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Filing # 130342064 E-Filed 07/09/2021 11:44:45 AM
IN THE CIRCUIT COURT OF THE 19TH
JUDICIAL CIRCUIT IN AND FOR MAR-
TIN COUNTY, FLORIDA
FREDERIC CHARLES GREER III
and MELISSA ANNE GREER, as
Husband and Wife, and FREDERIC
CHARLES GREER IIT and MELISSA
ANNE GREER, individually,
Plaintiffs,
Case No. 2019CA000015
Vv.
MARTIN MEMORIAL MEDICAL
CENTER, INC., d.b.a. MARTIN
MEDICAL CENTER, a Florida Cor-
poration, KUNAL CHAUDHRY,
M.D., and CARDIOLOGY ASSOCI-
ATES OF STUART, P.A., a Florida
Profit Corporation,
Defendants.
/
PLAINTIFFS’ RESPONSE TO DEFENDANT MARTIN MEMORIAL MEDICAL CEN-
TER’S MOTION IN LIMINE TO PRECLUDE SPECULATIVE TESTIMONY BY
PLAINTIFFS REGARDING WHAT THEY WOULD HAVE DONE HAD THEY BEEN
GIVEN ALTERNATIVE OPTIONS BY DR. CHAUDRY
Plaintiffs Frederic Charles Greer III and Melissa Anne Greer file this response to Martin
Memorial Medical Center’s (“the Hospital”) Motion in Limine to Preclude Speculative Testimony
by Plaintiffs Regarding What They Would Have Done Had They Been Given Alternative Options
by Dr. Chaudry.
While the test for causation in an informed-consent case is objective, and testimony of what
the plaintiff would have done is not conclusive, such testimony still is relevant and admissible.
The primary case the Hospital relies, Donshik v. Sherman, 861 So. 2d 53 (Fla. 3d DCA 2003), did
not involve informed consent and, thus, is distinguishable. Accordingly, the Court should deny the
Hospital’s motion.
Electronically Filed Martin 07/09/2021 11:44 AM
I BACKGROUND
Mr. Greer presented to Tradition Hospital with shortness of breath on September 1, 2017.
An ER doctor there evaluated him and determined that Mr. Greer had suffered a heart attack.
Tradition Hospital immediately transferred Mr. Greer to the defendant Hospital via ambulance
because he needed a cardiac catheterization and the Hospital was better equipped.
When Mr. Greer arrived at the Hospital, he went directly to its cardiac cath lab. There, Mr.
Greer came under the care of Dr. Kunal Chaudry, a defendant with whom Plaintiffs have settled.
The doctor performed a cardiac cath, which is an interventional cardiology diagnostic procedure.
Based on the results of the cardiac cath, Dr. Chaudry attempted a balloon angioplasty.
Among the allegations in this case, Plaintiffs allege that Dr. Chaudry negligently performed
this procedure. Specifically, Plaintiffs allege that Dr. Chaudry threaded the wrong coronary artery,
used the balloon, and ruptured the artery causing a coronary perforation. Mr. Greer crashed and
went into cardiogenic shock. He had to be resuscitated, and a heart surgeon had to perform a per-
icardial window. The surgeon placed an Impella heart implant to artificially pump the heart.
That evening, the Hospital emergently transferred Mr. Greer to Florida Hospital for further
care. There, Mr. Greer underwent a heart transplant.
In addition to alleging that Dr. Chaudry negligently performed the balloon angioplasty,
Plaintiffs further allege that balloon angioplasty was not appropriate because of Mr. Greer’s
blocked arteries, which is something the cardiac cath revealed. (Pls.’ Am. Compl. at p. 11, § 68.)
However, Plaintiffs allege that, before attempting the balloon angioplasty, Dr. Chaudry “made no
attempt to talk to the wife of GREER to present alternative treatments, including but not limited
to cardiac surgery consult and transfer to the cardiac intensive care unit for subsequent coronary
artery bypass grafting.” (/d. at p. 11, § 69.)
