          Supreme Court of Florida
                                  ____________

                                  No. SC17-1562
                                  ____________

                           ROLANDO P. RUIZ, etc.,
                                Petitioner,

                                        vs.

             TENET HIALEAH HEALTHSYSTEM, INC., et al.,
                           Respondents.

                                December 20, 2018

LABARGA, J.

      Petitioner Rolando P. Ruiz seeks review of a decision of the Third District

Court of Appeal which affirmed the entry of a directed verdict in favor of

Respondent Arturo Lorenzo, M.D. Ruiz v. Tenet Hialeah Healthsys., 224 So. 3d

828 (Fla. 3d DCA 2017).1 Because we hold the Third District erred in that

decision by equating the proximate cause of an injury with the primary cause of an

injury, we quash the decision below and remand the case to the Third District.




      1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
                                       Facts

      In 2009, Ruiz’s late wife, Maria Elena Espinosa, noticed a large mass had

developed on the back of her head. Espinosa sought the advice of her primary care

physician, who diagnosed the mass as a tumor and referred Espinosa to a

neurosurgeon. The neurosurgeon did not order a biopsy of the tumor, but believed

it to be an osteosarcoma. Imaging studies of the tumor showed it had invaded

Espinosa’s skull and could soon begin to press upon her brain. The neurosurgeon

recommended immediate surgery to remove some of the tumor’s mass—a process

known as “debulking” the tumor—and render it more susceptible to other forms of

treatment, such as radiation or chemotherapy.

      Espinosa agreed to the surgery, which the neurosurgeon would personally

perform with assistance from a colleague. The neurosurgeon asked Espinosa’s

primary care physician to order a battery of laboratory tests to ensure Espinosa was

medically fit to undergo surgery. These tests included an electrocardiogram

(EKG) and a urinalysis. The results of these tests were included in Espinosa’s

chart. The EKG readout in Espinosa’s chart was a copy of a copy, and the image

quality was correspondingly poor. It did, however, include an automated

interpretation by the EKG machine itself which flagged the test result as abnormal,

indicating Espinosa’s heart may have been enlarged and that she may also have

suffered two myocardial infarctions. Espinosa’s urinalysis results occupied two


                                        -2-
pages of her chart. On the second page, the urinalysis indicated the abnormal

presence of protein in Espinosa’s urine, a condition known as proteinuria. Despite

these abnormal test results, Espinosa’s primary care physician cleared her for

surgery, which was scheduled to be performed at 8:00 a.m. on May 13, 2009, at

Hialeah Hospital.

      That morning, Espinosa and Ruiz arrived at Hialeah Hospital around

6:00 a.m. Espinosa was taken to a separate room to be prepared for surgery while

Ruiz remained in the waiting area. Dr. Lorenzo, an anesthesiologist, was also

present at Hialeah Hospital that morning to assist with a different patient’s

procedure and was not assigned to Espinosa. Around 8:00 a.m., however, he

learned Espinosa’s assigned anesthesiologist, Dr. Guillermo Velasquez, was

running late and that Espinosa’s pre-anesthesia evaluation had not yet been

performed. To maintain the pre-operation schedule and put Espinosa at her ease,

Dr. Lorenzo decided to perform Espinosa’s pre-anesthesia evaluation himself.

      Dr. Lorenzo introduced himself to Espinosa and told her, “I am not going to

be your anesthesiologist.” He then asked Espinosa a series of questions about her

medical history and present condition, recording the information she gave him on a

“pre-anesthesia form/moderate sedation evaluation form” in Espinosa’s chart.

Dr. Lorenzo also reviewed some—but not all—of the test results in Espinosa’s

chart. He reviewed the EKG and, although the readout was blurry, Dr. Lorenzo


                                         -3-
later testified he was able to interpret the EKG with sufficient clarity to conclude

Espinosa’s heart was functioning normally. Dr. Lorenzo believed the abnormal

result was caused by a malfunction of the EKG machine and not by any problem

with Espinosa’s heart. He also reviewed the first page of Espinosa’s urinalysis

results, but did not look at the second page of those results, where the abnormal

proteinuria reading was displayed. During trial, Dr. Lorenzo admitted the

proteinuria reading was something he “would want to know,” but also stated it

would not have affected his determination of whether it was safe for Espinosa to

undergo anesthesia.

