From left, Crane Johnstone, Johnstone Law; Scott P. Schlesinger, Schlesinger Law; and Peter J. Somera and Paul M. Silva, Somera and Silva. Photo: J. Albert Diaz/ALM.

The $15.9 million result of a three-week jury trial was scrapped Wednesday, when the Fourth District Court of Appeal ruled that the trial court hadn't properly instructed jurors in a medical malpractice lawsuit.

The ruling means it's back to zero for Broward plaintiffs lawyers Crane Johnstone, Scott P. Schlesinger, Jonathan Gdanski, Bard D. Rockenbach, Peter J. Somera Jr. and Paul M. Silva, who did not respond to requests for comment by deadline.

Plaintiff Stephanie Hollingsworth sued Dr. Yvonne Sherrer and Holy Cross Hospital Inc. for medical negligence in 2011, alleging they had failed to properly treat her necrotizing vasculitis — a rare bacterial infection that causes blood vessel walls to swell, hindering blood flow. The lawsuit contended the doctor should have quickly given the 26-year-old a drug called Cytoxan, a chemotherapy agent used to kill the cells responsible for the disease.

Instead, the lawsuit claimed Sherrer waited too long, only giving Hollingsworth the Cytoxan after a week. By then, the patient had developed gangrene and had to have part of her left foot and several fingers and toes amputated.

The doctor denied liability, arguing she'd adhered to Florida's informed consent statutes, which require doctors to give patients enough information on potential treatments and procedures.

But that argument didn't make it to trial, as both parties agreed to try the case solely on negligence, according to the opinion. Immediately after trial, however, the plaintiff asked to include an informed consent instruction for jurors. Patient Hollingsworth argued that the evidence supported that claim, but Sherrer objected because the theory and expert witnesses to back it up were missing from the trial.

Broward Circuit Judge John J. Murphy III allowed it. But that was a mistake, according to the Fourth DCA, which found that informed consent and medical negligence are two separate and distinct theories. As there was no related evidence or expert testimony presented, the appellate panel ruled that jurors should never have been instructed on an informed-consent theory.

In October 2017, jurors found Sherrer was at fault. They awarded $10 million for pain and suffering, $5 million for past and future medical expenses and $922,000 for past and future income but found the hospital wasn't to blame.

Defense lawyer Carol Glasgow of Billing, Cochran, Lyles, Mauro & Ramsey in Fort Lauderdale declined to comment. She worked on the case with her law partner John Mauro and Dinah Stein and Mark Hicks of Hicks, Porter, Ebenfeld & Stein in Miami.

'Prejudicial' conduct?

Sherrer also appealed on two other claims, arguing the jury award didn't fit the evidence, and that alleged improper conduct from plaintiff counsel Johnstone warranted a new trial.

Specifically, the defense took issue with the fact that Johnstone had asked for a break, and then returned to tell jurors: “Folks, I appreciate your patience. I've been practicing probably 32, 33 years and I was just overwhelmed with emotion, having represented Stephanie for quite a long time, and I got upset and wanted to take just a moment to take a break, and I appreciate your patience.”

Johnstone later told jurors he was ill, according to the defense's appeal, which labeled the conduct “improper and prejudicial,” suspecting it “had the effect of evoking sympathy for plaintiff and her counsel.”

But the court disagreed, declining to address those claims, but reversed the case for a new trial.

Sitting by designation, Palm Beach Circuit Judge Cymonie S. Rowe wrote the opinion, supported by Fourth DCA Judges Carole Y. Taylor and Spencer D. Levine.

Read the court order:

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