered another EKG, which could have been completed in

fifteen to twenty minutes, would have been higher quality than the one he was

provided, and would not have inconvenienced the surgeons. Nevertheless, Dr.

Lorenzo did not order another EKG. And although he testified that EKG report

“caught [his] eye” because it was “not normal at all,” he stated that the abnormal


3 However, this testimony conflicted with his deposition, during which he testified
that he “couldn’t see what was on [the EKG].”


                                        11
EKG finding on the report “doesn’t matter,” that he felt comfortable with the EKG,

and he wanted to save Mrs. Espinosa the additional expense of another EKG.

       This position was contradicted not only by Plaintiff’s expert, but by Dr.

Moreau, the Medical Director of Hialeah Hospital, who testified that a patient

should not be taken to surgery with an abnormal EKG, and that the surgery in this

case should not have proceeded until the abnormal EKG and Mrs. Espinosa’s

cardiovascular history were reconciled.

       Abnormal Urine Test: Another “Red Flag”

       In addition, although Mrs. Espinosa’s medical records included three pages

of pre-operative lab tests and lab results, Dr. Lorenzo reviewed only the first page,

and only “quickly took a look at the hemoglobin and hematocrit to see if she was

anemic.” Dr. Lorenzo noted a “red flag” regarding the hemoglobin and hematocrit

levels in Mrs. Espinosa’s blood, which he stated he did investigate. However, he

did not look at the results of Mrs. Espinosa’s urine test, which showed the presence

of high levels of protein, another red flag requiring further investigation.4

       Mrs. Espinosa’s pre-operative urine protein level was 100 milligrams per

deciliter.   The presence of any protein in the urine is abnormal, and Mrs.

Espinosa’s urine protein level was (or should have been) a significant red flag for
4 Plaintiff’s expert testified, and even Dr. Lorenzo acknowledged, that protein in

the urine is an abnormal finding, that he should have reported it to the surgeon, and
had he done so, it was more likely than not that the surgery would not have
occurred.


                                          12
the anesthesiologist performing the pre-operative clearance. As Ruiz’s medical

expert testified, the tumor’s appearance on the MRI, coupled with its slow growth,

and the presence of protein in the urine, should have placed multiple myeloma at

the top of the list of differential diagnoses, because seventy-five percent of patients

suffering from multiple myeloma secrete protein into the urine. Dr. Lorenzo knew

that Mrs. Espinosa was scheduled for surgery to remove a tumor from her skull.

He also knew that a solitary non-aggressive tumor in the skull, together with

protein in the urine, could be a sign of multiple myeloma, which ordinarily would

not require surgery. Dr. Lorenzo acknowledged that, included in the lab results,

was a urine test which showed the presence of protein in Mrs. Espinosa’s urine.

However, as Dr. Lorenzo conceded, he “missed” this lab result in his review of the

pre-operative test results. Significantly, Dr. Lorenzo testified that, had he seen the

test result of protein in the urine, he would have advised the surgeon about it.

Most importantly, Dr. Lorenzo conceded that if either the abnormal EKG or the

abnormal lab results had been brought to the surgeon’s attention, more likely than

not the surgery would not have taken place that day.

      Mrs. Espinosa Dies of Heart Failure

      Mrs. Espinosa was taken in for surgery at 8:40 a.m., with Drs. Yates,

Albanes and Velazquez. Mrs. Espinosa’s heart began failing at about 8:45 a.m.,

before the actual surgery even began.          At 11:44 a.m., Mrs. Espinosa was



                                          13
pronounced dead on the operating table. On Mrs. Espinosa’s death certificate, Dr.

Yates, the neurosurgeon, filled out the death certificate and listed Mrs. Espinosa’s

cause of death as “heart failure”. Dr. Albanes (the other neurosurgeon) testified his

impression was that Mrs. Espinosa may have died of a heart attack.

      The Directed Verdict

      At the close of Plaintiff’s evidence, Dr. Lorenzo moved for a directed

verdict, asserting that Dr. Lorenzo did not perform or complete the pre-operative

evaluation (but that it was instead performed and completed by Dr. Velazquez) and

thus, as a matter of law, Dr. Lorenzo could not be held liable.

      The trial court granted the motion for directed verdict, but for an entirely

different reason, as evidenced by this discussion:

      THE COURT: Well, let me ask you something. And let’s assume for
      a moment that Dr. Lorenzo did a preop evaluation. Let’s just assume
      that’s true, and let’s assume he did it negligently, that he just didn’t
      read the second page, ignored everything. What is the evidence of
      causation of your client’s demise, which is, by the way, nothing short
      of a tragedy?

      Plaintiff’s counsel responded that it was, in part, Dr. Lorenzo’s negligence

which placed Mrs. Espinosa “in a position where she is exsanguinating” in surgery,

to which the trial court responded: “So is the cab driver who drove her to the

hospital.”




                                         14
      The trial court again inquired of Plaintiff’s counsel to point to the evidence

“that shows he caused her death, other than if he had done all that, she would have

been in surgery 20 minutes later. . . .”

      Counsel responded:

      If [Dr. Lorenzo] reads the labs, Your Honor, she does not get cleared
      for surgery. Dr. Moreau [the Medical Director for Hialeah Hospital
      and an anesthesiologist] even testified today that based upon abnormal
      labs, he would have cancelled the surgery.

      In fact, Dr. Lorenzo also admitted during his own testimony that if he had

read all of the lab results and brought those results, or the abnormal EKG, to the

attention of the surgeon, the surgery would not have taken place:

      PLAINTIFF’S COUNSEL: If you would have brought to someone’s
      attention, either the EKG or the Labs, that surgery, more likely than
      not, doesn’t take place because they need to reconcile the EKG and/or
      they need to reconcile the labs before the surgery, right?