      After Dr. Lorenzo had completed approximately half of the pre-anesthesia

form, Dr. Velasquez arrived and took over from Dr. Lorenzo. Dr. Lorenzo then

signed the pre-anesthesia form, introduced Dr. Velasquez to Espinosa, and told

Dr. Velasquez, “There is nothing, no major medical problems whatsoever. You

may want to look at the EKG.” Dr. Lorenzo then left the room. Overall, he

estimated he saw Espinosa for between three and five minutes, but stated he

“wasn’t looking at the clock.” Dr. Lorenzo did not inform Espinosa’s surgeons

about the abnormal EKG, which he had reviewed, or about the urinalysis results

reflecting abnormal proteinuria, which he had not. Dr. Velasquez later testified

that after taking over from Dr. Lorenzo he began the pre-anesthesia evaluation over

again from the beginning. Dr. Velasquez reviewed the EKG and the urinalysis


                                         -4-
results, including the proteinuria reading, but also did not inform Espinosa’s

surgeons of these abnormal test results. He also signed the pre-anesthesia form,

and cleared Espinosa for surgery.

      During the surgery, Espinosa lost a large amount of blood and suffered a

precipitous drop in blood pressure, which her physicians were unable to reverse. A

little over an hour into the surgery, she went into cardiac arrest and could not be

resuscitated. An autopsy was performed, and a pathology test of the tumor tissue

revealed that, rather than being an osteosarcoma, Espinosa’s tumor was caused by

a type of plasma cell cancer known as multiple myeloma.

      Ruiz filed a medical malpractice action against each physician involved in

Espinosa’s treatment, including Dr. Lorenzo. In part, Ruiz alleged Espinosa’s

death was caused by the failure to correctly diagnose her condition as multiple

myeloma. Ruiz argued multiple myeloma should only be treated through radiation

or chemotherapy, and that surgery was not appropriate in Espinosa’s case. Had

Espinosa been correctly diagnosed at any point, Ruiz claimed, the surgery would

have been canceled, and Espinosa would have survived. With regard to

Dr. Lorenzo, Ruiz alleged he breached the standard of care by (1) not reviewing all

the available data in Espinosa’s chart, (2) not ordering a second EKG to reconcile

the abnormal results of the first EKG, and (3) not reporting the abnormal lab

results—some of which he did not review—to Espinosa’s surgeons. Ruiz


                                         -5-
contended that, had Dr. Lorenzo adhered to the standard of care, either Dr. Lorenzo

or the surgeons would have realized Espinosa was suffering from multiple

myeloma and the surgery would have been canceled.

      The trial court granted a directed verdict in favor of Dr. Lorenzo, holding

that, even assuming Dr. Lorenzo was negligent in his care of Espinosa, he did

nothing more than place her in a position to be injured by the independent actions

of third parties—namely, the surgeons. 2 The trial court analogized Dr. Lorenzo to

“the cab driver who drove [Espinosa] to the hospital.” Ruiz appealed, and the

district court affirmed the trial court’s ruling, concluding that no competent,

substantial evidence in the record would allow a reasonable factfinder to conclude

Dr. Lorenzo was the “primary cause” of Espinosa’s death. Id. at 830. This review

follows.

                                      Analysis

      A directed verdict can only be affirmed “where no proper view of the

evidence could sustain a verdict in favor of the nonmoving party.” Friedrich v.



       2. We note that the trial court granted Dr. Lorenzo’s motion for directed
verdict on proximate cause grounds and assumed, for the limited purpose of ruling
on that motion, that Dr. Lorenzo breached the standard of care. The issue before
the Court is whether, even if the other elements of Ruiz’s claim were satisfied,
Ruiz failed to present competent, substantial evidence that Dr. Lorenzo
proximately caused Espinosa’s death. Accordingly, any issue regarding the scope
of Dr. Lorenzo’s duty to Espinosa is beyond the scope of our review, and we
express no opinion with regard to that issue.


                                         -6-
Fetterman & Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013) (quoting Owens v.

Publix Supermkts., Inc., 802 So. 2d 315, 315 (Fla. 2001)); see also Cox v. St.

