Malpractice Claim for Unnecessary Tests Is Independent of Negligence

Medical Malpractice

In the case of Betty Jean Haynes v. William Blackshear, Jr., MD, Case number 2D18-4649 (Fla. 2d DCA July 17, 2020), Florida’s Second DCA held that engaging in unnecessary diagnostic tests is considered an independent cause of action under section 766.111, Fla. Stat. As such, a jury may find a medical provider liable for medical negligence and separately for engaging in unnecessary diagnostic testing under Florida law.

Facts of the Case

This case involves a vascular surgeon who performed a renal vein renin test on a patient. The patient suffered from high blood pressure. The opinion states that Dr. Blackshear recommended a series of increasingly invasive diagnostic tests and that the patient reluctantly underwent the renal vein renin test before complications ensued.

Ms. Haynes filed suit for medical malpractice complaining that Dr. Blackshear provided negligent care and treatment, performed unnecessary tests and procedures, negligently performed an unneccessary angioplasty, failed to advise of the known risks of the procedures, and failed to properly identify and treat the patient’s blocked right renal artery.

The result of all these procedures was that Ms. Haynes was left with only one functioning kidney.

The jury found for Dr. Blackshear and Ms. Haynes appealed because the jury was not given the opportunity to independently find a violation for unnecessary diagnostic testing. Ultimately, the Second DCA held that a claim for unnecessary diagnostic testing per the statute is an independent cause of action.

Claim for Violation of Section 766.111, Florida Statutes

Section 766.111 (entitled “Engaging in unnecessary diagnostic testing; penalties”) states in relevant part that “[n]o health care provider … shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient’s condition.

This case essentially stands for the proposition that section 766.111 creates an independent cause of action for unnecessary diagnostic testing. Therefore, a jury could find that a doctor is not negligent but, in the same verdict, find that the same doctor had engaged in unnecessary diagnostic testing.

This is an important distinction in the law because the trial court lumped both medical malpractice and a violation of section 766.111 in the same question for the jury to answer. Therefore, there was no way in hindsight to determine if the jury would have said yes to one while saying no to the other (we know that it could not be both in this particular case because the jury found in favor of Dr. Blackshear).

Of course, we cannot forget that to have liability for a violation of section 766.111, Fla. Stat. that there must also be damages that were directly caused by the unnecessary testing. While nominal damages may happen, the question in this case is ultimately whether the loss of one functioning kidney is due to an unnecessary test (we cannot answer that question here).

Talk To A Florida Medical Malpractice Attorney About Your Case

Medical malpractice (and related causes of action) require not only a finding of liability but also damages that directly flow from the “tort” or legal wrong that has occurred. If you have a question about whether you have a medical outcome that may be due to medical malpractice in Florida, you should call Russo Law for a free consultation with a medical malpractice attorney.

We can help you determine what the medical issues are and whether your case is legally viable. Call us to schedule your free consultation today. There are no attorney fees or costs unless you have a successful case.

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July 28, 2020