Those injured in a Miami traffic accident or slip and fall in a Florida store often receive medical or chiropractic treatment from a clinic or doctor that “specializes” in accident cases. Usually, that means they work with personal injury lawyers, are willing to wait to receive payment, and are comfortable testifying in court.

Occasionally, if the injury is serious enough, an invasive procedure might be performed after other treatment modalities fail. Our clients have undergone many different kinds of surgical procedures ranging from epidural blocks to multilevel disk fusions. When this happens, one of the classic defense tactics at trial is to argue that the treatment or surgery was unnecessary. The objective is to persuade the jury to shift the blame for the plaintiff’s injuries to the treating physician and away from the defendant.

Some South Florida hit and run car crash injury lawyers, and many of those hurt in Florida accidents, may not be aware that the cost and impairment of any alleged unnecessary surgery or treatment is actually the responsibility of the defendant, who caused the accident in the first place.

Recently, Florida’s Second District Court of Appeal, in the case of Pedro v. Barber, cited one the most important cases in Florida’s personal injury tort law: Stuart v. Hertz Corporation. Ms. Baber was involved in a rear-end car accident. After conservative treatment failed, she sought a consultation with an orthopedic surgeon Dr. Nucci. Dr. Nucci performed surgery to repair a herniated lumbar disco and annular tear. The Pedro’s insurance defense lawyers hired doctors to testify that Ms. Baber had degenerative lower back issues that were not caused by an accident, and any impairment she had was as a result of undergoing Dr. Nucci’s surgery. In fact, they argued that the surgery made her worse and was “unrelated” to the accident.

The court then gave the jury the Stuart jury instruction:

When a person has suffered injuries by reason of the negligence of another and exercise reasonable care in seeking the services of a competent physician, and in following his advice and instructions her injuries are aggravated or increased by the negligence, mistake or lack of skill of such physician, the law regards the negligence of the wrongdoer in causing the original injury as the legal cause of the damages flowing from the subsequent negligence or unskilled treatment.

This allowed Ms. Baber’s lawyer to tell the jury, in closing argument, that if Dr. Nucci’s surgery was unnecessary then the Pedro’s were responsible for it. The jury agreed and ordered that the Pedros were responsible for all of Ms. Baber’s medical expenses from the accident. The Pedros appealed and the verdict was affirmed.

As a Dade County rollover car crash injury lawyer, I hope this case will remind insurance defendants, in injury cases, not to try to place the blame on treating doctors solely to attempt to escape liability. The Stuart case and its progeny are also important to protect doctors who are willing to treat those who are injured in accidents, without fear that they can be portrayed as scapegoats by strategic defense lawyers at trial.

Of course, there are legitimate cases where the injured are further damaged by careless doctors, hospitals, and other healthcare providers. In those particular cases, and when appropriate, those negligent healthcare providers should also be held accountable for the harm they cause, in addition to the initial torfeasor.

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