Joseph’s Hosp., 71 So. 3d 795, 801 (Fla. 2011) (explaining “a directed verdict is

appropriate in cases where the plaintiff has failed to provide evidence that the

negligent act more likely than not caused the injury”). “The elements of a medical

malpractice action are: (1) a duty by the physician, (2) a breach of that duty, and

(3) causation.” Saunders v. Dickens, 151 So. 3d 434, 441 (Fla. 2014). “Florida

follows the ‘more likely than not’ standard in proving causation, i.e., that the

negligence ‘probably caused’ the plaintiff’s injury.” Cox, 71 So. 3d at 799

(quoting St. Joseph’s Hosp. v. Cox, 14 So. 3d 1124, 1127 (Fla. 2d DCA 2009)).

For the limited purposes of Dr. Lorenzo’s motion for directed verdict, the trial

court assumed Dr. Lorenzo owed Espinosa a duty of care and that he breached that

duty. The issue, then, is whether there was competent, substantial evidence in the

record which would permit a reasonable factfinder to conclude that Dr. Lorenzo,

more likely than not, proximately caused Espinosa’s death. This case presents a

pure question of law, which we review de novo. Keck v. Eminisor, 104 So. 3d 359,

363 (Fla. 2012).

      In determining whether a defendant’s conduct proximately caused a

plaintiff’s injury, courts analyze “whether said injury, given actual causation, was a

foreseeable consequence of the danger created by the defendant’s negligent act or


                                         -7-
omission.” Stahl v. Metro. Dade Cty., 438 So. 2d 14, 21 (Fla. 3d DCA 1983).

Merely furnishing the occasion for a person to be injured by the supervening

negligence of a third party is ordinarily not sufficient to establish proximate cause.

Matthews v. Williford, 318 So. 2d 480, 481 (Fla. 2d DCA 1975). Instead, the

injured party must show that the alleged tortfeasor “substantially caused the

specific injury that actually occurred.” McCain v. Fla. Power Corp., 593 So. 2d

500, 502 (Fla. 1992). A “harm is ‘proximate’ in a legal sense if prudent human

foresight would lead one to expect that similar harm is likely to be substantially

caused by the specific act or omission in question.” Id. at 503. In the absence of

“a freakish and improbable chain of events” leading to injury, “the question of

foreseeability as it relates to proximate causation generally must be left to the fact-

finder to resolve.” Id. at 503-04; see also Gooding v. Univ. Hosp. Bldg., 445 So.

2d 1015, 1018 (Fla. 1984) (explaining that the defendant’s conduct must be “a

substantial factor in bringing about” the plaintiff’s injury) (quoting Prosser, Law of

Torts § 41 (4th ed. 1971)).

      As evidenced by the above, the law does not require an act to be the

exclusive or even the primary cause of an injury in order for that act to be

considered the proximate cause of the injury: rather, it need only be a substantial

cause of the injury. For example, in Sardell v. Malanio, 202 So. 2d 746, 746-47

(Fla. 1967), this Court held that a young boy who threw a football to his friend


                                         -8-
could be held to have proximately caused the injuries sustained by a passerby with

whom his friend collided as he tried to catch the ball. The district court in Sardell

had reasoned that Malanio, who threw the ball, “had no ‘physical control over the

pass catcher’ and had no reason to expect the collision with the plaintiff,” and

therefore “held that the alleged negligence of the catcher effectively isolated the

initial alleged negligence of the passer” such that Malanio’s act of throwing the

football could not be the proximate cause of the plaintiff’s injuries. Id. at 747

(quoting Sardell v. Malanio, 189 So. 2d 393, 394 (Fla. 3d DCA 1966)). On that

basis, the district court affirmed the trial court’s dismissal of the complaint against

Malanio. Id.

      This Court quashed that decision, explaining that “[t]o preclude liability of

the initial negligent actor, the alleged intervening cause must be efficient in the

sense that it is independent of and not set in motion by the initial wrong.” Id. The

Court reasoned that the act which injured the plaintiff—that is, the attempt to catch

the ball—“was merely a direct, natural and continuous sequel to the initial act of

the passer Malanio.” Id. Indeed, the catcher “would not have acted at all had it not

been for the initial act of Malanio, who threw the ball and thereby initiated the

series of events which in natural sequence allegedly produced the ultimate injury.”

Id. Thus, although the primary cause of the plaintiff’s injury was the collision with




                                         -9-
the catcher, Malanio substantially contributed to causing the plaintiff’s injury by

throwing the football without due care.

