       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                     YVONNE R. SHERRER, M.D.,
                            Appellant,

                                     v.

             STEPHANIE HOLLINGSWORTH, individually,
                           Appellee.

                             No. 4D18-830

                             [June 12, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case No. CACE 11-
002290 (13).

  Mark Hicks and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A.,
Miami, and John Mauro and Carol Glasgow of Billing, Cochran, Lyles,
Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.

   Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, Scott Schlesinger and Jonathan R. Gdanski of Schlesinger Law
Offices, P.A., Fort Lauderdale, Crane Johnstone of Johnstone Law, P.A.,
Fort Lauderdale, and Peter J. Somera, Jr., and Paul M. Silva, M.D. of
Somera & Silva, LLP, Boca Raton, for appellee.

ROWE, CYMONIE S., Associate Judge.

   After a three-week jury trial, a medical doctor appeals a multimillion-
dollar verdict asserting that the trial court erred because: 1) the court
improperly instructed the jury concerning informed consent, 2) the
patient’s counsel’s conduct and improper comments during opening
statement warranted a new trial, and 3) the jury award was contrary to
the manifest weight of the evidence. Of these issues, we reverse only on
the issue concerning informed consent.

                         Factual Background

   Patient, Stephanie Hollingsworth, sued her doctor, Yvonne R. Sherrer,
and the hospital where she was treated. In her operative pleading, the
patient asserted that the doctor failed to properly treat her necrotizing
vasculitis in a timely manner with the drug Cytoxan when she was a
patient at the hospital.         Cytoxan was the brand name for
“Cyclophosphamide,” a chemotherapy agent that is used to kill the cells
that are driving vasculitis in patients with rheumatic diseases. The
patient’s sole claim against the doctor was for medical negligence. The
doctor asserted an affirmative defense of informed consent. Specifically,
in her defense, the doctor asserted that the patient properly executed
informed consents pursuant to sections 768.46 and/or 766.103, Florida
Statutes, and therefore said allegations cannot impose liability.

   At the trial, the only issue tried was the negligence claim. The issue of
informed consent was not tried. During the charge conference, the parties
agreed to the general negligence instruction. The next day, however, the
patient sought to add an instruction concerning informed consent. The
patient argued that the evidence supported that the doctor’s negligence
could be based on the doctor’s failure to give the patient sufficient
information regarding Cytoxan.

   The doctor objected. The doctor argued that the informed consent
instruction should not be given because that issue was never raised during
the trial, that theory of liability required expert testimony, and that there
was no expert testimony to support the informed consent theory.

    Over objection, the trial court instructed the jury as to both general
negligence and informed consent. The jury found the doctor negligent,
and the patient was awarded $15,591,619.00 in damages. This appeal
followed.

                                  Analysis

   A trial court’s decision to give or withhold a jury instruction is reviewed
under the abuse of discretion standard of review. Barton Protective Servs.,
Inc. v. Faber, 745 So. 2d 968, 974 (Fla. 4th DCA 1999).

   On appeal, the doctor argues that the trial court abused its discretion
by giving an instruction on informed consent because the issue was not
pled, tried by implied consent, or supported by the evidence. In response,
the patient asserts that the informed consent issue was not properly
preserved for appellate review under the two-issue rule because the doctor
agreed to a general verdict form instead of requesting a special verdict form
to split the general negligence claim apart from the informed consent
claim.



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   Because a lack of informed consent theory of liability was not tried by
consent or otherwise, the trial court erred in giving the instruction.

    Lack of informed consent is a separate and distinct theory of negligence,
different from general medical negligence. See Chua v. Hilbert, 846 So. 2d
1179, 1182 (Fla. 4th DCA 2003) (citing Florida Patient’s Comp. Fund v.
Sitomer, 524 So.2d 671, 675 (Fla. 4th DCA 1988), quashed on other
grounds, 550 So. 2d 461 (Fla.1989)). As the given jury instruction details,
the doctrine of informed consent requires the doctor to give the patient
sufficient information concerning a proposed treatment or procedure.

   Here, the doctor did not propose Cytoxan as a possible treatment.
Stated another way, the doctor’s purported failure to offer Cytoxan to the
patient had no connection with the informed consent theory of liability.
The failure to propose Cytoxan is adjunct and supplement to the general
negligence theory.

    The trial court instructed the jury on two distinct theories of liability,
general negligence and informed consent. While the doctor pled informed
consent as an affirmative defense, that affirmative defense was not
advanced at the trial. There was no evidence presented and, more
importantly, no expert testimony concerning the latter theory. The issue
of informed consent was not tried by consent. There was only one theory
of negligence presented to the jury, which was supported by the general
negligence instruction.

    The two-issue rule does not apply here because the informed consent
instruction should not have been given at all. The two-issue rule provides
that when more than one issue is presented to the jury, and the jury is
instructed as to all of the issues presented, without an objection to the use
of a general verdict form, appellate reversal is improper without a showing
of prejudice. Essentially, the rule requires that the opponent of the jury
instruction must distill and highlight the erroneous instruction via the
verdict form to preserve the issue on appeal. This rule is based on the
premise that the appellate court must be clear that the jury’s verdict was
based on the erroneous instruction. See Barth v. Khubani, 748 So. 2d 260
(Fla. 1999).

    The two-issue rule applies when there are multiple theories of
negligence whether offered by the plaintiff or defendant. For the two-issue
rule to apply in this case, both the theory of negligence and the theory of
informed consent must be pled, proven, and preserved. In Tomlian v.
Grenitz, 782 So.2d 905 (Fla. 4th DCA 2001), approved in part, disapproved
in part, Grenitz v. Tomlian, 858 So. 2d 999 (Fla. 2003), we made clear that

                                     -3-
the two-issue rule did not apply to single theory claims, even if multiple
elements of that claim were in dispute.

   With these facts, the trial court erred when instructing the jury
concerning informed consent. Preservation of the error via the verdict form
was not necessary because there was only one issue properly presented to
the jury. Requiring the doctor to add an improper issue to the verdict form
in order to preserve the error would only have served to highlight the error
further.

    The informed consent instruction contributed to the jury’s finding the
doctor negligent because it allowed the jury to find the doctor negligent
even if the jury found that the doctor’s decision not to administer Cytoxan
fell within the standard of care. This added theory of negligence prejudiced
the doctor. The prejudicial instruction warrants reversal and a new trial
concerning all issues.

   Reversed for new trial.

TAYLOR and LEVINE, JJ., concur.

                             *       *         *

   Not final until disposition of timely filed motion for rehearing.




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