Thus, in Count V of the Second Amended Complaint, Plaintiffs have alleged that Dr.
Chaudry negligently failed to obtain informed consent for the cardiac cath and the balloon angio-
plasty from Ms. Greer. (/d. at p. 35.) They further allege that the Hospital is vicariously liable for
this failure. (/d. at pp. 25-26, § 186(a)-(b); p. 30 at 200(a)-(b).) In Count V, Plaintiffs specifically
allege:
210. A reasonable person including GREER and his wife, would not have
allowed CHAUDRY to perform balloon angioplasty on a 100% occluded circum-
flex artery of underdetermined occlusion date, if GREER and his wife were told
[etc.]
213. A reasonable person including GREER and his wife would not rea-
sonably, under all the surrounding circumstances, have undergone such treatment
or procedure by CHAUDRY ... had they been advised by CHAUDRY [etc.]
(id. at pp. 36-37.)
Despite the clear relevance of such testimony to the above allegations, the Hospital seeks
to exclude anticipated testimony at trial “that had they been offered alternative options to the in-
terventional cardiac catheterization by Dr. Chaudry ... they would have opted to forgo the inter-
ventional cardiac catheterization in favor of a [different] option.” (Motion at p. 2.)
Applying the law of informed consent, which the Hospital does not, the Court must deny
the Hospital’s motion.
Il. ARGUMENT
The Florida Medical Consent Law provides in relevant part:
(3) No recovery shall be allowed in any court in this state against any physician ...
in an action brought for treating, examining, or operating on a patient without his
or her informed consent when:
(a) 1. The action of the physician ... in obtaining the consent of the patient
or another person authorized to give consent for the patient was in accordance with
an accepted standard of medical practice among members of the medical profession
with similar training and experience in the same or similar medical community as
3
that of the person treating, examining, or operating on the patient for whom the
onsent is obtained; and
2. A reasonable individual, from the information provided by the physician,
... under the circumstances, would have a general understanding of the procedure,
the medically acceptable alternative procedures or treatments, and the substantial
risks and hazards inherent in the proposed treatment or procedures, which are rec-
ognized among other physicians, osteopathic physicians, chiropractic physicians,
podiatric physicians, or dentists in the same or similar community who perform
similar treatments or procedures; or
(b) The patient would reasonably, under all the surrounding circumstances,
have undergone such treatment or procedure had he or she been advised by the
physician ... in accordance with the provisions of paragraph (a).
Fla. Stat. § 766.103(3) (emphases added).
The legislature adopted objective tests for causation in §§ 766.103(3)(a) and 766.103(3)(b).
In Florida, testimony on what the plaintiff would have done is relevant to these tests, even if the
testimony is not by itself sufficient. See Santa Lucia v. LeVine, 198 So. 3d 803, 811 (Fla. 2d DCA
2016) (“It is not enough for the plaintiffto testify that he would not have consented had a specific,
material disclosure been made; he must present evidence ‘that a reasonably prudent person would
not have consented to the procedure had the material risks been disclosed. a9 (citation omitted)).
Indeed, under the clear and unambiguous language of § 766.103(3)(b), what “[t]he pa-
tient”—that is, the plaintiff—would have done obviously is relevant. Both the plain language of
the statute and Santa Lucia lead to the same conclusion: under Florida law, the plaintiff's testimony
on what he or she would have done is relevant to objective causation.
That conclusion is supported by the great weight of non-Florida authority on the standard.
See Canterbury v. Spence, 464 F.2d 772, 791 (D.C. Cir. 1972) (the seminal case in the United
States on causation in informed consent, adopting the (now majority) objective test: “The patient’s
testimony is relevant on that score of course but it would not threaten to dominate the findings.”).!
To avoid this obvious, statutorily-mandated conclusion, the Hospital cites two decisions.