      DR. LORENZO: Yes, Sir.

      The trial court then granted a directed verdict, finding that even if Dr.

Lorenzo was negligent in performing the pre-operative evaluation, there was no

evidence that this negligence caused Mrs. Espinosa’s death:

      I know all of the evidence, and there is nothing he did. I am going to
      assume for a second that he did a below standard of care eval. No. 1,
      he was not assigned to that room. No. 2, your own expert said,
      whoever comes in and does the surgery is themselves supposed to do
      it from jump street. So most respectfully, there is no proof of
      causation. There is speculation only, and I am cutting Dr. Lorenzo
      loose because the only thing worse than this woman’s dying is having


                                           15
       somebody who shouldn’t be held liable, held liable. This doctor is
       going home today.

       The Plaintiff moved for reconsideration of the directed verdict and for a

new trial. The motion was denied and this appeal followed.



       Analysis

       In this case, the trial court determined, upon a motion for directed verdict by

Dr. Lorenzo, that there was “no proof of causation,”5 and therefore, directed a

verdict in favor of Dr. Lorenzo. For us to affirm, we must conclude that there is

“no conflicting evidence as to the causation or the likelihood of causation.”

Friedrich, 137 So. 3d at 365; Aragon v. Issa, 103 So. 3d 887 (Fla. 4th DCA 2012).

Dr. Yates, the neurosurgeon who performed the surgery, testified he would not

have performed the surgery at that time if the anesthesiologist or the primary care

physician had not cleared her. Therefore, the question is whether Dr. Lorenzo’s

alleged negligence “probably affected the outcome,” Gooding, 445 So. 2d at 1018.

       In this regard, the evidence presented at trial, taken in a light most favorable

to Plaintiff, established five critical facts:



5 In making its determination, the trial court assumed that there was sufficient
evidence for a jury to find that Dr. Lorenzo’s evaluation of Mrs. Espinosa fell
below the standard of care. The only issue raised in this appeal is whether Plaintiff
established causation as to Dr. Lorenzo.


                                             16
      1. Dr. Lorenzo signed the pre-anesthesia evaluation form, indicating he was

      responsible for performing the pre-anesthesia evaluation and indicating that,

      based upon his evaluation, Mrs. Espinosa was cleared for surgery;

      2. Dr. Lorenzo was negligent in his review of the pre-operative test results,

      including his failure to clarify or reconcile the abnormal EKG, his failure to

      review or note the test results showing the presence of protein in the urine,

      and the failure to notify the surgeon of these issues;

      3. If Dr. Lorenzo had brought to the surgeon’s attention either the abnormal

      EKG or the abnormal lab results, it is more likely than not that the surgery

      would not have taken place.

      4. A reasonably prudent anesthesiologist under the same circumstances

      would have notified the surgeon of these results and would not have cleared

      Mrs. Espinosa for surgery; and

      5. Dr. Yates would not have performed the surgery that day had Mrs.

      Espinosa not been cleared for surgery, and thus Mrs. Espinosa would not

      have died on the operating table.6




6 See Davidson v. Gaillard, 584 So. 2d 71, 73 (Fla. 1st DCA 1991) (noting that
“when an original tortfeasor’s negligent act causes a plaintiff to seek medical
treatment which is negligently provided . . . negligent medical treatment is
foreseeable as a matter of law.”) (disapproved of on other grounds by Barth v.
Khubani, 748 So. 2d 260 (Fla. 1999)).

                                           17
      The fact that Dr. Lorenzo was one of the two anesthesiologists who

reviewed the EKG and lab results, who examined Mrs. Espinosa that morning, and

who signed off on the paperwork clearing her for surgery that day, can only mean

one thing: Dr. Lorenzo’s negligence “probably affected the outcome.”7

      The fact that a second anesthesiologist (Dr. Velazquez) subsequently

participated (allegedly negligently) in the pre-operative examination, or the fact

that Dr. Yates and Dr. Albanes (the surgeons) were also negligent while

performing the surgery8, cannot support the trial court’s action in directing a

verdict in favor of Dr. Lorenzo. As the Florida Supreme Court held in Saunders v.

Dickens, 151 So. 3d 434, 442 (Fla. 2014):

      Because the central concern in medical malpractice actions is the
      reasonably prudent physician standard, the issue of whether a treating
      physician acted in a reasonably prudent manner must be determined
      for each individual physician who is a defendant in a medical
      malpractice action. A subsequent treating physician simply may not
      be present at the time a defendant physician makes an allegedly
      negligent decision or engages in a potentially negligent act. Further, it
      is not only the final physician, but rather each treating physician who
      must act in a reasonably prudent manner. We hold that a physician
      cannot insulate himself or herself from liability for negligence by

7 This case can thus be distinguished from Santa Lucia v. LeVine, 198 So. 3d 803
(Fla. 2d DCA 2016), where the Second District affirmed the trial court’s granting
of a directed verdict in favor of the doctor where there was no testimony that
surgery would not have proceeded if a pre-operative consultation had been
conducted. In the instant case, there was sufficient evidence of Dr. Lorenzo’s
negligence, as well as testimony that his negligence was a legal cause of Mrs.
Espinosa’s death.
8 The jury found that Dr. Yates and Dr. Albanes were each negligent and that the

negligence of each was a legal cause of Mrs. Espinosa’s death.

                                         18
      presenting a subsequent treating physician who testifies that adequate
      care by the defendant physician would not have altered the subsequent
      care.

      Conclusion

      Accordingly, I would hold that the trial court erred in directing a verdict in

favor of Dr. Lorenzo, and would reverse and remand for a new trial on liability and

damages as to Dr. Lorenzo. I therefore respectfully dissent.




                                        19
