$30M Plaintiff Verdict For Ankle Fracture and Resulting Death

Case Overview

Case Name: Alfredo Victor Fernandez as Personal Representative of the Estate of Maria Elena Fernandez, deceased v. Baptist Health Medical Group Orthopedics, LLC a Florida limited liability company, West Kendall Baptist Hospital, Inc., a not-for-profit Florida corporation d/b/a Miami Orthopedics & Sports Medicine Institute at West Kendall Baptist Hospital, St. Anne’s Nursing Center, St. Anne’s Residence, Inc., a Florida not for profit corporation, Francisco Adelquis Cruz, M.D., P.A., a Florida corporation, Charles Jordan, M.D., and Francisco A. Cruz, M.D.

Case Type:

• Medical malpractice – Failure to Test; Failure to Treat; Failure to Diagnose; Negligent Treatment

Injury:

• Death
• Arterial/Vascular – embolism
• Pulmonary/Respiratory

Plaintiff Attorneys:

• Gary A. Friedman; Friedman and Friedman, P.A.; Lead Counsel
• John S Seligman; Friedman and Friedman, P.A.
• Zachary A. Friedman; Friedman and Friedman, P.A.

Defense Attorneys:

• Kevin P. O’Connor; Foley & Mansfield for Charles Jordan, M.D., Baptist Health Medical Group Orthopedics LLC
• Mary J. Street; Foley & Mansfield for Charles Jordan, M.D., Baptist Health Medical Group Orthopedics LLC
• Viviana P. Varela; Foley & Mansfield for Charles Jordan M.D. and Baptist Health Medical Group Orthopedics LLC

Case Outcome: Verdict – Plaintiff

Award Amount: $30,000,000

Actual Award: $1,537,500

What Happened?

On or around January 18, 2016, after sustaining a fall, decedent Elena Fernandez (age 71 at the time) went to the emergency department at West Kendall Baptist Hospital in Miami. At the hospital, Dr. Charles Jordan, an orthopedist, examined her. Dr. Jordan diagnosed her with a right ankle fracture. He then administered a dose of anticoagulation medication (also known as blood thinners), which is meant to prevent blood clots. An orthopedic surgery consultation was ordered and the plan was to continue the anticoagulant after surgery. When Dr. Jordan evaluated Fernandez, the doctor determined that swelling prevented surgery at that time. He recommended anticoagulants for 14 to 21 days as well as a follow-up examination in two weeks. A hospitalist at West Kendall Baptist Hospital ordered an evaluation for Fernandez’s placement in a skilled nursing facility.

On January 20, 2016, Fernandez went to St. Anne’s Nursing Center in Miami. Dr. Francisco Cruz, Fernandez’s attending physician at St. Anne’s, examined her on January 21, 2016, and January 25, 2016. The doctor did not order any anticoagulants during Fernandez’s time at St. Anne’s.

On January 29, 2016, Fernandez had a follow-up examination with Dr. Jordan, who determined that she did not require surgery. Instead, he placed her ankle in a cast. At this time, Dr. Jordan became aware that Fernandez was not administered any anticoagulants at St. Anne’s. However, when she went back to the nursing facility, she still did not receive any of the medication.

By January 31, 2016, Fernandez began experiencing chest pains. Dr. Cruz ordered a chest X-ray, and a radiologist diagnosed her with atypical pneumonia. Although Dr. Cruz ordered consultations with a pulmonologist and infectious disease specialist, the consultations never took place.

Resulting Death From Pulmonary Embolism

On February 7, 2016, Fernandez passed away after experiencing difficulty breathing. She died shortly after arriving at another hospital. After a medical examiner conducted the autopsy, the examiner concluded that Fernandez suffered from a saddle pulmonary embolism. This is a rare type of embolism that occurs when a large blood clot gets stuck in the main pulmonary artery of the lungs.

The Lawsuit’s Allegations

Mrs. Fernandez’s widower, Alfredo Fernandez, sued Dr. Cruz and Dr. Jordan for their failure to ensure that Mrs. Fernandez received anticoagulation medication. The estate also sued Dr. Cruz’s medical practice, Baptist Health Medical Group Orthopedics, West Kendall Baptist Hospital, St. Anne’s Nursing Center, and St. Anne’s Residence, Inc. based on theories of vicarious liability.

However, the estate voluntarily dismissed the claim against West Kendall Baptist Hospital prior to trial. Furthermore, the claims against the St. Anne defendants were severed and sent to arbitration. Dr. Cruz and his practice settled with the estate prior to trial, though he remained on the verdict form as a Fabre defendant, which is a nonparty that a defendant includes in the verdict form of a negligence action for the purposes of apportioning damages.