The first is Drackett Products v. Blue, 152 So, 2d 463 (Fla. 1963), which is distinguishable because
it was a products-liability case, which of course does not involve informed consent. The second
decision is Donshik v. Sherman, 861 So. 2d 53 (Fla. 3d DCA 2003). While a medical-malpractice
case, Donshik is distinguishable. There is no indication that Donshik involved an informed-consent
cause of action.
Hil. CONCLUSION
Because testimony on what Plaintiffs would have done had Dr. Chaudry appropriately ad-
vised them is relevant and admissible in this informed-consent case, the Court should deny the
Hospital’s Motion in Limine to Preclude Speculative Testimony by Plaintiffs Regarding What
They Would Have Done Had They Been Given Alternative Options by Dr. Chaudry.
' See also, e.g., Fore v. Brown, 544 So. 2d 955, 956 (Ala. 1989) (“[T]he testimony of the
patient, notwithstanding hindsight, is material and relevant and is entitled to be considered by the
jury.”); Holley v. Huang, 284 P.3d 81, 84 (Colo. App. 2011) (“Although the second element of an
informed consent claim incorporates an objective standard, Holley’s subjective testimony was pro-
bative of that standard. In other words, what Holley would have done is some evidence of what a
reasonable person in her position would have done.” (citations omitted)); Funke v. Fieldman, 512
P.2d 539, 550 (Kan. 1973) (“[T]he patient’s testimony is relevant on such issue, but should not be
controlling.”); Sard v. Hardy, 379 A.2d 1014, 1025 (Md. 1977) (“Under this rule, the patient’s
hindsight testimony as to what he would have hypothetically done, though relevant, is not deter-
minative of the issue.”); Largey v. Rothman, 540 A.2d 504, 511 (N.J. 1988) (adopting Canterbury);
Gerety v. Demers, 589 P.2d 180, 194 (N.M. 1978) (adopting Canterbury); Nickell v. Gonzalez,
477 N.E.2d 1145, 1149 (Ohio 1985) (“The patient’s hindsight (i.e., testimony as to her hypothetical
response to the undisclosed information), while relevant, is not determinative.” (citation omitted);
Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 123-24 (Tenn. 1999) (“The finder of fact may
consider and give weight to the patient’s testimony as to whether the patient would have consented
to the procedure upon full disclosure of the risks.”); Roybal v. Bell, 778 P.2d 108, 112 (Wyo. 1989)
(“Under the objective test, the patient’s hindsight testimony is relevant but not controlling.” (cita-
tions omitted)).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the
attached service list by e-mail on July 9, 2021.
Peter J. Somera, Jr., Esq.
Paul M. Silva, M.D., Esq.
SOMERA & SILVA, LLP
2255 Glades Road, Suite 232 West
Boca Raton, FL 33431
pleadings@somerasilva.com
litigation@somerasilva.com
and
BURLINGTON & ROCKENBACH, P.A.
Courthouse Commons/Suite 350
444 West Railroad Avenue
West Palm Beach, FL 33401
(561) 721-0400
Attorneys for Plaintiffs
ajr@FLAppellateLaw.com
fa@FLAppellateLaw.com
By:_s/ Adam Richardson
ADAM RICHARDSON
Florida Bar No. 94886
SERVICE LIST
Thomas G. Aubin, Esq.
Matthew S. Podolnick, Esq.
STEARNS, WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
200 East Las Olas Blvd., Suite 2100
Fort Lauderdale, FL 33301
taubin@stearnsweaver.com
mpodolnick@stearnsweaver.com
Counsel for Defendant Martin Memorial Medical Center, Inc.
d.b.a. Martin Memorial Medical Center
Keith J. Puya, Esq.
Hector R. Buigas, Esq.
LAW OFFICES OF KEITH J. PUYA, P.A.
