LITIGATION DEPARTMENT OF THE YEAR - Mid-Size Firm  ALM's Daily Report   2017 - 2016 - 2014

Appellate Court Reverses Judgment Against Nurse

Larry Burkhalter of the Miami office of Weinberg Wheeler Hudgins, Gunn & Dial received a directed verdict from the Third District Court of Appeals of Florida, reversing the lower court’s judgment against their client, an advanced registered nurse practitioner (ARNP). The original verdict against the defendant nurse for $980,000 was reduced to zero, and the plaintiff is required to pay litigation costs.

The medical malpractice action, Husak v. Siegel, alleged decreased arm use resulting from the failure of Nurse Siegel and her direct supervising physician, Dr. Feldman, to properly diagnose ruptured tendons in Husak’s arms and either to timely refer him for a MRI or to an orthopedic surgeon. Husak’s injuries were sustained during his workout when he slipped as he pulled forward on a weight machine, felt immediate pain and heard a “popping sound.” Nurse Siegel determined from her own examination that he’d suffered a muscle strain or sprain. She did, however, note his “popping sound” claim in the medical chart. There was no evidence that Dr. Feldman reviewed that chart to indicate his professional agreement or disagreement with the nurse’s diagnosis, even though it was required by the practice and protocol that existed between them.

Husak’s symptoms worsened, resulting in a return to the doctor’s office. Nurse Siegel then prescribed anti-inflammatory medication and rest; Dr. Feldman did see Husak on this visit and signed the chart indicating his concurrence with the diagnosis. Six days later, Nurse Siegel examined Husak again noting the bruising and tenderness were approving; Dr. Feldman did not see him on this visit, but still signed the chart again reflecting his agreement with Nurse Siegel’s recommendations.

Four months later, on his own initiative, Husak sought an MRI, which showed a condition consistent with muscle sprain. Two months later, Husak saw an orthopedic surgeon, who advised he had torn bicep tendons but did not require surgery. Later that month, Husak sought a second opinion – that doctor confirmed the ruptured tendons assessment and ultimately performed reconstructive surgery. There is conflict in the record regarding the extent to which Husak’s injuries have impacted his ability to perform daily personal tasks.

After a six-day trial, a jury awarded Husak over $1.8 million in medical expenses, lost earnings, and pain and suffering, dividing the fault equally between Nurse Siegel and Dr. Feldman.

The appellate court found that Florida law does not permit ARNPs to perform acts of medical diagnosis and treatment without supervision. The record showed that Nurse Siegel placed on Husak’s chart and in his file all of the information from which her supervisor, Dr. Feldman, could have made the correct diagnosis. Specifically, had he properly reviewed the charts, he would have seen her note about “popping sounds,” which is an undisputed symptom of a ruptured tendon. The court opined, “[T]here was no specific duty owed by Nurse Siegel to Husak, which was breached by her” and added, “The actual responsibility for the diagnosis lay with Feldman.” Had she failed to record the allegedly tell-tale “popping sounds” on Husak’s chart there would have been a triable issue of nursing negligence.

Additionally, the court found that though the issue is moot in light of the directed verdict, if required to address it, it would rule that there was no evidence to support Husak's claim that the defendant violated the national standard of care for an ARNP. This issue was further addressed in the concurring opinion, which states that the trial court erred by allowing Husak's expert nurse to testify as she was unfamiliar with the standard of care of an ARNP in Florida and thus unqualified.

The combined rulings of the appellate court mean not only that a judgment was to be entered for Nurse Siegel, but also the grounds on which it reversed the lower court ruling have effectively removed any basis for Husak to seek a re-trial.

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