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The Florida Bar Journal
December, 2017 Volume 91, No. 10

Page 6

I agree that Gooding should be revisited. I also think that the difficulty faced by a malpractice claimant in a Gooding-type case can be addressed by the doctrine of aggravation of a preexisting condition.

A malpractice claimant is not required to prove that lack of timely treatment deprived him or her of a complete cure, e.g., complete remission. The patient need only prove that the untimely treatment caused some injury or damage, i.e., that the untimely treatment deprived him or her of some benefit, e.g., some lessening of the cancer. It is an unlikely case in which the plaintiff’s expert is unable to testify that timely treatment probably would have resulted in at least some benefit to the plaintiff. Once the plaintiff offers proof of some injury (loss of benefit), then he or she is assisted by the aggravation of a preexisting condition doctrine. Once some injury is shown, the issue shifts to the extent of the injury caused by the negligence. Under the law, the plaintiff is required to make a reasonable effort to show an apportionment of the injury between the preexisting condition and the injury caused by the negligence. However, if, as is often the case in a malpractice case, it is impossible to apportion the injury, then the jury is required to award damages for the entire condition. See Fla. Stan. Jury Inst. 501.5a. This is because the difficulty in determining the extent of the injury was caused by the defendant’s negligence in failing to provide the timely treatment.

So, for example, in the case of Monica referred to in the article, if she had offered competent expert evidence that timely treatment would probably have had some beneficial effect, even if it was incomplete or temporary, she would have a valid claim. It seems to me that the expert could testify that the benefit of timely treatment ranged from a temporary reduction of the cancer to complete remission, but that from a medical perspective, it is impossible to tell. If the jury finds that she suffered some injury but it is in fact impossible to tell the extent, it would be required to provide her damages for the entire injury, i.e., the damage caused by the underlying condition as well as that caused by the negligence. Of course, the defendant can offer evidence that timely treatment would have provided no or minimal benefit. But it would be up to the jury to determine whether there was no injury caused by the negligence and if so, whether the injury could be apportioned. Most juries would probably be receptive to the argument that the only reason we can’t know whether the plaintiff would have had a full recovery is because the defendant negligently failed to provide timely treatment.

Edwin J. Bradley, Lithia

[Revised: 11-29-2017]