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Florida Second DCA reverses jury verdict for plaintiff in medical negligence case, finds that defendant was denied the opportunity to present “empty chair” defense

On May 22, 2020, in Board of Trustees of University of South Florida v. Carter, No. 2D18-1219, the Florida Second DCA reversed a jury verdict and judgment for the plaintiff in a medical malpractice case after concluding that the trial court had prevented the defendant from presenting its defense. A perforation in the plaintiff’s small bowel was discovered after she had undergone outpatient abdominal surgery which allegedly caused necrotizing fasciitis and catastrophic injuries. She subsequently filed a medical malpractice complaint against her surgeon, the hospital and the University of South Florida (USF), which employed the surgeon. The plaintiff claimed at trial that the surgeon and hospital personnel involved in her care were negligent in not discovering the bowel perforation in time to prevent her subsequent injuries. USF’s defense was that the plaintiff’s injuries were the result of the hospital’s critical care team’s failure to timely administer antibiotics. At the conclusion of the evidence, the trial court dismissed the hospital from the case because the plaintiff could not establish that the hospital should be held vicariously liable for any of the actions of the critical care team, who were not employees of the hospital and had separately settled with the plaintiff before the trial. The trial court also denied defendant USF’s attempt to (1) present expert testimony that the critical care team’s failure to timely start antibiotics caused the plaintiff’s injuries, and (2) have the critical care team added to the verdict form as Fabre defendants.

After the jury returned a verdict against USF, the defendant appealed. The Second DCA concluded that the trial court erred in not allowing USF to present an “empty chair” defense and argue that the critical team’s delay caused the plaintiff’s injuries. The Second DCA quoted from Vila v. Philip Morris USA Inc., 215 So. 3d 82, 85 (Fla. 3d DCA 2016) (quoting Black v. Montgomery Elevator Co., 581 So. 2d 624, 625 (Fla. 5th DCA 1991)): "[t]o present an 'empty chair' defense, the defendant need only answer the complaint with a general denial and argue to the jury that the injury was due to the negligence of a non-party to the suit." The Second DCA also concluded that the trial court erred in not allowing the critical care team to be included as Fabre defendants. The trial court had apparently premised this ruling on the Florida Supreme Court’s decision in Stuart v. Hertz Corp., 351 So. 2d 703 (Fla. 1977), which held that an initial tortfeasor in a motor vehicle accident was liable both for the injuries from the accident and for subsequent injuries incurred as a result of negligent medical treatment of the injuries. The Second DCA pointed out that Stuart only applies when the initial injury was caused by negligence and in this case neither party argued at trial that the perforation was itself caused by negligence.