PERSONAL INJURY CORNER
UNNECESSARY TESTS OR PROCEDURES
TED BABBITT Florida Statute § 766.111 holds in part :
( 1 ) No health care provider shall order , procure , provide , or administer unnecessary diagnostic tests , which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient ’ s condition .
( 2 ) A violation of this section shall be grounds for disciplinary action .
( 3 ) Any person who prevails in a suit brought against a health care provider predicated upon a violation of this section shall recover reasonable attorney ’ s fees and costs .
Haynes v . Blackshear , 45 Fla . L . Weekly D1721 ( Fla . 2nd DCA July 17 , 2020 ) was a case in which the plaintiff alleged that the defendant physician ordered a diagnostic test which was unnecessary and that the plaintiff suffered a serious injury as a result of that unnecessary test . Plaintiff also alleged that the physician was negligent in the way he treated her condition once the complication arose . The case was tried and the jury was instructed both that the plaintiff sought judgment under Florida Statute § 766.111 because of an unnecessary diagnostic test and that the defendant was negligent in providing care and treatment . However , the trial judge under authority of Dean v . Vazquez , 786 So . 2d 637 ( Fla . 4th DCA 2001 ) provided the jury with a verdict that required them to answer the question of whether plaintiff had proven both that an unnecessary test was given and that there was improper diagnosis and treatment .
The appellate court reversed a verdict for the defendant finding that the judge had improperly charged the jury because a cause of action under Florida Statute § 766.111 is an independent cause of action that does not require proof of conduct below the standard of care to receive a judgment for damages caused by the test as well as attorney ’ s fees .
The Second District found that the language in Florida Statute § 766.111 which in section ( 3 ) refers to a plaintiff who “ prevails in a suit against a health care provider predicated upon a violation of this section ” permitted plaintiff to recover reasonable attorney ’ s fees and costs and the court reasoned that the Legislature intended there to be an independent cause of action for a violation of Florida Statute § 766.111 . The court relied with approval on Jackson v . United States , 469 F . Supp . 2d 1068 , 1082 ( M . D . Fla . 2006 ) as well as an accurate reading of Dean v . Vazquez , supra . The appellate court found that the trial court had incorrectly read Dean , supra , to read that an independent cause of action did not exist under Florida Statute § 766.111 . To the contrary , the court reasoned that Dean , supra , simply required , in addition to a violation of Florida Statute § 766.111 , that there be actual damages caused by the administration of that unnecessary procedure .
The court held :
Applying that law to the facts of this case , we note that Haynes alleged both a claim for general medical malpractice by Blackshear and a claim for a breach of section 766.111 predicated on Blackshear ’ s decision to order the allegedly unnecessary renal vein renin test . She presented at least some evidence that she suffered an injury as a result of the allegedly unnecessary renal vein renin test , as well as injuries due to allegedly negligent treatment of her complications from that procedure . Because each of these claims was cognizable independently of the other , Haynes was entitled to pursue each independently of the other , she was entitled to have the jury instructed on each claim , and she was entitled to a verdict form that allowed the jury to return a separate verdict on each independent claim . To conclude otherwise would vitiate Haynes ’ right to pursue both a medical malpractice claim and the statutory claim under section 766.111 independently of each other .
The appellate court makes it clear that Florida Statute § 766.111 permits a patient to bring a claim against a health care provider who orders an unnecessary diagnostic test when the performance of that test causes injury
or damage to the patient and that that cause of action is independent of any claim for medical malpractice .
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PBCBA BAR BULLETIN 13