Court: District Court of Appeal of Florida; February 12, 2008; Florida; State Appellate Court
Plaintiffs Sam Sangounchitte and Matilda Sangounchitte secured a substantial verdict against Columbia/JFK Medical Center for negligent credentialing of neurosurgeon Dr. Jacques Farkas, who performed a flawed surgery on Mr. Sangounchitte. The surgical procedure, which involved the use of steel 'Luque' rods, resulted in severe complications, including brain damage and spinal injury, due to the rods migrating into the cerebellar cavity. Dr. Farkas acknowledged that he used the rods off-label, contrary to manufacturer warnings and FDA regulations. The jury awarded damages of $8,511,582 to Mr. Sangounchitte and $2,925,000 to his wife.
On appeal, the hospital contested the sufficiency of evidence supporting the negligent credentialing claim and the qualifications of the plaintiffs' expert witness, Arthur Shorr. Shorr, with an MBA in healthcare administration and experience as a chief operating officer at Cedars Sinai Hospital, testified on the standard of care for hospital credentialing. The hospital argued that Shorr lacked the necessary qualifications under Florida Statutes § 766.102(7) due to his long absence from hospital work and lack of recent experience in credentialing or Florida hospital administration. The court upheld the negligent credentialing finding but reversed the award for lost services and attorney's fees for Mrs. Sangounchitte.
Shorr's lack of experience as a hospital administrator in Florida does not disqualify him as an expert witness, as hospitals must adhere to the Joint Commission on Hospital Accreditation Standards. The court has recognized Shorr as an expert in credentialing, and the determination of his qualifications lies with the trial court, which found no abuse of discretion. Shorr testified that the hospital's bylaws complied with community credentialing standards. When a physician applies for privileges, the medical evaluation committee reviews their training and competence, making recommendations to the board. Recredentialing occurs every two years, allowing the hospital to require reeducation or withdraw privileges.
Shorr indicated that Dr. Farkas had not demonstrated proficiency in the procedures he performed, particularly posterior cervical surgery involving rod insertion. Dr. Farkas admitted to performing the procedure for the first time on the plaintiff and had been granted unrestricted privileges contrary to hospital regulations. While the hospital contended that the plaintiff failed to prove Dr. Farkas's incompetence in general, it neglected the specific issue regarding the improper use of Luque rods, which were unsuitable for cervical spine surgery. An expert neurosurgeon testified that any properly credentialed neurosurgeon would recognize the risks associated with using these rods.
The evidence presented, including expert testimonies, supported the jury's finding that the hospital's negligent credentialing allowed Dr. Farkas to perform the operation. A hospital can be held liable for the negligence of independent physicians if it fails to exercise due care in their selection and retention. However, regarding the plaintiff's wife's derivative claim for lost services, the jury awarded $225,000 for past lost services and $500,000 for future lost services based solely on her testimony and a neighbor's vague testimony about paid assistance. The lack of substantial evidence to support the amounts awarded necessitated a reversal of this portion of the award for a new trial.
In White Const. Co. v. Dupont, the court reversed a prior decision, ordering a new trial due to the lack of relevant evidence supporting the reasonable value of the husband's services. The hospital contested the trial court's award of attorney's fees under section 766.209, Florida Statutes, which mandates voluntary binding arbitration and allows claimants to recover fees if a defendant declines an arbitration offer and the claimant wins at trial. The claimant's request for arbitration was sent 91 days after the notice of intent to litigate, which exceeded the 90-day limit established in section 766.207(2). The claimant argued that "service" should be interpreted as "receipt," but the court clarified that, according to rule 1.080(b), service is deemed complete upon mailing and that the statute differentiates between "service" and "receipt." Consequently, the trial court incorrectly awarded attorney's fees due to the untimeliness of the arbitration offer. The court affirmed the jury's verdict but remanded the $725,000 award for lost services for a new trial and reversed the attorney's fees award. Judges FARMER and GROSS concurred.