      The case now before us presents an analogous circumstance: Ruiz argues

that Dr. Lorenzo’s alleged failure to act with due care allowed Espinosa’s surgery

to occur. Had Dr. Lorenzo read and reported the abnormal results of Espinosa’s

pre-operative lab tests, Ruiz alleges, Espinosa’s surgery would not have occurred

and she would not have died during that surgery. Cf. Gooding, 445 So. 2d at 1019

(holding that, in a wrongful death case arising out of alleged medical malpractice,

the plaintiff must show the decedent would probably have survived had the care

not been negligent). Dr. Lorenzo’s conduct was not the primary cause of

Espinosa’s death, but he may nonetheless be liable for his part in it if his failure to

read and report the abnormal test results substantially contributed to causing it.

      Our medical malpractice jurisprudence makes clear that a physician may be

the proximate cause of a patient’s injury even if that physician is not the primary

cause of that injury. In Saunders, we held that a treating physician “cannot

insulate himself or herself from liability for negligence by presenting a subsequent

treating physician who testifies that adequate care by the defendant physician

would not have altered the subsequent care.” 151 So. 3d at 442. Therefore, we

explained, “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


                                          - 10 -
medical malpractice action.” Id. This is inconsistent with the notion that only

physicians who are the primary cause of a patient’s injury may be the proximate

cause of that injury. Indeed, our holding in Saunders is predicated on the principle

that a physician who is not the primary cause of a patient’s injury may nonetheless

be liable for that injury: otherwise, there would be no reason to analyze the

behavior of each physician individually.

      By concluding that Dr. Lorenzo was entitled to a directed verdict on

causation because he was not the primary cause of Espinosa’s death, the Third

District entered into conflict with our precedent. The record does not reflect that

Espinosa’s abnormal lab results caused her death. See Ruiz, 224 So. 3d at 830

(noting “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 does reflect that “the primary cause of Espinosa’s

death was exsanguination.” Id. The district court erred, however, when it held that

in light of these facts, “[t]he trial court thus correctly granted Dr. Lorenzo’s motion

for directed verdict.” Id. Our precedent makes clear that Dr. Lorenzo cannot

prevent Ruiz from establishing proximate cause merely by showing his actions or

omissions were not the primary cause of Espinosa’s death. Instead, to foreclose

liability on the grounds of causation, Dr. Lorenzo’s acts or omissions must not

have substantially contributed to Espinosa’s death as part of a natural and


                                        - 11 -
continuous sequence of events which brought about that result. See McCain, 593

So. 2d at 502-03; Gooding, 445 So. 2d at 1018. To obtain a directed verdict on this

basis, Dr. Lorenzo must show there is no competent, substantial evidence in the

record which would permit a reasonable factfinder to reach such a conclusion at

all. See Friedrich, 137 So. 3d at 365; Cox, 71 So. 3d at 801.

      Accordingly, because the decision below is inconsistent with our precedent

regarding the proximate causation standard, we quash Ruiz and remand to the

Third District for further proceedings consistent with this opinion.

      It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY, C.J., and LAWSON,
J., concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.

POLSTON, J., dissenting.

      Because the Third District’s decision in Ruiz v. Tenet Hialeah Healthsystem,

Inc., 224 So. 3d 828 (Fla. 3d DCA 2017), does not expressly and directly conflict

with the decisions alleged by the Petitioner during jurisdictional briefing, this

Court does not have the constitutional authority to review this case. Accordingly, I

respectfully dissent.

                                        - 12 -
      For example, Ruiz does not conflict with Cox v. St. Josephs Hospital, 71 So.

3d 795 (Fla. 2011), or Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362 (Fla.

2013). In Cox, this Court concluded “that the district court impermissibly

reweighed the evidence and substituted its own evaluation of the evidence in place

of the jury.” 71 So. 3d at 800. At trial, conflicting evidence was presented, and

the jury entered a verdict in favor of Cox, which was reversed on appeal by the

Second District. Id. at 801. When quashing the Second District, this Court in Cox

explained that “the jury was presented with conflicting testimony[,] . . . which is a

matter for the jury, not a matter for the appellate court to resolve as a matter of

law.” Id. Similarly, in Friedrich, this Court held that the Fourth District

impermissibly reweighed conflicting expert testimony and “substituted its own

evaluation of the evidence in place of that of the jury.” 137 So. 3d at 366. In

contrast, in Ruiz the Third District explained that “[n]one 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.” 224 So. 3d at

830. “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.” Id. In other words, there was no evidence in support of Ruiz’s

argument. Therefore, because in Ruiz (unlike in Cox and Friedrich), there was no

evidence to reweigh, there is no conflict.