4880 Donald Ross Road, Suite 225
Palm Beach Gardens, FL 33418
eservice@puyalaw.com
kpuya@puyalaw.com
Counsel for Defendants Kunal Chaudhry, M.D., and Cardiology
Associates of Stuart, P.A.
Dinah Stein, Esq.
HICKS, PORTER, EBENFELD & STEIN, P.A
799 Brickell Plaza, 9th Floor
Miami, FL 33131
dstein@mhickslaw.com
akozub@mhickslaw.com
eclerk@mhickslaw.com
Counsel for Defendants Kunal Chaudhry, M.D., and Cardiology
Associates of Stuart, P.A.
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Filing # 130342064 E-Filed 07/09/2021 11:44:45 AM IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR MAR- TIN COUNTY, FLORIDA FREDERIC CHARLES GREER III and MELISSA ANNE GREER, as Husband and Wife, and FREDERIC CHARLES GREER IIT and MELISSA ANNE GREER, individually, Plaintiffs, Case No. 2019CA000015 Vv. MARTIN MEMORIAL MEDICAL CENTER, INC., d.b.a. MARTIN MEDICAL CENTER, a Florida Cor- poration, KUNAL CHAUDHRY, M.D., and CARDIOLOGY ASSOCI- ATES OF STUART, P.A., a Florida Profit Corporation, Defendants. / PLAINTIFFS’ RESPONSE TO DEFENDANT MARTIN MEMORIAL MEDICAL CEN- TER’S MOTION IN LIMINE TO PRECLUDE SPECULATIVE TESTIMONY BY PLAINTIFFS REGARDING WHAT THEY WOULD HAVE DONE HAD THEY BEEN GIVEN ALTERNATIVE OPTIONS BY DR. CHAUDRY Plaintiffs Frederic Charles Greer III and Melissa Anne Greer file this response to Martin Memorial Medical Center’s (“the Hospital”) Motion in Limine to Preclude Speculative Testimony by Plaintiffs Regarding What They Would Have Done Had They Been Given Alternative Options by Dr. Chaudry. While the test for causation in an informed-consent case is objective, and testimony of what the plaintiff would have done is not conclusive, such testimony still is relevant and admissible. The primary case the Hospital relies, Donshik v. Sherman, 861 So. 2d 53 (Fla. 3d DCA 2003), did not involve informed consent and, thus, is distinguishable. Accordingly, the Court should deny the Hospital’s motion. Electronically Filed Martin 07/09/2021 11:44 AM I BACKGROUND Mr. Greer presented to Tradition Hospital with shortness of breath on September 1, 2017. An ER doctor there evaluated him and determined that Mr. Greer had suffered a heart attack. Tradition Hospital immediately transferred Mr. Greer to the defendant Hospital via ambulance because he needed a cardiac catheterization and the Hospital was better equipped. When Mr. Greer arrived at the Hospital, he went directly to its cardiac cath lab. There, Mr. Greer came under the care of Dr. Kunal Chaudry, a defendant with whom Plaintiffs have settled. The doctor performed a cardiac cath, which is an interventional cardiology diagnostic procedure. Based on the results of the cardiac cath, Dr. Chaudry attempted a balloon angioplasty. Among the allegations in this case, Plaintiffs allege that Dr. Chaudry negligently performed this procedure. Specifically, Plaintiffs allege that Dr. Chaudry threaded the wrong coronary artery, used the balloon, and ruptured the artery causing a coronary perforation. Mr. Greer crashed and went into cardiogenic shock. He had to be resuscitated, and a heart surgeon had to perform a per- icardial window. The surgeon placed an Impella heart implant to artificially pump the heart. That evening, the Hospital emergently transferred Mr. Greer to Florida Hospital for further care. There, Mr. Greer underwent a heart transplant. In addition to alleging that Dr. Chaudry negligently performed the balloon angioplasty, Plaintiffs further allege that balloon angioplasty was not appropriate because of Mr. Greer’s blocked arteries, which is something the cardiac cath revealed. (Pls.’ Am. Compl. at p. 11, § 68.) However, Plaintiffs allege that, before attempting the balloon angioplasty, Dr. Chaudry “made no attempt to talk to the wife of GREER to present alternative treatments, including but not limited to cardiac surgery consult and transfer to the cardiac intensive care unit for subsequent coronary artery bypass grafting.” (/d. at p. 11, § 69.) Thus, in Count V of the Second Amended Complaint, Plaintiffs have alleged that Dr. Chaudry negligently failed to obtain informed consent for the cardiac cath and the balloon angio- plasty from Ms. Greer. (/d. at p. 35.) They further allege that the Hospital is vicariously liable for this failure. (/d. at pp. 25-26, § 186(a)-(b); p. 30 at 200(a)-(b).) In Count V, Plaintiffs specifically allege: 210. A reasonable person including GREER and his wife, would not have allowed CHAUDRY to perform balloon angioplasty on a 100% occluded circum- flex artery of underdetermined occlusion date, if GREER and his wife were told [etc.] 213. A reasonable person including GREER and his wife would not rea- sonably, under all the surrounding circumstances, have undergone such treatment or procedure by CHAUDRY ... had they been advised by CHAUDRY [etc.] (id. at pp. 36-37.) Despite the clear relevance of such testimony to the above allegations, the Hospital seeks to exclude anticipated testimony at trial “that had they been offered alternative options to the in- terventional cardiac catheterization by Dr. Chaudry ... they would have opted to forgo the inter- ventional cardiac catheterization in favor of a [different] option.” (Motion at p. 2.) Applying the law of informed consent, which the Hospital does not, the Court must deny the Hospital’s motion. Il. ARGUMENT The Florida Medical Consent Law provides in relevant part: (3) No recovery shall be allowed in any court in this state against any physician ... in an action brought for treating, examining, or operating on a patient without his or her informed consent when: (a) 1. The action of the physician ... in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as 3 that of the person treating, examining, or operating on the patient for whom the onsent is obtained; and 2. A reasonable individual, from the information provided by the physician, ... under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are rec- ognized among other physicians, osteopathic physicians, chiropractic physicians, podiatric physicians, or dentists in the same or similar community who perform similar treatments or procedures; or (b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician ... in accordance with the provisions of paragraph (a). Fla. Stat. § 766.103(3) (emphases added). The legislature adopted objective tests for causation in §§ 766.103(3)(a) and 766.103(3)(b). In Florida, testimony on what the plaintiff would have done is relevant to these tests, even if the testimony is not by itself sufficient. See Santa Lucia v. LeVine, 198 So. 3d 803, 811 (Fla. 2d DCA 2016) (“It is not enough for the plaintiffto testify that he would not have consented had a specific, material disclosure been made; he must present evidence ‘that a reasonably prudent person would not have consented to the procedure had the material risks been disclosed. a9 (citation omitted)). Indeed, under the clear and unambiguous language of § 766.103(3)(b), what “[t]he pa- tient”—that is, the plaintiff—would have done obviously is relevant. Both the plain language of the statute and Santa Lucia lead to the same conclusion: under Florida law, the plaintiff's testimony on what he or she would have done is relevant to objective causation. That conclusion is supported by the great weight of non-Florida authority on the standard. See Canterbury v. Spence, 464 F.2d 772, 791 (D.C. Cir. 1972) (the seminal case in the United States on causation in informed consent, adopting the (now majority) objective test: “The patient’s testimony is relevant on that score of course but it would not threaten to dominate the findings.”).! To avoid this obvious, statutorily-mandated conclusion, the Hospital cites