The trial proceeded on the claims against Dr. Jordan and Baptist Health Medical Group Orthopedics. The lawsuit’s allegations against Dr. Jordan focused on his actions during the January 29, 2016 follow-up evaluation. This particular evaluation resulted in the continued failure to administer anticoagulants to Mrs. Fernandez. The plaintiff’s counsel argued that the jury should assign the majority of liability to Jordan.

Trial Testimony

During the one-week trial, each side presented medical experts in support of their respective positions. The plaintiff’s orthopedic surgery expert testified that orthopedic surgeons are supposed to handle any potential complications that could result from a fracture, including blood clots. Once Dr. Jordan learned from their January 29, 2016 follow-up that Mrs. Fernandez was not receiving the anticoagulants, he should have called Dr. Cruz to inquire about the medication and why she was not receiving it. The plaintiff also presented arguments that during the January 29 visit, Dr. Jordan should have noticed the increased swelling in Mrs. Fernandez’s ankle and performed an ultrasound, which would have led to the discovery of her deep vein thrombosis. If the condition was treated in time, the fatal pulmonary embolism could have been avoided.

During a deposition conducted before trial, Dr. Cruz testified that he discussed the risks and benefits of anticoagulation medication with Mrs. Fernandez during his first evaluation of her on January 21, 2016. However, she declined to take the medication. The plaintiff’s counsel noted that there was no documentation confirming that Mrs. Fernandez had declined the anticoagulant.

Negligence Allegations

At trial, Dr. Jordan’s case theory was premised on Dr. Cruz’s negligence. Dr. Jordan admitted into evidence the deposition testimony from an expert internist who the plaintiff’s counsel originally retained to support the claim against Dr. Cruz. The internist’s testimony asserted that Dr. Cruz was liable for Mrs. Fernandez’s death because he failed to recognize that the chest X-ray conducted on January 30 showed possible evidence of blood clots. The internist expert testified that Dr. Cruz should have administered anticoagulation medication on February 1, 2016, as physical therapy notes indicated increased swelling in Mrs. Fernandez’s ankle.

The internist stated that Dr. Cruz should have convinced Fernandez of the medication’s benefits, especially after receiving the chest X-ray. Lastly, defense experts argued that Dr. Cruz failed to timely obtain pulmonology and infectious disease consults. The defense experts claimed that Dr. Cruz’s only treatment for Fernandez’s breathing difficulties was to provide an over-the-counter cough medication. The expert concluded that had Fernandez received the anticoagulants from Cruz while at St. Anne’s, she would not have died.

Standard of Care for Orthopedic Surgeons

Additionally, Dr. Jordan asserted that he was not involved in the decision to transfer Mrs. Fernandez to St. Anne’s. He was also not involved in transfer orders, discharge orders, instructions, or prescriptions, which the hospitalist wrote. Dr. Jordan pointed out that the medical records transferred to St. Anne’s from West Kendall Baptist did include Dr. Jordan’s recommendation for continued anticoagulation medication. Dr. Jordan also presented expert evidence that he acted within the standard of care applicable to a consulting orthopedic surgeon. According to the expert evidence, Dr. Jordan was only responsible for the treatment of the ankle fracture. However, he was not responsible for the management of any other condition or Fernandez’s medications. As Dr. Jordan didn’t have privileges at St. Anne’s, Dr. Cruz was responsible for administering anticoagulants and any other medications.

Who Won the Case?

The jury found in favor of the plaintiffs. They found that Dr. Jordan and Baptist Health Medical Group Orthopedics, LC were negligent. As a Fabre defendant, the jury found that Dr. Cruz was 95% at fault. As such, Dr. Jordan was assigned 5% liability. The jury awarded the estate $30 million in noneconomic damages, which after liability apportionment, resulted in a net verdict against Dr. Jordan and Baptist Health Medical Group Orthopedics totaling $1.5 million. The jury also entered a separate costs judgment of $37,500 against the defendants.

Expert Specialties

The plaintiff retained expert witnesses in:

• Orthopedic Surgery
• Pathology

The defendants retained expert witnesses in:

• Internal Medicine
• Orthopedic Surgery

Key Takeaways

The apportionment of damages in the Fernandez case was due to Florida’s rule of pure comparative negligence and how the state apportions damages. In Florida, judgments are entered against each party on the basis of the party’s percentage of fault, not on the basis of joint and several liabilities. In Dr. Jordan’s case, he was able to allocate 95% of the liability to a nonparty—Dr. Cruz had settled with the plaintiff at that time—in order to reduce his own liability. Dr. Jordan effectively argued that the majority of fault was due to Dr. Cruz’s negligence, not his own. As such, the court apportioned the verdict.

The Fernandez case is an example of how rules of comparative or contributory negligence, as well as the apportionment of damages, can ultimately affect the outcome of a case and jury award.