                                         - 13 -
      Moreover, there is no conflict with Saunders v. Dickens, 151 So. 3d 434

(Fla. 2014). In Saunders, this Court addressed statements made by Dr. Dickens’

counsel that “because [the subsequent physician] would not have done anything

differently had Dr. Dickens ordered a cervical MRI, any purported negligence by

Dr. Dickens could not be the cause of Saunders’s injuries.” Id. at 442. This Court

held that the statements were improper and that “testimony that a subsequent

treating physician would not have treated the patient plaintiff differently had the

defendant physician acted within the applicable standard of care is irrelevant and

inadmissible and will not insulate a defendant physician from liability for his or her

own negligence.” Id. at 443. However, in Ruiz, the Third District did not address

an argument that subsequent physicians would not have done anything differently.

Therefore, because the legal issues are different, there is no conflict between Ruiz

and Saunders.

      There is also no conflict with Owens v. Publix Supermarkets, Inc., 802 So.

2d 315 (Fla. 2001). In Owens, this Court reviewed the entry of a directed verdict

in a slip and fall case and whether the appearance of the hazardous condition, when

there was no evidence as to how long the hazard had been on the floor, was enough

to constitute constructive knowledge. 802 So. 2d at 329. This Court held that “the

condition of the banana raised a basis for establishing the store’s constructive

knowledge,” precluding a directed verdict. Id. at 332. In Ruiz, the issue was


                                        - 14 -
whether there was competent, substantial evidence for a jury to find that Dr.

Lorenzo’s alleged negligence caused Espinosa’s death. 224 So. 3d at 830.

Therefore, because Ruiz (unlike Owens) did not address the issue of constructive

knowledge in slip and fall cases, there is no conflict.

      Additionally, there is no conflict with Gooding v. University Hospital

Building, Inc. 445 So. 2d 1015 (Fla. 1984). In Gooding, this Court set forth the

following “more likely than not standard:”

      The plaintiff must show that the injury more likely than not resulted
      from the defendant’s negligence in order to establish a jury question
      on proximate cause. In other words, the plaintiff must show that what
      was done or failed to be done probably would have affected the
      outcome.
445 So. 2d at 1020. Because the plaintiff in Gooding failed to satisfy this test, this

Court held that the hospital’s motion for a directed verdict should have been

granted. Id. More specifically, this Court in Gooding concluded that “the

testimony established a no better than even chance for Mr. Gooding to survive,

even had there been an immediate diagnosis of the aneurysm and emergency

surgery[; t]herefore, a jury could not reasonably find that but for the negligent

failure to properly diagnose and treat Mr. Gooding he would not have died.” Id. at

1018. Similar to Gooding, the Third District in Ruiz applied the “more likely than

not standard” and concluded “[t]here is no competent, substantial evidence at trial

from which a jury could reasonably conclude that Dr. Lorenzo’s behavior fell



                                         - 15 -
below the standard of care, or that any breach of the standard of care more likely

than not caused Espinosa’s death.” Ruiz, 224 So. 3d at 830. Therefore, because

both Gooding and Ruiz applied the “more likely than not standard” and reached

similar results, there is no conflict between the two cases.

      Accordingly, because the cases alleged by the Petitioner do not conflict with

Ruiz, this Court lacks jurisdiction to review this case. I respectfully dissent.

CANADY, C.J., and LAWSON, J., concur.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Third District - Case No. 3D15-2474

      (Miami-Dade County)

Jorge P. Gutierrez, Jr., of The Gutierrez Firm, Coral Gables, Florida; and Philip D.
Parrish of Philip D. Parrish, P.A., Miami, Florida,

      for Petitioner

Mark Hicks, Dinah Stein, Amanda Forti, and Erik P. Bartenhagen of Hicks, Porter,
Ebenfeld & Stein, P.A., Miami, Florida; and Jonathon P. Lynn of Chimpoulis,
Hunter & Lynn, P.A., Plantation, Florida,

      for Respondents

Daniel B. Rogers of Shook, Hardy & Bacon, LLP, Miami, Florida,

      for Amici Curiae American Medical Association and Florida Medical
      Association




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