two decisions. The first is Drackett Products v. Blue, 152 So, 2d 463 (Fla. 1963), which is distinguishable because it was a products-liability case, which of course does not involve informed consent. The second decision is Donshik v. Sherman, 861 So. 2d 53 (Fla. 3d DCA 2003). While a medical-malpractice case, Donshik is distinguishable. There is no indication that Donshik involved an informed-consent cause of action. Hil. CONCLUSION Because testimony on what Plaintiffs would have done had Dr. Chaudry appropriately ad- vised them is relevant and admissible in this informed-consent case, the Court should deny the Hospital’s Motion in Limine to Preclude Speculative Testimony by Plaintiffs Regarding What They Would Have Done Had They Been Given Alternative Options by Dr. Chaudry. ' See also, e.g., Fore v. Brown, 544 So. 2d 955, 956 (Ala. 1989) (“[T]he testimony of the patient, notwithstanding hindsight, is material and relevant and is entitled to be considered by the jury.”); Holley v. Huang, 284 P.3d 81, 84 (Colo. App. 2011) (“Although the second element of an informed consent claim incorporates an objective standard, Holley’s subjective testimony was pro- bative of that standard. In other words, what Holley would have done is some evidence of what a reasonable person in her position would have done.” (citations omitted)); Funke v. Fieldman, 512 P.2d 539, 550 (Kan. 1973) (“[T]he patient’s testimony is relevant on such issue, but should not be controlling.”); Sard v. Hardy, 379 A.2d 1014, 1025 (Md. 1977) (“Under this rule, the patient’s hindsight testimony as to what he would have hypothetically done, though relevant, is not deter- minative of the issue.”); Largey v. Rothman, 540 A.2d 504, 511 (N.J. 1988) (adopting Canterbury); Gerety v. Demers, 589 P.2d 180, 194 (N.M. 1978) (adopting Canterbury); Nickell v. Gonzalez, 477 N.E.2d 1145, 1149 (Ohio 1985) (“The patient’s hindsight (i.e., testimony as to her hypothetical response to the undisclosed information), while relevant, is not determinative.” (citation omitted); Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 123-24 (Tenn. 1999) (“The finder of fact may consider and give weight to the patient’s testimony as to whether the patient would have consented to the procedure upon full disclosure of the risks.”); Roybal v. Bell, 778 P.2d 108, 112 (Wyo. 1989) (“Under the objective test, the patient’s hindsight testimony is relevant but not controlling.” (cita- tions omitted)). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list by e-mail on July 9, 2021. Peter J. Somera, Jr., Esq. Paul M. Silva, M.D., Esq. SOMERA & SILVA, LLP 2255 Glades Road, Suite 232 West Boca Raton, FL 33431 pleadings@somerasilva.com litigation@somerasilva.com and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite 350 444 West Railroad Avenue West Palm Beach, FL 33401 (561) 721-0400 Attorneys for Plaintiffs ajr@FLAppellateLaw.com fa@FLAppellateLaw.com By:_s/ Adam Richardson ADAM RICHARDSON Florida Bar No. 94886 SERVICE LIST Thomas G. Aubin, Esq. Matthew S. Podolnick, Esq. STEARNS, WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. 200 East Las Olas Blvd., Suite 2100 Fort Lauderdale, FL 33301 taubin@stearnsweaver.com mpodolnick@stearnsweaver.com Counsel for Defendant Martin Memorial Medical Center, Inc. d.b.a. Martin Memorial Medical Center Keith J. Puya, Esq. Hector R. Buigas, Esq. LAW OFFICES OF KEITH J. PUYA, P.A. 4880 Donald Ross Road, Suite 225 Palm Beach Gardens, FL 33418 eservice@puyalaw.com kpuya@puyalaw.com Counsel for Defendants Kunal Chaudhry, M.D., and Cardiology Associates of Stuart, P.A. Dinah Stein, Esq. HICKS, PORTER, EBENFELD & STEIN, P.A 799 Brickell Plaza, 9th Floor Miami, FL 33131 dstein@mhickslaw.com akozub@mhickslaw.com eclerk@mhickslaw.com Counsel for Defendants Kunal Chaudhry, M.D., and Cardiology Associates of Stuart, P.A.