A small wave of cases has arisen since the development of tPA, a “clot busting” anti-stroke medication which must be given in the ER under strict medical pathways where the patient has no history of subdural hematomas and the onset of the stroke was within three – six hours (depending on whether it is given intravenously or intra-arterially).
These cases are attractive to plaintiffs’ lawyers because the damages are
typically high (the plaintiff is either a stroke victim or dead). However, defense counsel are often emboldened since the liability standards are increased since ER doctors have a higher threshold of liability (recklessness) under Florida Statute 768.13(2)(b)(1).
In St. Joseph’s Hospital v. William and Martha Cox and Eric Castellucci, M.D. and Emergency Medical Associates of Florida, LLC v. William and Martha Cox, the Second District reversed a verdict of “substantial damages” finding lack of causation. Thus, the plaintiff lawyer at trial had convinced a jury of the higher liability standard (reckless, rather than simple negligence) but the expert faltered on causation.
tPA achieved medical recognition after a December 14, 1995 New England Journal of Medicine report on the National Institute of Neurological Disorders and Stroke Recombinant Tissue Plasminogen Activator Stroke Study Group (NINDS study) results were published. In the study, however, 20% of patients recovered from strokes on their own and the timely administration of tPA only increased recovery by 11%. Thus, the study found patients who received tPA stood a 31% chance of a successful outcome.
In the Cox case, plaintiff’s expert Dr. Eddy Futtrell testified that she disregarded the plaintiff’s past history of a subdural hematoma (for case-specific reasons) and she subscribed to the NINDS study result. Defendants’ expert, of course, felt the plaintiff’s history of a subdural hematoma was a contraindicator.
The Panel (Northcutt, Kelly, and Dakan) concluded that Florida follows the “more likely than not” standard of causation which amounts to requiring facts which support a 51% or better probability. If the causation evidence is pure speculation or conjecture, or if the probabilities are even, a directed verdict is required.
Here, since the plaintiff’s expert agreed with the NINDS study that only 31% of patients who received tPA would recover successfully, that did not meet the causation threshold.
Thus, practitioners want to look for medical testimony or evidence which establishes that 51% probability. Plaintiff needed an expert who either distinguished the patient from the study population OR advanced a better statistical outcome based upon the expert’s experience.