Thomas Aubin and Matthew Podolnick, Stearns Weaver Miller Weissler Alhadeff & Sitterson. Courtesy photo Thomas Aubin and Matthew Podolnick, Stearns Weaver Miller Weissler Alhadeff & Sitterson. Courtesy photo

A medical malpractice suit levied against corporate entities under the Cleveland Clinic umbrella in the Southern District of Florida has ended favorably for the international health institution.

On April 23, a federal jury returned a verdict finding defendant Cleveland Clinic Florida had not been negligent in its August 2015 treatment of plaintiff Karina Cros Rivas, who had come to the medical care provider complaining of abdominal pain. Shortly afterward on April 29, U.S. District Judge Ursula Ungaro granted a motion for directed verdict entered for the other defendant, Cleveland Clinic Hospital, which contended the plaintiff had failed to present evidence on which a reasonable jury could find the defendant liable for her bodily injury, scarring and other ailments.

The defendants were represented by attorneys with the Stearns Weaver Miller Weissler Alhadeff & Sitterson law firm. The motion for directed verdict was filed by Thomas Aubin and Matthew Podolnick, both shareholders with the firm's Fort Lauderdale office. The motion took great care to note that Cleveland Clinic Florida and Cleveland Clinic Hospital were separate entities, and the emergency room physician who treated the plaintiff, Dr. Craig Black, was not under the employ of Cleveland Clinic Hospital, just its Florida-based counterpart. Ungaro agreed with the filing's assertion that because Cleveland Clinic Hospital “has never employed Dr. Black” and the plaintiff failed to introduce evidence to the contrary, the defendant “is entitled to judgment as a matter of law in its favor.”

“Florida law generally does not consider a hospital liable for care given by an independent, staff physician, like Dr. Black, except in narrowly defined circumstances — circumstances that a plaintiff must clearly allege and prove,” the motion said. “Plaintiff's complaint lumped defendant CCH together with defendant CCF, as though they were the same corporate entity. … She did not present evidence of any acknowledgement by defendant CCH that Dr. Black would act on its behalf, that Dr. Black agreed to that undertaking, or that defendant CCH exercised control of Dr. Black's actions. Instead, the undisputed evidence established that Dr. Black was not employed by defendant CCH — he only held staff privileges there.”

Aubin told the Daily Business Review the plaintiff had visited Black about a possible abscess after receiving cosmetic surgery.

“[The plaintiff] was treated by our emergency room physician, had some studies run and was discharged with instructions to follow up with a primary care surgeon,” the attorney said, adding Rivas had also been given an antibiotic prescription to treat her possible infection. Thirteen days after her visit to the Cleveland Clinic, the plaintiff underwent surgery with the Mercy Hospital emergency department and had her abscess drained. Subsequent medical procedures left Rivas with significant scarring across her stomach.

Read the motion for directed verdict: 

The complaint against the defendants alleged they had failed to use the level of care and treatment commensurate with the plaintiff's condition. Although Rivas also visited South Miami Hospital several times before consulting Black, Aubin said opposing counsel “argued we were the last clear chance to get it right when everyone else had gotten it wrong.” He added all of the plaintiff's hospital visits had ended with her being discharged and receiving specific instructions to follow up with a primary care physician and fill out an antibiotic prescription, which “she never did by her own admission.”

“She didn't follow up with anyone outside of an emergency room,” Aubin said. “There was a fair amount of comparative negligence on her part, although the jury never got to it … because the jury decided our emergency room physician was not negligent.”

One of the plaintiff's attorneys, Miami-based solo practitioner Jeffrey Jacobs, called the outcome of the case “disappointing.”

“[Rivas] thought it was superfluous to have both entities,” he said regarding the distinction between Cleveland Clinic Hospital and Cleveland Clinic Florida.“I guess that they can create separate corporations, and that's not really how the public views it. The public views it they're going to Cleveland Clinic Hospital. Obviously we were disappointed in the verdict itself and … unfortunately, I guess it's a high burden for plaintiffs to meet.”

Jacobs added, “It was disappointing that she'd been there looking for the appropriate treatment, and them sending her home without any treatment and just a prescription for antibiotics. … the jury thought was good enough.”

But defense counsel Aubin and Podolnick both stressed that medical tests had shown the plaintiff's condition was not a cause for urgent concern at the time of her visit to Cleveland Clinic Florida.

“We defended on the standard of care that every test the doctor did confirmed she did not have an emergency condition, that she was stable,” Aubin said. “Her white blood cells were normal, she had no fever, the objective CT evidence came out showing there was no drainable abscess.“

“The idea this was an emerging situation that needs to be treated immediately doesn't hold up,” Podolnick said. And Aubin added that Black's admission that she had not followed the doctor's order to fill a prescription for an antibiotic “didn't help her case.”

 

Case: Karina Cros Rivas v. Cleveland Clinic Florida et al.

Case No.: 0:18-cv-60672-UU

Description: Medical Malpractice

Filing date: April 4, 2018

Verdict date: April 23, 2019

Judge: U.S. District  Judge Ursula Ungaro

Plaintiffs attorneys: Jeffrey Jacobs, The Law Offices of Jeffrey A. Jacobs, Miami; Steven Hunter, Hunter & Lynch, Miami

Defense attorneys: Thomas Aubin and Matt Podolnick, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Fort Lauderdale

Verdict amount: Defense verdict